1 of 144 DOCUMENTS 

THE TRUSTEES OF THE METHODIST EPISCOPAL CHURCH IN THE CITY AND PRECINCTS OF BALTIMORE vs. CHARLES C. BROWNE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

39 Md. 160; 1873 Md. LEXIS 88 

December 19, 1873, Decided 

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

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice in the Court of Appeals -- Practice in a case tried before the Circuit Court, without the aid of a Jury.

An action for the obstruction of a right of way claimed by the plaintiff as appurtenant to his land, was tried before the Court without the intervention of a jury. The Court gave judgment for the plaintiff and the defendant appealed. No bill of exceptions was sent up with the record, nor was there anything in the transcript to show that any exception was taken in the Circuit Court to the rulings there made upon any matter of law, or any agreement or statement of facts, from which the Court of Appeals could ascertain the points or questions of law raised and decided in the Court below. HELD:

That there was nothing upon which error could be assigned, no question presented for review by the Court, and the judgment was affirmed.

Where a case is tried before the Court, without the intervention of a jury, exceptions may be taken to the rulings of the Court made in the progress of the trial, and if duly taken the rulings may be reviewed in the Court of Appeals, provided the questions are properly presented by a bill of exceptions; and when the finding is special, the review may also extend to the determination of the question, whether the facts found are sufficient to support the judgment.

The opinion of the Court below, rendered in a case tried before it, without the aid of a jury, is no part of the record, and without some bill of exceptions or other aid, it is not a subject-matter for review in the Court of Appeals.  

COUNSEL:
Fred. T. Baker and John M. Carter, for the appellant.

Robert F. Brent and Michael A. Mullin, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*161]  BARTOL, C. J., delivered the opinion of the Court.
This is an action instituted by the appellee for an obstruction of a right of way claimed by him, as appurtenant to his land. The case was tried before the Circuit Court, without the intervention of a jury, and the appeal is from its judgment rendered in favor of the plaintiff. No bill of exceptions has been sent up with the record; nor is there anything in the transcript to show that any exception was taken in the Circuit Court to the rulings there made upon any matter of law, or any agreement or statement of facts, from which this Court can ascertain the points or questions of law raised and decided in the Court below. There is nothing therefore upon which error can be assigned, no question presented for our review.
The transcript contains the opinion delivered by [**2]  the Judges of the Circuit Court, setting forth the grounds and reasons for their judgment; and the appellants' counsel has asked us to accept the statement therein of what appeared in proof, as a sufficient finding of the facts by the Court below to raise the questions of law decided by them, and enable us to review their judgment thereon. But as was said by the Supreme Court in the Ins. Co. vs. Tweed, 7 Wall. 44, "with no aid outside the record, we cannot do this." Such a practice was condemned by this Court in Tinges vs. Moale, 25 Md. 480, where it was said in a case like this, of submission to the Court without 

 [*162]  the aid of a jury, "more care or precision should be adopted in raising the questions of law for the decision of the Court below; that parties may not lose the benefit of appeal, or this Court be left to gather them from the opinion of the Court below, or the course of the trial there." To do this, would often be impracticable as it certainly is in this case.
The opinion of the Court below, does not purport to state fully and with precision all the facts found in the case, and there is no agreement of counsel to that effect;  [**3]  such an agreement would have secured the benefit of appeal, as was done in The Ins. Co. vs. Tweed before cited. In Norris vs. Jackson, 9 Wall. 125; Flanders vs. Tweed, 9 Wall. 425; Kearney vs. Case, 12 Wall. 275, and Miller vs. Life Ins. Co. 12 Wall. 285, the Supreme Court lay down the rules necessary to be observed, in order to have the judgment of an inferior Court reviewed, where the trial below, upon both law and fact has been before the Court, without the intervention of a jury as prescribed by Act of Congress of March 3rd, 1865. The same rules may very well be applied under our practice to a case of this kind. In the case last cited, 12 Wall. 285, 295, the Court say, "Exceptions may be taken to the rulings of the Court made in the progress of the trial, and if duly taken, the rulings may be reviewed here, provided the questions are properly presented by a bill of exceptions; and when the finding is special, the review may also extend to the determination of the question whether the facts found are sufficient to support the judgment."
The appeals in cases of this kind which have come before this [**4]  Court, are Tinges vs. Moale, 25 Md. 480; Thomas vs. Hunter, 29 Md. 406; Williams vs. Higgins, 30 Md. 404; and Hooper vs. Turnpike Co. 34 Md. 521. In all of them, the questions of law decided below were presented by bills of exceptions. No doubt, if the facts be specially found by the Court below, and properly 

 [*163]  certified, its judgment thereon might be reviewed on appeal. The case would then stand as on special verdict or case stated. But this has not been done in this case, and so far as the judgment rests upon the facts deduced from the testimony offered in the Court below, there is no legal question before us to be reviewed.
So far as the judgment appears to have been based upon the construction of the Acts of Assembly of 1844, ch. 126, 1849, ch. 323, and 1852, ch. 278, no question appears to have been raised in the Court below, or any exception taken thereon. No question thereon is presented for our decision. The opinion of the Court is no part of the record, and without some bill of exceptions or other aid it is not a subject-matter for review.
If the case were properly before us, we could have no hesitation [**5]  in saying that we agree with the Circuit Court in the construction they seem to have put upon the Acts of 1849 and 1852.
Those Acts in no manner affected the pre-existing right of way belonging to the appellee, and which had been before opened and used by him and those under whom he claimed title, and conferred no right upon the appellants to close or obstruct it.
Judgment affirmed. 

2 of 144 DOCUMENTS 

THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY vs. ALBERT CONSTABLE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

39 Md. 149; 1873 Md. LEXIS 87 

December 18, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Pleading -- Joinder of Counts -- Tort -- Proximate Cause.

In an action against a railroad company the declaration contained two counts. The first charged that the defendant, by its agents, so carelessly and negligently drove and conducted its locomotives and cars, that sparks and fire therefrom were dropped, blown, cast, and spread by burning, in and upon plaintiffs' fences, trees, timber, etc., whereby the same were set fire to, burned and destroyed. The second averred in substance, that the mother of the plaintiffs, being seized of certain land, did, in 1862, by her deed, grant to the defendant a right of way through the same, subject to the condition that it should make and keep in repair substantial fences between the railroad and her adjoining lands; under which deed the defendant entered into and continued in the enjoyment of the said right of way, whereby it became and was its duty to perform all the conditions in said deed; that the mother of the plaintiffs died in 1871, leaving them her sole heirs-at-law and seized of the same land, but that, since that time, the defendant, in neglect of its duty, had suffered said fences to be out of repair, by reason whereof plaintiffs' land suffered from inroads of cattle, and their crops were destroyed, etc., whereby they sustained damage. Demurrer to this declaration, on the ground of misjoinder of counts, which was overruled, and, on appeal, it was HELD:

That both counts were in tort, and so properly joined.

Where the law imposes upon a party an obligation which he neglects to perform, whereby damage results to another, the party injured may bring an action on the case founded in tort.

In an action against a railroad company, the defendant proved that a fire, for which damages were claimed, began on a lot owned by one H., immediately adjoining the railroad, and covered with broom-sedge and dry grass; that the fire burned across this lot, about one hundred and fifty yards, to the land of the plaintiffs, where it encountered a fence and dry grass, and, spreading from these, destroyed certain young timber, fences, and fence-rails on said land. HELD:

1st. That the fact that the fire was first communicated to the material on the land of the adjacent proprietor, H., did not affect the defendant's responsibility to the plaintiffs.

2nd. That the fire injured the plaintiffs' property in its natural and direct course, and by naturally and gradually spreading from the place where it began, without any intervening force or power, and the injury was, therefore, its proximate effect.  

COUNSEL:
William J. Jones, and Alexander Evans, for the appellant.

By the Common Law, if a servant kept his master's fire negligently, so that his neighbor's house was burned down thereby, an action lay against the master, because this negligence happened in his service. 1 Black. Comm., 431.

The Common Law is in force in this State, and it has for a maxim: "Causa proxima et non remota spectatur." If this were not the case, every individual would be responsible for the remotest consequences of any negligent act of an agent or servant. That in Maryland the remedy does not extend beyond the person primarily injured, is sufficiently shown by the fact that there have been no actions based upon the contrary theory and hypothesis, though the occasion has frequently arisen, particularly in towns and cities. "What never has been," says Littleton, "never ought to be."

The appellants believe that no case can be found which, upon proper examination, will controvert the principle here laid down, which they believe to be the only legal, just and true principle, and [**2]  that to hold the contrary would be more detrimental to individuals than to incorporated companies.

Any case seemingly adverse will be found to be decided under special laws, or, in one or two States, upon the ground of insurable interest.

The case of Scott vs. Shepherd, 2 Wm. Blackstone, 892, is "a question of pleading only, not a question of right." See the remarks of THOMPSON, C. J., in Penna. R. R. Co. vs. Kerr, 62 Penn., 365; and of HUNT, J., in Ryan vs. N. Y. Central R. R., 35 N. Y., 213. See also Coster vs. The Mayor, 43 N. Y., 399; Dale vs. Grant, 5 Vroom, 142; Adams vs. Lancashire and Yorkshire R. R. Co., 4 C. P., 739, (Law Reps.)

The first count in the plaintiffs' declaration is an action upon the case in tort.

The second count is an action of covenant upon a deed, and these two actions cannot be joined. Stirling vs. Garritee, 18 Md., 469.

Actions in form ex delicto cannot be joined with those ex contractu. 1 Chitty's Pleading, 201.

Henry W. Archer, for the appellees.

There is clearly no misjoinder of counts in the declaration. They are both manifestly in case. They both charge upon the appellant neglect of duty. And although in the one the [**3]  alleged neglect is of a duty imposed by law, and in the other of a duty imposed by the condition in the deed under which the company held its railroad track, they are both, in form and substance, actions on the case for negligence. In the first count it is negligence in the manner of doing what by its charter it had a right to do. In the second, it is negligence in omitting to comply with the conditions upon which it acquired and held its right of way; and it is impossible to comprehend why two such counts cannot properly be joined in the same action. 1 Chitty's Pleading, 131, 135, (margin); Platt on Covenants, 10 to 18; Burnett vs. Lynch, 12 Eng. C. L., 331, 336.

The Court below were right in rejecting the prayer offered by the appellant.

The question of negligence, and whether such negligence was the proximate or remote cause of the injury, are questions of fact which properly belong to the jury.

There is nothing in the prayer that would authorize the Court to say, as a matter of law, that the fire was communicated to the property of the plaintiffs, "without any negligence on the part of the defendant which contributed directly to the injury." The remoteness of the [**4]  cause, in the legal meaning of the term, is not determined by any of the facts enumerated in the prayer.

They were properly left to the jury, who were to determine from all the facts and circumstances, whether the injury to the plaintiffs was or was not the natural consequence of the defendant's negligence. Piggot vs. the Eastern Counties Railway Co., 54 Eng. C. L., 229; Smith vs. London and S. W. Railway Co., 6 Com. Pleas, 14, 20, (Law Rep.); Wellington vs. Downer Kerosene Co., 104 Mass., 64; Boston & Albany R. R. Co. vs. Shanly, (Mass.,) Am'n Law Reg., Augt., 1873, p. 500; Fairbanks vs. Kerr, 70 Penn., 86; Westchester & Phila. R. R. Co. vs. McElwee, 67 Penn., 311; B. & O. R. R. Co. vs. Fitzpatrick, 35 Md., 44, 46; B. & O. R. R. Co. vs. Dougherty, 36 Md., 377.  

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

OPINIONBY:
MILLER 

OPINION:

 [*153]  MILLER, J., delivered the opinion of the Court.
The first subject of review in this case, is the judgment overruling the demurrer to the declaration. The ground of demurrer is a misjoinder of counts. The declaration contains two counts, of which the first charges that the defendant by its agents and servants so carelessly [**5]  and negligently drove and conducted its locomotives and cars, that sparks and fire therefrom were dropped, blown, cast and spread by burning in and upon the plaintiffs' fences, trees, timber, grass, wood and rails, and thereby set fire to, burned, consumed, injured and destroyed the same. This is unquestionably a count in case founded in tort. Whether the second is of the same character, so as to admit of being joined with the first, is the question now to be determined. The appellant's counsel insist that while the first count is in tort, the second is in contract, and they invoke the familiar rule of pleading that actions in form ex delicto, cannot be joined with those ex contractu, whilst the appellees contend that both are in form and substance, counts in case for negligence, and were properly joined in the same action. This requires us to examine the second count and determine its true character.
It avers in substance that the mother of the plaintiffs, being seized of a certain close and farm, did, on the 11th of August, 1862, make and deliver her deed, under her hand and seal, to the defendants, and did thereby grant to them for the purpose of [**6]  making and using their railroad, the right of way through her lands described in the deed, but subject to the conditions and obligations on their part, to make and keep in repair good and substantial fences between said railroad and her adjoining lands; that by virtue of this deed, the defendants entered into the enjoyment of the right of way through the premises therein mentioned, and have since continued in possession and enjoyment thereof: that they fully accepted the 

 [*154]  lands, rights, privileges and ways so granted by said deed, and placed the same upon record, and have used, and still continue to use the right of way so granted for the purpose of their railroad; whereupon it then and there became, and was the duty of the defendants to perform all and singular the covenants and conditions in said deed contained, for and during the time they should remain possessed, and in the actual use and occupancy of the said right of way and land mentioned in said deed: that on the 24th of July, 1871, their said mother died, leaving the plaintiffs, her sole heirs at-law, who ever since her death have been seized and possessed of the land and all reversions therein described in [**7]  said deed, and through which the defendants have built their said railroad; nevertheless the plaintiffs say that the defendants, not regarding their said duty in that behalf, but continuing to injure the plaintiffs in this behalf, did not, nor would after the time the plaintiffs became seized and possessed of the said close and premises, during the time the defendants remained and continued possessed of the aforesaid right of way, using the same and occupying the said land for their railroad, make and keep in repair good and substantial fences between said railroad and the adjoining lands of the plaintiffs mentioned in said deed of their said mother, but suffered and permitted the said fences to be and remain out of repair for a long space of time, to wit, from the said 24th day of July, 1871, hitherto, by reason whereof the plaintiffs' land has suffered from the inroads of cattle, and their crops have been destroyed, and the plaintiffs' cattle have been enabled to escape from their enclosure to the great damage of said plaintiffs, and the plaintiffs have been unable to cultivate and pasture their lands for want of the fences which the defendants ought to have built; wherefore the [**8]  plaintiffs say they have sustained damages to the value of $ 5000, and therefore they bring their suit.

 [*155]  The question is not whether covenant or any other form of action ex contractu could have been brought by the plaintiffs against the defendants for breach of the conditions of this deed, but whether they can maintain an action on the case founded in tort for neglect of the duty and obligation to make and keep in repair these fences and consequent damage, and whether this is a count of that nature. Both of these questions would seem to be answered in the affirmative by the opinions of all the Judges in Burnett vs. Lynch, 5 Barn. & Cress. 589. In that case a lessee under a lease containing covenants on his part to pay the rent, paint the premises every five years and keep the same in good repair, assigned by deed-poll his interest in the term to another, subject to the payment of the rent and the performance of the covenants contained in the lease. The assignee took possession and held the premises for a time under this assignment. The lessor sued the executors of the lessee for breaches of the covenant committed during the time the [**9]  assignee remained in possession, and recovered damages, which the executors were compelled to pay. The latter then brought an action upon the case, founded in tort against the assignee of their testator, for having neglected to perform the covenants of the lease during the time he continued assignee, whereby the plaintiffs had sustained damage, and upon motion in arrest of judgment, it was held the action was well brought. All the Judges concurred in opinion that no matter whether covenant or assumpsit could have been sustained, the defendant was liable in the form of action adopted. BAILEY, J., says, "it is not necessary to decide whether assumpsit or covenant will lie; but I have no difficulty in saying, that an action upon the case founded upon the tort will lie, on this ground, that from the facts stated in this declaration the law raises a duty in the defendant to perform the covenants, that there has been a breach of that duty, and that 

 [*156]  damage has accrued to the plaintiffs in consequence of that breach of duty." So LITTLEDALE, J., in his judgment, says, "But it is said that the plaintiff ought to have brought assumpsit, that being the form of action [**10]  best adapted to his case. Assumpsit lies where a party claims damages in consequence of a breach of promise not under seal. That promise may be either express or it may be implied from a legal obligation to do a particular act. Where there is an express promise and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort, is the more proper form of action, in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach. For that is the most accurate description of the real cause of action; and that form of action in which the real cause of action is most accurately described, is the best adapted to every case. * * A breach of duty in the defendant,  [**11]  and a damage resulting therefrom to the plaintiffs is a proper subject for an action on the case if tort."
The averments of this second count are substantially the same, and, in the material parts, identical with those of the declaration in the case just referred to. There was here no express promise by the defendants, the railroad company, to make and keep in repair these fences. They did not sign the deed, and their obligation to perform this condition of it arose from the facts that they accepted the grant, and used and enjoyed the right of way under 

 [*157]  and subject to the conditions imposed by the grantor. From these facts, the law imposed upon them the obligation to do the acts which they have neglected to perform, whereby damage has resulted to the plaintiffs. This count sets out the facts from which this legal obligation arose, the obligation, the breach or neglect to perform it, and the resulting damage; and this, according to the authority referred to, makes it an action on the case founded in tort. We have not found, as intimated in the brief of the appellants' counsel, that the authority of the case of Burnett vs. Lynch on this point has been overruled,  [**12]  shaken or questioned by any subsequent decision of the English Courts. On the contrary, we find that the judgment of LITTLEDALE, J., therein, is quoted and adopted as a correct statement of the law on this subject in the last edition of Chitty on Pleading, vol. 1, page 135.
Such being the nature and character of this second count, there is no difficulty in joining it with the first. They are both counts in tort, may be met by the same plea and followed by the same judgment, and whenever the same plea may be pleaded, and the same judgment given on two counts, they may be joined in the same declaration. Williams vs. Bramble, 2 Md. 313. The demurrer to the declaration was therefore properly overruled.
The sole remaining question in the case arises upon the refusal of the Court to grant a prayer offered by the defendants. They proved that the fire for which damages are claimed in the first count of the declaration, commenced on a lot owned by one Heckart, immediately adjoining the railroad, that this lot was covered with broom-sedge and dried grass, that the fire burned across this lot for a distance of one hundred and fifty yards in an easterly direction [**13]  to the land of the plaintiffs, that there it encountered plaintiffs' fence and dry grass on their land, and catching to these, spread into the land of 

 [*158]  the plaintiffs, and there destroyed certain young locust and chestnut timber growing on said land, and also certain fences and fence-rails. They then asked the Court to instruct the jury, that if they believe from the evidence, that the fire complained of was communicated to weeds and grass on the land of Mr. Heckart, and burned about one hundred and fifty yards across said lands in the grass there existing, and then caught to plaintiffs' fence and leaves, grass and weeds on their land, at the fence, the boundary between their land and that of Mr. Heckart, and thence spread and burned into the plaintiffs' woods, that then the plaintiffs cannot recover in this action, provided the jury shall believe that the fire was not first communicated by defendants to the plaintiffs' woods. This instruction the Court refused to give, and to this rule the defendants excepted.
In the case of the Annapolis and Elkridge Railroad Co. vs. Gantt, ante p. 115, this Court has considered the question here presented. That case was twice most [**14]  ably and elaborately argued, once orally at bar, and then on written notes under an order for re-argument. All the authorities bearing upon the subject, were cited and earnestly pressed upon the attention of the Court, and received a most careful consideration. It would be useless to repeat here the views and conclusions so recently expressed and arrived at in that case. There the fire commenced on the track of the road, in some dry grass, at the end of the cross-ties, and spread thence up the adjacent bank, through bark, old stumps and litter, over the land condemned for the defendant's road, and thence to the plaintiff's wood and timber, situated a part of it, within fifty feet of the track, and extending to the distance of about two hundred feet. It was there insisted, that for such injury, the company was not liable, because it was the remote and not the proximate consequence of their negligence. The Court however, determined the 

 [*159]  question against the Company. The present case falls directly within the reasoning of that decision. The fact that the fire here was communicated first, to the broom-sedge and dried grass on the land of the adjacent proprietor, and [**15]  spread thence in the manner stated, over his lot to the adjoining field and land of the plaintiffs makes no difference in the application of the principles adopted in that case. The responsibility for injuries resulting from such fires, is not confined by law or by the provisions of the Code, to cases where the proprietors of lands which lie immediately adjacent to the railroad track suffer. Adjacent ownership has nothing to do with the question, for it can neither extend nor limit the defendant's responsibility. The case presented by the defendant's prayer, has nothing in it tending to show the injury inflicted was a remote, incidental, or exceptional, and not a near and natural consequence of the company's negligence. The fire destroyed and injured the plaintiffs' property in its natural and direct course, and by naturally and gradually spreading from the place where it commenced, without any intervening force or power to stand as the cause of the misfortune, and the injury suffered was, therefore, its proximate effect. The only authority in addition to those considered in Gantt's Case, to which we shall refer, is that of Higgins vs. Dewey, 107 Mass. 494. [**16]  
There was no error in the rejection of this prayer, and the judgment must be affirmed.
Judgment affirmed. 

3 of 144 DOCUMENTS 

ANNAPOLIS AND ELKRIDGE RAILROAD COMPANY vs. JOHN M. GANTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

39 Md. 115; 1873 Md. LEXIS 85 

December 17, 1873, Decided 

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

This was an action brought on the 13th of April, 1872, by the appellee to recover damages for the destruction of certain cord-wood and growing timber, by fire occasioned by sparks and cinders emitted from a locomotive of the appellant. The defendant pleaded; 1st. Not guilty. 2nd. That the plaintiff was not seized of the land on which he alleges that the cord-wood and woods were destroyed by the defendant. 3rd. That the plaintiff was not the owner of the cord-wood and woods which he alleges in his declaration were destroyed. 4th. That the sparks and cinders from the locomotive of the defendant did not set fire to the plaintiff's premises, destroying his cord-wood and woods, as alleged in his declaration. 5th. Limitations. Issue was joined on these pleas.

First Exception.--Stated in the opinion of the Court.

Second Exception.--The plaintiff proved by John Bryan that he lived about two hundred yards from Gantt's land. It was in April, 1869, while in his garden at work, he saw the burden train of the defendant go up the road. In about ten minutes he saw smoke and hastened to the place, and saw fire burning in some sedge [**2]  near the cross-ties of the railroad, about one foot off, and extending to a gulley where there was plenty of wood cut. The fire destroyed cord-wood and young chestnut timber where the wood had been cut out, of which he gave his estimate to the jury. There were many persons fighting the fire. Witness got there in fifteen or twenty minutes after seeing the smoke. He could see the track from his house, and saw no person passing on the track before or after the fire. The witness then said, in answer to a question by the plaintiff's counsel, that he saw the trains every day; that within a week of the time of the fire in question, he had observed the engines of the defendant throwing out sparks of pretty good size, capable of setting fire to anything as dry as it was then, and had frequently run after them and put out fires within that time, but he could not say that he had ever seen such sparks from the locomotive "Annapolis," as he did not notice to see what engines were drawing the trains. The witness then further stated, in reply to questions on the part of the plaintiff, that he had seen coals of fire on the railroad track after the defendant's engines had passed, as large as a pullet's [**3]  egg, within a week before this fire; that he did not see them dropping from the engines--only saw them after they had passed; but he could not say he had ever seen any such after the "Annapolis" had passed, as he did not notice the particular engines as they passed. (The plaintiff's counsel announcing that the object of this last offer, as to coals, was to shew, in connection with other proof in regard to ash pans, that the engines of the defendant, or some of them, had defective ash-pans.) The defendant's counsel objected to the said questions and answers as to the sparks and fires caused by them, and as to the coals of fire above specified; but the Court overruled the objection, and the questions were accordingly put and answered as aforesaid; to this ruling of the Court the defendant excepted.

Third Exception.--The plaintiff having rested his case, the defendant to sustain the issues on its part joined, proved by John S Sewell, that he was the engineer of the freight train which went up from Annapolis on the morning of the fire on the plaintiff's land; that it was in the first week of April; that the locomotive "Annapolis" was drawing the freight train; and that the said locomotive [**4]  at the time, was in perfect order, properly constructed with suitable fixtures for preventing injuries by fire, and provided with a smoke-stack and spark-arrester, made by Baldwin & Company, of Philadelphia, of the most approved known pattern then in use for wood-burning engines--the spark-arrester being provided with number eight West iron guage; that on the day in question the ash-pan of the said engine was in perfect order, and the engine throughout was in thorough condition; that he had a competent fireman on board, and himself had been an engineer for thirteen years, and the said locomotive, at the time, was driven with the utmost care and diligence; that when the freight train came down the road towards Annapolis, after one o'clock, he saw cordwood burning near the road; that he had drawn a load of hay, in open cars, behind this engine, without injury, and that the "Annapolis" emitted no sparks which would be likely to cause fires along the road, but was remarkably free from such imperfections; that the ash-pan was not opened upon the road that day, and that no coals could fall out of an ash-pan when the engine was running, unless the pan was defective. When the ash-pan is in [**5]  good order coals cannot fall out. He saw no sparks flying, and would have seen them if there had been any. He knew of no better smoke-stack than the Baldwin, unless it be the Bradley, one of which has been used by the company since eighteen hundred and fifty-four.

And the defendant further proved by John Beall, that he was the machinist of the company at the time of the fire; that the defendant had then in use four engines, and that the engine "Annapolis," at that time, was in thorough order; that it was his business to examine the engines particularly, and that he examined the "Annapolis;" that the ash-pan was close and in good order, as also the smoke-stack and spark-catcher; that the said spark-catcher and ash-pan were, at the time of the fire, suitable fixtures for preventing injury by fire, and of approved design, and in thorough order.

This witness also stated, on cross-examination, that he had known the cars to take fire several times when the Baldwin arrangement was in use, supposed to be from the sparks; that catchers are liable to choke; it is the water from the steam that chokes them. Wood-burners will choke sooner than coal-burners.

After further testimony [**6]  by the defendant, the plaintiff proved by Messrs. Linthicum and Cole, who testified that they had a long familiarity with locomotives, that locomotives that left coals upon the track when running, could not be in proper condition, and that the smoke stack of a wood engine, properly constructed, with proper spark catcher and properly managed, would not ordinarily emit sparks that would live twenty feet from the top of the stack, but that every locomotive would emit some sparks. The plaintiff then asked each of the witnesses whether in his opinion, an engine which habitually threw out sparks, capable of setting fire to any combustible material along the line of the road, could be in a proper condition? The defendant objected to the question, upon the ground that there was no proof that its engines, at the time, habitually threw out such sparks; and also because there was no proof that the locomotive "Annapolis" ever threw out such sparks. The Court overruled the objection, and allowed the question, which was answered in the negative. The defendant excepted.

Fourth Exception.--The plaintiff offered the five following prayers:

1. If the jury believe from the evidence that the [**7]  plaintiff's property was damaged by fire communicated from the defendant's engine, then they must find for the plaintiff, unless they further find that the injury complained of was committed without any negligence on the part of the defendant or its agents.

2. If the jury believe from the evidence that the plaintiff's property was damaged by fire communicated from the defendant's engine, then such fire is prima facie evidence of negligence on the part of the defendant.

3. If the jury believe that the fire originated from the defendant's engine, to exonerate the defendant from negligence, they must find that within a reasonable time before the fire in question, the defendant made a thorough examination of the engine, smoke-stack, spark-arrester and ash-pan by skilful and qualified mechanics in the branch of business, and that the same were then in sound and good condition, and so continued up to the time of the fire, so far as could be discovered.

4. If the jury believe from the evidence that the defendants ran engines upon their road, which, at the time of the fire complained of, habitually scattered fire from the ash-pans or smoke-stacks to such an extent as to endanger [**8]  combustible material along the line of the road, it is a fact from which they may find negligence on the part of the defendants.

5. If the jury find the facts stated in the plaintiff's first prayer, he is not prevented from recovering, although the jury may find that before the time his property is alleged to have been destroyed, he had mortgaged the land to A. Randall, Esq.; if they also find that he was left in possession by the mortgagee, and that the time for payment of the debt has not expired, and that he purchased the land for the purpose of cutting the wood and timber growing thereon at the time.

And the defendant offered the seven following prayers:

1. That unless the jury shall believe from the evidence that the injuries complained of in the declaration, occurred within three years next before the commencement of this suit, the plaintiff is not entitled to recover.

2. That the plaintiff is not entitled to recover in this action in respect of the standing wood and timber spoken of in the declaration, because the legal title in the land on which the same was growing was not in the plaintiff when the fire took place, and has not been in him since.

3.  [**9]  That the plaintiff is not entitled to recover in this action, because the legal title in the land on which the wood and timber was then growing, and from which the cord-wood was cut, was not in the plaintiff at the time the said cord-wood was cut, nor at the time of the fire, nor since.

4. That if the jury believe the plaintiff contributed in any way to the injury complained of, by the want of reasonable care and prudence in removing the chips and similar combustible or inflammable materials which he had near the defendant's track, then the plaintiff is not entitled to recover.

5. That the plaintiff is not entitled to recover in this action, although the jury may believe the fire was occasioned by the locomotive of the defendant; if the jury believe the defendant's engine, which occasioned such fire, was, at the time, properly constructed, in good order, with suitable fixtures for preventing injuries by fire, with a spark-catcher, such as was known by the company to have been used and approved of, and best calculated to prevent the emission of sparks, while allowing sufficient draft to create steam enough to propel the engine at proper speed; and that the said locomotive [**10]  was used at the time on the road with such care and diligence as would be exercised by skilful, prudent and discreet persons having control of the engine, regarding their duty to the company and having a proper desire to avoid injuring property along the road.

6. That the burden of showing that the injury complained of was committed without any negligence on the part of the defendant, is not upon the defendant under the present form of action.

7. If the jury shall find from the evidence, that the fire commenced within the limits condemned for the use of the defendant, upon or very near the track of the defendant's railroad, in dry grass or sedge growing near the end of the cross-ties, and that it spread thence to some wood or rubbish or chips lying within the defendant's said boundaries, and that from these burning materials the fire then caught to the wood on the plaintiff's land, then the plaintiff is not entitled to recover, although the jury may believe that the first named fire was communicated by the defendant's engine, unless the jury shall find that said first fire was caused by gross negligence on the part of the defendant.

The Court, (HAMMOND, J.,) rejected [**11]  the plaintiff's first prayer, and granted, in lieu thereof, the following:

"If the jury believe from the evidence that the plaintiff's property was damaged by fire communicated from the defendant's engine, then they must find for the plaintiff upon the issues joined on the first and fourth pleas, unless they find that the injury complained of was committed without any negligence on the part of the defendant or its agents, or unless they shall believe from the evidence that the plaintiff contributed to the injury complained of in the manner stated in the defendant's fourth prayer as granted by the Court."

And granted his second and fourth prayers, and rejected his third and fifth, and in lieu of the latter, granted the following:

"If the jury find for the plaintiff under his first prayer, then he is not precluded from recovering, although the jury may find that before the time his property is alleged to have been injured, he had mortgaged the land to A. Randall, Esq., if they shall find that he was left in possession thereof from January, 1868, up to and at the time of the injury."

And the Court granted the first and fifth prayers of the defendant, and rejected its [**12]  second, third, fourth, sixth and seventh, and granted, in lieu of its fourth prayer, the following:

"If the jury believe that the plaintiff contributed in any way to the injury complained of, by want of reasonable care and prudence in not removing chips and similar combustible or inflammable materials, which they shall find he had placed near the track of the defendant's road, then the plaintiff is not entitled to recover."

To the ruling of the Court, in rejecting the said prayers of the defendant, and in granting the second and fourth prayers of the plaintiff, and the said substituted prayers for his first and fifth prayers, the defendant excepted.

The jury rendered a verdict for the plaintiff for $ 871.20, and judgment was entered accordingly. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence in an action against a Railroad Company for Injury by Fire occasioned by one of its Engines -- Onus Probandi -- Who entitled to sue under Art. 77 of the Code for Injury by Fire occasioned by the Engines of a Railroad Company -- Proximate Cause -- Rule as to the Liability of Railroad Companies under the Code for Injury by Fire occasioned by their Engines or carriages -- Province of the Jury -- Practice in the Court of Appeals.

In an action against a railroad company for so negligently managing one of its engines, that certain cord-wood and growing timber of the plaintiff whose land adjoined the road, was destroyed by fire emitted from the engine, the plaintiff, for the purpose of proving that the fire in question was occasioned by the defendant's engine, and as tending to prove negligence on the part of the defendant in the construction and management of its engines, may show that within a week before the fire in question, the engines of the defendant in passing had scattered large sparks which were capable of setting fire to combustible articles along the road, and that frequent fires, occasioned by such sparks, had been put out within that time.

Under Article 77 of the Code, in an action against a railroad company for injury done the property of the plaintiff by fire occasioned by the engines of the defendant, it is not incumbent on the plaintiff to prove that the fire was caused by the defendant's negligence; but the onus is cast on the defendant to show affirmatively that it has used reasonable care to prevent the causing of injury by fire from its engines.

Where cord-wood and growing timber have been destroyed by fire communicated from the engine of a railroad company, the owner of the land where the fire occurred, being in possession at the time, is entitled under section 2 of Article 77 of the Code, to sue the railroad company for the injury done his property by the fire, although at the time of its occurrence, the land was encumbered with a mortgage.

In an action under the Code, against a railroad company for injury done to certain cord-wood and growing timber of the plaintiff, by fire occasioned by the engine of the defendant, the fact that the fire began on the track of the railroad and spread thence to the plaintiff's land adjoining, causing the injury to his property, will not avoid the liability of the railroad company, the evidence showing that the injury was the direct consequence of the fire occasioned by the defendant's engine.

The safe rule as to the liability of railroad companies under Article 77 of the Code, for damages by fire occasioned by their engines or carriages, is that when their liability arises, it extends to all the near and natural consequences of their wrongful act, and not to those which are remote, incidental or exceptional.

In a case where the fire has not been communicated directly to the plaintiff's property by sparks or cinders from the locomotive of the defendant; as where it has spread from its first beginning, and thus been communicated indirectly to the plaintiff's property, it is a question proper to be submitted to the jury to determine from all the facts of the case, whether the injury complained of is the natural consequence of the defendant's negligence, or whether it has been caused by "some intervening force or power which stands naturally as the cause of the misfortune."

An objection to a prayer, which was granted, "that there was no evidence of the facts therein stated," not having been made in the Court below, will not be entertained in the Court of Appeals.  

COUNSEL:
Alex. B. Hagner, for the appellant.

As to the first exception it may be observed that the declaration specially averred, that one of the defendant's locomotives was so negligently managed, on a particular day named, that the sparks and cinders from said locomotive, set fire to the plaintiff's premises, &c. This specific averment was explicitly denied by the fourth plea, and [**13]  the plaintiff himself, in his testimony, expressly proves, that if the fire was caused at all by any locomotive of the company, it was caused by the locomotive "Annapolis," which was drawing the freight train towards the Junction, on the day designated. The issue then before the jury was, whether the defendant on that occasion, "so negligently managed" the locomotive "Annapolis," that the sparks and cinders from that locomotive, set fire to the plaintiff's premises. There was no proof that the "Annapolis," had thrown out such sparks on the occasion referred to, or any other. But that other engines, on other occasions, had set fire to leaves on other people's property, was surely irrelevant to the issue. Balto. and Susq. R. R. vs. Woodruff, 4 Md., 254; Robinson vs. Fitchburg, R. R. Co., 7 Gray, 94; Sheldon vs. Hudson River R. R. Co., 29 Barb., 228; Michigan Cent. R. R. Co. vs. Anderson, 20 Mich., 254; F. and B. Turnpike Co. vs. P. and T. Railroad Co., 54 Penn., 349; Moore vs. The Bank of the Metropolis, 13 Peters, 310.

The second exception, in addition to the point raised by the first exception, presents a further offer, as to a witness seeing coals of fire on the track, after [**14]  the defendant's engines had passed. As in the previous offer, there was no attempt to identify the "Annapolis" as one of the engines referred to, and nothing to show any such dropping or sparks on the day of the fire. As far as the evidence went, it excluded the idea of there being any sparks or coals from the "Annapolis," or any other engine, &c., since none of the witnesses saw any on the road on that day.

This evidence was all offered in chief, and was simply an attempt to prove that the locomotive "Annapolis" on the day specified, set fire to the plaintiff's premises, by shewing that some other engines on another occasion, threw out sparks or coals, which might have set fire to some one else's property. The offer was in the highest degree obnoxious to the objection of irrelevancy.

In respect to the third exception; there is not a particle of proof that the engine "Annapolis" was in any respect unsafe. No witness ever saw it "throw out sparks" to a dangerous extent, and the proof is positive that it was in perfectly good order in all respects, and was properly handled.

And the issue to be found by the jury was, whether the sparks and cinders from this locomotive,  [**15]  at the particular time, set fire to the plaintiff's premises. The questions, therefore, which were asked of Messrs. Linthicum and Cole, were wholly irrelevant to the issue, since there was an entire failure to prove that the "Annapolis" ever threw out such sparks on any occasion.

The most favorable construction that could be given to the testimony in behalf of the plaintiff, came far short of warranting the jury in finding that the engine of the defendant "habitually threw out sparks," &c.

The rule allowing witnesses to testify as experts, confines their opinions to the case proved by the witnesses. 2 Taylor's Ev., sec. 1278.

It is therefore improper to present a hypothetical case at variance with the testimony or unsupported by it; and to allow such evidence to go to the jury cannot fail to confuse them and work injustice.

The declaration is not in conformity with Art. 77, sec. 1, of the Code. It does not aver that the fire was "occasioned by the engines or carriages" of the company, but charges a direct act of setting fire to the plaintiff's premises--the latter word implying in law, "houses or lands." Bouv. Dic. "Premises." Wharton's Lexicon, "Premises."

The [**16]  plaintiff's first instruction, as granted by the Court, speaks of the fire as being "communicated from the defendant's engine," which would include the case where the property of some third party or of the defendant had been set on fire by the engine, and the fire thence spread to the property of the plaintiff. This is not within the issue on the fourth plea, which requires the jury to find that the locomotive's sparks set fire to the plaintiff's premises.

It says imperatively that the jury must find for the plaintiff in the given cases which was calculated to mislead them in view of the complicated form of the instruction. Peterson vs. Ellicott, 9 Md., 52; Wilson vs. Smith, 10 Md., 71.

And the incorporation of the faulty instruction substituted for the defendant's fourth prayer, affects the correctness of this prayer.

The plaintiff's second prayer is obnoxious to the same objection as to the use of the words "communicated from the defendant's engine."

The Act of 1838, incorporated in the Code, is in derogation of the common law. It changes the rule of evidence by releasing the plaintiff from proving negligence, and casts the onus upon the defendant, in cases of [**17]  injury "by fire occasioned by their engines and carriages." Balto. & Susqh. R. R. Co. vs. Woodruff, 4 Md., 259; Rood vs. New York and Erie R. R. Co., 18 Barb., 80; Indianapolis R. R. Co. vs. Paramore, 31 Indiana, 148; Burroughs vs. Housatonic R. R. Co., 15 Conn., 124; Railroad Co. vs. Yeiser, 8 Barr, 366.

The Courts will not extend this relaxation of the common law rule beyond the express requirement of the statute. This only related to injuries "occasioned by the engines or carriages" themselves. But a fire may be communicated from an engine, by passing through several intervening farms to that of a plaintiff; and the Legislature never designed to change the rules of evidence in such a case as that. The expression "occasioned by the engines or carriages" implies an injury directly caused by fire from the engines or carriages, and does not embrace the case of a fire resulting indirectly from a fire originally caused by the engines or carriages. Statutes in derogation of the common law are ever most strictly construed. 4 Kent's Com., 469; Dwarris on Statutes, (695,) 9 Law Library; Smith's Com., sec. 530; Scaggs vs. Balt. & Wash. R. R. Co., 10 Md., 275; Hooper vs. Mayor &c. of Baltimore,  [**18]  12 Md., 474; Keech vs. B. & W. R. R. Co., 17 Md., 45; Greenwood vs. Greenwood, 28 Md., 386.

The declaration avers that the plaintiff was "seized" of the land over which the fire burned. The second plea declared that the plaintiff was not seized of the land and the plaintiff joined issue upon this plea. The third plea denied that the plaintiff was the owner of the cord-wood, &c. On the same day that the plaintiff received a deed of the land where the fire occurred, he mortgaged it to Mr. A. Randall to secure the purchase money, which is still due. The plaintiff therefore parted with the legal title to this land on the day it was conveyed to him. He was not therefore "seized" of the land at the time of the fire. "Seized" implies seized in fee. 2 Powell on Mort., (604,) note Z, 252 a, note F; Robertson vs. Park, 3 Md. Ch. Dec., 68; Towle vs. Ayer, 8 New Hamp., 57; 1 Chitty's Plead., 228, (marg.)

The mortgagee has the legal title in the land mortgaged, and must maintain an action for injuries to the freehold. McElderry vs. Smith, 2 H. & J., 72; 1 Powell on Mortgages, (56,) (288;) Evans' Prac., 92; Bean vs. Atlantic R. R. Co., 58 Maine, 81; Vose vs. Handy, 2 Greenl., 333; Stowell [**19]  vs. Pike, et al., 2 Greenl., 387; Marvin vs. Dennison, 20 Verm., 662; Jamieson vs. Bruce, 6 G. & J., 74.

The second prayer of the defendant should therefore have been granted, as to the standing wood.

The title to the wood which had been severed from the land was in the mortgagee, and the suit should have been brought in his name for the use of the party injured. Leighton vs. Preston, 9 Gill, 203; Gore vs. Jenness, 19 Maine, 53; Frothingham vs. McKusick, 11 Shepley, 403; 3 U.S. Digest, p. 31, Mortgage, secs. 74, 75, 77, 104; Clarke vs. Abbott, 1 Md. Ch. Dec., 478; McKim and Kennedy vs. Mason, 3 Md. Ch. Dec., 187.

The third prayer, therefore, should have been granted. The fact that the mortgagor had been left in possession, cannot affect the question as to the party in whose name the suit should be brought.

There can be no doubt that the plaintiff was not entitled to recover, if he contributed in any way to the injury complained of. B. & O. R. R. Co. vs. Fitzpatrick, 35 Md., 32.

If he neglected to remove the chips and similar combustible or inflammable materials, which he had placed near the track of the defendant's road, and the fire spread to his wood by means [**20]  of the litter there left by him near the track, he certainly contributed to produce the injury. Since the bed of the road belongs to the plaintiff, and not to the railroad, which only possesses an easement over his land, the sedge and dry grass near the cross-ties should not have been left there by the plaintiff. Blake vs. Rich, 34 New Hamp., 284.

The seventh prayer of the defendant correctly embodied the law. Neither at common law nor under the statute could the defendant be made liable for injury by fire, communicated to the plaintiff's property, through the property of other parties, which had been set on fire directly by the defendant's engines. 1 Redfield on Railways, p. 462, Pl., 16; Ryan vs. N. Y. Central R. R., 35 New York, 210; Penna. R. R. Co. vs. Kerr, 62 Penna., 353; Macon & Western R. R. vs. McConnell, 27 Georgia, 481, and 31 Georgia, 133; Barron, et al. vs. Eldredge, et al., 100 Mass., 460; Mangan vs. Atherton, 1 Law Rep., 239.

The Maryland statute confines the responsibility to injuries "by fire, occasioned by their engines or carriages," which signifies injuries directly caused by fire from the engine or carriage itself.

Henry Aisquith and William H.  [**21]  Tuck, for the appellee.

The ruling of the Court below, to which the first exception was taken, was correct, 1st, Because the objection was made to all the questions and all the answers, and if any portion were admissible, the objection was properly overruled. Budd vs. Brooke, 3 Gill, 198. 2nd. Because the questions and the answers were admissible under the issues in the cause. The issue was, whether the fire had been occasioned by the defendant's engines. It would seem that no stronger proof could be offered--in the absence of an eye-witness to the fact of the burning at the very time--than that within a week he had seen the engines scattering large sparks, capable of doing the mischief. That about that time he had put out a fire in the leaves, caused by these sparks. Sheldon vs. Hudson River R. R. Co., 14 N. Y., 218; Field vs. N. Y. Central R. R. Co., 32 N. Y., 349.

It was admissible, also, on the question of negligence, to shew the condition of the engines. The fact that the witness could not identify the "Annapolis" as one of the engines he had seen scattering sparks, does not affect the case. It is not alleged in the pleading, that that engine was the cause of this fire.  [**22]  In fact, there had been a train a few minutes before, from which the injury might have originated. Chisty vs. Smith, 23 Verm., 666; Cleaveland vs. Grand Trunk Railway Co., 42 Verm., 449; Piggot vs. Eastern Counties Railroad Co., 54 E. C. L., 228; Huyett vs. Phil. & Reading R. R. Co., 23 Penn., 373.

The ruling to which the second exception was taken was correct, for the reasons which justified the ruling to which the first exception was taken; and also, because the evidence tended to shew, in connection with other proof, the condition of the locomotives.

The ruling to which the third exception was taken was correct, because there was evidence from which the jury might find that the engines of the company, including the "Annapolis," were in the habit of throwing off such sparks about the time of the fire. Where the opinion of an expert is desired in a case like the present, it is not necessary to establish, by direct evidence, the condition of things on which the opinion is to be given. The opinion would be worth nothing at all, unless the jury could find from the evidence that such a state of things existed as to warrant the opinion sought to be deduced, and in determining [**23]  that fact, the same rules of evidence apply as are permissible in reaching conclusions and drawing inferences as to other matters of fact put in issue.

When, therefore, the plaintiff proved, as facts of frequent occurrence, what he and Bryan stated in reference to the sparks, coals and cinders proceeding from the engines, and the shortness of time before the fire that they had put out fires, (frequently running after the engines for the purpose, according to Bryan,) not to mention the evidence of the defendant's witnesses, sufficient testimony was before the jury to authorize them to find that the condition of the engines was such as to make them unsafe and dangerous to property on the road, and to lay the foundation for asking the opinion of the witnesses as to the quality of such locomotives.

The prayer substituted by the Court for the fifth of the plaintiff raises the question, whether a mortgagor, left in possession of the land, can maintain an action of this kind, and may be considered together with the second and third prayers of the defendant; the second impliedly conceding the right to recover for the cord-wood, but denying it as to the standing wood and timber; and [**24]  the third denying the right to recover for either standing or cut wood, because the legal title was not in the plaintiff at the time.

This land, containing fifty-nine acres, and Gantt's other farm of two hundred and sixty acres, were mortgaged to A. Randall, to secure three thousand dollars. Gantt purchased the land in October, 1867, to be put in possession in January, 1868, with knowledge on the part of Mr. Randall that he was buying the land for the purpose of cutting the wood. The deed and mortgage are of the same date, and constitute one transaction. The wood and timber belonged to Gantt, whether he had the legal title or not, for Mr. Randall took his mortgage with ten years' credit, not yet expired, with knowledge of his purpose to clear the land, raising an implied agreement that he should do so unmolested.

If the mortgagee would be estopped from such complaint, who else could make it? If Gantt cannot maintain this action, who else can? Surely not the mortgagee, who can neither prevent Gantt from cutting, nor claim the proceeds of the wood when sold. For to such an action the company might say that the beneficial interest in the wood and timber was in Gantt, no matter [**25]  where the title to the land might be.

But the Code says: "Railroad Companies shall be responsible for injuries resulting in death, &c., &c., or by fire, occasioned by their engines." Art. 77, sec. 1. The second section provides: "The damages caused by such injuries may be sued for and recovered by the owner of such stock, or the person injured by fire." In the case of stock, the owner must sue; in the case of damage by fire, the person injured is to sue. It is no where said that the holders of the fee or the owner of the land where the fire occurred, must sue. The law recompenses the party who is injured. Who is that party in such a case as this? Surely it is the person entitled to cut and sell the wood and timber, whether that right attaches to him as mortgagor, or springs out of the circumstances of the sale and mortgage, and his known purpose in buying the land.

Apart from the Code and the special circumstances of this transaction, who had the right to sue for these damages--the mortgagor or mortgagee? Gantt must be considered the substantial owner of the land, and entitled to the rents, issues and profits, whatever they may be. If, as shown by the proof, he was clearing [**26]  the land, the proceeds, would enure to him. A mortgagee, though holding the legal title, has not a completely vested estate, because it is defeasible at law at any time before forfeiture, and in equity afterwards. The mortgagor is the real owner of the property. McElderry vs. Smith, 2 H. & J., 74; Ford vs. Philpot, 5 H. & J., 315; Wilkins vs. French, 20 Maine, 111; Myers vs. White, 1 Rawle, 353; Hilliard on Mortgages, 150.

A mortgagee cannot have an account of rents and profits, received by the mortgagor although the security may be insufficient. Colman vs. The Duke of St. Albans, 3 Ves. Jr., 25; Ex parte Wilson, 2 Veas. & Beam, 252; Cooper vs. Davis, 15 Conn., 556; Chase vs. Palmer, 25 Maine, 341.

A mortgagee cannot bring waste at law; such an action can only be instituted by a reversioner or remainderman. Duvall vs. Waters, 1 Bland, 569; McLaughlin vs. Long, 5 H. & J., 113; Hatch vs. Dwight, 17 Mass., 289.

A mortgagee in possession may be charged for waste, because his title is not complete, and the mortgagor may redeem, and has an interest in the freehold to protect; and when the mortgagor comes to redeem, he may have an account against the mortgagee in possession [**27]  as to the rents and profits, so as to have them applied to the debt. Rawlings vs. Stewart, 1 Bland, 22, note; Rickert vs. Maderia, 1 Rawle, 328.

The seventh prayer of the defendant was properly rejected, because this fire was occasioned by the engines of the defendant in such manner as to exclude the objection that it was the remote and not the proximate cause of the damage. The fire originated on the company's land in sedge at the end of a cross-tie, and spread continuously through the grass and chips on the defendant's land to the land of the plaintiff. At common law an action would lie in such a case. Filliter vs. Phippard, 11 Adol. & Ellis, N. S., 347; Tuberville vs. Stampe, 1 Ld. Raymd., 264.

The question of remote and immediate cause seems never to have been definitely settled, but ruled according to the views of the Judge deciding the case, and to have depended mainly upon the special circumstances of the case under consideration. The rule laid down in Insurance Company vs. Tweed, 7 Wallace, 44, that the immediate cause of an act is that which happens without any intervening power to stand as the cause of the injury or act complained of, appears to be the just and [**28]  fair definition of immediate cause.

In this case, it being negligence in the company to have the dry sedge and chips upon the line of its track, (Bass vs. Chicago, Bur. & Quincy R. R., 28 Ill., 18,) through and by which negligence the defendant was damaged, it cannot be maintained that the damage was remote, and thereby remove the responsibility of the plaintiff except for gross negligence. Cook vs. Champlain Transportation Co., 1 Denio, 91; Illinois Central R. R. Co. vs. Mills, 42 Illinois, 407.

The defendant's seventh prayer was rightly rejected under a proper construction of Art. 77, sec. 1, of the Code. Balto. and Sus. R. R. Co. vs. Woodruff, 4 Md., 256; Hart and others vs. Western R. R. Co., 13 Met., 99; Perley vs. Eastern R. R. Co., 98 Mass., 414; Kellogg vs. Chicago and Northwestern Railway Co., 26 Wisconsin, 223.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*134]  BARTOL, C. J., delivered the opinion of the Court.
This is a suit by the appellee to recover damages for the destruction of cord-wood and timber by fire, alleged to have been occasioned by the engines of the appellant.
Four bills of exception [**29]  were taken by the appellant, the first three present questions of evidence, and the fourth brings up for review the rulings of the Circuit Court upon the prayers. These will be considered in their order.
First Exception.--The plaintiff, who was sworn as a witness, having proved the destruction by fire on the 28th of April, 1869, of a quantity of cord-wood and growing timber on his land, contiguous to the railroad, on the north side; proved that the fire had commenced on the track of the road, in some dry grass at the end of the cross-ties, and had thence spread up the bank, through the bark, old stumps and litter, over the land 

 [*135]  condemned for the defendant's road, and thence to the plaintiff's wood and timber, situated, a part of it within forty feet of the track, and extending to the distance of about two hundred feet. That everything was very dry, and there was a high wind from the south-west; that from a distance south of the road, he saw the smoke about twenty minutes after the freight train passed up; he also gave some evidence tending to prove the absence of other causes for the fire at that place, except the passage of the trains, to wit: "that there was no cutting [**30]  in the woods that day, and no fire there, and that the cabin on the land occupied by laborers, was three hundred yards distant from the railroad; and stated if it was set on fire by any train, it was the freight train that set it on fire."
"The witness then stated in reply to questions of the plaintiff's counsel, that he had observed the engines of the defendant about that time; that within a week before he had seen them scattering large sparks in passing, which were capable of setting fire to combustible articles along the road; and that about a week before, he had put out a fire in the leaves caused by these sparks; but he could not say that he had ever seen any such sparks from the locomotive 'Annapolis,' which was the engine that was drawing the freight train on the morning of the fire."
Whereupon the defendant objected to the said questions, and to the said answers of the witness; but the Court overruled the objection, and admitted the evidence, and to this ruling, the defendant excepted.
We entertain no doubt that this was competent and admissible evidence, both for the purpose of proving that the fire in question, was occasioned by the locomotives, and as tending to prove [**31]  negligence on the part of the defendant, in the construction and management of its engines. Evidence of this kind was held to be admissible 

 [*136]  in Piggott vs. The Eastern Counties Railway Co., 54 Eng. C. L. 228.
That was an action against the railroad company for the destruction of the buildings and farming utensils on the plaintiff's land, by fire alleged to be occasioned by the negligence of the defendants in the construction and management of their locomotives.
"In order to show that the fire was probably caused by sparks or particles of ignited coke emitted from the funnel, or from the fire-box of the engine by which the train was being propelled; the plaintiff's counsel proposed to ask a witness whether he had not on other occasions observed sparks or ignited matter to proceed from engines of the defendants, passing along the line adjoining the plaintiff's farm." The trial below was before ALDERSON, B., who admitted the evidence, and the question being reserved, was heard and decided by TINDAL, C. J., COLTMAN, MAULE and CRESSWELL, who all concurred in the opinion that the evidence was admissible. COLTMAN, J., said, "It appears from the report [**32]  of the learned Judge, that the evidence in question was admitted, not for the purpose of showing a general habit of negligence on the part of the company, but to show that the injury might have been caused in the way suggested. It appears to me that the jury might reasonably infer that the fire was occasioned by sparks from the engine, and that the fact of the buildings being fired by sparks emitted from defendants' engine, established a "prima facie case of negligence, which called upon them to show that they had adopted some precautions to guard against such accidents." In Cleaveland vs. Grand Trunk R. R. Co., 42 Vt. 449, evidence of the same kind was decided to be admissible; and in Sheldon vs. Hudson River R. R. Co., 14 N.Y. 218, the Court of Appeals ruled in the same way. It has been argued by the appellants' counsel, that the decision last cited was "overruled" 

 [*137]  in 29 Barbour 226, when the same case afterwards came up before the Supreme Court. The case in 29 Barbour was before an inferior Court, and was ruled by three judges in the second judicial district; who were of course bound by the previous decision [**33]  of the appellate Court. An examination of the cases will show that they are not in conflict. In 29 Barbour, the question of the admissibility of the evidence was not presented. The Court held that the testimony there offered was not sufficient in law to prove negligence on the part of the defendant. The onus by the law of New York being on the plaintiff.
Under the Code, Art. 77, sec. 2, it is not incumbent on the plaintiff in an action of this kind, to prove that the fire was caused by the defendant's negligence; but the onus is cast on the defendant to disprove negligence on its part, or rather to show affirmatively that it has used reasonable care to prevent causing injury by fire from its engines. The law on this subject is laid down by this Court in Balto. & Susqh. R. R. vs. Woodruff, 4 Md. 242.
In that case, a question of evidence arose, and the decision is relied on by the appellant's counsel, as an authority in support of his objection to the testimony set out in this bill of exceptions.
There the evidence offered was "that before the occurrence of the fires upon the plaintiff's farm, fire had been communicated by the defendant's engines, to property [**34]  of other persons on said road, and that it had been burned in consequence of such fire." The Court decided that such testimony was inadmissible, for the reasons stated on page 254. The question here presented is a very different one, and it seems to us that the ruling in Woodruff's case has no application to this. There the evidence offered was that before the occurrence of the fire in question, other property had been set on fire by the locomotives of the defendant, no time was specified, it might have been, 

 [*138]  as the Court said, "six months before, or five years." Besides, such testimony would simply tend to prove that a passing locomotive is capable of setting fire to property near the railway, but could throw no light upon the question whether the fire complained of was in fact caused by the locomotives, or tend to show the existence of negligence in the particular case under consideration. Here the evidence was confined to the time of the occurrence, within a week of the happening of the fire on the plaintiff's property; and pointed directly to the condition of the defendant's engines, tending to prove that they were not in suitable repair at the time of the injury,  [**35]  and we think both upon reason and authority it was admissible for the purposes mentioned.
The fact that the witness was unable to say that he had observed sparks, &c., from the engine "Annapolis" is no valid objection to admitting the testimony. The declaration does not allege that the fire was caused by that particular engine, and the statement by the witness of his belief, that it was the freight train which caused the fire, did not preclude the plaintiff from arguing or the jury from finding that it was caused by some other locomotive. It appears by the testimony of the same witness that three trains had passed that morning before the fire, one of them, a passenger train, had passed up the road only a few minutes before the freight train, and may have caused the fire, although it was not discovered till after the "Annapolis" had passed.
The second exception, presents the same legal question, as the first, and for the reasons before stated we are of opinion that the testimony of the witness Bryan, to which objection was made by the defendant was properly admitted.
No valid objection has been suggested to the testimony of Linthicum and Cole, contained in the third bill [**36]  of exceptions. It was offered to rebut the evidence produced 

 [*139]  by the defendant, on the question whether its engines were of proper construction and in good repair at the time of the fire. They were examined as experts, and a reference to the testimony of the plaintiff and of Bryan will show that the hypothetical case upon which their opinion was asked, had been abundantly established by proof; or to speak more accurately, evidence had been given from which the jury might so find, which is all that the rule of law requires as a basis for the admission of the testimony of experts.
Upon the prayers contained in the fourth bill of exceptions, the first material question presented for our consideration, is whether the plaintiff had such ownership of the property, as to entitle him to maintain this suit.
This question is raised by the second and third prayers of the defendant. It appears by the proof that the land was conveyed to the plaintiff in fee, by a deed from Williams and wife, on the 29th day of October, 1867, and on the same day, he executed to Alexander Randall Esq., a mortgage of the same, with other land, to secure the sum of $ 3000, payable in ten years [**37]  from date, with the interest thereon, from the 1st day of January, 1868, payable annually.
The appellant contends that the legal title to the land being in the mortgagee, the right of action was exclusively in him and not in the mortgagor, whose title being merely equitable, could give him no standing in a Court of law. But in our opinion this is a mistaken view of the nature of the suit, which does not depend upon the ownership of the legal estate in the land. The Code, Art. 77, sec. 2, declares that the damage caused by such injury may be sued for and recovered "by the person injured by the fire." It does not say that the holders of the legal estate in the land, where the fire occurs must sue; but the party injured by the fire. This must be construed as referring to the substantial owner, whether 

 [*140]  his title be legal or equitable. In a case like the present where the party holding the fee simple, has encumbered the estate by a mortgage, which is not due, and is in possession, there can be no difficulty in saying that he is the party injured by a fire which destroyed the cord-wood and growing timber upon the land. He is the substantial owner of the property destroyed.  [**38]  Chancellor KENT, (4 Com., 160;) after stating the equity doctrine that the mortgage is a mere security for the debt, and only a chattel interest, and that until foreclosure, the mortgagor continues the real owner of the fee, proceeds to say, "The Courts of law have also by a gradual and almost insensible progress adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor while in possession, and before foreclosure, is regarded as the real owner, and a freeholder with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for a debt."
The same views are held in Wilkins vs. French, 20 Me. 111, 119; The City of Norwich vs. Hubbard, 22 Conn. 587. We refer also to 1 Hilliard on Mortgages, ch. 8, p. 151, and the authorities there collected in Note b. It is said this law does not prevail in Maryland, and Jamieson vs. Bruce, 6 G. & J. 72, has been [**39]  cited by appellant's counsel, as establishing a different doctrine. That was the case of a mortgage of personal property, where there was no agreement that the mortgagor should retain possession; the mortgagee took possession of the property without the knowledge or consent of the mortgagor, and it was held that the latter could not maintain trespass against him for the asportation; because as between the mortgagee and mortgagor, the legal property was in the former.

 [*141]  In the opinion of the Court delivered by Judge ARCHER, it is said, "although there may be cases in which a Court of Law, as well as a Court of Equity, would treat the mortgagor as the substantial owner, yet we are satisfied unless there be some agreement between the parties, the mortgagee is entitled to possession when he chooses to exercise the right."
In Tucker vs. Sumwalt, 34 Md. 89, it was held that the mortgagee has no estate in the land, except the dry legal title, which cannot be affected by a lien of a judgment against him.
Looking at the nature of the estate held by the plaintiff, we are of opinion that he was the party entitled to sue, as the substantial owner of the property,  [**40]  and the party injured by the fire, within the meaning of the Code; and consequently, that there was no error in rejecting the second and third prayers of the defendant, and in instructing the jury "that if they should find for the plaintiff under his first prayer, he was not precluded from recovering, by reason of the mortgage to Mr. Randall, if they should find that he was left in possession of the property from January, 1868, up to and at the time of the injury."
The next material question argued at the bar, grows out of the fact, that the fire in this case began on the track of the railway, and spread thence to the plaintiff's land, causing the injury to his property. It is contended on the part of the appellant, that for such injury, the company is not liable under the Code, because it was the remote and not the proximate consequence of the defendant's negligence. In support of this proposition, we have been referred to Ryan vs. New York Central R. R. Co., 35 N.Y. 210, and Penn. R. R. Co. vs. Kerr, 62 Pa. 353.
In those cases it was held, that "where the fire is communicated by the locomotive to the house of A, and 

 [*142]  thence to [**41]  the house of B, there can be no recovery by the latter," and the decisions are based upon the ground, that the fire from the locomotive is not the proximate cause of the destruction of B's house; and his injury being merely the remote or indirect result of the wrongful act of the defendant, he cannot maintain an action according to the maxim "causa proxima non remota spectatur." There is no rule of the law better established or more universally recognized. Whether it was correctly applied in the cases above cited, it is not material for us now to consider; because it is obvious that the facts of the present case clearly distinguish it from those.
It may be proper to observe, that the decisions in 15 N. York and 62 Pa., are not supported by any English case that we have seen, and are in conflict with several decisions both in England and in this country, which have been cited in argument by the appellee. Among them, we may refer to Piggot vs. Eastern Counties R. Co., 54 E.C.L. 229; Smith vs. L. & S. R. Co., 5 L.R.C.P. 98; Perley vs. Eastern R. R. Co., 98 Mass. 414; Hart vs. Western R. R. Co., 54 Mass. 99, [**42]  13 Met. 99; Gifferd Feut, et al. vs. The Toledo, Peoria and Warsaw Railway Co.
The last mentioned case was decided by the Supreme Court of Illinois in 1872, and is reported in the Albany Law Journal for 28th of September, 1872, (vol. 6, p. 226.) In the opinion delivered by C. J. LAWRENCE, the authorities are reviewed and the whole subject discussed with much ability. Without attempting to reconcile the various decisions, which would be a fruitless and unprofitable task, or undertaking to define for all possible cases the exact limits and extent of the liability of railroad companies under our Code, for damages by fire occasioned by their engines and carriages, we may safely state the rule to be, that when their liability arises it extends to "all the near and natural consequences of their wrongful act, and not to those which are remote, 

 [*143]  incidental or exceptional." Law Reg, Sep. No., 1873, page 560, (Judge REDFIELD'S note.) The rule is thus stated by Judge PARSONS: "The defendant is held liable for all those consequences which might have been foreseen and expected as the results of his conduct, but not for those which he could not have foreseen, and was therefore [**43]  under no moral obligation to take into consideration, (2 Parsons on Contracts, 456.) The rule was laid down substantially in the same terms by POLLOCK, C. B., in Rigby vs. Hewitt, 5 Exc. 240. Other definitions might be cited from Judges and text writers; but this would serve no useful purpose. The rule is one which from its nature, and the class of cases where it applies, is incapable of precise definition. It has been correctly said by MILLER, J., speaking for the Supreme Court, "If we could deduce from the cases the best possible expression of the rule, it would remain after all, to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations." He adds "one of the most valuable criteria furnished us by the authorities, is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote." Ins. Co. vs. Tweed, 7 Wall. 44. To apply this criterion to the case before us, it seems too plain for argument that, according [**44]  to the facts contained in the first and second bills of exception, the injury to the plaintiff's property was the direct consequence of the fire occasioned by the defendant's locomotives. The fact that the fire began upon the side of the railroad and spread to the plaintiff's land, cannot in any just sense be said to render the injury suffered by him of a nature merely remote and incidental within the meaning of the rule. The fire consumed his property in its natural and direct course, without any 

 [*144]  "intervening force or power to stand as the cause of the misfortune," and the injury suffered was therefore its proximate effect.
No case has been cited which sustains the defence here made by the appellant. In Woodruff's Case, 4 Md. 242, the fire happened in the same way, and neither Court nor counsel thought of applying the rule of causa remota. So in B. & O. R. R. Co. vs. Dorsey, 37 Md. 19, the fire originated in the same way, and it was not pretended that the injury to the plaintiff was not a proximate consequence of the defendant's negligence. The language of the Court, (page 24,) would seem conclusive of the question as it is here presented.  [**45]  
We may refer also to Field vs. The N. Y. C. R., 32 N.Y. 339, where the question was ruled in the same way, by the same Court which subsequently decided Ryan vs. N. Y. C. R. Co., 35 N.Y. 210.
We conclude, therefore, that there was no error in the Circuit Court's granting the first prayer of the plaintiff as modified, and in refusing the seventh prayer of the defendant.
In a case where the fire has not been communicated directly to the plaintiff's property by sparks or cinders from the locomotive; as where it has spread from its first beginning, and thus been communicated indirectly to the plaintiff's property; it is a question proper to be submitted to the jury to determine, from all the facts of the case, whether the injury complained of is the natural consequence of the defendant's negligence, or whether it has been caused by "some intervening force or power, which stands naturally as the cause of the misfortune;" and we do not understand that in this case the Circuit Court, by its action on the prayers, took this question from the jury.
The objection made in this Court to the plaintiff's fourth prayer, which was granted, "that there was [**46]  no 

 [*145]  evidence of the facts therein stated," not having been made below, cannot under our rules be entertained here. But even if it had been distinctly made at the trial, it could not prevail, as the bills of exceptions contain ample evidence to justify the granting of the prayer.
Having disposed of all the questions presented by the appeal, and finding no error in the rulings of the Circuit Court, the judgment will be affirmed.
Judgment affirmed. 

4 of 144 DOCUMENTS 

CHARLES WORTHINGTON, Administrator c. t. a. of WILLIAM H. WARDEN, vs. JAMES HERRON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

39 Md. 145; 1873 Md. LEXIS 86 

December 17, 1873, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans' Court of Harford County.

The appellant filed his petition in the Orphans' Court of Harford County, under section 238, of Article 93 of the Code of Public General Laws, alleging concealment of property belonging to his decedent's estate, by the appellee. The answer of the appellee, under oath, as required by the Code, denied emphatically the concealment charged. The Orphans' Court, after hearing witnesses, dismissed the petition. From this action of the Court the present appeal was taken.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

Appeal.

No appeal lies to this Court from an order of the Orphans' Court dismissing the petition of an administrator filed under section 238 of Article 93 of the Code of Public General Laws, alleging the concealment of a part of his decedent's estate; section 240 of the same Article having expressly provided an appeal in such case to the Circuit Court of the County or the Superior Court of Baltimore City.

Where a special jurisdiction is conferred by statute upon the Orphans' Court, and an appeal from its decision in the exercise of such jurisdiction is provided for, the appeal must be in the mode and to the tribunal designated by the statute, to the exclusion of all others.  

COUNSEL:
William Young and George Y. Maynadier, for the appellant.

Henry D. Farnandis, for the appellee.  

JUDGES:
The cause was submitted to BARTOL, C. J., STEWART, BRENT, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*146]  ALVEY, J., delivered the opinion of the Court.
This is an appeal from the Orphans' Court for Harford County, and the order appealed from was passed in a proceeding instituted under sec. 238 of Art. 93 of the Code, in regard to property of a deceased alleged to be concealed.
There is a motion to dismiss the appeal, upon the ground that no right of appeal exists in such case to this Court, but that the right of appeal is confined [**2]  exclusively to the Circuit Court of the county, by sec. 240 of the Article of the Code just referred to.
The sections of the Code referred to were codified from the Act of 1831, chap. 315, sections 12 and 13; and in the original Act it was provided that in the cases contemplated by those two sections, 12 and 13, any party might appeal from the order of the Orphans' Court to the County Court of the county in which the Orphans' Court should sit; and by the 240th section of the Art. of the Code referred to, the same provision is retained, giving the right of appeal to the Circuit Court of the county.

 [*147]  The Orphans' Court is a tribunal of special and limited authority, and the power conferred by the particular provisions of the statute, under which the present proceedings were taken, is of a special nature, not embraced within any previous jurisdiction possessed by that Court; and where such is the case, the right of appeal depends upon the terms of the statute, and if an appeal is provided for at all, it must be in the mode and to the tribunal designated in the Act, to the exclusion of all others.  Condon's Case, 8 G. & J. 443; Savage Man. Co. vs. Owings, 3 Gill 497; [**3]  Williams vs. Williams, 5 Gill 88; Carter vs. Dennison, 7 Gill 157; Lammott vs. Maulsby, 8 Md. 5; Balto & Havre de Grace Turnpike Co. vs. Nor. Cen. R. Co., 15 Md. 193.
It is contended, in opposition to the motion to dismiss, that although the section 240 of Art. 93 of the Code provides for an appeal to the Circuit Court of the county, and not to this Court, yet the present appeal is authorized by the very comprehensive language of section 39 of Art. 5 of the Code, codified from the Act of 1818, chap. 204, section 1. And while it is true that the language of that section, authorizing appeals to this Court from all decrees, orders, decisions and judgments made by the Orphans' Court, is very comprehensive, and would seem to be sufficiently broad to embrace this and all similar cases, yet the very point and the same arguments were presented in reference to the same comprehensive language, in the case of Lammott vs. Maulsby, 8 Md. 5; and, notwithstanding, the decision was adverse to the right of appeal to this Court. In that case, as in this, an appeal was given to the Circuit Court from the order of the [**4]  Orphans' Court, which it was sought to have reviewed here, and this Court decided that the right of appeal was confined exclusively to the Circuit Court; and unless that case can be shewn to be overruled, it must be taken as a conclusive authority against the appeal 

 [*148]  in this case. No case has been produced by which the decision in Lammott vs. Maulsby has been in any manner questioned, and we think upon reason, it cannot be impugned. If the right of appeal had not been expressly given to the Circuit Court by section 240 of Art. 93, then the broad and unqualified language of section 39 of Art. 5, would have have afforded the right of appeal to this Court; but, as we have seen, the statute conferring the new jurisdiction having provided the particular mode of appeal, that mode is a negation of any other, and must be taken to be exclusive. And such must have been the intention of the Legislature. For from orders passed in proceedings like the present, it may not unfrequently happen that both parties will appeal, and, in that event, suppose the one party should take his appeal to this Court, and the other should take his to the Circuit Court, and there should be a conflict [**5]  of decision, in such case, which judgment would be binding and conclusive upon the Orphans' Court and the parties? It would certainly create great embarrassment to the proceedings in the Orphans' Court; and we cannot suppose for a moment, that the Legislature ever intended that such conflict should by possibility exist.
The case of Cannon's Adm. vs. Crook, 32 Md. 482, has been referred to by the appellant as an instance of an appeal having been entertained by this Court from an order of the Orphans' Court, passed in a proceeding similar to the present. But in that case, there were other questions, involving the regularity of the practice of the Orphans' Court, and though there was a motion to dismiss the appeal, it was upon the ground of the informal manner of taking the testimony of witnesses in the Orphans' Court, and not upon the ground that the appeal could only be taken to the Superior Court of Baltimore City. The question now made was not suggested, or in any manner brought to the attention of the Court. 

 [*149]  That case, therefore, must not be regarded as an authority for the right to appeal to this Court in cases like the present.
Appeal dismissed.  [**6]   

5 of 144 DOCUMENTS 

JACOB TOME vs. THE PARKERSBURG BRANCH RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

39 Md. 36; 1873 Md. LEXIS 84 

November 26, 1873, Decided 

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

The nature of the case, together with the pleadings, are stated in the opinion of the Court. The appellant, the plaintiff below, on the 2nd October, 1869, loaned Thos. R. Rich & Co. $ 6650, on the security of 350 shares of the appellee's stock, on that day issued from its office, by John L. Crawford, the treasurer of the company, in the usual way, in the name of the plaintiff. On the 9th May, 1870, he renewed a loan on the same certificate for $ 6000, taking Rich & Co's obligation for its return on the 8th August, 1870. On the 8th or 9th of April, 1870, he made a like loan of $ 3300, upon a certificate of 200 shares of like stock, on that day, issued as before, in his name. This loan was afterwards reduced by payments to $ 3000, and on the 9th July, 1870, was renewed for that sum, upon the same certificate for 200 shares. Afterwards, the plaintiff demanding further security for the loan of $ 6000, a certificate for fifty shares was issued in his name and delivered to him on the 27th July, 1870. The plaintiff "made both of the loans upon the faith of the certificates of stock, and would not have made them on the personal responsibility [**2]  of Rich & Co." Rich, who was examined as a witness for the plaintiff, stated that the principal in the transaction, for whom the money was borrowed, was John L. Crawford, though he did not mention this fact at the time, to the plaintiff. That Crawford never repaid him the money, so that he was unable to re-pay the plaintiff, and is now unable to pay his debts. "That when he received these and other certificates of stock from Crawford they were usually taken from a book of certificates, in which there were certificates signed by Van Winkle, which book was taken from the safe, (there being only one safe in the office,) by Crawford, who would then put the seal of the company upon them and sign his own name to them, and then hand them to witness. This was done openly in the office."

In August, 1870, the directors of the appellee for the first time discovered certain frauds of their treasurer and stock transfer agent, Crawford, extending back for some years; he was thereupon removed from his office, and absconded; and Louis McKim was appointed treasurer and transfer agent in his place. The old office of the company was closed, and the transfer of stock of the company was suspended [**3]  and disallowed until 30th December, 1870, when a notice was published that the transfer books of the company would be re-opened 3rd January, 1871, at the banking house of McKim & Co. in Baltimore.

Holders of the genuine stock were requested to present their certificates at that place, and receive in exchange the new certificates that had been prepared for them respectively. In consequence of this notice the plaintiff called at the banking house of McKim & Co., presented his three certificates to Louis McKim, the treasurer, and asked for his new certificates in exchange. McKim examined them, said the certificates were spurious, because they were over-issues, and he could not do anything with them.

Before the discovery of Crawford's alleged frauds the stock of the company had a market value of about $ 24 per share, afterwards at about $ 12 only. The stock which was repudiated by the company was rendered worthless. It had no market value at all. It was admitted by the defendant, that the company delivered to Crawford, as its treasurer and stock transfer agent, for the purposes of that office, three books of blank engraved certificates of stock. That one of the books had been [**4]  used up in the regular business of the office, by the issuing of all the certificates therein; and that the second book, in August, 1870, was in process of being used for the same purpose, and was nearly exhausted. They were both offered in evidence. It was contended by the company, that the three certificates in suit, as well as others, which they repudiated as spurious, had been issued by Crawford out of the third book of blank certificates, which had been destroyed by him; and that the signatures of P. G. Van Winkle as president, upon all certificates taken from the third book, were forgeries. On the part of the plaintiff it was contended that the signatures in question were genuine, and proof to that effect was offered. It was also shown, that P. G. Van Winkle, the president, who did not reside in Baltimore, was in the habit of leaving his signatures upon blank certificates, in the books, to be filled up and countersigned by Crawford. It was further in evidence that the signatures of Van Winkle to the certificates in the third book, from which the spurious certificates were taken, were surreptitiously procured by Crawford. It was further shown, that Messrs. McKim and Garrett, directors [**5]  in the company, had each loaned money to Crawford upon a certificate of stock, accepted as genuine, but since alleged by the defendant to be a forgery; and that Mr. Van Winkle, the president, himself had pronounced his signatures genuine, upon certificates held by the National Mechanics' Bank, which were afterwards repudiated by the company as forgeries.

It was also in evidence that Mr. Van Winkle, although informed by Mr. McKim as early as March, 1870, that a great deal of money was being borrowed on the stock, and "that Crawford was operating in Parkersburg stock," he was contented to accept Crawford's statement "that all was right." On a subsequent occasion he was sent for to Hyde Park to come again and look into the matter, and he reported "that he had given Mr. Crawford's books a thorough examination, and had a free conversation with him, and was satisfied everything was right." Again he was called on to go with Mr. McKim to the Mechanics' Bank to examine two certificates held by that bank. Mr. Coleman, the cashier, told him that he had heard rumors of an over-issue of stock. Van Winkle said he had heard those rumors, asked to look at the two certificates, inspected them [**6]  carefully for two or three minutes, handed them to Mr. McKim, who looked at them for a minute or two and handed them back to Van Winkle, who returned them to Coleman, saying, "these are all right," remarking that it was his habit to leave certificates signed at the office, as it was impossible for him to be within reach at all times. These two certificates were shown at the trial not to have come out of the first or second book, and were repudiated by the defendant as forgeries.

First Exception: The plaintiff offered to prove by Josias Lee Johnston as follows:

I am a banker and broker; before August, 1870, I called Mr. Garrett's attention to the unusual quantity of Parkersburg stock on the market, and he said he would go to the Parkersburg Railroad office and look into it; he returned, and while I do not remember his exact answer, it was such as to re-assure my mind that all was right at the Parkersburg Branch Railroad office; I had already made a small loan on the stock, and I made two large loans afterwards; they were made on thirty days' call, and I called them in before August, 1870, but they were not all paid; I made the loans on March 26th, and April 8th, 1870; those [**7]  were the loans made after my conversation with Mr. Garrett; I never had a second conversation with Mr. Garrett before the difficulties became known.

On cross-examination, the witness said: The small loan was for $ 4500, the loan in March was for $ 10,000, and in April for $ 10,500: I took Mr. Crawford's note for each loan; I had my conversation with Mr. Garrett in February or March, 1870; I do not remember shewing him any certificates; I cannot remember whether he told me my certificates were right or the books of the company were right; I do not recollect why he said all was right; both interviews were at my office; I did not send for him, and the conversation was incidental; I don't think Mr Garrett has ever seen the two certificates upon which I made the loans; all was paid me except $ 2500; that was on the third loan of $ 10,000; Mr. Crawford paid the $ 10,500 loan on the 29th of July, 1870.

To the admissibility of this testimony the defendant objected, and the Court sustained the objection. The plaintiff thereupon excepted.

Second Exception: Waived.

Third Exception: The plaintiff offered to read in evidence from the record book of proceedings of the directors [**8]  of the defendant, of the 10th of August, 1870. The defendant objected and the Court sustained the objection. The plaintiff excepted.

Fourth Exception: The defendant offered in evidence by Joseph E. Paine, that he was an expert in the matter of hand-writing, and that he believed the signatures, P. G. Van Winkle, in the certificates sued upon in this case, were not genuine signatures. The defendant then offered to ask the said Joseph E. Paine, as a witness familiar with the hand-writing of P. G. Van Winkle, whether from his knowledge of the hand-writing of said Van Winkle, he believed the said signatures to be in his hand-writing; the witness being then interrogated as to his knowledge of Van Winkle's hand-writing, stated that he had never seen him write, nor received any letter from him, nor in the course of his business had he become acquainted with it; that his only knowledge on that subject was derived from an examination of the signatures of said Van Winkle in the two certificate books in evidence, which had been put in his hands by the defendant for the purpose of enabling him to testify in this case, and that he had carefully examined them for five or six months, and had [**9]  thus acquired a knowledge of the hand-writing of Van Winkle; the plaintiff then objected to his competency as a witness to testify to the signatures on the certificates in suit in this case, as a witness having knowledge of the hand-writing of Van Winkle; which objection the Court overruled, and permitted the witness to give his opinion to the jury from his knowledge of the hand-writing of Van Winkle, that the signature of P. G. Van Winkle, upon the certificates in suit, were not his; to the overruling of his objection by the Court, and to the permitting the witness to give his opinion to the jury, the plaintiff excepted.

Fifth Exception: The defendant then offered evidence by Mr. Southworth, a resident of Charlestown, Massachusetts, that he was a photographer by profession, and also an expert in the matter of hand-writing; that he had been employed by the defendant to make photographic copies of the signatures, P. G. Van Winkle, attached to the certificate sued upon in this case, and also other certificates held by Alex. Brown & Sons, The National Mechanics' Bank of Baltimore, and others, the authority of which was disputed by the defendant; and also photographic copies of the [**10]  signature P. G. Van Winkle, to a number of the certificates in the two certificate books in evidence, which the defendant claimed to be genuine signatures of said P. G. Van Winkle; and that he had made such photographic copies not only of the actual size of the said signatures, but also by a magnifying process had produced the same of a very large size; and the witness then produced the said photographic copies, both of the actual and magnified size of said signatures, and the defendant thereupon proposed to offer said copies in evidence, to be examined by the jury, and also to examine the witness in reference to the same, that he might explain to the jury the differences between the photographic copies of the signatures which the defendant claimed to be genuine, and such as it claimed to be forgeries, and to express his opinion, derived from a comparison of those copies, as to the genuineness of the signatures of P. G. Van Winkle upon the original certificates sued upon in this case; the plaintiff thereupon objected to the offering of said copies in evidence to be examined by the jury, and to the examination of the witness in reference thereto; but the Court overruled his objections [**11]  and permitted said photographic copies to go to the jury as evidence, and also permitted the witness to be examined in reference thereto. The plaintiff thereupon excepted.

Sixth Exception: The plaintiff offered the following prayers:

1. If the jury believe from the evidence that the plaintiff, on the 9th day of May, 1870, loaned and advanced the sum of $ 6650, and on the 9th July, 1870, the sum of $ 3000, on the faith of the three certificates of stock of the defendant, now held by the plaintiff, and obtained by him from Rich in the manner shewn by the evidence in the case, and that said certificates were issued from the office of said defendant by its transfer agent, while engaged in the business of his employment as such transfer agent, and that said certificates were signed by the president and treasurer of said defendant, and sealed with its seal, and were in all other respects in the usual form of genuine stock certificates of the said defendant; and shall further find that the defendant, in the month of January, 1871, notified all holders of its stock certificates to present them at the banking house of McKim & Co., in Baltimore city, for the purpose of having them [**12]  exchanged for new certificates of a different design, and that the plaintiff, upon the presentation of his certificates at the banking house aforesaid, was informed by the treasurer and transfer agent of the defendant acting under and by its authority and direction, that said certificates of stock were spurious and void, and shall find that the defendant repudiated and refused to recognize the same; and shall further find that the party from whom the plaintiff received said stock, and to whom the plaintiff made the loans and advances aforesaid, on the security of said stock, has not paid the same or any part thereof, and is utterly insolvent, then the plaintiff is entitled to recover in this action.

2. If the jury believe from the evidence that the plaintiff, on the 9th day of May, 1870, loaned and advanced the sum of $ 6650, and on the the 9th July, 1870, the sum of $ 3000, on the faith of the three certificates of stock of the defendant, now held by the plaintiff, and obtained by him from Rich in the manner shewn by the evidence in the case, and that said certificates were issued from the office of the said defendant by its transfer agent, while engaged in the business of his [**13]  employment as such transfer agent, and that said certificates were signed by the treasurer of the said defendant, and sealed with its corporate seal, and purported to be signed by the president of the defendant, and were in all other respects in the usual form of genuine stock certificates of the said defendant; and shall further find that the office from which said certificates were issued, was the regular stock transfer office of the defendant, and that the said transfer agent was authorized to issue all the stock certificates of the defendant from that office, signed by himself as treasurer, and by the president of said defendant, and sealed with its corporate seal, upon engraved certificates, such as were used by him in this case; and shall further find, that at the time of the receipt of said certificates the plaintiff believed them to be genuine, and had no suspicion, and no ground for suspicion, that they were in any respect spurious, then the defendant is bound, by the representation of the validity and genuineness of said certificates of stock, so made by the act of its said transfer agent in the premises, and is estopped from denying the validity and genuineness thereof;  [**14]  therefore, if the jury further find that the defendant, in the month of January, 1871, notified all holders of its stock certificates to present them at the banking house of McKim & Co., in Baltimore city, for the purpose of having them exchanged for the new certificates of a different design, and that the plaintiff, upon the presentation of his three certificates at the banking house aforesaid, was informed by the treasurer and transfer agent of the defendant, acting under and by its authority and direction, that said certificates of stock were spurious and void; and shall find that the defendant repudiated and refused to recognize the same; and shall further find that the party from whom the plaintiff received said stock, and to whom the plaintiff made the loans and advances aforesaid, on the security of said stock, has not paid the same or any part thereof, and are utterly insolvent, then the plaintiff is entitled to recover in this action.

3. Even if the jury should find that the signatures of Van Winkle, to the three certificates in controversy in this suit, are not genuine, still, if they should also find that said signatures were forged by Crawford, and that Crawford was [**15]  the transfer agent and treasurer of the defendant, and that said certificates were issued by him from the defendant's transfer office, under the genuine seal of the defendant, and his, Crawford's genuine signature as treasurer, in the apparent performance and discharge of his official duties and business as such transfer agent, and that said certificates were taken by the plaintiff, and money advanced upon them by him, without knowledge of any fraud, and without suspicion, or ground for suspicion, that said certificates were not genuine, then the fact of said forgery of the signatures of Van Winkle does not constitute a defence to the defendant's liability in this suit.

4. If the jury believe from the evidence, that the certificates of stock held by the plaintiff were issued by Crawford, from the transfer office of the defendant, in the business of his employment as its transfer agent, and that they were received by the plaintiff in good faith, as collateral security for loans made upon them in the manner disclosed by the evidence, and that at the time of the receipt of said certificates, and the making of said loans, the plaintiff had no suspicion, and no reasonable ground for [**16]  suspicion, that said certificates were spurious; and shall further find that said certificates were fraudulently issued by Crawford, without the genuine signatures of the president of said defendant, out of a certificate book delivered to him as treasurer and transfer agent of the defendant, at the time of his appointment, and that they were signed by him as treasurer, and sealed by him with the corporate seal of the defendant, which had been placed in his custody by the president; and shall further find that Crawford was enabled to perpetrate this fraud by reason of the negligence of the president and directors of the defendant, and their failure to exercise reasonable and proper care, skill and diligence in reference to the acts and proceedings of the said Crawford as such transfer agent of the defendant; and shall further find that the party to whom said loans were made on said stock, has never paid the same or any part thereof, and is utterly insolvent, and that the defendant, in the month of January, 1871, repudiated said stock certificates, and declared them to be spurious and void, then the plaintiff is entitled to recover in this action.

5. If the jury find that the plaintiff [**17]  is entitled to recover under any one of the instructions given by the Court, then, if they shall further find that there were issued by Crawford, the said transfer agent of the defendant, from its office, in the business of his said employment, and in the apparent performance of his duties as such agent, certificates of the stock of the defendant, sealed with its seal, signed by its treasurer, and signed or purporting to be signed by its president, amounting in the whole, including the three certificates held by the plaintiff and offered in evidence, to about 25,000 shares, and that they were issued by said agent fraudulently, and were over and above the shares of the capital stock of the defendant authorized to be issued by its board of directors, and that the value of the stock of the defendant was depreciated in the market by reason of such fraudulent over-issue of its stock, then, in assessing the damages of the plaintiff, the jury are not to consider such depreciation, but should give to the plaintiff, as damages, a sum equal to the amounts loaned by them, with interest, if the jury should think proper to give interest; provided such sum does not exceed the market value of the [**18]  stock at the time of the loans, and if they find that its subsequent depreciation was owing entirely to such fraudulent issue.

This prayer was rejected as offered, but granted with a modification, which consisted in striking out all after the word "jury" in the eighteenth line, and substituting in its stead the following: will give him the sum lent by him with interest, if the jury shall think proper to give him interest, or so much of said sum and interest as they may find to have been the value of the stock, under all the circumstances, at the date of the loan by him.

6. If the jury shall find from the evidence, that early in March, of the year 1870, the attention of Mr. Garrett, one of the directors of the defendant, was called to the fact that public rumors existed in regard to over-issue of the defendant's stock, and that in consequence thereof he undertook to make a special examination of the case of Messrs. Johnston Bros., and went to the transfer office of the defendant, to see whether their stock was regularly entered in the books of the company, and returned to Messrs. Johnston Bros., and informed them that it was all right; and shall further find that Mr. Garrett [**19]  also, at the same time, examined into the regularity of issues of stock to his house, and reported that he found them all regular; and shall further find, that early in the month of June, 1870, the attention of Messrs. Garrett and McKim, directors of the defendant, was again called to the fact of rumors in regard to over-issues of the defendant's stock, and that the president of the company, Mr. Van Winkle, was requested by them to make an examination of the books of the defendant in reference to two certificates of the defendant's stock, then held by the Mechanics' National Bank of Baltimore, and that he reported those certificates to be all right; and shall further find that the certificates so held by the Messrs. Johnston Brothers, and the Mechanics' National Bank, did not appear to have been issued out of the regular certificate book of the defendant, nor to have been entered either upon the stock transfer book or stock ledger of the defendant, and that it also appeared from the books that some of the stock of Mr. Garrett's house had also been fraudulently issued, and that the declarations of Messrs. Garrett and Van Winkle to the contrary were publicly and notoriously made; and [**20]  shall further find that the said examinations made by Messrs. Garrett and Van Winkle were partial and imperfect, and that the reports so made by them were incorrect, and that the loans and advances upon the stock, made by the plaintiff, as offered in evidence, were made, all of them, after the report of Garrett, and some of them after the report of Van Winkle, then the said facts, in connection with all the other evidence in the case, are evidence to go to the jury upon the question of negligence raised by the plaintiff's fourth prayer.

7. If the jury shall find from the evidence that Van Winkle, the president of the defendant, was in the habit of signing his name as president to numerous stock certificates of the company, either in the certificate books, or when cut from those books, and leaving them so signed with Crawford, the treasurer and stock transfer agent of the company, to be countersigned by him as treasurer, and sealed with the seal of the company, and issued by him as the regular business of the company should require; and shall further find that the plaintiff's three certificates offered in evidence were among those so signed by the president, and that they were [**21]  countersigned by Crawford and sealed with the company's seal, and issued by him, and received by the plaintiff in the manner disclosed by the evidence, without any suspicion, or any grounds whatever for suspicion, that the same were not issued in the regular and legitimate performance of Crawford's duties as stock transfer agent of the company, then the defendant is responsible to the plaintiff for the loss to him, arising immediately and directly from the repudiation of those three stock certificates by the defendant.

8. In reference to the first, second and third prayers of the defendant, now granted by the Court, the plaintiff asks an instruction to the jury, that if they shall find from the evidence that the plaintiff's certificates were issued by Crawford, the treasurer and stock transfer agent of the defendant at the transfer office of the company, and that they were signed by the President of the company, and by Crawford as its treasurer, and sealed with the seal of the company, and were, in all respects, upon their face, genuine stock certificates of the company, then the burden of proof is upon the defendant to satisfy the jury that the issuing by Crawford of said certificates [**22]  was without authority and a fraud upon the defendant, and that they were issued by Crawford for his own use and benefit, and not for the use and benefit of the defendant.

And the defendant offered the following prayers:

1. That although the jury may find the signature of Van Winkle, to each one of the certificates sued upon, is his signature, and although at the time of making said signatures, he was the president of the defendant, the plaintiff is not entitled to recover, if the jury shall find that the said certificates were severally issued by John L. Crawford, the treasurer of the company, fraudulently and surreptitiously, for his own use and benefit, and not for the use and benefit of the defendant.

2. That the plaintiff is not entitled to recover if the jury find the fact stated in the first prayer, because, as between the said Crawford and the defendant, the issuing by him of the said certificates was without authority and a fraud upon the defendant, and the plaintiff claiming the said certificates under the title of the said Crawford, by way of pledge or bailment, has no other title to the same than the said Crawford had at the time of said pledge or bailment.  [**23]  

3. That the plaintiff is not entitled to recover, although the jury may find that the said certificates were signed in blank by the said Van Winkle, and left with the said Crawford, to be lawfully used for and on account of the defendant; if the jury shall find that they were not so used, but were deposited by his agent, with his authority, as a security for the amount borrowed of the plaintiff for the said Crawford, by said Rich, his agent, and that the said amount was in fact used for his benefit, and not for the use and benefit of the defendant.

4. That the plaintiff is not entitled to recover on account of said certificates, if the jury shall find that they were not severally signed by said Van Winkle as president of the defendants, and that said defendants are not estopped from denying the genuineness of said signatures.

5. That the defendants are not responsible to the plaintiff for or on account of said certificates, on the grounds of alleged negligence on the part of said defendants, or of its president, Van Winkle, or of any of its directors.

6. That if the jury believed the evidence in the case, they must find the facts stated in the defendants' first [**24]  and second prayers, there being no evidence in the case that such facts are not true, and their verdict must be for the defendants.

7. That if the jury find that the certificates of stock in suit were issued by Crawford for his own benefit, and were used for such benefit, and not for the use and benefit of the company, and that the company have received no benefit therefrom, the company is not responsible for said certificates, because in so issuing and using said certificates Crawford committed a criminal offence, as well as a fraud, and their verdict must be for the defendant.

The Court (DOBBIN, J.,) granted the first, second, third, fourth, fifth and seventh prayers of the defendant, and rejected its sixth prayer, and granted the fifth prayer of the plaintiff with a modification, and also his eighth prayer, which was conceded by the defendant, and rejected the first, second, third, fourth, sixth and seventh prayers of the plaintiff as also his fifth as offered; to the refusal of the Court to grant his first, second, third, fourth, fifth, sixth and seventh prayers, and to the modification by it of his fifth prayer, and to the granting by the Court of defendant's first,  [**25]  second, third, fourth, fifth and seventh prayers, the plaintiff excepted. And the judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed, and new trial ordered.  

HEADNOTES:

Principal and Agent -- Responsibility of Principal for the Fraudulent conduct of its Agent -- Measure of Damages -- Evidence -- Opinions as to the genuineness of Signatures, founded upon a mere Comparison of Hand-writing, Inadmissible -- Photographic copies of Signatures, with Explanations by the Photographer, and his Opinion based upon a Comparison of such copies, as to the Genuineness of the Signatures, inadmissible in Evidence.

By the by-laws of a railroad company, its treasurer was made the custodian of the ledger and other books relating exclusively to the ownership and transfer of the capital stock of the company; he was required to prepare and countersign all certificates of ownership of stock and scrip that might be issued, and to receive and enter upon the proper books all transfers thereof. It was made his duty, also, to affix the seal of the company to all certificates of ownership of stock and scrip properly issued by the company, and signed by the President. Such treasurer, wishing to obtain money for his own use, fraudulently issued from the office of the company sundry certificates of stock, signed by himself, sealed with the corporate seal of the company, and having also the signature of the President, and purporting to be genuine in every respect. Upon the stock so issued, the treasurer through the agency of a broker, borrowed large sums of money, the lender not knowing for whom the money was wanted, and advancing the same solely upon the faith of the certificates, which he believed to be genuine. Two of the certificates were issued directly to the lender, and the third was issued to the broker and by him assigned to the lender. Some months afterward it was discovered that there had been a fraudulent issue of stock to a large amount by the treasurer, who soon after the discovery absconded. The company thereupon gave notice requesting the holders of its genuine stock to present their certificates and receive in exchange new certificates. Upon presentation of the above certificates by the holder thereof, in pursuance of this notice, he was informed that they were spurious, and the treasurer of the company refused to exchange them for new certificates. On suit brought against the company, by the holder of these certificates, for its refusal to exchange them for new certificates, it was HELD:

That the defendant was liable for the fraudulent acts of its agent; and the jury in assessing the damages to which the plaintiff was entitled, might allow him the amount of the money advanced on the stock with interest, or the amount of the market value of the stock at the date of the loan, with interest, (if they deemed it proper to allow interest) the amount allowed, however, not to exceed the amount of the money loaned with interest, if the value of the stock should be greater than the loan and interest.

Shortly after the discovery of the fraudulent conduct of the treasurer in the over-issue of stock, the directors of the company, on the 10th of August, 1870, held a meeting at which a report was made by the Finance Committee, setting out in detail the extent of such over-issue. In this report there was no mention made of one of the certificates held by the plaintiff. The plaintiff offered to read in evidence the record of the proceedings of this meeting, from the record book of proceedings of the company, having previously read, without objection, from the record of the various meetings of the stockholders and directors of the company, held prior to this meeting. The defendant objected to the admission of the proffered testimony. HELD:

That the proceedings of the meeting of the 10th of August, were admissible -- the report of the Finance Committee that one of the certificates of stock held by the plaintiff, did not appear upon the list of "over-issues of the stock of the company," furnishing the strongest negative proof that such certificate was genuine and not spurious.

On the question of the genuineness of the signature of a Mr. Van Winkle to certain certificates of stock sued on, a witness professing to be an expert in the matter of hand-writing, was offered to prove that the signature to such certificates, was not genuine. He stated that he had never seen Mr. Van Winkle write, nor received any letter from him, nor had he become acquainted with it in the course of business, but that his only knowledge on the subject was derived from an examination of the signatures of said Van Winkle, in the two certificate books in evidence, which had been placed in his hands by the defendant to enable him to testify, and that he had carefully examined them for five or six months, and had thus acquired a knowledge of the hand-writing of Van Winkle. HELD:

That the witness was not competent to testify as to the genuineness of Mr. Van Winkle's signature, his opinion being derived solely from a comparison of hand-writing.

On the same question, a photographer by profession and expert in hand-writing, offered as a witness by the defendant, stated that he had, at the instance of the defendant, made photographic copies of the signatures of Van Winkle to the certificates sued on, and of others admitted to be genuine -- that some of these copies were of the actual size of the original, and others of an enlarged size. The defendant thereupon proposed to offer said copies in evidence, to be examined by the jury, together with explanations by the witness as to the differences between the genuine and those alleged to be forged, and his opinion, derived from a comparison of those copies, as to the genuineness of the signatures to the certificates sued on. The plaintiff objected. HELD.

That the proffered evidence was inadmissible.  

COUNSEL:
Samuel Snowden, Wm. F. Frick and I. Nevett Steele, for the appellant.

It seems to be settled, that in order to make a witness competent to prove the genuineness of a signature, he should have seen the party write, or should have had correspondence with him, or should have seen letters, bills or other documents, purporting to be in his hand-writing, having afterwards personally communicated with him respecting them, or acted upon them with his knowledge and acquiescence; or known that the party himself has acted upon them in the ordinary business transactions of life, so as to induce a reasonable presumption of their being his--the identity of the party, where personally unknown to the witness, to be proved in every case aliunde. Smith vs. Walton, 8 Gill, 81; Edelen vs. Gough, 8 Gill, 89; 1 Greenleaf's Evidence, (Redfield,) sec. 577.

The witness Paine was not competent, under any of these rules. His being allowed to testify was a palpable violation of the rule laid down in Smith vs. Walton, 8 Gill, 81, against [**26]  comparison of hand-writing. The same was attempted in Doe dem. Mudd vs. Suckermore, 5 A. & E., 703; Goldsmith vs. Bane, 3 Halst., 87; Thatcher vs. Goff, 11 Lou. R., 94, 98.

When the original signatures can be produced, the photographic copies of such signatures are not competent evidence. Taylor Will Case, 10 Abb. Pr., (N. S.,) 301. The only effect of such evidence would be to confuse the jury, and instead of trying the question of the genuineness of the signatures upon the instruments sued upon, the jury might be led to believe that they were trying the question whether or not the photographic copies were correct and properly taken; as that must necessarily be a question in reference to them.

A principal is responsible for the frauds, deceits, negligences, omissions of duty, and abuse of authority, of his agent, committed by such agent in the course, and within the scope, of his employment. Penn., Del. & Md. S. Nav. Co. vs. Hungerford, 6 G. & J., 291, 297; Phila., Wil. & Balt. R. R. vs. Quigley, 21 How., 207; Phil. & R. R. R. vs. Derby, 14 How., 468; Locke vs. Stearns, &c., 3 Met., 363; Smith's Mer. Law, 147; Dunlop's Paley, 301; Story on Agency, sects. 308 and 452.

Corporations [**27]  are as much bound by the acts of their agents as natural persons; and when such agent is clothed with a certain power, he may use that power for an unauthorized, or even a prohibited, purpose in his dealing with an innocent third party, and yet render the corporation liable for his acts. Redfield on Cor., 519; Angell & Ames on Corp., sec. 315; M. & I. R. R. Co. vs Norwich Saving Society, 24 Ind., 462; Ranger vs. The Great Western Railway Co., et al., 5 H. of L. Cases, 85.

And the real test of liability is, whether the act is done in the course of, and within the scope of, the employment. Coleman vs. Riches, 16 C. B., 117; Olding vs. Smith, 11 Eng. L. & E., 424; Story on Agency, sec. 456.

And it makes no difference whether the principal gets the benefit of the act or not; he is, nevertheless, bound to third parties. Grammar vs. Nixon, 1 Str., 653; Thompson vs. Bell, 25 Eng. Law & Eq., 171; Williams vs. Mitchell, 17 Mass., 98; City Bank of New Haven vs. Perkins, 4 Bosw., 420.

And if the act is within the scope of his employment, and yet unauthorized, even if it be wilful, the principal is bound. Green vs. London Gen. O. Co., 97 Eng. C. L., 300; Weed vs. Panama R. R. Co.  [**28]  , 17 N. Y., 362.

And when the very act done is authorized by the terms of the power, such act is binding upon the principal as to all persons dealing in good faith with the agent. Such persons are not bound to enquire into facts aliunde. The apparent authority is the real authority. Pickering vs. Busk, 15 East, 42; North River Bk. vs. Aymar, 3 Hill, 262; Far. & Mec. Bk. vs. Butchers & Drov. Bk., 16 N. Y., 125, 143; Barwick vs. Eng. Joint Stock Bk., L. R., 2 Exch., 265; Smith vs. Bd. of Water Coms., 38 Conn., 217.

And where the agent has acted within the scope of his employment, the principal must suffer the loss rather than a third party, who has dealt with the agent in good faith; upon the ground, that of two innocent persons, he shall suffer who has put it in the power of another party to do an injury. Clark vs. Met. Bank, 3 Duer, 241; Medbury vs. N. Y. & E. R. R., 26 Barb., 564; Westfield Bank vs. Cornen, 37 N. Y., 320; Fitzherbert vs. Mather, 1 T. R., 12; Herbert vs. Huie, 1 Ala., 18, 20; Bk. of U. S. vs. Davis, 2 Hill, 451, 461; Merchants' Bank vs. State Bank, 10 Wallace, 649.

The issuing of the certificates sued on was the lawful exercise of a power vested in Crawford [**29]  by the appellee. It was an act which as a corporation it had full power to do; and whatever it could do in relation thereto, could be performed by its agent whom it held out as competent and fit to be trusted in that particular matter; and thereby in effect it warranted his fidelity and good conduct in all matters of the agency. Bank of Kentucky vs. Schuylkill Bank, 1 Pars. Select Cases, 180.

Acting thus within the scope of the authority vested in him as its sole transfer agent, if Crawford committed a fraud, either by issuing unauthorized stock certificates, to which were affixed the genuine signature of the president, or by issuing such certificates to which he forged that name, third parties in dealing with him in good faith, were not bound to enquire into facts aliunde, but had a right to rely upon the exercise by Crawford of the apparent authority with which he was vested. And if he exercised that power for an unlawful purpose, the act being within the scope of his authority, the company must be held responsible for it. This is not the case of the doing of an act by the agent outside of the scope of his employment, in which, in order to make the company responsible, it is [**30]  necessary to show an express subsequent ratification of the act, or that the company took the benefit of it. Vide Phila., Wilm. & Balt. R. R. Co. vs. Quigley, 21 Howard, 207; Goff vs. Great N. R. R., 107 E. C. L., 671; Porter vs. N. Y. Cen. R. R. Co., 34 Barb., 353; Atlantic Bank vs. Merchants' Bank, 10 Gray, 532

A corporation is liable for the act of its agents in making transfers of stock under a forged assignment or power of attorney. Davis vs. Bank of England, 2 Bing., 293; Chew and Goldsborough vs. Bank of Baltimore, 14 Md., 299; Mayor, &c. of Balto. vs. Norman, 4 Md., 352.

When the agent of a corporation, whose duty and business it is to issue or transfer the stock of the corporation, fraudulently issues such stock for his own benefit, the corporation is liable for his acts, and must compensate the holders of such spurious certificates. Bank of Kentucky vs. Schuylkill Bank, 1 Parson Sel. Cases, 180, (248;) N. Y. & N. H. R. R. vs. Schuyler, 34 N. Y., 30, (61 to 78;) Case of J. K. Hasinger, 2 Ashm., 287; Mechanics' Bank vs. N. Y. & N. H. R. R. Co., 4 Duer, 480; Bruff vs. Mali, 36 N. Y., 200; N Y. & N. H. R. R. vs. Schuyler, et al., 38 Barb., 534.

The case of the [**31]  Mechanics' Bank vs. N. Y. & N. H. R. R., in 4 Duer, 480, which is similar to this case in the form of action, was reversed by the Court of Appeals, in 13 New York, upon the theory that the case of the North River Bank vs. Aymar, in 3 Hill, 262, had been reversed, but this has been since shown to have been a mistake of the Judge, who delivered the opinion, and the authority of the case, in 3 Hill, has been fully vindicated and re-established, and therefore the case in 4 Duer, is now the law of New York. Farmers' Bank vs. B. & D. Bank, 16 N. Y., 135; Griswold vs. Haven, 25 N. Y., 602; Exchange Bank vs. Monteath, 26 N. Y., 509; N. Y. & N. H. R. R. vs. Schuyler, 34 N. Y., 30; Westfield Bank vs. Cornen, 37 N. Y., 320.

The appellee is responsible to the appellant for the amount which he has lost through the act of its agent, whether the certificates of stock, upon which the loans were made, have the genuine signature of the president thereto, or whether his signature is forged, or whether the money went into the treasury of the appellee or into the pockets of Crawford, its treasurer, and therefore, the first and third prayers of the appellant should have been granted, and the first [**32]  and seventh prayers of the appellee should have been rejected.

The acts of Crawford in issuing the certificates of stock, whereby the appellant was injured, being such as he was authorized to perform, and as he was in the habit of performing, as the duly appointed agent of the appellee for that purpose, and having been performed by him while engaged in the business of his employment as transfer agent, are in fact the act of the corporation itself; and each certificate being itself correct as to the form thereof, and under the seal of the appellee, and issued from its only office in Baltimore city, signed by the treasurer, and purporting to be signed by the president was a representation of the truth of the facts appearing upon the face of the certificate; and the appellee is therefore estopped from denying its validity. Mechanics' Bank vs. N. Y. & N. H. R. R., 4 Duer, 480; Farmers and Mechanics' Bank of Kent Co. vs. Butchers and Drovers' Bank, 16 N. Y., 131.

The issuing of the certificate being a power which is given to the appellee for its benefit, the face of the certificate is a declaration and representation by the company to all the world that the party to whom it is [**33]  given is a stockholder in the company, and is the owner of the number of shares stated in the certificate. It is given by the company with the intention that it shall be so used; and a third party taking such a certificate from it in good faith, and without any suspicion of fraud, has a right to rely upon the representation made in and by such certificate, and to presume that all the prerequisites to issuing of the certificate have been fully complied with. Royal Br. Bank vs. Turquand, 6 E. & B., 327; Supervisors vs. Schenck, 5 Wall, 784; Gelpcke vs. Dubuque, 1 Wall., 203.

And the corporation cannot set up the fraud of its own agent as a defence to an action for damages upon a certificate so issued; because the act of the agent, is it own act, and such a defence would be relying upon its own fraud. Merchants' Bank vs. State Bank, 10 Wall., 644; Fay vs. Noble, 12 Cush., 1, [17;] In re Bahia and San Francisco Railway Co. vs. S. F. R. Co., (L. R.,) 3 Q. B., 594; Webb vs. Commissioners, &c., (L. R.,) 5 Q. B., 641; Ward vs. South East R. Co., (105 Eng. Com. Law,) 2 E. & E., 823; N. Y. & N. H. R. R. Co. vs. Schuyler, 34 N. Y., 30, 61, 73, 74; Herman on Estoppel, sects. 389 and 538;  [**34]  Laurenson vs. State, 7 H. & J., 343.

It was the appellee's duty alike to its stockholders and the public, to see that the business of transferring shares was conducted in accordance with its regulations. By appointing one of its own officers to take personal charge of and superintend that branch of its business, it represented him and his official acts to the public as entitled to full credit; and it undertook therefore to be responsible for such acts to those who might act on that credit in the customary mode of doing business.

The appellant in this case does not seek to recover upon the ground of the fraud of the appellee's agent; but upon the ground that the act of Crawford in issuing the stock of the defendant, upon which the appellant advanced his money, was the corporate act of the appellee, and that it is precluded from denying it to be its act, although Crawford may have acted fraudulently in transacting the business of the appellee. By reason of the representation made on the face of the three certificates of the stock of the appellee, that the appellant was the owner of the number of shares of stock set forth on the face of these certificates, the appellant was [**35]  induced to loan his money upon the collateral security of that stock; and it is contrary to public policy and a violation of good faith that the appellee should be permitted to repudiate its representations so made, and thus defraud the plaintiff out of his money. The representations so made by it, whether true or false, must be held conclusive against it. Alexander vs. Walter, 8 Gill, 247; McClellan and Wife vs. Kennedy, et al., 8 Md., 230.

For, if while acting in the business confided to him, Crawford was false to his trust, or wronged the appellee, the appellant, who acted in good faith, ought not to suffer thereby. King vs. Pearce, 40 Mo., 222.

If this point be well taken, the second prayer of the appellant should have been granted, and the fourth prayer of the appellee should have been refused.

Charles J. M. Gwinn, J. H. B. Latrobe and Reverdy Johnson, for the appellee.

The questions involved in this case, may be discussed under the following heads:

First.--No recovery can be had, under any circumstances, on the certificates offered in evidence, without proof of the genuineness of the signatures of the president and treasurer, and of the seal of the company;  [**36]  and the burden of proof here is upon the plaintiff.

Second.--No recovery can be had, even if the certificates were genuine as regards the seal and signatures, and in other respects, if they were issued by Crawford for his own benefit, without authority; and there is nothing in the evidence to estop the defendants below from setting up a want of authority.

Third.--If the said certificates gave to Crawford no right which he could enforce against the company, the hypothecation of them to the plaintiff below, his bailee, could confer no rights which he did not possess himself.

First.--That the genuineness of the signatures is essential to the validity of the certificate would seem to be a self-evident proposition.

The signature of the two officers is for the security of the public as well as of the company. If the treasurer can write the president's name, the by-law requiring the president to write his own name is a nullity, which is not pretended. The charter authorizes the making of by-laws, which then become a part of the charter, and any other provision of the instrument may be as well neglected as that which, on the adoption of the by-laws, requires the double [**37]  signature. Presby. Ch. vs. Mayor, &c. of N. Y., 5 Cowen, 538; McDermott vs. Bd. of Police, &c., 5 Abb. Pr., 422.

So with regard to the seal. It not only gives a technical character to the certificate, but it is an additional guaranty to the public of the validity of the instrument.

Second.--Crawford exceeded his authority, even supposing the signatures and seal of the certificates to be genuine, in issuing the certificates for his own use; and the defendants below were not estopped from availing themselves of this defence.

Reference to the by-laws shews that the duties of Crawford were those of a transfer clerk only. The stock ledger and the transfer book, with the books containing the blank certificate, were all that in point of fact he had anything to do with, inasmuch as the entire working of the road was in the hands of the Baltimore and Ohio Railroad Company. His duty was to keep the stock account, and furnish evidences of the ownership.

From the evidence in the record, it appears that Crawford, instead of limiting himself to the transfer of existing stock, in his dealings, through Rich, with the plaintiff below, undertook to create new stock--not for the benefit [**38]  of the principal, but of the agent--Crawford himself.

Can an officer of a corporation exceed the limits of his authority and bind the corporation by forgery or fraud, provided he can, in so doing, manage to avoid exciting the suspicion of the party with whom he is dealing? The general rule of law is, that every man dealing with the agent of a corporation, or individual, takes upon himself the duty and risk of determining the extent of the authority of such agent. Pole vs. Leask, 9 Jurist, N. S., 829; Adams Express Co. vs. Trego, 35 Md., 66.

This rule applies even more strictly to the case of corporations, than to the case of individuals, because the agency of the servants of a corporation, is, of necessity, limited by the nature of the business of the particular corporation, and by the charter and by-laws which form its rules and system of government.

In order, therefore, that a corporation should be bound by the act of its agent, the act sought to be enforced must be within the ordinary powers of such agent. This is the rule of the Roman and of the Common Law. It must be an act done for the company, and not for the individual benefit of the agent. McGowan & Co. (limited)  [**39]  vs. Dyer, 21 Weekly Reporter, No. 27, May 3rd, 1873; Adams Express Co. vs. Trego, 35 Md., 67; Barwick vs. English Joint Stock Bank, 3 L. R. Exch., 262; and must be such an act as the corporation has in some way practically asserted that the agent has the power to do. It must, therefore, be a genuine act, attended with all the genuine forms by which such acts have been previously surrounded. It must not be a forgery, or fraud; for such services are not within the ordinary duty of an agent, nor can it be supposed that the corporation ever sanctioned them.

It has been held in many cases that a corporation is not liable for the frauds, or misrepresentations of its agents. In re The North of England Joint Stock Banking Co., Dodgson's Case, 3 De G. & Sm., 85; In re The North of England Joint Stock Banking Co., Bernard's Case, 5 De G. & Sm., 283; In re Hull & London Life Assurance Co., Gibson's Case, 2 De G. & J., 283; In re The Royal British Bank, Mixer's Case, 4 De G. & J., 575; Udell vs. Atherton, 7 Hurl. & Norm., 186, 191, 195, 197.

In the case of Henning vs. New York and New Haven R. R. Co., 9 Bosworth, 289, the Court say: "The language of the prevailing opinion is 'the power [**40]  of the agent to charge his principal, by doing a wrong, must be traced distinctly to his authority, and cannot be referred to an increased facility for imposing on the credulity of others, derived incidentally from his appointment to a situation of trust.'" And again: "The same reasoning must apply to the possession of the transfer books; and an authority of the transfer agent to permit a transfer, accompanied with such possession, does not amount to such indicia of authority to certify to ownership of stock, as to fix a liability upon the defendants." 9 Bosworth, 290; see also Mechanics' Bank vs. New York and New Haven R. R., 3 Kern., 632-638; Foster vs. Essex Bank, 17 Mass., 479; Fuller vs. Wilson, 3 Ad. & Ellis, N. S., 58; Story on Agency, 305.

Are the defendants estopped by the circumstances of the case from availing themselves of the defence that their agent, exceeded his authority? What are those circumstances? The appellant replies the negligence of the directors in leaving the means of committing the fraud in the hands of Crawford, to wit, the seal, the blank certificates, and the facilities afforded by the position of Crawford in the transfer office of the company in [**41]  Baltimore.

In the first place, the office was a necessity, no matter who was treasurer; so was the seal and so were the blank certificates; and that Crawford's custody of the seal was not an act of culpable negligence on the part of the directors is shewn by the case of the Bank of Ireland vs. Evans' Trustees, 5 H. of Lords, 403. The same reason applies to the custody of the blank certificates.

The possession by the transfer agent of a corporation of the transfer books of its stock, and the authority to allow them to be used, do not constitute the indicia of an authority to make representations as to the ownership of stock, so as to make the company liable for the falsity of such representations. 9 Bos., 283.

In the next place, this is a suit against the corporation, a body of stockholders represented by the directors; and whatever might be the liability of the latter under other circumstances than those which exist in this case, there can, it is thought, be no question that they could not be the agents of the stockholders to commit a fraud, either directly themselves, or by any act of negligence in the appointment or supervision of agents under them. See Dodgson's Case,  [**42]  3 De Gex & Smale, 90; Bernard's Case, 5 De Gex & Smale, 289; Mixer's Case, 4 De Gex & Jones, 586.

Were the negligence of the directors, in this case, which is most emphatically denied, proven, the company would not be liable in the present action.

In the case of the Western Bank of Scotland vs. Addie, 1 Scotch and Divorce Appeals, 145-167, Lord CRANWORTH at p. 167, is quoted as saying: "An attentive consideration of the cases has convinced me that the true principle is, that these corporate bodies, through whose agents so large a portion of the business of the country is now carried on, may be made responsible for the frauds of those agents to the extent to which the companies have profited from these frauds, but they cannot be sued as wrong-doers, by imputing to them the misconduct of those whom they may have employed." See Benjamin on Sales, 350; Swan vs. The North British Australasian Company, 7 Hurl. & Nor. Exchequer Reports, 601-661.

This case was carried by writ of error to the Exchequer Chamber and was affirmed by six out of seven judges. Vide 32 Law Journal, N. S., Court of Exch., 273.

Third.--The position of the plaintiff below as bailee of Crawford.

In [**43]  the first place it appears from the record that the certificates in question were issued by Crawford for his own use. That he could have made the company responsible for them will not of course be pretended. He did not sell the stock. Tome therefore was not a purchaser. He held the stock as a security. Had he any better right to it than Crawford had as against the company? A bailee, says Story, can never be in a better position than his bailor. Story on Bailment, sec. 102; Wilson vs. Anderton, 1 Barn. & Adol., 450; Ogle vs. Atkinson, 5 Taunton, 759; Biddle vs. Bond, 118 E. C. L., 231; Coleman vs. Rices, 7 J. Scott, 16, C. B., 104, (81 E. C. L., 115.).  

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

OPINIONBY:
BOWIE 

OPINION:

 [*64]  BOWIE, J., delivered the opinion of the Court,
The main question involved in this cause, is the extent of the liability of private corporations, for the acts of their agents, done within the scope of their employment, expressed or implied.

 [*65]  The inquiry is of peculiar interest, not because of any novelty of principle, but on account of its application to a class of corporations, which have multiplied with amazing rapidity,  [**44]  in modern times, and absorbed a vast proportion of the capital and commerce of the country.
As the relation of principal and agent is common to all classes and conditions of life, the principles which govern it are of universal application.
All persons, natural and artificial, capable of entering into this relation are subject to its laws. From the humblest position of domestic service, to the highest grade of financial or commercial employment, a common principle controls its obligations.
The maxim, "qui facit per alium facit per se," on which it is said the whole law of principal and agent rests, is based on the instinct of natural justice; that in all employments and business of men, those who create or appoint agents for their own convenience and advantage, should be liable for their acts of omission or commission, in the course of their employment.
From considerations of policy, public corporations, such as States or municipalities, are exempt in a great degree from responsibility for implied authority, founded on the conduct of those they employ; but private corporations, like the individuals who compose them, are held to rigid accountability for the acts of those whom [**45]  they have held out to others as worthy of trust.
The record contains six bills of exceptions, taken by the appellant; the first five, to the rejection and admission of certain evidence; the sixth, to the rejection of the prayers of the appellant, and the granting of those of the appellee.
The last exception presenting questions of law, which are peculiar to and govern the case, and the preceding exceptions, such only as are incidental, we shall examine them inversely.

 [*66]  As the pleadings contain a summary of the facts and the issues to which the prayers apply, a synopsis of them will be a proper preliminary.
The suit was instituted on the 1st of April, 1871, in the Superior Court of Baltimore city, by the appellant against the appellee, for the refusal of the latter to issue to the former, certain new certificates of stock, in lieu of others previously issued to and held by the appellant, and presented for renewal, in pursuance of notice requiring the holders of stock to present and renew their certificates.
The narr. contained six counts--the first, second and third for refusing to renew a certificate of 200 shares, issued the eighth of April, 1870,--the fourth, fifth [**46]  and sixth for refusing to renew a certificate of 350 shares, issued the 2nd of October, 1869.
The gist of these several counts is referred to and traversed by the pleas.
The defendants pleaded to the first and fourth counts, that the certificates in said counts mentioned were spurious and not genuine, as the name of the president of the Parksburg Railroad Company, upon the face of said certificates, is not the genuine hand-writing of said president. To the second and fifth counts, that in issuing the certificate mentioned in said counts, the same being spurious and not genuine, inasmuch as the name of the president is not the hand-writing of the president, the agent of the said company, mentioned in said count, acted without the scope of his employment. To the third and sixth counts the defendants deny that they have prosecuted their business, in the matter of issuing certificates of stock, in a grossly unskilful and improper manner, and with want of proper care, skill and diligence.
The defendants afterwards filed additional pleas, alleging that the certificates mentioned were issued without 

 [*67]  authority and fraudulently, and not for the use and benefit of the defendants,  [**47]  but for the use and benefit of the agent.
To the additional pleas the plaintiff (the appellant) replied that John L. Crawford was the treasurer and transfer agent of the defendants, and placed in sole charge of its office in Baltimore, and in possession of their books, containing certificates of stock, signed in blank by the president, and in issuing the certificates, Crawford acted in the exercise of a power conferred upon him by the defendants as their treasurer and transfer agent; that the plaintiff advanced his money upon the collateral security of the certificates, without any knowledge or suspicion that Crawford as treasurer and transfer agent, was acting fraudulently, and that the defendant is estopped from saying the certificates were fraudulently issued, etc.
For replication to the defendants' second amended plea, the plaintiff said, that whether said certificates were fraudulently issued by Crawford, without lawful authority or not, or whether they were issued for his use and not for the benefit of the defendants, or whether the defendants received any benefit, nevertheless the plaintiff was entitled to maintain his action, because Crawford, in issuing the certificates, [**48]  acted within the scope of his employment as treasurer and transfer agent.
The issues made by the pleadings, briefly expressed, are as follows:
1st. Whether the certificates of stock alleged to be issued by the appellees to the appellant were genuine or spurious?
2nd. Whether they were issued by the treasurer and transfer agent within the scope of his employment?
3rd. Whether the appellees conducted their business in the matter of issuing the certificates of stock in a grossly unskilful manner, and without due care and diligence?

 [*68]  4th. Whether the certificates were issued without authority and fraudulently by the treasurer and transfer agent?
5th. Whether the appellees were estopped by the facts and circumstances of the case from denying the authority of their agent and the genuineness of the certificates?
Some of these issues present, perhaps, questions of law as well as of fact, but all errors of pleading were waived, and it was agreed that either party might present, for the judgment of the Court, any question that the facts might authorize.
The appellant's prayers, upon the hypothesis, that the facts contained in them respectively are proved, without referring [**49]  to them specifically, present the following propositions substantially, viz:
1st. The appellee is responsible to the appellant for the amount which he has lost through the act of its agent, whether the certificates of stock upon which the loans were made, have the genuine signature of the president, or whether they are forged, or whether the money went into the treasury of the appellee, or into the pockets of Crawford, if the certificates were issued in the course of, and within the scope of his employment as agent.
2nd. That the appellee is estopped from denying the facts set out in the certificate issued by its agent, and authenticated by its seal, in the due course of his employment and within the scope of his authority.
That the corporation cannot set up the fraud of its own agent as a defence, because the act of the agent is its own act, and such defence would be relying on its own fraud.
3rd. That the negligence of the appellees, in the management and conduct of their corporate affairs, contributed to the perpetration of the frauds upon the appellant, 

 [*69]  and concludes them from denying their responsibility for the acts of their agent.
The appellee's prayers negative [**50]  these propositions, and are generally the converse of them.
The questions involved in them are thus epitomized in the appellee's brief.
1st. That no recovery can be had under any circumstances, on the certificates offered in evidence, without proof of the genuineness of the signatures of the president and treasurer, and of the seal of the company.
2nd. That no recovery can be had, even if the certificates were genuine, as regards the seal and signatures, and in other respects, if they were issued by Crawford for his own benefit, without authority; and that there is nothing in the evidence to estop the defendants below from setting up a want of authority.
3rd. That if the said certificates gave to Crawford no right which he could enforce against the company, the hypothecation of them to the plaintiff below, his bailee, could confer no rights which he did not possess himself.
The appellant's prayers are predicated on the theory of a general agency; the appellee's on a special or limited authority.
In the very excellent compendium of Mercantile Law, by Smith, the rights of third persons against principals are very clearly and forcibly defined, as follows:
"As far as the agent's [**51]  authority extends, he has a right to bind the principal to third persons. Now his authority may, as we have seen, be either expressly given or inferred from the acts of his supposed principal. When it is expressly given, there can be no doubt as to its extent, except from the uncertainty of words employed in delegating it. When, however, it is to be inferred from the conduct of the principal, that conduct furnishes the only evidence of its extent as well as of its existence; and in solving all questions on this subject, the general 

 [*70]  rule is, that the extent of the agent's authority is (as between his principal and third parties,) to be measured by the extent of his usual employment, for he who accredits another by employing him, must abide by the effects of that credit, and will be bound by contracts made with innocent third persons, in the seeming course of that employment, and on the faith of that credit, whether the employer intended to authorize them or not; since where one of two innocent persons must suffer by the fraud of a third, he who enabled the third person to commit the fraud, should be the sufferer." Smith's Mer. Law, 56, 57, (London Edition, 1834.)  [**52]  
This principle is applied to cases respecting notes or bills, which, if drawn, endorsed or accepted by a clerk, who has been previously allowed to do so, bind the master, though the money never came to his use; and to sales and guarantees; in a word, to every species of mercantile transaction; and whether the agent have or have not been dismissed from his employer's service, provided, that the third party had no reason to be aware of the determination of his employment. Vide Prescott vs. Flinn, 9 Bing. 21; Boulter vs. Arlesdon, 1 Sel. 234; Barber vs. Gingell, 3 Esp. 60; Haughton vs. Ewbank, 4 Camp. 88; 12 Mod. 346, cited by Smith.
The American doctrine on this subject is announced by Story, in terms equally emphatic and comprehensive, viz:
"It is a general doctrine of law, that although the principal is not ordinarily liable (for he sometimes is,) in a criminal suit, for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds; yet, he is liable to third persons in a civil suit, for the frauds, deceits, concealments, misrepresentations,  [**53]  torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent in the course of his employment, although the principal did not authorize, or justify, or participate in, or indeed 

 [*71]  know of such misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule applies respondeat superior; and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him, through the instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted, and thereby in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency." Story on Agency, 7th edition, ch. 17, sec. 452; Penn., Del. & Md. Steam Nav. Co. vs. Hungerford, 6 G. & J. 291; Lord HOLT's opinion in Lane vs. Cotten, 12 Mod. 490; Paley on Agency, by Lloyd, 294, 301, 307; Bac. Abrid., Master and Sert. R. These principles apply as well to private corporations, as to natural persons.
"As natural persons [**54]  are liable for the wrongful acts and neglects of their servants and agents, done in the course and within the scope of their employment; so are corporations upon the same grounds, in the same manner, and to the same extent." Angell and Ames on Corps., ch. 9, sec. 310; Albert vs. The Savings Bank of Balto., 1 Md. Ch. 407; Thatcher vs. Bank of N. Y., 5 Sand. 121; Thompson vs. Bell, 10 Exch. 10, (26 Eng. L. and Eq., 536;) Bargate vs. Shortridge, 5 Ho. of Ld. Cases, 297, (31 Eng. L. & E. 44;) Nat. Exch. Co. vs. Drew, H. L., 1855, (32 Eng. L. & E. 1;) Stevens vs. Boston and Maine Railroad, 1 Gray 277; Blackstock vs. N. Y. & Erie R. R. Co., 1 Bosworth 77.
These obligations spring, as we have said, from the dictates of natural justice, the policy of the law, and the necessities of society; they are common to all civilized communities, ancient and modern, and derived mainly from the civil law. In commercial countries, where capital is centered in large corporations, whose stock is 

 [*72]  the subject of continual change by sale or hypothecation,  [**55]  operations which must be conducted by the agency of individuals whose powers can be ascertained only by the extent of their usual employment, the importance of maintaining these principles can scarcely be over-estimated.
It is conceded in this case that the appellees are a corporation, created by the State of West Virginia, that immediately after the re-organization of the company, it made an agreement with the Baltimore and Ohio Railroad Company, by which the latter undertook to work the Branch Road, and thereafter the management of the road became, on the part of the Parkersburg Company, simply a supervision of accounts between the companies.
"That at the first stockholders' meeting, held the 10th of May 1865, the following directors were appointed, and continued in office by annual re-election, until August 1870, when Crawford's frauds were discovered:"
P. G. VAN WINKLE,
JAMES COOK,
JOHN R. MURDOCK,
GEORGE NEALE, JR., Of Parkersburg,
JOHNS HOPKINS,
COL. O'DONNELL,
WM. MCKIM,
C. M. KEYSER,
B. DEFORD,
THOS. SWANN,
JOHN W. GARRETT, Of Baltimore.
Two standing committees were appointed, viz:
Messrs. McKim, Garrett and Murdoch, Committee of Finance; Messrs. DeFord, O'Donnell [**56]  and Cooke, Committee on the Road.

 [*73]  At this meeting, P. G. Van Winkle was appointed President, W. W. Van Winkle, Secretary and John L. Crawford, Treasurer and Stock Transfer Agent.
The following By-Laws or Resolutions were adopted at this meeting.
Resolved, "That the officers of this company, subordinate to the president, shall be a treasurer and Secretary, who shall hold their respective offices during the pleasure of the Board. The duty of the Treasurer, in addition to the usual functions of such an officer, shall be to keep the ledger and other books, relating exclusively to the ownership and transfer of the capital stock of the company; to prepare and countersign all certificates of ownership of stock and scrip hereafter issued, and to receive and enter upon the proper books, all transfers thereof. He shall affix an impression of the seal of the company to all certificates of ownership of stock and scrip properly issued by the company, and signed by the president, and also, to such other instruments, and papers, as are required by law, or the by-laws of the company, or may be directed by the Board, to be under seal. He shall give bond, with security [**57]  to be approved by the president, in the penal sum of ten thousand dollars, conditioned for the faithful performance of the duties of his office, during his continuance therein, and for accounting for, and paying over to his successor, all money, security and other property, which may come to his hands by virtue thereof. Until the further order of the Board, he shall keep his office in the city of Baltimore; and in case of absence or inability to act of the Secretary, shall discharge such duties of the latter, as may be required by the Board or President. His salary shall be at the rate of two hundred and fifty dollars per annum.
Resolved, "That the president and treasurer are hereby authorized and directed to issue certificates of ownership of stock and scrip directly, to such parties as have heretofore 

 [*74]  assented to the terms of re-organization, whether they have or have not their respective certificates of allotment, and also, to those who shall hereafter so assent, in the said terms on the surrender to be cancelled of the stock certificates, bonds, and other evidences of debt of the late North-Western Virginia Railroad Company, owned or held by them respectively.  [**58]  
Resolved, "That the capital stock of this company, be increased by the addition of so many shares of the par value of fifty dollars each, to the amount of the capital stock of the late North-Western Virginia Railroad Company, as may be necessary to cover the stock issued, and to be issued, in redemption of the obligations, debts and stock of the said late company, the gross amount of the stock so issued to be deemed and taken to be the cost of the works and property in the hands of this company, agreeably to the resolutions of the stockholders, adopted at an adjourned meeting held on the 24th day of May last.
Resolved, "That the seal prepared for the use of this company and now exhibited, having as a device a steamboat, locomotive, etc., with the legend, 'Parkersburg Branch Railroad Company,' be, and the same is hereby, adopted as the common seal thereof, and shall remain in the custody of the president, and shall be affixed to all certificates of stock and scrip, and all other instruments requiring a seal executed on the part and by authority of this company."
But one meeting of the directors was held between that of Sept. 1865 and August 1870, viz., on the 17th [**59]  of Sept. 1867, at which no business of importance was transacted.
It has been argued on the part of the appellee, that these by-laws conferred a special authority only on the treasurer and transfer agent, which all persons dealing with him were bound at their peril to know. This, however, is not the doctrine of the text-writers or best adjudged 

 [*75]  cases, as to private corporations. By-laws of a private corporation are generally binding upon none but its members or officers.
These they obligate upon the ground of their express or implied assent to them. Angell and Ames on Corps., sec. 359, and authorities in note.
By-laws of a Public Municipal Corporation are regarded as public acts. Vide Mayor, &c. of Baltimore vs. Reynolds, 20 Md. 1.
These by-laws or resolutions prescribe and define the powers and duties of the treasurer and transfer agent, as between the corporation and himself, and all persons having knowledge of their method of doing business. Angell and Ames on Corps., ch. X., sec. 325 359--citing Cummings vs. Webster, 43 Me. 192; Bank of Wilmington vs. Wollaston, 3 Harrington Del. 90.
By these,  [**60]  "the treasurer is made the custodian of the ledger and other books relating exclusively to the ownership and transfer of the capital stock of the company," he is authorized "to prepare and countersign all certificates of ownership of stock and scrip thereafter issued," and "to receive and enter upon the proper books all transfers thereof;" "to affix an impression of the seal of the company to all certificates of ownership of stock and scrip, properly issued by the company and signed by the president." In a word, he is constituted the executive of the corporation, with large discretionary powers. But an agent's powers (as we have seen) do not depend solely on the express letter of his instructions. "Their extent, as well as existence," as said by Paley, "are often determined by the conduct of the principal towards the agent, and measured by his usual employment."
There was no limit in this case as to the amount of stock to be issued.
It is conceded that no objection is made to the certificates on the ground that they were over-issues.

 [*76]  The seal of the corporation and signatures of the treasurer and transfer agent are admitted to be genuine.
The first of the appellant's [**61]  and appellees' prayers, are based on the hypothesis that the signatures of both president and treasurer are genuine. Yet the appellees insist, notwithstanding they may be genuine, if the jury shall find that the certificates were issued by the treasurer, fraudulently and surreptitiously, for his own use and benefit and not for the use and benefit of the appellees, the appellant is not entitled to recover.
This theory denies all liability of the principal for the fraudulent act of the agent, unless that act enures to the benefit of the former; a proposition which cannot be adopted without abandoning all the principles previously cited from the text-books, supported by a long series of decisions.
Paley, in his chapter on the obligation of principals, for the neglect or fraud of their agents, after announcing the proposition, that "if a man employ an agent in the commission of a fraud, he is clearly liable for it himself," adds, "And employers are also civilly liable for frauds committed by their servants or agents, without their authority, if done in their employment," for which he cites, 1 Str. 653, S. P; (per Lord ELLENBOROUGH in Crockford vs. Winter, 1 Campb. 127; [**62]  Paley, ch. 3d, 302.)
The ground of liability is not that the principal has been benefited by the act of the agent, but that an innocent third person has been damaged by confiding in the agent, who was accredited by the principal, as worthy of trust, in that particular business.
In the case of Jones vs. Perchard, 3 Esp. Cases 507, cited by Paley in note (o) p. 300; a sheriff was held liable for money wrongfully taken by his bailiff, under color of his office, in an action for money had and received; "but the plaintiff (it was held) need not show that the money came to the sheriff's hands."

 [*77]  The modern case of the Bank of Kentucky vs. The Schuylkill Bank, decided by the late president, Judge KING, in the Court of Common Pleas of the First Judicial District of Pa, and affirmed by the Supreme Court of that State, furnishes analogies, and establishes principles, which will aid us much in arriving at correct conclusions, in the present case.
The Bank of Kentucky, in 1835, resolved to establish agencies in New York, Philadelphia and New Orleans, under their by-laws, relating to the transfer of stocks. The Schuylkill Bank, (of which Hosea J. Levis, was Cashier,  [**63]  ) was appointed the agent at Philadelphia.
By the authority conferred on the Schuylkill Bank, that bank could only place on their stock ledger, such shares as were originally subscribed at Philadelphia, or those transferred by warrants from the principal Bank at Louisville, and the agency at New York.
It was alleged, that if the Schuylkill Bank had acted faithfully as transfer agent, no one could, or would have been permitted, to transfer stock where there was no stock to his credit on the books. It was further alleged, that various persons, having no stock on the books, were permitted to transfer shares, purporting to be shares of the Bank of Kentucky, on the ledger of the agency at Philadelphia, and among others, H. J. Levis, the cashier, had transferred 13,374 shares when he had none, or any authority from those who had, whereby the Bank of Kentucky was charged with stock amounting to one and a quarter millions of dollars; which they were afterwards compelled to redeem or recognize as genuine.
These over issues were charged to have been made for the use and benefit of the Schuylkill Bank, and the greater part of the proceeds appropriated to the purposes of that bank.
The Bank [**64]  of Kentucky claimed to be reimbursed by the Schuylkill Bank, for the amount of the spurious issues.

 [*78]  The Schuylkill Bank denied the agency, or that the over-issues were made with their knowledge, privity and consent; insisted that Levis, in his individual capacity, was such agent exclusively; and with Levis in that relation, the Schuylkill Bank, had no connection.
The case was discussed under two prominent points:
1st. That the Schuylkill Bank, was in law and in fact, the transfer agent of the Bank of Kentucky, and responsible for the defaults charged in the bill.
2ndly. That if the first was not sustained, the Schuylkill Bank, under the circumstances, was liable to pay over to the complainants the proceeds of the sale of the spurious stock of the Bank of Kentucky, deposited by Levis in the Schuylkill Bank.
Among other arguments for the defendants, it was insisted that the complainants' right to recover, depended upon their legal liability for the frauds of their agent, and they were not liable, because the capital stock of the Bank of Kentucky, was limited to 50,000 shares, and the spurious shares were in excess of it, and the principal, much less the agent, could not [**65]  enlarge the capital of the corporation.
3rdly. Because the holders of the spurious stock, were bound to inquire into the authority of the agent, which required certain acts to be done, viz: the surrender of the old certificates, before new certificates could be issued.
Having shown that these preliminary provisions were intended for the protection of the corporation from embarrassment between legal and equitable claimants to the same stock, and secure them for liens or claims on its stock, and referred to numerous decisions to sustain those views; the learned Judge returns to the argument thus: "Who conducts the preliminaries resulting in the issue of the new certificates? Why, the bank itself, or what is the same thing on this occasion, its agent lawfully constituted for this purpose. The idea, that the 

 [*79]  purchaser of stock is to lose the property he has honestly paid for, because the bank has not done its duty to itself is unreasonable to the last degree. It would seem strange, indeed, to an unsophisticated understanding, if such a notion could be invoked successfully to save the Bank of Kentucky from the results of its own misapplied confidence in a faithless agent.  [**66]  The true doctrine on this subject is, that where one of two innocent persons is to suffer for the tortious act of a third, he who gave the aggressor the means of doing wrong, must also bear the consequences of the act. If, therefore, the Bank of Kentucky was responsible for the frauds of its agent, there is nothing in the circumstances under which the holders of the spurious stock received their certificates, which exempts it from this liability."
After an exhaustive argument, in which many of the text-books and cases previously referred to, are cited, the learned Judge concludes that branch of his opinion in these emphatic terms: "The principal holds out his agent as competent and fit to be trusted, and thereby in effect, be warrants his fidelity, and good conduct in all matters of the agency." The Bank of Kentucky, was then responsible for the frauds of its agent, whoever that agent was, and did no more than justice required, and law would surely have coerced, when it compensated the holders of the spurious stock.
The fact that the proceeds of the spurious stock enured to the benefit of the Schuylkill Bank, does not seem to have been relied on by the Court; and referring to [**67]  the second head, whether supposing Levis to have been the agent of the complainants, the defendants are not bound to pay the complainants the amount received from the sale of the spurious stock, they say, it is unnecessary to decide it, the decision of the first, superseding the necessity of such inquiry.
A very analagous case is that of the N. Y. and N. H. R. R. Co., against Schuyler and others, 34 N.Y. 30, 61-78, 

 [*80]  decided by the Court of Appeals of New York in 1865, in which all the previous cases in that and other States as well as in England were reviewed. It is a compendium of the law as to the liability of corporations for the acts of their agents done within the scope of their employment, or resulting from negligence of the principal, amounting to "estoppel in pais."
Adopting the general principle before announced, that a corporation is liable to the same extent and under the same circumstances as a natural person, for the consequences of its wrongful acts, and will be held responsible in a civil action at the suit of the injured party, for every grade and description of forcible, malicious, or negligent tort or wrong, which it commits, however [**68]  foreign to its nature or beyond its granted powers, the wrongful transaction may be, it declares, "the incapacity to create the spurious stock would be no defence to an action for damages for the injury."
On the contrary, that very incapacity, since it would render the certificate or transfer, a fraud or deceit, would itself be the cause of the injury, and the basis of recovery. No Court would hear the corporation assert its wrongful act was beyond its chartered limits, and therefore ineffective to charge it with the injurious consequences of fraud. But in this case, the false certificates were issued, and the spurious stock transferred by an officer of the corporation. A corporation aggregate being an artificial body--an imaginary person of the law--so to speak, is from its nature incapable of doing any act, except through agents, to whom is given by its fundamental law, or in pursuance of it, every power of action it is capable of possessing or exercising, hence it is liable to the same extent, and under the same circumstances that a natural person is chargeable with the acts or negligence of his agent, and if the agent conducts himself fraudulently, the same principles prevail [**69]  where the principal is a corporation.

 [*81]  From these premises, the following among other conclusions are reached:
"Where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which, the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice." North River Bank vs. Aymar, 3 Hill 262; N. Y. & N. H. R. R. Co. vs. Schuyler, et al., 34 N.Y. 30.
As a consequence of these principles, the Court held that certain defendants who had acquired spurious stock from Schuyler, although not entitled to become stockholders, were entitled to indemnity from the company for the fraudulent acts of their president and transfer agent, whose authority they were estopped from denying by the facts and circumstances of the case. 34 N. Y. Reports, 50, 51, 53, 61.
In the very recent case of Titus vs. The President, &c., of the  [**70]   Great Western Turnpike Road, 5 Lansing 250, 255, the corporation was held liable for money advanced to the treasurer by an innocent third person, upon spurious certificates of stock, issued by the treasurer to himself, and signed by him, in conformity with their by-laws. In that case the Supreme Court of New York said: "The liability of the principal for such acts of its agent was distinctly affirmed in the N. Y. & N. H. R. R. Co. vs. Schuyler, and in Bruff vs. Mali, (36 N.Y. 200.")
The cases cited by the appellees, prior in date, and in conflict with the principles announced in 34 N. Yk. and 5 Lansing, are of course overruled. We do not think the case of Swann vs. The North British Austrn. Compy. in the Court of Exchequer Chamber, 46 Law Journal 273, 

 [*82]  conflicts in principle, with the cases above cited; but differs rather as to the degree of negligence, which constitutes estoppel in pais. The broker in that case, who forged the instruments, was not clothed with a general authority to represent his principal, and conduct their business, as in the present case.
The case of the Bank of Ireland vs. The Trustees of  [**71]   the Evans' Charities, 5 Hs. of Lords Repts., 389, relied on by the appellees, is of the same general character. The stock sought to be transferred was not that of a corporation issuing stock, of which the defaulting agent was the secretary, but stock held by the trustees in the Bank of Ireland. Grace, the secretary of the trustees, was not transfer agent of that stock, or authorized to affix the seal of his principals to any instruments. "He took advantage of his being secretary to the trustees, and thereby having the custody of the seal." The power to order and dispose of the seal of the corporation, and the use and application thereof, was vested in three trustees; Crawford, on the contrary, had authority to affix the seal of the company to all certificates of ownership of stock, properly issued by the company and signed by the president. The doctrine laid down by that case is, "that the negligence which would deprive the corporation of the right to insist the transfer was invalid, must be negligence in, or immediately connected with the transfer itself," a position, in our opinion, not inconsistent with the facts on which the prayers of the appellant are based.
Since the [**72]  argument of this cause, the case of the Queen on the prosecution of Robson vs. The Shropshire Union Railways and Canal Compy., in the Exchequer Chamber, has been reported in 8 Queen's Bench, (Law Rep.,) 420, 421.
This was an application for a mandamus, requiring the defendants to register certain certificates of stock held by the administratrix of an equitable mortgagee of 

 [*83]  certain shares, standing in the name of the equitable mortgagor, who was a trustee of the stock and a director of the defendants.
The Queen's Bench, consisting of COCKBURN, C. J., MELLOR, HANNEN and QUAIN, J., refused the mandamus, but on appeal to the Exchequer Chamber, their judgment was reversed, and it was held "that the defendants are, under the circumstances of this case (as between them and the prosecutrix) the persons who must suffer for the consequences of a breach of trust of G. Holyoake, (the trustee,) which consequences are attributable to their giving him, or rather perhaps negligently allowing him to obtain, he being a director, indicia of property which he did not possess."
Numerous other authorities establish by analogy the principles above announced; among these may be cited [**73]  2 Hill 459, 461, the case of the U. S. vs. Davis, and 10 Wall. 604, 649, Merchants' Bank vs. State Bank. In the former, a director of the bank took a note for discount, and appropriated the proceeds to his own use; in the latter, a cashier certified that a person having no deposit, had gold on deposit; in both cases the bank was held responsible. So also in 10 Gray 532, the case of the Atlantic Bank vs. The Merchants' Bank--a bank whose teller certified a check when the drawer had no funds, was held responsible for the act of its officer.
In the case of Lister & Supplee vs. Allen, 31 Md. 543, this Court has adopted the language of Judge STORY in his work on Agency, sec. 443, as follows: "But the responsibility of the principal to third persons is not confined to cases where the contract has been actually made under his express or implied authority. It extends further, and binds the principal in all cases where the agent is acting within the scope of his usual employment, or is held out to the public or to the other party, as having competent authority, although in fact he has, in 

 [*84]  the particular instance [**74]  exceeded or violated his instructions, and acted without authority. For in all such cases, where one of two innocent persons is to suffer, he ought to suffer who misled the other into the contract, by holding out the agent as competent to act, and as enjoying his confidence."
"So if the principal should clothe the agent, although a mere special agent, with all the apparent muniments of an absolute title to the property in himself, the principal would be bound by the acts of the latter; as, for example, if he should clothe him with the apparent title to property by a bill of lading of a shipment, as by making the shipment appear to be on account of the agent, or should trust him with negotiable securities, endorsed in blank, a sale or disposal thereof by the agent, although in violation of his private orders, would bind the principal, and give correspondent rights and remedies to third persons, who become bona fide possessors under such sale, or other act of disposal, against him."
The parallel between the instances above cited, in which the principal's liability was fixed, and the facts upon which the appellant's first and second prayers are based, is too obvious to require comment.  [**75]  If the principal is civilly responsible for the frauds of his agent, as seems to be settled by the foregoing authorities, it cannot be material what shape the fraud assumes. It would be illogical to suppose that the liability of the principal is lessened by the magnitude of the fraud--that the greater the breach of trust on the part of the agent, the less the responsibility of his employer.
Every species of "crimen falsi" not accompanied with force--theft, forgery and perjury, are only frauds of a deeper dye. To exonerate the principal because the fraud of his agent amounted to a felony, would violate the reason of the rule, "respondeat superior," deprive innocent third persons of all indemnity, expose them to 

 [*85]  the risks of fraudulent devices, most dangerous, because most difficult to detect, and leave them without any protection, other than the fear of prosecution and punishment.
The common law, which, in some cases, suspends or merges the civil remedy against the culprit, does not, in any case, take away the remedy against those who are expressly or impliedly responsible for him.
The decisions of the highest Courts of Pennsylvania and New York, establish the [**76]  principle that the liability of the corporation is not limited to acts within its chartered powers, done by its agents, but they are responsible notwithstanding the act is beyond its legal capacity to do or contract, hence, although the stock issued by Schuyler and Davis was spurious, that is to say false, the principals were held liable in damages to innocent third persons.
The act of Crawford in issuing stock without the genuine signature of the president, is not a greater violation of the charter of the appellees, than the overissues of stock in the cases cited. Both were frauds on the respective corporations and their stockholders; the act of Crawford differs only in form.
It is essential to public welfare, that where the acts of acknowledged agents are accompanied with all the indicia of genuineness, and issued for a valuable consideration, the principal should be responsible, whether the indicia are true or not. Such liability would conduce to greater vigilance on the part of the principal, greater fidelity in the agent, and greater security to all dealing with them.
It necessarily results, we think, from the foregoing reasoning, and the cases cited, that the appellant's [**77]  first, second, third and seventh prayers, should have been granted, and the appellees' counter proposition, viz: first, third, fourth and seventh rejected.
The conclusion arrived at as to the appellant's first, second, third and seventh prayers renders it unnecessary, 

 [*86]  in our judgment, further to discuss the prayers involving the question of negligence which has been incidentally referred to in the cases cited, as the ground of "estoppel in pais." Independently of that aspect of the case, there was enough in the facts mentioned in the prayers of the appellant above enumerated, which, if found by the jury, would have entitled the appellant to recover.
The appellee's second prayer, which places the appellant in the position of bailee of Crawford, and asserts he has no other or better title than Crawford, at the time of the pledge, is founded, we think, on a misapprehension of the true relation between the appellant and appellee. It does not appear that the loan was made to Crawford, or that the certificates of stock were ever held by him; on the contrary, the loan was made to one Rich, without knowledge of the appellant until Crawford's difficulties became public, that [**78]  he was the person for whom Rich wanted the money.
To constitute the relation of bailor and bailee, there must have been evidence of title in the bailor, to the certificates in question, and a transmission of that title to the appellant, through the bailor. The agent, Rich, did not disclose his agency or borrow the money, upon any specific certificates already issued and held in the name of Crawford, but upon certificates which he procured to be issued directly to the lender, as of the date of the loan.
There was no privity between the appellant and Crawford. The appellant does not claim through him, but through the certificate issued by him as the agent of the corporation. The action is not "ex contractu" but "ex delicto;" it does not seek to enforce the contract contained in the certificate, but supposing it to be genuine, it claims damages for the non-performance of a public duty, which the corporation by its charter assumed; or if not genuine, for the loss and injury inflicted on the 

 [*87]  appellant, by the fraud and tort of the agent of the appellee. As said in 34 N. Y., the fraud constitutes the cause of action, and no Court would suffer a defendant to set up [**79]  the fraud of himself, or his agent (which is by construction his own act) as a bar to the action, otherwise, fraud would be invincible and incurable.
The measure of damages, prescribed by the modification of the Court, of the appellant's fifth prayer, is as we understand that modification, the proper standard.
By that it is left to the jury to determine, whether under all the circumstances, without regard to the causes of depreciation of the stock (if any) at the time of the loan, the appellant is entitled to recover the amount of the money advanced on the stock with interest, or the amount of the market value of the stock, with interest, (if they deem it proper to allow interest;) but in no event to allow more than the amount of the money loaned with interest, if the value of the stock should exceed said loan and interest.
The exceptions to the rulings of the Court in respect to the evidence referred to in them will now be considered.
The testimony of J. L. Johnston, the rejection of which was the subject of the appellant's first exception, being supplied by the admission of the same evidence on the part of the appellee, it is unnecessary to comment on its character and competency,  [**80]  further than to say, such testimony was pertinent and admissible.
The second bill of exceptions is waived by the appellant.
The third involves the admissibility of the record of the proceedings of the directors of the defendant's Company, of the 10th of August, 1870.
By agreement of counsel, the record of the proceedings of the appellee's company, is made a part of the record of this case. It appears from this, that at a meeting of 

 [*88]  the directors of the company, held in August, 1870, after the discovery of Crawford's frauds, a report was made by the Finance Committee, setting out in detail the extent of Crawford's over-issues of stock, etc.,--and that one of the certificates, held by the appellant, did not appear upon that list.
The plaintiff offered to read the proceedings of the 10th of August, (which it is presumed are the proceedings referred to in the agreement of counsel, and which are described as of August, 1870,) the bill of exceptions does not state for what purpose, but the appellant argues, "That they were proper evidence to show what stock was reported to the board of directors of the defendants as fraudulent, and to let the jury see (which was the fact)  [**81]  that some of the stock sued upon in this case had not been so reported, they might consider that fact as some evidence of its authenticity."
The plaintiff read from the record of the various meetings of the stockholders and directors of the defendant prior to August the 10th, 1870, without objection; but when he offered to read the proceedings of the 10th of August, the defendant objected and the Court sustained the objection.
"Books of a corporation are, at common law, regarded as public to a certain extent with respect to its members, but private with respect to strangers. A rule for a limited inspection of the documents of a corporation will be ordered by the Queen's Bench, provided it is shown such inspection is requisite with respect to a suit then instituted, or at least to some specific dispute or question depending, in which the applicant is interested, but in this case the inspection will be granted to such an extent only as may be necessary for the particular occasion."--2 Taylor's Evidence, sec. 1346.
Although the right of the plaintiff, as a member of the corporation, was involved in the issue, the admission of 

 [*89]  the record of the proceedings of the [**82]  10th of August, could not have been resisted on that ground, as the proceedings anterior were read without objection. The right of inspection was therefore conceded. The objection must have been the want of pertinency to the issue.
This objection, we think, was not tenable. The report of the committee on finance that one of the certificates of stock held by the appellant did not appear upon the list of "over-issues of the stock of the company," furnished the strongest negative proof that the certificate referred to was genuine and not spurious.
By Art. 75, sec. 69, of the Code of Pub. Laws, power is vested in the Courts, in the trial of actions at law, on motion made at the first Court after the appearance Court, to require parties to produce copies certified by a justice of the peace, of all such parts of all books or writings in their possession as contain evidence pertinent to the issue, etc., in cases and under circumstances where they might be compelled to produce such original books, or answer a bill of discovery, by the ordinary rules of proceeding in Chancery.
The original being before the Court, the only question remaining was, whether it was pertinent to the issue and [**83]  such as would have been subject to production by the modes indicated.
The circumstances in this case required, we think, that the proceedings of the 10th of August should have been submitted to the jury, and the Court below erred in excluding them.
The fourth bill of exceptions was taken to the admission of the evidence of Joseph E. Paine, produced on behalf of the defendant to prove that the signatures of the president, Van Winkle, subscribed to the certificates, were not genuine.
The witness being interrogated as to his means of knowing Van Winkle's handwriting, said he had never 

 [*90]  seen him write, nor received any letter from him, nor had he become acquainted with it in the course of business, but his knowledge on that subject, was derived from an examination of signatures of Van Winkle, in the two certificate books in evidence, which had been put in his hands by the defendant, for the purpose of enabling him to testify in this case, and that he had carefully examined them, for five or six months, and thus acquired a knowledge of the handwriting of Van Winkle.
The fifth exception was to the admission of the evidence of a photographer and expert in handwriting, and to [**84]  the admission of photographic copies of certain genuine signatures of Van Winkle, taken by the witness, some of which were of the size of the original, and others of an enlarged size, and to the admission of his explanations, to show the differences between the genuine and those alleged to be forged, and to the admission of his opinion derived from a comparison of those copies with the originals, as to the genuineness of the signatures of Van Winkle, attached to the certificates sued upon in this case.
The plaintiffs objected to the offering of said copies in evidence to be examined by the jury, and to the examination of the witness in reference thereto, as stated; but the Court permitted said photographic copies to go to the jury as evidence, and also permitted the witness to be examined in reference thereto.
The question presented by these exceptions, although varied in form, is substantially the same, viz: whether the genuineness of hand-writing, can be established by the opinions of a witness, whose belief is founded upon a mere naked comparison of papers submitted for his examination, "post litem motam."
In the case of Smith vs. Walton, 8 Gill 77, Judge [**85]  MARTIN, delivering the opinion of this Court, after adverting to the arguments in favor of the admission of evidence of 

 [*91]  comparison, and conceding it had been done in some of the American Courts, declares "it is in conflict with the doctrine of the common law, as enunciated in Westminster Hall." In another paragraph, he says, "We consider it as the settled rule of the English law, which in this respect, we approve and adopt, that with the exception of ancient documents (an exception standing upon the necessity of the case,) signatures cannot be proved by a direct comparison of hands. By which it is meant, the collation of two papers in juxta-position for the purpose of ascertaining by inspection, if they were written by the same person." In support of these views, the remarks of Mr. Justice COLERIDGE in the leading case of Doe, dem. of Mudd vs. Suckermore, 5 Adol. & Ellis 730, are cited, viz: "Our law has not during a long course of years, permitted hand-writing to be proved by the immediate comparison by a witness of the paper in dispute, with some other specimen, proved to have been written by the supposed writer of the first, *** it was familiar [**86]  to lawyers, that many attempts have been made to introduce this mode of proof, according to the practice of the civil and ecclesiastical laws, but after some uncertainty of decision, the attempts have failed."
On referring to the case of Mudd vs. Suckermore, it will be found, that the opinion of Mr. Justice PATTERSON, is especially applicable to the case before us.
After premising that there were only two modes of acquiring knowledge of hand-writing, which enabled a witness to speak in a question of hand-writing, considered sufficient in law, in both of which the knowledge is acquired incidentally and unintentionally, without reference to any particular object; the learned Judge remarks, "A third mode is now sought to be introduced, viz., by satisfying the witness by some information or evidence, that a number of papers are in the hand-writing of the party, and then desiring him to study those 

 [*92]  papers, so as to acquire a knowledge of the hand-writing, and fix an exemplar in his mind; and afterwards putting into his hand, the writing in question, and asking his belief respecting it. ***
"The very foundation of this mode is the establishment of the fact, that the papers,  [**87]  from studying which the witness is to acquire his knowledge, are the hand-writing of the party. Now that fact must be established either by the acknowledgment of the party, or by the information of third persons. I find no express authority that direct comparison of hand-writing is admissible in evidence, but many to the contrary." (5 Adol. & Ellis 730; 2 Steph. N. P. 1700.)
Judge TAYLOR, in his recent work on Evidence, speaking of the former and present law of England on proof of hand-writing, observes:
"Although all proof of hand-writing, except when the witness either wrote the document himself or saw it written, is, in its nature, comparison--it being the belief which the witness entertains upon comparing the writing in question with an exemplar formed in his mind from some previous knowledge; the law, until the year 1854, did not allow the witness, or even the jury, except under certain special circumstances, actually to compare two writings with each other, in order to ascertain whether both were written by the same person."
"The technical rule of the common law, which was certainly not based on common sense, and which was directly opposed to the practice [**88]  of our own Ecclesiastical Courts, of our Courts in India, of the French Courts and of the Courts of many of the most enlightened States of America, was happily for the administration of justice, abrogated by the Legislature in the year just named, so far at least as related to trials at nisi prius." Vide 17 and 18 Vict. ch. 125, secs. 27, 103.
Hence it appears the common law rule excluding evidence by comparison, whether founded on principle or 

 [*93]  precedent, was so established in England as to require a statutory enactment to control the decisions of the Courts. The evidence offered in these bills of exception, being of that character, which was held inadmissible by the common law, as declared by the English jurists, and our own Courts, we are constrained to adhere to the rule as announced in those cases.
The testimony of the photographer comes within the same principle as that of Paine. It was offered to establish the forgery of the certificates in controversy, by comparing them with copies (obtained by photographic processes, either magnified or of the natural size) of certain signatures assumed or admitted to be genuine, and pointing out the differences [**89]  between the supposed genuine and disputed signatures. As a general rule, in proportion as the media of evidence are multiplied, the chances of error or mistake are increased. Photographers do not always produce exact fac-similes of the objects delineated, and however indebted we may be to that beautiful science for much that is useful as well as ornamental, it is at last a mimetic art, which furnishes only secondary impressions of the original, that vary according to the lights or shadows which prevail whilst being taken. It follows from the foregoing that the judgment of the Court below must be reversed and the cause remanded.
Judgment reversed, and new trial ordered. 

CONCURBY:
ALVEY (In Part) 

DISSENTBY:
ALVEY (In Part) 

DISSENT:

ALVEY, J., delivered the following separate opinion, dissenting in part, in which BARTOL, C. J., concurred:
In this case I much regret being compelled to dissent from the opinion of the majority of the Court, not as to the propriety of reversing the judgment appealed from, for in that result I agree, but as to the principles upon which the reversal proceeds.

 [*94]  The action is founded upon the alleged wrong of the defendant in repudiating certain stock certificates [**90]  held by the plaintiff as being spurious and void, which, as the plaintiff alleges and contends, are either genuine or were issued under circumstances to render the defendant responsible for them.
At the trial below, several exceptions were taken by the plaintiff, some to rulings upon questions of evidence, and the sixth and last exception to rulings upon the prayers offered by the respective parties for instructions to the jury.
The only question of evidence in regard to which I differ from the majority of the Court, is that presented by the fourth exception.
Upon the question whether the signatures of Van Winkle, the president of the defendant, to the stock certificates, in respect of which the suit was brought, were genuine or forged, several witnesses had testified, some the one way, and some the other, and in that state of the proof the defendant produced a witness by the name of Paine, an expert in matter of hand-writing, by whom it was proposed to prove that he was familiar with the hand-writing in question, and that from his knowledge of it he believed the signatures not to be genuine. The witness being interrogated as to his knowledge of Van Winkle's hand-writing, stated [**91]  that he had never seen him write, nor received letters from him, nor in the course of business had he become acquainted with it, but stated that his only knowledge on the subject was derived from an examination of the signatures of Van Winkle in the two certificate books in evidence which had been placed in his hands by the defendant's counsel, for the purpose of enabling him to testify in the cause, and that he had carefully examined them for five or six months, and had thus acquired a knowledge of the handwriting of the party. Upon objection by the plaintiff to the 

 [*95]  competency of this witness for want of knowledge of the hand-writing, the Court ruled him to be competent, and allowed him to give his opinion to the jury from knowledge thus acquired, that the signatures to the certificates in question were not the genuine signatures of Van Winkle. It was to this ruling that the fourth exception was taken.
It is thought that this ruling of the Court below was erroneous, because the witness was without competent knowledge to enable him to testify, and that to allow him to give his opinion or declare his belief as to the genuineness of the signatures, under the circumstances,  [**92]  was nothing more nor less than allowing a comparison of hand-writing on separate papers, as medium of proof, which, by the law of this State, it is supposed, is forbidden. In this position, however, I do not agree. In the first place, I am of opinion that the witness had competent knowledge to enable him to declare his belief in regard to the genuineness of the hand-writing, and, in the second place, being an expert, and all the papers about which he was called to speak being in evidence, and there being no question or controversy in regard to the genuineness of the signatures in the certificate books, I am further of opinion that he was competent to testify, from a comparison of the signatures.
1. Now, according to the books, there are two modes of acquiring knowledge of the hand-writing of a party, either of which is universally admitted to be sufficient to enable a witness to testify to its genuineness. The first is from having seen him write, though but once, and then only to sign his name, or even his surname; and the second is, from having seen letters or other documents, purporting to be the hand-writing of the party, and having afterwards communicated with the writer [**93]  respecting them, or where they have been acted on, or adopted in the course of business by the party, so as to induce a 

 [*96]  reasonable presumption of their being genuine. 1 Greenl. Ev., sec. 577.
Taking this latter mode as the test in the case, suppose the signatures in the certificate-book had been seen by the witness in any business transaction, or in any other way not connected with this cause, and afterwards the signatures had been fully recognized and acted upon by the writer, to the knowledge of the witness, could there be any question, in such case, but that the witness would be competent to testify as possessing knowledge of the party's hand-writing? I apprehend not. And if that be so, why and in what material respect does the case, as actually presented, differ from the case just supposed? The means of obtaining knowledge is substantially the same in both cases, and the knowledge acquired is not different in character or degree. The witness has not been assured as to the genuineness of the signatures in the books, by any act or declaration of Van Winkle, it is true; but he has been assured, in that respect, by what is in every way equivalent to the most solemn [**94]  recognition of which the writer could be capable; and that is, the concession by the party against whom the evidence is offered that the writings from which knowledge is derived are genuine. The knowledge moreover has not been acquired by casually seeing the party sign his name once at some remote period, but it has been derived from deliberate inspection and scrutiny of various signatures, conceded to be genuine, to like instruments to those in dispute. And if, as was said by this Court in the case of Smith vs. Walton, 8 Gill 77, repeating an observation of Mr. Justice WILLIAMS, in the case of Doe vs. Suckermore, 5 Adol. & El. 703, "proof of hand-writing, from the highest degree of certainty, carrying with it perfect assurance and conviction to the lowest degree of probability, may be and is constantly submitted to the jury," it is difficult to perceive upon what reason 

 [*97]  or principle the evidence in this case should have been rejected. As was said in the same case, knowledge derived from continued and habitual inspection or correspondence, or both, carried on till the trial itself, down to a single instance, or knowledge twenty years [**95]  old, may be received. That the knowledge of the hand-writing in this case had been acquired but recently before trial, and during the pendency of the cause, ought not, surely, to be taken as a valid objection to the reception of the evidence. Take the case, by way of illustration, put by Mr. Justice WIILLAMS in the case of Doe vs. Suckermore: "Suppose a person to have seen another sign or write a paper, or to have received one or more letters from him, but, from length of time, his general recollection was become so faint and indistinct that he should be unable to form an opinion, might he not," asked the learned Judge, "peruse and study those authentic documents, if in his possession, to improve and refresh his knowledge before he was called upon to give evidence respecting the writing of that person, by whom such paper or letters, as above supposed, were confessedly written? I apprehend he certainly might. Up to the extent of these observations," he continues, "if not beyond them, the very point has been decided in the case of Burr vs. Harper, Holt, N. P., 420. In truth the reference was made, in that case, not to revive and refresh, but to gain knowledge. And would such [**96]  perusal be admissible if made a week or a month before the trial, but not so if made an hour before the witness went into Court to give his opinion upon the particular writing in question?" I think, therefore, no such distinction can or ought to be made; and if the witness can inspect a writing admitted to be genuine for the purpose of reviving and refreshing an insufficient or worn out impression in his mind, as he doubtlessly can, (8 Gill 77, 85,) it is altogether beyond my comprehension why he cannot be allowed to examine 

 [*98]  the same genuine paper for the purpose of acquiring original knowledge of the party's hand-writing.
It is for these reasons that I am of opinion that the witness possessed competent knowledge to enable him to testify with respect to the signatures in dispute.
2. Then, as to the competency of the witness to testify simply as an expert, Mr. Greenleaf, in his work on Evidence, sec. 578, says, that the rule, requiring personal knowledge on the part of the witness, has been relaxed in two cases:
1. Where writings are of such antiquity, that living witnesses cannot be had, and yet are not so old as to prove themselves. Here the course is [**97]  to produce other documents, either admitted to be genuine or proved to have been respected and treated and acted upon as such by all parties; and to call experts to compare them, and to testify their opinion concerning the genuineness of the instrument in question. For this are cited several authorities both English and American.
2. Where other writings, admitted to be genuine, are already in the case. Here, says the author, the comparison may be made by the jury, with or without the aid of experts. And this Court, in the case of Williams vs. Drexel, 14 Md. 566, decided that where a paper, which is admitted or clearly proved to be genuine, is already in the cause, and another paper, pertinent to the issue, alleged to be in the same hand-writing, is offered in evidence, the jury may compare the latter with the former; and the section of Greenl. Ev., to which I have referred, was cited and relied on by the Court. The question whether an expert would have been allowed to give testimony in that case, as an aid to the jury, was not presented; but nothing was said or intimated against the admissibility of such testimony in a proper case. And cases are not [**98]  wanting in which experts have been allowed to testify, whether the writing in question was in a real or a 

 [*99]  feigned hand, and to compare it with other writings already in evidence, as in this case. As instances of this, see the cases of Revett vs. Braham, 4 T. Rep. 497; Hammond's Case, 2 Greenl. 33; Moody vs. Rowell, 17 Pick. 490; Lyon vs. Lyman, 9 Conn. 55.
Mr. Phillips, 2 vol., Ev., 254, referring to the rule upon this subject, says: "The evidence of a witness, who, from habit and practice, has acquired experience and skill in judging of the genuineness of hand-writing, and who states his belief that a particular writing is in an imitative style and forged, appears to be strictly admissible, although he is not acquainted with the hand-writing supposed to be imitated." This character of evidence was admitted in the case of Doe vs. Suckermore, 2 Nev. & P. 16; 2 Phil. Ev., 261.
It must be borne in mind that this is not the case like Doe vs. Suckermore, 5 Adol. & El. 703, (in which the Judges were equally divided in opinion on the admissibility of the evidence,) where [**99]  papers, irrelevant to the record, are attempted to be introduced for the sole purpose of creating a standard of comparison; but is the case, where all the papers to which the witness refers, are properly in evidence for other purposes. Hence, the objections generally urged against the comparison of hand-writing, as medium of proof, that it may give rise to fraud in the selection of the writings as specimens to be used, and to collateral issues as to the genuineness of the specimens produced, cannot apply.
I am therefore of opinion that it was proper that the witness should have been allowed to testify as an expert in respect to the signatures in evidence before the jury.
Having thus disposed of the question of evidence, I come now to consider the law arising upon such of the prayers acted upon by the Court below, as have been made ground of exception by the plaintiff. And as these prayers all have reference to the acts and conduct, and 

 [*100]  extent of authority of Crawford, the treasurer and transfer agent of the defendant, it is well, before referring particularly to the prayers, to ascertain what express authority was delegated to this agent by the defendant.
Crawford was [**100]  duly appointed treasurer of the defendant, and which office he held at the pleasure of the board of directors. By the by-laws of the defendant, it was declared that "the duty of the treasurer, in addition to the usual functions of such an officer, shall be to keep the ledger and other books, relating exclusively to the ownership and transfer of the capital stock of the company, to prepare and countersign all certificates of ownership of stock and scrip hereafter issued, and to receive and enter upon the proper book, all transfers thereof. He shall affix an impression of the seal of the company to all certificates of ownership of stock and scrip properly issued by the company, and signed by the president, and also to such other instruments and papers as are required by law, or the by-laws of the company, or may be directed by the board to be under seal." He was required by the same by-law to give bond, and until further directed, to keep his office in the city of Baltimore. This by-law was in force during the period that Crawford held the office of treasurer and transfer agent of the company.
The fact that the plaintiff is a bona fide holder for value of the certificates of stock [**101]  in question, and that he had no reason to suspect, at the time he received them, that they were fraudulently or improperly issued, is not controverted; but the real question is, to what extent is the company liable in respect of these certificates, for the fraudulent acts of its transfer agent.
The several prayers on the part of the plaintiff, to the refusal of which exception was taken, present the right to recover on two distinct grounds:
1st. On the hypothesis that the several certificates of stock had been signed by the president, Van Winkle, 

 [*101]  and that they were in all respects in the usual form of genuine stock certificates, and that they were issued by the transfer agent at his office, while engaged in the business of his employment; and,
2ndly. That, assuming or conceding the signatures of the president, Van Winkle, to the certificates of stock not to be genuine, inasmuch as the certificates were issued from the company's office, by its regular officer, in the usual form, without notice of any defect or irregularity therein by the plaintiff, the circumstances under which the certificates were issued preclude and estop the defendant from availing itself of the fraud [**102]  of the transfer agent, and the want of the genuine signatures of the president to the certificates, as a defence to the action.
Under the first of these propositions are embraced the first and seventh prayers of the plaintiff, and under the second, are embraced the second, third, fourth and sixth prayers.
Those of the defendant's prayers which were granted by the Court, will be disposed of in the result of the legal propositions involved in the prayers of the plaintiff.
1. And first, as to the first and seventh prayers of the plaintiff. These prayers maintain, that if the signatures of the president to the certificates be genuine, the fraud of the transfer agent in issuing the certificates for his own purpose, and not that of the company, under the facts stated, the plaintiff being innocent, does not affect the right of the latter to recover. And of this I think there should be no question.
The general doctrine is too well established to be questioned, that the principal is liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances, or misfeasances, and omissions of duty of his agent, in the course  [**103]   of his employment, although the principal did 

 [*102]  not authorize or justify, or participate in, or know of such misconduct, or even if he forbade the acts, or disapproved of them. Sto. Ag., sec. 152, and the authorities cited. And it is equally well settled that corporations are liable for the acts and conduct of their agents, while engaged in the business of their employment, in the same manner and to the same extent that individuals are liable, under like circumstances. Ranger vs. The Great West Railroad Co., 5 Ho. L. Cas. 86; Merchants' Bank vs. State Bank, 10 Wall. 604.
The question of liability here, however, raised on these prayers, involving the fraud of the agent, depends, not upon the actual authority, but upon the apparent authority, of the agent, in the exercise of his employment. The rule upon this subject is stated by Lord ELLENBOROUGH, in Pickering vs. Busk, 14 East, 43, as clearly, and, at the same time, as broadly as can be found in any of the authorities. He there lays it down as clear law, that strangers can only be required to look to the acts of the parties, and to the external indicia of property, and not [**104]  to the private communications which may pass between a principal and his agent; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. That the agent may bind his principal within the limits of the authority with which he has been apparently clothed in respect to the subject-matter; for otherwise there would be no safety in mercantile transactions in which agents are employed. The same doctrine, though stated in somewhat different terms, has been declared by this Court, in the case of Lister and Supplee vs. Allen, 31 Md. 543.
Now, such being the law, if it be true that the certificates of stock were signed by the president, and were, in all other respects, regular on their face, and were 

 [*103]  issued by the transfer agent at the company's office, in the apparent exercise of his employment, and the plaintiff became the bona fide possessor of them, under the circumstances stated in the prayers, why should the company not be responsible? It claims to be exonerated upon the ground that the agent transcended his [**105]  authority in issuing the stock, and because he used it for his own purposes, and thus perpetrated a fraud upon the company. But if there was apparent authority, the fact that the agent used the stock for his own purposes, and thus committed a fraud, will not justify the company in repudiating the stock as spurious, and by that means throw the loss occasioned by the fraud of their agent upon an innocent third party. These certificates having all the indicia of genuineness, and coming from the proper office and officer to furnish them, third parties accepting them were not bound to enquire as to the circumstances under which they had been signed by the president, or in what manner or for what purpose they had been left with the transfer agent. It was enough, so far as bona fide third parties were concerned, that the certificates were issued by an officer with apparent authority in the premises. That this transfer agent had such authority is manifest. By the by-law, before referred to, he was clothed with express authority, and it was made his duty to keep the books relating to the ownership and transfer of the capital stock of the company; to prepare and countersign all certificates [**106]  of ownership of stock and scrip that might be issued, and to receive and enter upon the proper books all transfers thereof. It was made his duty, moreover, to affix the seal of the company to all certificates of stock. With these powers and duties, pertaining to the issuing of certificates and transfer of stock, what could third parties or the public conclude in reference to the want of authority in the agent, in the absence of some admonition of the circumstances under 

 [*104]  which the certificates were signed by the president and left in the custody of the transfer agent? Every person dealing in the usual and ordinary course, had a right to presume that the certificates signed by the president were properly in the custody of the transfer agent, and that they were intended to be used as the agent did use them. The public could deal upon no other presumption. The certificates were genuine, according to the assumption of these prayers, and such as were issued in the most regular transaction; but the fraud of the agent consisted in the improper and illegal purpose for which they were issued. The consequences of this fraud should be borne by the company, employing and entrusting [**107]  the agent, rather than an innocent third party, dealing upon the faith of appearances that the company must be taken to have allowed to exist. Such would seem to be the result of all the authorities upon the subject.
The case of Adams' Express Co. vs. Trego, 35 Md. 47, was much relied on by the defendant's counsel as maintaining principles that would exonerate the defendant from liability for the acts of its agent, under the circumstances of this case; but that case is quite distinguishable from this. There the main question was, whether the act of the superintendent was within the limit and scope of his authority; and this Court, under the particular facts of the case, decided that it was not, and that the Express Company was not bound therefor.
It follows, from what I have said, that I am of opinion that there was error committed by the Court below in refusing to grant the first and seventh prayers of the plaintiff; and for the same reasons that I think these prayers should have been granted, I am of opinion that the first, second, third and seventh prayers of the defendant should have been refused. The fact relied on in the second and third of the defendant's [**108]  prayers, that the certificates of stock were pledged to the plaintiff as collateral 

 [*105]  security for the loan of money to a broker for the benefit of the fraudulent agent, can make no difference if the plaintiff acted bona fide in loaning his money on the faith of the certificates. For the principle would seem to be well settled, that, in the case of a pledge of certificates of stock, which pass by delivery, or where they are issued in, or transferred to, the name of the pledgee, if the pledgor has been, by the act or conduct of the real owner, clothed with the apparent title to, or seeming rightful control over the stock, without the disclosure of any circumstances to indicate the want of authority to dispose of it, the pledgee, if a bona fide holder without notice, may hold the stock against the claim of the real owner. Lowry vs. Com. & Farmers' Bank, Campb. C. C. Rep., 310; Jarvis vs. Rogers, 13 Mass. 105; Wilson vs. Little, 2 Comst. 443; The Queen vs. The Shropshire Union Co., Law Rep., 8 Q.B. 420, in Exch. Chamber; Sto. on Bailm., sec. 322. And this case clearly comes within the principle; for the [**109]  plaintiff, if acting bona fide, had a right to conclude that the ownership of the stock was either in the broker or the party for whom the money was loaned.
2. I come now to the second, third, fourth and sixth prayers of the plaintiff, and they present questions quite different from those just considered.
These prayers proceed upon the theory of the defendant's liability, notwithstanding the president's signatures to the several certificates of stock were not genuine, or had been forged by the transfer agent. Under the second and third prayers it is insisted that, as the certificates have all the other indicia of genuineness, and were issued from the company's office, and by its agent, apparently in the exercise of his employment, and who was entrusted with the regular blanks, and with the seal of the corporation, the defendant is estopped by the acts and conduct of the agent; and, under the fourth and sixth 

 [*106]  prayers, in connection with, and addition to, the facts enumerated in the preceding second and third prayers, the negligence on the part of the directors of the company, in not supervising and investigating the affairs of the office and conduct of the transfer [**110]  agent, is relied on as ground of estoppel to the defendant from showing the certificates not to be valid for want of the genuine signatures of the president.
Now, assuming throughout that the issuing of the several certificates were not corporate acts, and were not in any manner assented to by those capable of binding the corporation, the question is, are the facts enumerated in these prayers of the plaintiff of a character and sufficient to operate an estoppel in pais? for if not, the general principle is applicable, that no title can be acquired by or through the means of a forgery.
That the certificates were not valid without the signature of the president, has not been and could not be denied. Indeed, by invoking the doctrine of estoppel the invalidity of the certificates is conceded; for an estoppel in pais presupposes an error or a fault, and implies an act in itself invalid. It proceeds upon the principle that the author of the misfortune shall not himself escape the consequences and cast the burden upon another more innocent than himself. 10 Wall. 604, 645.
On these prayers the first question is, what acts or representations of the transfer agent will [**111]  bind the company by way of an estoppel? Judge STORY states it as unquestionable law, "that no representations, declarations or admissions of an agent will bind his principal, except in cases within the scope of the authority confided to him." Sto. Ag., sec. 134. This authority, it is true, may be by express delegation, or by implication, arising from the appearance of things recognized, or allowed to exist with the knowledge of the principal.
Here it is insisted, notwithstanding the signature of the president to the certificates of stock may not be genuine, 

 [*107]  but be forged, that under the circumstances stated, the defendant is bound, by the representation of the validity and genuineness of the certificates of stock, made by the act of its transfer agent, and is, therefore, estopped from denying the validity and genuineness thereof. In this proposition is asserted the principle that, although the certificates were invalid without the genuine signature of the president, yet all the purposes of that signature, as means of authentication, could be supplied, and the company bound, by the simple false representation of the transfer agent, by the act of issuing the certificates [**112]  of stock from the regular office of the company under its seal, that the certificates were proper corporate acts, and had been duly signed by the president, according to their purport.
Now it must be borne in mind, that the office and agency of the president is quite distinct from that of the treasurer and transfer agent; and that the latter has no power or authority to exercise the functions of the former. The object of requiring both of these agents to officiate in issuing and authenticating certificates of stock, was to establish checks to operate as a protection, not only to the company but to the public. The certificates themselves purport on their face to be issued by the separate and distinct acts of the two agents; and it is conceded that they should so purport to give them validity. How then can the one agent by act or false representation supply or dispense with the office of the other? His acts and representations made in this respect are clearly not within the scope of his own authority, but within that delegated to another; and as the validity of the certificates required the exercise of the functions of the two agents, the representations of the one, whether by word [**113]  or act, with respect to the exercise of the separate power or authority of the other, not being within (but extrinsic,) the authority confided to him, do not bind the principal. Any 

 [*108]  other doctrine would go far to destroy and render nugatory all checks that corporations may have devised for the protection of their stock. For if the representation of the transfer agent in respect to the signature of the president, is to conclude the corporation, then his representations as to the genuineness of the seal, and every other act of authentication, although they may all, in the particular instance, be false and counterfeit, must equally conclude; and hence, while corporations are bound to act through such agencies, they may be unable, by any checks or precautions that they can adopt, to protect their stockholders against the forgeries and counterfeits of their agents. To such an extent, I am sure, no well considered case has yet gone.
The well established doctrine, that the representations of the agent do not bind the principal, unless made within the scope of his authority, finds apt illustration in decided cases.
In the case of Grant vs. Norway, 2 Eng. L. and Eq. Rep.  [**114]  , 337, it was held that the master of a ship, though a general agent, to perform all things relating to the usual employment of the ship, had no authority as such, to sign a bill of lading for goods which were not put on board the vessel; and consequently the owners of the ship were not responsible to innocent third parties, who had advanced money and incurred liability on the faith of a bill of lading which had been signed by the master without receiving the goods on board. In the course of the opinion of the Court, delivered by Chief Justice JARVIS, he said: "The master is a general agent to perform all things relating to the usual employment of his ship, and his authority as such agent to perform all such things as are necessary in the line of business in which he is employed, cannot be limited by any private orders not known to the party in any way dealing with him. This general proposition is laid down by Mr. Smith in 

 [*109]  his Mercantile Law, p. 559. Is it then, usual, in the management of a ship carrying goods on freight, for the master to give a bill of lading for goods not put on board? All parties concerned have a right to assume that the agent has authority to do [**115]  all that is necessary, but the very nature of the bill of lading shows that it ought not to be signed till the goods are on board, for it begins by describing them as 'shipped.'"
In that case, the representation was that the goods had been shipped, which was false; in this, the representation relied on as concluding the company is, that the certificates were genuine and valid, when they were not so. The principle of the case of Grant vs. Norway, was followed and fully sanctioned in the cases of Hubbersty vs. Ward, 8 Exch. 330, and Coleman vs. Riches, 29 Eng. L. & Eq. Rep. 323.
The act or representation of the transfer agent in issuing the certificates not being ground of estoppel, in respect to the validity of the stock, the next element relied on by the plaintiff to fix responsibility on the defendant is that of negligence in the officers and directors of the company, whereby, as it is alleged, the transfer agent was enabled to perpetrate the fraud by the issue of the spurious stock with the forged signatures of the president to the certificates.
Now, in order to make such negligent conduct effective for the purpose here intended, it [**116]  must be shown to be of a character that amounts to an estoppel, or something that amounts to an implied ratification. Mere negligence, remotely connected with the forgery, or the issue of the spurious stock, will not render the defendant liable. The negligence which would deprive the defendant of its right to insist that the certificates were spurious and therefore invalid, must have been negligence in, or immediately connected with, the issue of the certificates themselves. This is decided, and well and fully illustrated in the case 

 [*110]  of the Bank of Ireland vs. Evans' Trustees, 5 Ho. L. Cas. 389. There, the trustees of an incorporated charity, having a common seal, and being possessed of stock in the public funds, which was registered in the Bank of Ireland, allowed their seal to be in the custody of their secretary, who, without any authority, affixed it to five powers of attorney, prepared in different years, and signed by the trustees. The affixing of the seal was attested by a witness, who had never in fact seen it affixed, but without any fraudulent intent in so doing. The secretary presented the powers of attorney to the bank, and obtained the stock. And in [**117]  an action by the trustees against the bank, for refusing to transfer the stock under a valid power of attorney, the Chief Justice in Ireland instructed the jury, that if they believed that the five powers of attorney were forgeries, then the verdict ought to be for the plaintiffs, unless they at the same time believed that the use made of the common seal of the trustees, whereby the defendants were imposed upon, was caused exclusively by the negligence or default of the plaintiffs, in which case the verdict should be for the defendants. On exception, this direction was held to be erroneous; and on the case coming into the House of Lords on writ of error, the Judges of England were required to attend the argument and give their opinion upon the case. And Mr. Baron PARKE, in delivering the unanimous opinion of the Judges, said: "We concur with Mr. Justice JACKSON, and Justices BALL, CROMPTON and TORRENS, and the Chief Justice LEFROY, in thinking that the negligence which would deprive the plaintiff of his right to insist that the transfer was invalid, must be negligence in, or immediately connected with, the transfer itself." And after referring to Young vs. Grote, 4 Bing. 253, [**118]  the case of the altered cheque, he proceeded to say: "If there was negligence in the custody of the seal, it was very remotely connected with the 

 [*111]  act of transfer. The transfer was not the necessary or ordinary, or likely result of that negligence. It never would have been but for the occurrence of a very extraordinary event, that persons should be found, either so dishonest or so careless as to testify on the face of the instrument, that they had seen the seal duly affixed. It is quite impossible that the bankers could have maintained an action for the negligence of the trustees, and recover the damages they had sustained by reason of their having made the transfer. If such negligence could disentitle the plaintiffs, to what extent is it to go? If a man should lose his cheque-book, or neglect to lock the desk in which it is kept, and a servant or stranger should take it up, it is impossible in our opinion to contend that a banker paying his forged cheque would be entitled to charge his customer with that payment. Would it be contended that if he kept his goods so negligently that a servant took them and sold them, he must be considered as having concurred in the sale, and [**119]  so be disentitled to sue for their conversion on demand and refusal? It is clear, we think, that the negligence in the present case, if there be any, is much too remote to affect the transfer itself, and to cause the trustees to be parties to misleading the bank in making the transfers on the forged powers of attorney." In this opinion, the LORD CHANCELLOR and Lord BROUGHAM fully concurred, and the case was ruled accordingly.
In the case before us the facts are not stronger to raise an estoppel than were the facts in the case just referred to. There the secretary was not only allowed to have the custody of the seal, but access to powers of attorney ready signed by the trustees. Here it was made the duty of the treasurer and transfer agent to keep the books for the registration and transfer of stock, and he was allowed access to the seal, which it was his duty to use on proper occasions, and he was furnished with books of blank certificates. 

 [*112]  It does not appear that there was anything very unusual or extraordinary in this; and although it may be regarded as incautious or negligent thus to have confided in the transfer agent, it cannot be contended that the issue of false [**120]  and forged certificates of stock was the necessary, or ordinary, or likely result of such negligence. There is no pretence that there was any fraudulent connivance on the part of the president and directors of the company, at the improper use of the facilities thus afforded the transfer agent for the issue and transfer of stock; and it certainly cannot be regarded as such negligence in them as to render the company responsible, that they did not contemplate and render impossible the commission of forgery and fraud by their agent. Principals are not required, by any rule of law or justice, to act in reference to their agents upon the presumption that the latter will avail themselves of any opportunity or facility to commit felonies or crimes of any sort. There is no such criterion of responsibility.
The other facts relied on, that the president and directors failed to hold regular meetings, and to investigate the books and transactions of the agent, but acted upon the supposition that all was right at their office, may show that those officers were negligent in the discharge of their duty, but such negligence was not sufficiently proximate and connected with the issue of the forged [**121]  certificates of stock in this case, to render the company liable.
In the case of Swan vs. The North British Australasian Co., 2 Hurls. & Colt. 175, in the Exchequer Chamber, (S. C., 7 Hurls. & N. 603, and 7 C. B., 400,) where a transfer of stock was procured by an agent of the owner, by means of a forged deed, and where the circumstances of negligence on the part of the owner of the stock in facilitating the forgery, would appear to have been even stronger than those in the case of The Bank of Ireland 

 [*113]  vs. Evans' Trustees, the doctrine of the latter case was fully adopted after a most thorough consideration; and it was held:
1. That negligence to operate as an estoppel in such case, must be the proximate cause of the loss; and,
2. That the transfers involved in that case were void, and that there was no such negligence on the part of the plaintiff suing the company for refusing to restore him to the rights of ownership of the stock, as would estop him from insisting that the property in the shares did not pass under the transfers procured by means of the forgery. The doctrine of these cases is not only applicable, but would [**122]  seem to be conclusive of the question here involved.
The case of the New York and New Haven Railroad Company vs. Schuyler, et al., 34 N.Y. 30, has been much relied on by the plaintiff, as an authority for the support of the propositions involved in the prayers under consideration. But the question of forgery was not involved in that case. That was an application in the nature of a bill in equity against Schuyler and others, to have a large number of alleged false and fraudulent certificates and transfers of pretended stock of the company made by Schuyler, and charged to be held by the defendants, adjudged spurious and void, and to compel the certificates to be brought into Court to be cancelled. It was the case of a fraudulent over-issue of stock. Schuyler was the president, and one of the directors of the company, and was, besides, transfer agent. It appeared that the board of directors had transferred to this agent all their powers in respect to the transfer of stock at the New York agency. They furnished him with blank transfers, certificates, assignments and powers, bound in books, the stock ledger and other account books, and gave into his absolute control the [**123]  keeping and management of such books, and the employment 

 [*114]  and control of the clerical force necessary to that purpose. For more than seven years they left to him the unchecked and unquestioned management of the entire business of the transfer office; and it was by no means limited to the mere duty of permitting transfers and issuing certificates upon transfers. He was allowed to dispose of parcels of the stock on account of the company; and a very large amount of the stock was issued and disposed of on his own account, and for his own purposes. And in view of the great extent of the authority with which Schuyler was clothed by the company, either by direct appointment, or by recognition and ratification, or by actual enjoyment of the fruits of his acts, or by long acquiescence from which a presumption of agency could arise, the Court of Appeals of New York might well conclude, as they did, that the issuing of the certificates by such agent was within the scope of the real and apparent authority which he possessed, and that the rights of third parties were not affected by the fact that the agent used and intended to use the proceeds of the stock for his own purpose. This [**124]  is the leading proposition decided by the case; and while the case furnishes very good authority in support of the first and seventh prayers of the plaintiff, it has little or no direct application to any of his other prayers. The doctrine of estoppel in pais is discussed, it is true, but with reference to a very different state of facts from that presented in this case.
With these views, I am of opinion that the Court below committed no error in refusing to grant as instructions the second, third, fourth and sixth prayers of the plaintiff. But I think the fourth and fifth prayers of the defendant, which were intended to present converse propositions to those presented by the second, third, fourth and sixth prayers of the plaintiff, should have been refused. They are too abstract in form, and seem 

 [*115]  to assume, as a principle, that no degree of negligence on the part of the president and directors of the company, however proximate to the issue of the false and spurious certificates, could operate as an estoppel upon, or an implied ratification by, the defendant. No such proposition as that is intended to be maintained by anything said in this opinion, and I am quite sure [**125]  it is not maintainable upon authority.
For the reasons I have stated, I am of opinion that the judgment of the Court below should be reversed, and a new trial awarded.
I am authorized by Chief Judge BARTOL to say that he concurs with me in the foregoing opinion.  

6 of 144 DOCUMENTS 

CHRISTOPHER HOMER vs. CHARLES F. GROSHOLZ and ALBERT COQUENTIN. CHARLES F. GROSHOLZ and ALBERT COQUENTIN vs. CHRISTOPHER HOMER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 520; 1873 Md. LEXIS 77 

July 10, 1873, Decided 

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

The principal facts are stated in the opinion of the Court. The amount of indebtedness secured by the deed of trust of the 18th of February, 1867, from Husgen to Homer was about $ 24,000, of which about $ 20,000 was due to Homer, and the remainder to other parties, most of whom were foreigners.  

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

HEADNOTES:

Receipt -- Estoppel in Pais -- Evidence: Presumption -- Priority between Creditors -- Fraudulent Deed.

The recital of the payment of purchase money in a deed, or of the receipt of the mortgage debt in a release, is not always conclusive upon the parties.

To constitute an estoppel in pais, there must not only be acts and admissions intended to influence another, and which come to his knowledge; but his conduct must be influenced thereby.

Where A. had been in the habit of selling goods on credit to B. during the existence of a mortgage from B. to C. HELD:

That this furnished a strong presumption that goods sold by A. to B., after a release from C. to B., would have been sold to the same amount and on the same terms, even if the release had not been executed and recorded.

B. executed to C. a deed of trust of his property, on the 18th of February, 1867, to secure the payment of a debt due to, and of notes endorsed by the latter, and also of debts due to other parties. On the 2nd of January, 1868, all this indebtedness being paid off, except about one-fourth thereof being $ 5500, due to himself -- C. executed to B. a release in full, at the request of B., who stated, that the deed of trust made him "look bad with Bradstreet," or, "on Bradstreet's books;" the said Bradstreet being a commercial agent. Between then and the 31st of July, 1868, B. purchased of A. in Paris, merchandise which he shipped home, and returning himself in failing health, executed to C., at his request, on the 26th of August, 1868, a mortgage of all his property, to secure the payment of the $ 5500 above named, and to indemnify him in certain other transactions. There was no evidence of fraud or corrupt dealing in this transaction, and B. was solvent to the time of his death, which occurred shortly afterwards. C. became his executor, and A. filed a bill praying a separate account of the sales of the merchandise purchased by B. from him, and for the vacation of the mortgage. HELD:

1st. That A. was not entitled to a separate account.

2nd. That the mortgage should not be vacated.

3rd. That C. was entitled to priority, as to the $ 5500, as well as to the other debts secured by the mortgage. 

COUNSEL:
William A. Fisher, for Grosholz and Coquentin.

The sum of $ 5500 was properly excluded from the mortgage debt under the mortgage of August, 1868, and properly excluded from sharing with the complainants in the distribution; because the defendant is estopped from setting up that indebtedness, after having informed the public by a recorded release that it had been paid by sales of certain chattels. Herman on Estoppels, section 333; Gill vs. Griffith, 2 Md. Ch. Dec., 270--(Affirmed by the Court of Appeals.) Pilmore vs. Hood, 5 Bingham, N. S., 97; Water's Appeal, 35 Penna. State, 523; Brown vs. Castles, 11 Cushing, 348.

Homer cannot assert that the statement in the release is not true. Henderson vs. Mayhew, 2 Gill, 409; Anderson vs.  [**2]  Tydings, 8 Md., 440-442.

No other evidence is needed of notice to the complainants of the statements in the release than its recording. This is conclusive against them, and also must be for them. Cook's Lessee vs. Kell, 13 Md., 469.

The complainants were entitled to a separate account from the executor of the proceeds of sale of their own goods sold after the release had been recorded. The facts show that Husgen was insolvent, and that there was a corrupt agreement between Husgen and Homer, by means of which Husgen obtained false credit with the complainants, for which he had no reasonable expectation of paying. The mortgage to Homer was given to secure a past indebtedness, and to a creditor who took with full notice, and his title was no better than Husgen's, and there are no other lien claimants. Ratcliffe vs. Sangston, 18 Md., 383; Hyde vs. Ellery, 18 Md., 497.

The mortgage of August, 1868, should have been declared fraudulent and void against Homer's creditors. It was the result of a fraudulent scheme, whereby the records were made use of to spread a falsehood before the public, and especially before those from whom Husgen was to buy his goods. After he had thus [**3]  obtained the goods, the defendant at once appropriated them to his own use. Wendell vs. Van Rensselaer, 1 Johns. Ch., 353; Hildreth vs. Sands, 2 Johns. Ch., 35; Pilmore vs. Hood, 5 Bingham, N. S., 97; Hyde, et al. vs. Ellery, et al., 18 Md., 497; Gardner vs. Lewis, 7 Gill, 399, 402.

Luther M. Reynolds and Orville Horwitz, for Homer.

The recital in the release of the deed of trust, dated January 2nd, 1868, viz: that "all the debts or other money obligations of James Husgen," mentioned in the deed of trust, "are paid," is not of any binding force, even as between the parties to the deed; the acknowledgment of payment or amount of consideration is always susceptible of explanation, and is one of the exceptions to the rule of evidence. The Maryland Reports are full of cases to this effect. Wolfe vs. Hauver, 1 Gill, 84; Elysville, &c., vs. Okisko Co., 5 Md., 152; Robinett vs. Wilson, 8 Gill, 181; Shepherd vs. Bevin, 9 Gill, 36; Woollen's Ex'rs vs. Hillen's Ex'r, 9 Gill, 193; Carr, et al. vs. Hobbs, 11 Md., 285; Cunningham vs. Dwyer, 23 Md., 229.

The said recital not even operating as an estoppel between the parties, has no binding effect whatever where strangers are concerned.  [**4]  Nutwell vs. Tongue's Lessee, 22 Md., 444; Daingerfield vs. May, 31 Md., 340; Alexander vs. Walter, 8 Gill, 240; Cecil vs. Negro Rose, 17 Md., 92; Casey's Lessee vs. Inloes, 1 Gill, 494.

The application of the doctrine of estoppel against the manifest intention of the parties, is odious and never allowed by Courts. 2 Smith's Leading Cases, 620, 5th Am. Ed., notes to Doe vs. Oliver.

The design was to release the property, not the debt, and the recital was made for that purpose, and that purpose only. The release was bona fide and operative, and did not contain any secret trust or corrupt agreement. If Husgen had died abroad or refused to execute another mortgage, Homer would have stood on a footing with other creditors, and although he might have shown that the debt was not paid, could not have thereby been relieved from the operation of the release. Daingerfield vs. May, 31 Md., 340.

Neither the existence of the deed of trust nor of the release is brought home to complainants, and could, therefore, have had no influence on them. But if it might have had, that is not sufficient; it must be shewn, that the statement had a direct influence in producing the result. Alexander [**5]  vs. Walter, 8 Gill, 240; Darrah vs. Bryant, 56 Pa., 75; Biddle Boggs vs. Mercer Mining Co., 14 Cal., 367; Williams vs. Chandler, 25 Texas, 11; Phillipsburgh Bk vs. Fulmer, 2 Vroom, 55 (N. J.); Taylor vs. Scoville, 54 Barbour, 34; White Mountain Bk. vs. West, 46 Maine, 15; Simpson vs. Pearson, 31 Ind., 5; State vs. Pepper, 31 Ind., 76; Garlinghouse vs. Whitwell, 51 Barbour, 210; Elmore vs. Marks, 39 Vermont, 538; Turner vs. Coffin, 12 Allen, 401 Collins vs. Case, 23 Wisconsin, 230; Donaldson vs. Hall, 2 Daly, [N. Y.,] 325; McKinzie vs. Steele, 18 Ohio, 41.

The registry law does not give to a man the right, for his own benefit, to impute to himself knowledge of a fact he did not have, but gives to others the right to impute to him knowledge of facts which the register afforded him an opportunity to find out. Cooke's Lessee vs. Hill, et al, 13 Md., 493. Any other doctrine would permit a man, who was not in truth deceived, to palm himself off as though he were. There is no attempt on the part of Homer to set up the first mortgage anew, on the ground that the amount stated to have been paid, was not paid or to cut out intervening incumbrancers who had been or might have been misled,  [**6]  but to set up a totally distinct and different paper, to which there is and can be no valid objection.

There was no intent on the part of Homer to mislead or do harm to any one by the release of January, 1868, and certainly not to the complainants in any way; the greater part of the indebtedness intended to be secured by the mortgage of 1867 having been paid, Homer, in order to gratify Husgen, actually released the property from any lien for the residue of the obligation, and put that residue of obligation at risk; he may have been told by Husgen that it made him look "bad with Bradstreet," but at the same time he swears that that was not his motive in releasing, and that he intended nothing wrong.

In point of fact no wrong or injury happened by reason thereof, for Husgen was solvent, and believed by Homer and everybody else to be solvent in January, 1868; and his credit required no aid with the complainants, with whom he had been dealing for a long time.  

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

OPINIONBY:
GRASON 

OPINION:

 [*524]  GRASON, J., delivered the opinion of the Court.
These are cross-appeals from an order of the Circuit Court for Baltimore [**7]  City, over-ruling exceptions of 

 [*525]  Homer to an auditor's account, and finally ratifying the account, Homer appealing because he was not allowed the full amount of his claim under the mortgage of the 26th day of August, 1868, and Grosholz and Coquentin appealing first, because they were not allowed the whole proceeds of the sale of the merchandise, purchased of them by Husgen; and second, because Homer was allowed to participate in the distribution of said proceeds of sale with the other creditors of Husgen.
On Homer's appeal, it was contended by the counsel of the appellees, that the appellant is estopped from setting up his claim, to the extent of five thousand five hundred dollars, because it was included in the deed of trust of February, 1867, and was, by the deed of release of January, 1868, declared to be paid and fully satisfied.
It has been settled by various decisions in this State, that the recital of the payment of purchase money in a deed, or of the receipt of the mortgage debt in a release of mortgage, is not conclusive upon the parties, but is always open to explanation. Wolfe vs. Hauver, 1 Gill 84; Robinett vs. Wilson, 8 Gill 179, 181; [**8]  Shepherd vs. Bevin, 9 Gill 32; Carr vs. Hobbs, 11 Md. 285; Daingerfield vs. May, 31 Md. 340. The deed of January, 1868, released the security but not the debt, and in an action by Homer against Husgen to recover the debt, the former would not have been estopped by the recital in the deed, from showing that the debt was still due. But, it was also contended that the recital in the deed of January, 1868, that this debt had been paid, and the recording of the deed was notice to the world that the debt had been paid, without which the appellees would not have parted with their goods to Husgen on credit, and therefore, that such declaration operates as an estoppel in pais, against Homer, as to his claim of five thousand five hundred dollars. In the case of the Welland Canal Company vs. Hathaway, 8 Wend. 483, the Court say, "to constitute such an 

 [*526]  estoppel, there must be acts or admissions intended and designed to influence the conduct of another; the acts or admissions must come to the knowledge of the party, his conduct must be influenced by them, and a denial of them will operate to the [**9]  injury of the party, whose conduct is influenced by them. The Court of Appeals, in the case of Alexander vs. Walter, 8 Gill 239 adopt the rule laid down in the Welland Canal Co. vs. Hathaway, as the correct doctrine, and applied it to the case then before them, and it must be regarded as the law of this State. The same doctrine has been held in other States of the Union, and is to be found in the cases cited in the appellant's brief. There must not only be acts or admissions, which come to the party's knowledge, but his conduct must be influenced by them. Conceding then that the registration of the deed of January, 1868, imparted to the appellees, a knowledge of the recitals therein contained, that the debt had been paid, yet one of the necessary ingredients of an estoppel is still wanting, as there is no proof whatever that the appellees, or either of them, were influenced thereby to part with their merchandise to Husgen upon credit. On the contrary the proof shows that Husgen had been purchasing goods on credit from time to time, from Coquentin in Paris, at the very time that the deed of trust was in existence and upon record, and notice of which, he [**10]  is therefore presumed to have had; and this fact furnishes a strong presumption that the goods sold to Husgen, after the release had been executed and recorded would have been sold to the same amount, and upon the same terms, even if the deed of release had never been executed and recorded. Under these circumstances, and in the absence of proof, that the appellees were influenced by the release to sell their goods on credit; we think it very clear that Homer is not estopped from setting up his claim to the five thousand five hundred dollars, which was rejected by the Court below.

 [*527]  Upon the appeal of Grosholz and Coquentin, it was contended first, that they were entitled to a separate account from Homer as executor of Husgen, of the proceeds of the sale of their goods sold to Husgen after the deed of release had been recorded, on the ground that Husgen was insolvent, and that there was a corrupt agreement between him and Homer by means of which he obtained false credit with the appellants, when he had no reasonable expectation of paying, and because the mortgage to Homer was given to secure a past indebtedness, and to a creditor who took with full notice, and his title was [**11]  therefore no better than Husgen's.
The proof shows that Husgen was regarded as perfectly solvent at the time the release was executed, at the time the goods were purchased in Paris, and at the time the mortgage was executed. In October, 1868, a petition in bankruptcy was filed in the United States Court, by Grosholz and Coquentin against Husgen, and after a full investigation, the deeds, now the subject of consideration in this case, having then been offered in evidence, the Court dismissed the petition. Nor is there any proof of any corrupt agreement between Homer and Husgen, by means of which Husgen was to obtain false credit. The proof shows that Husgen was indebted to Homer, and that the latter had endorsed largely for him, and that the deed of trust was executed, to enable Homer to pay himself out of the sale of the property conveyed, the amount due him, as well as to secure him against his liability as endorser, and also to pay some debts due by Husgen to other parties. All this indebtedness was paid off, except the sum of five or six thousand dollars due Homer, when Husgen requested him to execute the deed of release, stating that it made him look bad with Bradstreet, or on [**12]  Bradstreet's books, the party named being a commercial agent. Homer, at first declined to execute the release, but believing that Husgen was perfectly solvent, 

 [*528]  and would pay the debt, and being willing to comply with the request of Husgen, who was his brother-in-law, consented to his request to release, and it was accordingly executed and put upon record. This was done without any agreement or understanding between the parties, as far as the proof discloses, that any security was to be demanded or given in the future for the debt then due. On the other hand the proof shows that this transaction took place in good faith, and without intention to injure any one. The proof further shows that Husgen had been dealing with the appellants for a long time, and that while he purchased goods of them after the release, to the amount of 16,375 francs, their account shows that he had, during the same period, paid them nearly 21,000 francs, a larger part of which was paid after the bill of 16,375 francs was contracted. We are therefore of opinion that the appellants are not entitled to have a separate account of sales of the goods sold by them to Husgen in the spring and summer of 1868.  [**13]  
But it was contended, secondly that the mortgage of the 26th August, 1868, was fraudulent and void against Husgen's creditors; it being, as it alleged, the result of a fraudulent scheme, whereby the records were made use of to spread a falsehood before the public, and especially before those from whom Husgen was to buy his goods, and after he had thus obtained them, Homer at once appropriated them to his own use. Much that we have said upon the first point of the appellants, applies with equal force to this. There is no evidence in the record of any such scheme, or that any one was induced by the recital of the release to give credit to Husgen; he was at that time and down to the time of his death, solvent. The proof further shows, that Homer kept no books, but that his son attended to his business for him; that Husgen returned from Europe in failing health, and that Homer held no evidence of Husgen's indebtedness to him 

 [*529]  nor of his ownership of the stock he had loaned him; and fearing that Husgen's death might be disastrous to him in the then condition of accounts, he saw Husgen and obtained from him a statement of the amount due him, and procured the execution of the [**14]  mortgage of 26th August, 1868, so as to be provided with some evidence of the indebtedness, and security for its payment. The proof further shows, that the amount for which the mortgage was given was actually due. We can discover no ground of objection to its validity.
The order appealed from will be reversed in part, and affirmed in part, and the cause remanded for further proceedings in conformity with the views expressed in this opinion.
Order reversed in part, and affirmed in part, and cause remanded for further proceedings.
ALVEY, J., dissented.  

7 of 144 DOCUMENTS 

JAMES R. HERBERT and PETER W. HAIRSTON, trading as HERBERT & HAIRSTON, vs. SARAH H. GRAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 529; 1873 Md. LEXIS 78 

July 10, 1873, Decided 

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

The case is fully stated in the dissenting opinion of Judge MILLER.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of the Act of 1872, ch. 270 -- Not Retrospective in its operation -- Husband and Wife.

The Act of 1872, ch. 270, provides, that "any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband and may employ counsel and defend such action or suit, separately or jointly with her husband, and judgments recovered in such cases, shall be liens on the property of defendants, and may be collected by execution or attachment, in the same manner as if the defendants were not husband and wife." HELD:

That this Act is not retrospective in its operation, and does not authorize a suit at law against a husband and wife, upon their joint note, executed prior to the passage of the Act.  

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

The words of the Act of 1872, ch. 270, are too express and plain to be mistaken as to the intention of the Legislature to include antecedent contracts; and this being so, there is no room for interpretation. Baugher vs. Nelson, 9 Gill, 303; State, &c. vs. Norwood, et al., 12 Md., 206; Clark vs. Mayor, &c., of Baltimore, 29 Md., 283; Alexander vs. Worthington, 5 Md., 485.

There is nothing in the Constitution of the United States prohibiting the Legislature from passing such a law. 2 Story on the Cons., sec. 1398; Satterlee vs. Matthewson, 2 Peters, 412; Baugher vs. Nelson, 9 Gill, 305; Watson vs. Mercer, 8 Peters, 110; Charles River Bridge vs. Warren Bridge, 11 Pet., 540.

Nor is there anything in the Declaration of Rights, or the Constitution of Maryland, in conflict with such right or power. Baugher vs. Nelson, 9 Gill, 306; Wilson vs. Hardesty, 1 Md. Ch. Dec., 66; Harrison vs. State, use of Harrison, 22 Md., 492; Cooley's Constitutional Limitations, 370.

Nor is there any such limitation [**2]  on such a power, because it was an instance of legislative usurpation, or the violation of the social compact, and the purposes and ends for which governments in this country were instituted. Regent's Case, 9 G. & J., 408; Harrison vs. State, use of Harrison, 22 Md., 492; Goshen vs. Stonington, 4 Conn., 225; State, use of Isaac, vs. Jones, et al., 21 Md., 432; Wilson vs. Hardesty, 1 Md. Ch. Dec., 66; Sedgwick on Statutory and Constitutional Law, 201, 202; Dulany vs. Tilghman, 6 G. & J., 461; Wilderman vs. Mayor, &c., of Baltimore, 8 Md., 551; State, use of Trustees, &c. vs. Warren, et al., 28 Md., 355; Reynolds vs. Furlong, 10 Md., 318; Atwell vs. Grant, 11 Md., 101; Cooley's Constitutional Limitations, 374.

No appearance for the appellee.  

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

OPINIONBY:
GRASON 

OPINION:

 [*531]  GRASON, J., delivered the opinion of the Court.
The only question arising in this case is, whether the Act of 1872, chap. 270, is retrospective in its operation.
It is a clear and well settled rule of law that no statute will be held to be retroactive unless such an intention is clearly expressed in the statute. Baugher vs. Nelson, 9 Gill 299, 303; [**3]  State, use of the Mayor & C. C. of Baltimore vs. Norwood, 12 Md. 195; Clark vs. the Mayor and City Council of Baltimore, 29 Md. 277, and Davis, Adm'r, vs. Clabaugh, 30 Md. 508. In the last of these cases, this Court laid down the rule in the following clear and forcible language: "A statute ought not to have a retroactive operation unless its words are so clear, strong and imperative, that no other meaning can be annexed to them, or unless the intention of the Legislature could not be otherwise satisfied; and especially ought this rule to be adhered to, when such a construction would alter the pre-existing situation of parties, or would affect or interfere with their antecedent right." Has the Legislature 

 [*532]  manifested an intention to make the statute now under consideration, retroactive in its operation, by words "so clear, strong and imperative that no other meaning can be annexed to them," or cannot the intention of the Legislature be satisfied by a different construction. The Act provides, that "any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice [**4]  of the peace, on any note, bill of exchange, single bill, bond, contract, or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such suit or action separately or jointly with her husband, and judgments recovered in such cases, shall be liens on the property of defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife."
Before the passage of the Act of 1845, contracts of married women were void at law, but that Act made such contracts, entered into jointly with the husband, valid, made married women liable to suits at law in such contracts, and subjected their property to execution and attachment.
It has been contended that the Legislature, by using the past tense, "may have executed," clearly manifested its intention to include within the operation of the statute contracts entered into before the Act was passed, and that there is no room for construction. We do not concur in this view of the law. It does not say that a married woman may be sued on any contract entered into jointly with her husband before the Act was passed, or which she "may have heretofore [**5]  executed." It is to be presumed that the Legislators who passed the Act in question, did so with full knowledge of the decisions of this Court, to which we have already referred, and that, if they had intended to include within the operation of the statute contracts made before its passage, they would have used apt words 

 [*533]  to effect their object. This has not been done, and we must therefore be governed by the rule of construction, to which we have before referred, and give the Act a prospective operation.
There is nothing in the language of the Act inconsistent with this construction. The words "may have executed," as the context shows, were used with reference to the time of instituting the suit, and therefore the past tense is correctly employed. They do not speak as of the time of passing the Act, and do not necessarily embrace contracts which had been executed before the Act was passed. Giving it this construction, the statute will operate upon a class of cases, clearly within its scope and operation, without "altering the pre-existing situation of parties, or affecting, or interfering with, their antecedent rights." The Act now under consideration is different in its [**6]  language, and very different in its character and object from the Act of 1845, chap. 352, which was under review in Baugher vs. Nelson, and which was held to be retrospective in its operation. By the Act of 1704, chap. 69, usury, when pleaded and established by proof, was a bar to the action. The Act of 1845, provided that "in any suit or action hereafter to be brought in any Court of Law or Equity in this State, upon any bond, &c., or upon any contract, &c., whether the same relate to the loan of any money, &c., in which any person shall seek to avail himself of the provisions of the Act of Assembly of 1704, it shall be incumbent on such person to specially plead the same, and in such plea to set out the sums, both principal and interest, actually and fairly due on such bonds, &c., estimating the principal debt actually loaned or contracted for, with interest thereupon at the rate of six per cent. per annum." The language of that Act is very clear and comprehensive, and leaves no doubt as to its meaning and intention. It says, "that in any suit hereafter to be brought," that is in any suit brought after the 

 [*534]  10th of March, 1846, the defendant, to avail himself of the [**7]  defence of usury, must plead as required by the provisions of the Act of 1845. That Act had reference to the defence to an usurious contract, and the manner of making that defence, and looked to the pleading, and it clearly applied to the case then before the Court, notwithstanding the note sued on was dated before the passage of the Act, the suit having been brought after it went into operation. So this Court held, with respect to the Act of 1872, chap. 272, in the case of Elliott vs. Elliott, ante, 357.
The Act provides that, "in all cases where a divorce 'a vinculo matrimonii' is decreed for adultery or abandonment, the Court may, in its discretion, decree that the guilty party shall not contract marriage with any other person during the lifetime of the other party," &c. The Act looks to the time of the decree, and says that in all cases where a decree is passed, &c., the Court may in its discretion decree, &c. It was therefore held by this Court that the discretion was well exercised, although the acts for which the divorce was granted, had been committed and suit had actually been commenced before the passage of the Act.
The Act of 1872, chap. 270, has been under [**8]  the consideration of this Court in the case of Catherine Miller, by her next friend George Davis vs. Wilson and Suter, at the present term. (Unreported case.)
In that case a foreign attachment issued in December, 1871, on a joint note of husband and wife, and was laid upon the real estate of the wife, and judgment of condemnation was rendered in June, 1872, and execution issued. The wife, by her next friend, filed a bill in the Circuit Court for Cecil County, for an injunction to stay the execution. The injunction was refused, and the case came to this Court upon appeal of the wife, and was submitted to the whole Bench, and all the Judges were of opinion 

 [*535]  that she was entitled to the injunction, as the judgment of condemnation would relate back to the date of the attachment, which is a lien upon the property upon which it is laid, and thus defeat all intermediate liens, and held that the judgment was not authorized by the Act of 1872, whether it be construed as prospective or retrospective. The Court, however, in that case, had the Act of 1872 under its consideration, and we are authorized by Judges ALVEY and BRENT, who did not sit with us in this case, to state that [**9]  they concur in the conclusion we have reached, that the Act is not retrospective in its operation and does not apply to a case such as the one now before us.
The judgment appealed from will therefore be affirmed.
Judgment affirmed. 

DISSENTBY:
MILLER 

DISSENT:

MILLER, J., delivered the following dissenting opinion, in which STEWART, J., concurred:
This suit was brought on the 27th of April, 1872, by the appellants against the appellee and her husband on their joint and several promissory note for $ 383.61, dated the 29th of March, 1869, payable to the order of the plaintiffs, at ninety days from date, at the Bank of Commerce. The husband was returned non est, but the wife being summoned appeared and pleaded her coverture in bar of the action. Upon demurrer to this plea the Court below gave judgment in favor of the defendant, and from that judgment this appeal has been taken by the plaintiffs.
The case has been argued by counsel for the appellants alone. No argument has been made on the part of the appellee. It involves the very important question, whether the Act of 1872, ch. 270, which took effect on the 1st of April, 1872, the date of its passage, authorizes a suit at law against [**10]  a husband and wife, upon their joint note executed before that Act was passed. In considering 

 [*536]  this question, we must look first to the general purpose and intent of the statute. It is an Act repealing the second section of the 45th Article of the Code of Public General Laws, entitled "Husband and Wife," and enacting a substitute in lieu thereof. By that section of the Code enacted in 1861, a very important change was made in the law of this State respecting the rights of married women over their property. It provides that all the property real and personal belonging to a married woman at the time of her marriage "she shall hold for her separate use with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband;" and then provides what interest he shall have in her property, if he survives her, and she dies intestate and leaving children or leaving none. This section is repealed by the Act of 1872, and a substitute enacted in lieu thereof. This substitute contains the whole of the original section with two most important additions. In the first place it provides that "where the husband is a [**11]  lunatic or insane, and has been so found upon inquisition, and said finding remains unreversed and in force, she may convey" her property "as fully as if she were a feme sole by her separate deed" whether, the conveyance "be absolute or by way of mortgage." To this extent at least, I think it quite clear the purpose of the Legislature was to take out of the Code the original section, and put the substitute back in its place, to speak, take effect, and be operative with the other sections of the same Article as of the date of the Code itself. I cannot suppose that if a marriage has taken place since the Code and before the Act of 1872, and the husband becomes insane, the wife could not exercise the power of sale or mortgage of her property conferred by this substituted section, to support her lunatic husband if she chose so to do. The whole language of the statute clearly evidences this to be its purport and effect, and not to make a new 

 [*537]  law or rule for marriages occurring after the passage of the Act.
The second addition made by this substitute, and upon which the present question arises, is in these words: "any married woman may be sued jointly with [**12]  her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately or jointly with her husband, and judgments recovered in such cases shall be liens on the property of defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband and wife; provided, that in all cases where a married woman has made such contract or agreement as a feme sole under the seventh section of this Article, she may be proceeded against as therein provided."
It was decided by this Court at its last term, in the case of Hall and Hume vs. Eccleston and Wife, 37 Md. 510, that one of the main purposes of the original section was to enable married women to maintain a separate credit independent of their husbands. Having thus settled their property upon them for this purpose, the Legislature thought it right and just they should be responsible for their contracts of a certain description, like other persons, and be sued upon [**13]  them in a Court of law, and their separate estates subjected to the payment of debts so contracted. That was the object the Legislature had in view by the second addition to the original section made by the Act of 1872. There is nothing in it unwise, or harsh, or inequitable. It merely declares that married women shall not unite with their husbands and put their names and signatures to these contracts and thereby induce honest and bona fide creditors to part with their money, or merchandise, and then when pay-day comes, hold on to their 

 [*538]  property, repudiate their honest obligations, and consummate cheats and frauds by pleas of coverture. It applies to them in a limited manner and to a limited extent the same rule of common honesty and morality, by which widows, unmarried women, and other persons having property, are bound when they contract debts. It deprives them of no honest defences, but on the contrary enables them to employ counsel and defend the suits separately from their husbands. Fraud, duress, coercion, are left them as defences at law, and Courts of Equity are always open to hear their complaints.
Such being the purpose of this provision, the question is,  [**14]  has it a retroactive operation? Does it apply to and affect contracts that antedate its passage? Of the power of the Legislature to make it retroactive, I entertain no doubt. Have they so made it? The rule is universal, that laws are to be so construed if possible, as to give them a prospective operation only. But in whatever strong terms this rule may be stated, it has always in every well considered case, been qualified by the controlling and paramount principle, that if the language of a statute is too express and plain to be mistaken, and that language gives to it a retroactive operation, then the Courts cannot indulge in construction. It is in my judgment a principle too plain for controversy, that Courts have no power to make retrospective language prospective only by a mere arbitrary declaration that thus it shall be, for that would be judicial legislation and overturn the maxim est judicis dicere non dare leges. The words of the law are first to be looked to for the purpose of ascertaining the legislative intent in this as in all other cases. Thus in the case of Clark vs. The Mayor and City Council of Baltimore, 29 Md. 277, where [**15]  the rule of prospective construction is most strongly stated, this Court has said that laws must be construed according to the legislative intent, and "to ascertain this, we are first to 

 [*539]  consider the words employed, and interpret them according to their plain, ordinary and natural import, having some regard to their order and grammatical arrangement. If they are clear, precise and unambiguous, the Legislature must be understood to mean what it has plainly expressed." Nor can the Courts look to consequences where the language of a statute is clear and explicit. These, if evil can only be avoided by a change of the law itself, to be effected by legislation and not by judicial action. Sedgwick on Statutory and Constitutional Law, 231. Least of all can they indulge in supposition as to what was the intention of the draftsman of the Act, or of those who may have voted for it. "Courts must not even in order to give effect to what they may suppose to be the intention of the Legislature, put upon the provision of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the Act." Smith's Commentaries  [**16]   on Statutory Construction, sec. 714. A very strong case illustrating these doctrines was recently decided by the Supreme Court of Ohio, where the Court say they were satisfied, by considerations outside of the language, that the Legislature intended to enact something very different from what it did enact; but notwithstanding all this, they say ita lex scripta est; the language as it stands is clear, explicit and unequivocal; it is our legitimate function to interpret legislation, but not to supply its omissions. Woodbury & Co. vs. Berry, 18 Ohio St. 456. In this connection I cannot refrain from quoting the terse and vigorous language of the late Chief Justice LE GRAND, speaking for the Court, in the case of Alexander vs. Worthington, 5 Md. 471: "We are not at liberty to imagine an intent and bind the letter of the Act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence."

 [*540]  I thus find that all the authorities raise a uniform protest against the power of Courts, so [**17]  to deal with the language of a statute as to substitute the will of the judiciary for that of the Legislature, and declare that Judges in expounding, as well as citizens who are to obey it, must read the law as it is written without any arbitrary subtraction from, or addition to its meaning. In this respect it makes no difference whether the purpose be to determine whether the words of the law make it retroactive, or to ascertain their meaning in any other respect.
What then is the language of the law now to be dealt with? It is plainly this: "any married woman may be sued at law with her husband, on any note, &c., which she may have executed jointly with him." I cannot conceive how it is possible to raise an ambiguity on these words, or to affirm they are wanting in clearness or precision. How can they be made to declare that married women may be sued only on such notes as they may execute after the law takes effect, except by a mere arbitrary declaration that they shall mean this and nothing more. Punctuation may be disregarded or so made to accommodate the sense, but I cannot recognize the right of Judges so to deal with the grammar of a plain English sentence,  [**18]  as to change the past tenses of its verbs into future tenses. I have found no case in which any Court has ever attempted this, and yet in my judgment, it must be done here before the language of this Act can be deprived of its plain retroactive effect. No one can deny that the law became operative and spoke the legislative will just as effectually and imperatively the very instant after it was approved and signed by the Governor, as it does to-day. Its language is the same now as it was then. Now, reading it as speaking at that instant of time, as law then it undoubtedly was, and what did it proclaim? Did it not then instantly tell creditors of married women that they could at once go into the Courts of law and sue any married 

 [*541]  woman on any of these designated notes or contracts "which she may have executed?" How is it possible to escape the retroactive effect of these words "may have executed," when we answer as we must, that the statute is to be read as speaking from the moment of its approval? They applied then to pre-existing contracts, and it will not do to give them one reading as of that date and another one now. If retrospective then, as I submit they clearly [**19]  were, they are retrospective still. Surely the fact that other contracts have been executed since the passage of the law upon which it can also operate, does not alter the meaning of these words, or deprive them of any retroactive force they once had. In the case of Baugher vs. Nelson, 9 Gill 299, the law undoubtedly operated upon contracts of loan made after its passage, but the Court did not for that reason think itself authorized to say that it did not also operate upon antecedent contracts. The language of that Act was "in any suit or action hereafter to be brought upon any bond or contract of loan, &c.," and the Court held it to be too clear for dispute, that these terms embrace antecedent contracts of that character as well as subsequent ones. As a precedent, that case in my opinion ought to control and govern this, even if the language of the present law was less clear, explicit and strong than it is, and I am unable to see how that decision can longer be regarded as law, in view of the determination of a majority of the Court in this case.
It is said the words "may have executed" do not speak as of the time of passing the Act. But in my judgment [**20]  the plain answer to this is, that the Legislature HAS SAID the Act shall take effect from the date of its passage. In face of this clear mandate, how can the Court say it shall not take effect then, but at some future time, and as contracts may be made to give it operation? I cannot yield my assent to any such proposition. In my judgment it amounts to a substitution of the judicial for the legislative will.  

8 of 144 DOCUMENTS 

FREDERICK B. SNYDER and VIRGINIA, his Wife, vs. JOSHUA JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 542; 1873 Md. LEXIS 79 

July 10, 1873, Decided 

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

The facts of the case are sufficiently stated in the opinion of the Court, as also the purport of the petition of the appellee, and the nature of the decree from which this appeal was taken. The appellants in their answer to the petition of the appellee, resisted his claim, requiring full proof of the alleged indebtedness of his wife at the time of their marriage. The respondents denied that after the appropriation of the proceeds of the legacy of $ 7000, and all other moneys of Mrs. Jones, the wife of the appellee, there remained any such balance as that stated in the petition. The answer further stated that the respondent, Virginia, after the marriage of her mother to the petitioner, resided in the house with him until the date of her marriage with her co-respondent; that soon after the marriage of the petitioner, he showed signs of disappointment, and many months had not elapsed before he commenced treating his wife and all her children with harshness and disrespect, because, as he alleged, he had been called upon to pay an indebtedness for his wife, of the existence of which he professed to have been uninformed; that he from [**2]  time to time represented to the respondent, Virginia, and her brothers and sisters, that they were in law chargeable with the debts of their mother, and that it would be in his power to take legal measures at once, in the lifetime of their mother, by means whereof their interest in the legacy could be subjected to sale for the purpose of returning to him the money which he professed to have paid on account of the debts of their mother, and he even informed them that he had taken competent legal advice which justified him in such pretensions; that at the time the respondent, Virginia, executed the due-bill in favor of the petitioner, she resided in the house with him, and had done so and been under his parental control and authority from the time of his intermarriage with her mother; that she was born on the 16th of April, 1831, and at the time of the execution of the due-bill, was only a little more than twenty-one years of age, and that from his sternness and harshness, and his cruel treatment of her mother, she was under great dread of the petitioner; that she was totally unexperienced in any business, and unacquainted with her legal rights, and that she was informed by the petitioner,  [**3]  and believed, that in executing the said paper she was merely doing that which he could compel by legal measures, and she consulted no legal or other adviser, and acted only under the direction of the petitioner; that the petitioner said to her, that if she would execute the paper, it would promote peace in the family, and that he would appropriate the interest arising from the legacy of her mother to the payment of said notes, and destroy the same when paid. The answer further alleged, that the petitioner informed the respondent, Virginia, that the children of the first marriage were responsible for their mother's debts, and that as William E. Jones, one of said children, had died before October, 1852, the remaining four children of that marriage were compelled by law to divide equally among them, and pay the amount of between eight and nine hundred dollars, which he claimed to have paid, and she was compelled to assume the fourth part of the said indebtedness, without reference to the obligation of her deceased brother, William; that not until the marriage of the respondent, Virginia, did she learn to what an extent she had been imposed upon in yielding to the importunities and coercion [**4]  of her step-father; and the respondents charged, that even if the petitioner did pay any debts of the mother of the respondent, Virginia, no obligation whatever was imposed upon her, and that the due-bill was entirely unsupported by any consideration, and that by reason of the relations which existed between her and her stepfather, and the absence of any opportunity for competent advice on her part, and by reason of the false and fraudulent representation of his rights made by said petitioner, and on which she relied, and of the coercion exercised towards her in the cruel treatment of her mother and of herself, the said due-bill was wholly void, even if the petitioner had not received, which the respondents affirmed that he had, between the date of his alleged payments and the filing of his petition, from the income and property of the said Ann, an amount more than equal to the principal and interest of any money which he might have paid for any debts of hers, existing at the time of their marriage; and for all which they prayed the petitioner might account. The respondents also pleaded the Statute of Limitations to the claim of the petitioner.

Testimony was taken, and after hearing [**5]  the solicitors for the respective parties, the Court, (PINKNEY, J.,) passed the decree from which this appeal was taken.  

DISPOSITION:
Decree reversed, petition dismissed, and cause remanded.  

HEADNOTES:

Equity Jurisdiction -- Voluntary Contract without consideration, void -- Power of a Court of Equity to inquire into the Real consideration of a Contract -- Contract void in consequence of the Relations existing between the parties thereto.

Mrs. Jones, the wife of the appellee, and mother of the appellant V., was entitled during her life, to the income of a legacy of $ 7000, the principal to be distributed after her death among her children. Mrs. Jones first married a brother of the appellee, by whom she had five children, of whom the appellant V., was one, and all of whom, except William, survived her. In 1845, she married the appellee, by whom she had two children, both of whom survived their mother, who died in 1869. At the time of the marriage between Mrs. Jones and the appellee, all her children were minors, except one; the appellant V., the youngest, was then fourteen years of age. Mrs. Jones owed some debts, contracted during her widowhood, which the income from her legacy was insufficient to pay, and they were paid by the appellee; and he thenceforth insisted that her children by the first marriage were morally and justly bound to repay him the money he had thus expended. After the children reached their majority, he obtained from them written due-bills or obligations, for what he estimated to be their several portions thereof, payable out of the legaey, after the death of their mother. The due-bill of the appellant, V., dated the 20th October, 1852, was an acknowledgment under seal, that there was due by her to the appellee or order $ 214.34, to be paid out of her reversionary interest in said legacy, after the death of her mother, for value received, with interest from date. The money constituting the legacy being in the hands of a trustee, appointed under a decree of the Court of Chancery, who was about to distribute the same among the children of Mrs. Jones, the parties entitled thereto in remainder, the appellee filed his petition, praying that the trustee might be required to pay out of the distributive share due the appellants, the amount of the due-bill of the appellant V. with interest thereon, or that he might be required to retain the same. HELD:

1st. That the claim of the appellee being payable out of a particular fund over which the Court of Equity had jurisdiction, the Court had the power to order it to be paid out of the fund in the hands of the trustee; provided it was established by proof, and was a valid and equitable claim.

2nd. That the due-bill or obligation of the appellant V. was a merely voluntary contract, without consideration, which a Court of Equity would not enforce; it having been given to reimburse the appellee for money expended by him in paying certain debts due by his wife, contracted while she was a widow, which devolved upon him as her husband, and which her children were in no manner bound to pay, either in law or morals.

3rd. That the fact that the due-bill was under seal, and purported on its face to be "for value received," could not prevent a Court of Equity from inquiring into the real consideration for which it was given, and being found to be a merely voluntary contract without good consideration, refusing to enforce it.

At the time the due-bill was executed, and for seven years before, the appellant V., lived in the house of the appellee, a member of his family, and stood towards him in the relation of a daughter; she had reached her majority only a few months before, and at the time she executed the paper, she had not been emancipated from his government and authority. Soon after the marriage of the appellee, upon discovering his wife's indebtedness, he made it the cause of discord in the family, treated her harshly on that account, and after he had paid the debt, demanded of her children, security for its repayment; stated to them that they ought to pay it back, that he had talked with his lawyers, and was acting on their advice, and said it was right and proper, that they (the children,) should sign the paper, in order to reimburse him for the payment of their mother's debts. It appeared from the testimony, that the only motive of the appellant V. in signing the paper, was to gratify her father's importunate demands, in the hope of thereby securing peace in the family, and kinder treatment to her mother. She had no advice or assistance, and was not informed of her rights and obligations. HELD:

That it would be inequitable to enforce her contract, entered into under such circumstances, in favor of the appellee, who held towards her the relation of confidence and authority.  

COUNSEL:
James L. McLane and William A. Fisher, for the appellants.

A Court of Equity will not aid the appellee to recover such a claim. His remedy, if any he have, must be at law; the instrument is not an assignment, but a covenant of Miss Virginia Jones, to pay out of a particular fund.

The appellee and his niece and step-daughter were not on equal terms, and he could make no contract with her. The Courts will not allow any one who occupies any relation toward another, which involves confidence or authority, to take a benefit at the expense of the other, without the clearest evidence that such donor or promisor was in a position fully to comprehend her rights, and was wholly disembarrassed of such influence and authority. This rule is not restricted to any particular class of relations, and is justly nowhere more strictly applied than in the case of parent and child, guardian and ward, and equally applicable to a person standing in loco parentis. Highberger vs. Stiffler, 21 Md., 338; Todd vs. Grove,  [**6]  33 Md., 192-94; Hatch vs. Hatch, 9 Vesey, Jr., 292; 1 Story's Equity, secs. 309, 317, 318, 319; Archer vs. Hudson, 7 Beavan, 551; Maitland vs. Irving, 15 Simons, 437; Revett vs. Harvey, 1 Sim. & St., 502; Taylor vs. Taylor, 8 Howard, 183; Everett vs. Everett, 10 L. R. Eq. Cases, 405; Haygarth vs. Wearing, 12 L. R. Eq. Cases, 327; Hoghton vs. Hoghton, 15 Beavan, 299-300; Baker vs. Bradley, 7 De Gex, M. & G., 621.

No distinction can be drawn in principle, and none is attempted in the cases between what purports to be bounty, and what purports to be contract between such parties. Contracts should be treated with greater strictness, as it is evident that the weaker party did not act from motives of kindness only, and the presumption of imposition is increased, if the contract is one unfavorable to her. Nor is the case aided by the fact that the appellee sought to place the contract in such form that he could contend, that a consideration was imported from its form.

Jno. T. Mason and Wm. M. Merrick, for the appellee.

The transaction was by no means a gift, but the performance of a moral and legal duty. Dr. Jones being under no obligation whatever to support his stepdaughter,  [**7]  a promise made by her, after coming of age, to pay for such support, is not nudum pactum, but valid and binding, and sufficient foundation for an action at law even. 1 Bl. Com., (Sharswood,) 450, (note) 3; Cooper vs. Martin, 4 East, 82; Tubb vs. Harrison, 4 T. R., 118; Freto vs. Brown, 4 Mass., 675, 676; Williams vs. Hutchinson, 3 Comst., 312, 318, 319; Minden vs. Cox, 7 Cowen, 237.

And if there be a good consideration for the assignment, it is indispensable to prove actual fraud in order to set it aside; and of this there is no evidence whatever.

If the obligation be purely a gift, still there is no evidence of that undue influence or want of competent and independent advice which, on grounds of public policy, render such a transaction void. The doctrine of competent and independent advice, recently promulgated in England, has never been adopted in this State or country.

In the case of Todd vs. Grove, 33 Md., 193, the Court commented upon this doctrine, and cited the case of Rhodes vs. Bates, 1 Ch. Appeal Cases, 256, (which qualifies the general principle,) but expressed its disapproval of the doctrine as operating too great a restraint upon the disposition of property.  [**8]  The extent of the decision in Todd vs. Grove, is, that gifts obtained where a confidential relation exists are prima facie void, and the burden is upon the donee to establish that it was the free, voluntary, unbiased act of the donor.

There must be confidence reposed on the one side, and influence acquired and improperly exercised on the other, to bring a case within the general rule. Brook vs. Berry, 2 Gill, 96, 98; Highberger vs. Stiffler, 21 Md., 352, 353; Todd vs. Grove, 33 Md., 195, &c.; Taylor vs. Taylor, 8 Howard, 200, 201; Jenkins vs. Pye, 12 Peters, 253, 254; Story's Eq. Juris., secs. 308, 309; Huguenin vs. Baseley, 2 Lead. Cases in Equity.

The present case comes fairly within the qualification in Rhodes vs. Bates; but in point of fact there is no evidence in this case of that unequal position of the parties which is the very foundation of this doctrine. The evidence shows throughout that Dr. Jones and his niece stood upon even ground and dealt at arms-length; there was none of that "overweening confidence" and "commanding influence" which is an ingredient in all the cases which have arisen. Mrs. Snyder says herself, that she was not taught to look to her uncle for [**9]  advice, and that he did not exercise paternal authority in the family; that she knew perfectly well the nature of the transaction; that she consulted about it with her brother and sisters -- and "was not that childish that I did not know what I was signing."

The appellant, Mrs. Snyder, has slept upon her alleged rights for more than twenty years; although removed from the reach and influence of her step-father within two years after she executed the paper, and having learned at that time of the alleged imposition, the staleness of the matter therefore forms an insuperable barrier to any relief in equity. Courts of Equity will not look into transactions of such long standing. Clabaugh vs. Byerly, 7 Gill, 364; Nelson vs. Hagerstown Bank, 27 Md., 74; Syester vs. Brewer, 27 Md., 319; Jenkins vs. Pye, 12 Peters, 254, 261, 262, and cases there cited.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*549]  BARTOL, C. J., delivered the opinion of the Court.
"Ann Jones, the wife of the appellee, and mother of the appellant, Virginia, was entitled to the income during her life of a legacy of $ 7000.00 under the will of Larkin Shipley, and [**10]  the principal was to be distributed after her death, among her children. Mrs. Jones first married a brother of the appellee, by whom she had five children, of whom Virginia Snyder was one, and all of whom survived her, except William."
"In July, 1845, she married the appellee by whom she had two children, both of whom survived their mother, who died in 1869. At the time of the marriage between Mrs. Jones and the appellee, all her children were minors except Milton; Virginia, the youngest, was then fourteen years of age." Mrs. Jones owed some debts, contracted during her widowhood, which the income from her legacy, then in litigation, proved insufficient to pay, and they were paid by the appellee; and he thenceforth insisted that her children by the first marriage were morally and justly bound to repay him the money he had thus expended. He accordingly adopted such measures as he thought expedient to secure it; and after the children 

 [*550]  reached their majority, he obtained from them written due-bills, or obligations for what he estimated to be their several portions thereof, payable out of the legacy, after the death of their mother.
The due-bill of Virginia, the appellant,  [**11]  for the collection of which this proceeding was instituted, is as follows:
"(Stamp 15 cts.)
October 20th, 1852.
"$ 214.34 "Due Joshua Jones or order, two hundred and fourteen dollars and thirty-four cents, to be paid out of my reversionary interest out of Ann Jones' trust fund, in the name of Wayman & Stockett, trustees, after the said Ann Jones' death; for value received, with interest from date.
"Witness my hand and seal.
"VIRGINIA JONES,   [Seal.]"
The money constituting the legacy aforesaid, being in the hands of a trustee, appointed under a decree of the Court of Chancery, who was about to distribute the same among the children of Ann Jones, deceased, the parties entitled thereto in remainder; the appellee filed his petition, praying that the trustee may be required to pay out of the distributive share due the appellants, the amount of Virginia's due-bill, with interest thereon; or that he may be required to retain the same.
The Circuit Court decreed in favor of the appellee, directing the trustee to pay out of the distributive share of Virginia, the sum of $ 214.34, with interest thereon from the 20th day of October, 1852; and from that decree this appeal has [**12]  been taken.
The question of jurisdiction has been raised by the appellants' counsel, who have argued that the only remedy of the appellee is by a suit at law; "the instrument not being an assignment, but merely a covenant to pay out of a particular fund." We agree that such is 

 [*551]  the proper construction and effect of the instrument; it does not operate as an assignment; but being charged upon, or payable out of a particular fund over which the Court of Equity has jurisdiction, there can be no question of the power of that Court to entertain the claim of the appellee, and order it to be paid, out of the fund in the hands of the trustee; provided it be established by proof, and be a valid and equitable claim.
It is a contract to pay money, and in order to entitle the appellee to enforce it, it must appear to have been made upon a good and sufficient consideration.
We have stated that it was given to reimburse the appellee for money expended by him in paying certain debts due by his wife, contracted while she was a widow. The consideration is so stated by the appellee in his petition, wherein it is averred "that the whole amount of such debts, at the time of the marriage [**13]  was $ 3835.58, and after the appropriation of the proceeds of the legacy, and of all other moneys belonging to Mrs. Jones from other sources, amounting to $ 2968.21, the balance due by her amounted to $ 867.37, which said balance was paid by your petitioner out of his individual funds."
There being four children of Mrs. Jones by her first marriage, the appellee, considered himself entitled to exact repayment of one-fourth from each of them, and this constitutes the only consideration for the obligation now in question. It is obvious from the appellee's own statement, that there was no valid consideration whatever to support the contract. The money paid by the appellee was paid in satisfaction of his own debts; being due by his wife before marriage they devolved upon him, and her children were in no manner bound to pay them, either in law or in morals. It thus appears that the instrument of writing signed by the appellant, Virginia, is a mere voluntary contract without consideration, which a Court of Equity will not enforce, even if it was free from objection on other accounts.

 [*552]  The payment of Mrs. Jones' debts by the appellee after their marriage, could not make  [**14]  her his debtor; but if any such debt existed, it would not be a good consideration to support a promise by the appellant, Virginia, to pay it. It was decided in Wyman vs. Gray, 7 H. &. J. 409, that a promissory note given by one person, for a debt due by another, without any consideration moving to the party promising, is nudum pactum; and an action will not lie thereon as between the original parties to the note. In this case the instrument of writing is under seal, and purports on its face to be "for value received;" but a Court of Equity cannot be prevented by the form of the instrument, from inquiring into the real consideration for which it was given; and if it be made without good consideration and be merely voluntary, it will not be enforced. We have said the writing of the 20th of October is not an assignment, but a covenant to pay money out of a particular fund; not an executed gift, but an executory contract merely, which the appellee now seeks to enforce. In such case, the Court acts upon the same principle as governs it in a proceeding for specific performance; and the general rule is correctly stated by Judge STORY to be now established "that the Court will [**15]  not execute a voluntary contract, but will withhold assistance from a volunteer, whether he seeks to have the benefit of a contract, or a covenant, or a settlement." 1 Story Eq. J., sec. 793d.
In Pulvertoft vs. Pulvertoft, 18 Ves. 84, Ld. ELDON said: "The distinction is settled that in the case of a contract merely voluntary, (I do not speak of a valuable or meritorious consideration,) this Court will do nothing. But if it does not rest in a voluntary agreement, but an actual trust is created the Court does take jurisdiction."
It was said by L. Ch. NOTTINGHAM, in Jefferys vs. Jefferys, 1 Craig & Phil. 138, 141: "The principle of the 

 [*553]  Court is to withhold its assistance from a volunteer, whether he seeks to have the benefit of a contract, a covenant, or a settlement." In that case a father having made a voluntary covenant to surrender certain copyhold estates to trustees, for the benefit of his daughters, the Court after his death refused to enforce the covenant in favor of the daughters.
The same principle was recognized by Sir L. SHADWELL, V. C., in Holloway vs. Headington, 8 Simons 324. There can be no doubt of the application [**16]  of this principle to the present case.
An attempt has been made to show that there was a good and valuable consideration to support the contract.
It is alleged in the petition that the appellee after his marriage, furnished board and maintenance to the appellant, Virginia, until her marriage in 1854; and it is said he was under no obligation to do so, she being his stepdaughter only; as was decided in Tubb vs. Harrison, 4 Term. 118, and Cooper vs. Martin, 4 East, 76; and it is argued that "a promise made by her after coming of age, to pay for such support, is not nudum pactum, but valid and binding." But it is impossible for the appellee to maintain the claim set up in his petition on this ground. It is not alleged or pretended that the board and maintenance of the appellant, (Virginia,) after her mother's marriage to the appellee, formed any part of the consideration for which her obligation of the 20th of October, 1852, was given. On the contrary, the only consideration for the same was that before stated, no other is alleged in the petition or shown by the proof; and as we have seen it is not sufficient to bind the appellants so as to entitle the appellee to [**17]  enforce the same in a Court of Equity.
But the objection to the appellee's claim in this case does not rest merely on the want of consideration to support it; there are other objections growing out of the relation existing between the parties, and the facts and 

 [*554]  circumstances attending the transaction, as disclosed by the evidence, which deprive the appellee of any right to relief. At the time the writing of October 20th, 1852, was executed, and for seven years before, the appellant, Virginia, lived in the house of the appellee, a member of his family, and stood towards him in the relation of a daughter; she had reached majority only a few months before, and at the time she executed the paper, she had not been emancipated from his government and authority. She was not married until two years afterward. It appears from the evidence that soon after his marriage, when the appellee discovered his wife's indebtedness, he made it the cause of discord in the family, treated her harshly on that account, and after he had paid the debt, he demanded of her children security for its repayment; stated to them that they ought to pay it back, that he had "talked with his lawyers and  [**18]   was acting on their advice, and said that it was right and proper and honest and just that they (the children) should sign the paper, in order to reimburse him for the payment of their mother's debts." It appears from the testimony that the only motive of Virginia in signing the paper, was to gratify her father's importunate demands, in the hope of thereby securing peace in the family, and kinder treatment to her mother. She had no advice or assistance, and was not informed of her rights and obligations.
It seems to us that it would be inequitable to uphold and enforce her contract, entered into under such circumstances, in favor of the appellee, who held toward her the relation of confidence and authority.
The principles which govern Courts of Equity in dealing with transactions of this kind, have been laid down by the Supreme Court in Taylor vs. Taylor, 49 U.S. 183, 8 How. 183, 12 L. Ed. 1040; and by this Court in Brooke vs. Berry, 2 Gill 83; Highberger vs. Stiffler, 21 Md. 338, and Todd vs. Grove, 33 Md. 188. These need not be repeated here. If applied 

 [*555]  to the present case, they [**19]  present an insuperable objection to the enforcement of the contract of the appellant, which the evidence shows was obtained by the undue influence of parental authority; and was made without any valid or sufficient consideration. For these reasons the decree of the Circuit Court will be reversed, the petition of the appellee dismissed, and the cause remanded.
Decree reversed, petition dismissed, and cause remanded. 

9 of 144 DOCUMENTS 

GEORGE H. WILLIAMS, Garnishee of MILTON A. JONES vs. JOSHUA JONES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 555; 1873 Md. LEXIS 80 

July 10, 1873, Decided 

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

On the 20th of December, 1871, an attachment on warrant was sued out by the appellee against Milton A. Jones, a non-resident, and laid in the hands of George H. Williams, trustee in the case of Jones, et al. vs. Stockett, et al., pending in the Circuit Court of Baltimore City. The declaration alleged that Milton A. Jones, together with a certain William E. Jones, and Elizabeth Ann Jones, by a joint and several bond, dated the 23rd of December, 1846, promised to pay the plaintiff the sum of $ 1500, and that no part thereof had been paid. The cause of action was the following bond:

"Know all men by these presents, that we, Milton A. Jones, Wm. E. Jones and Elizabeth Ann Jones, are held and firmly bound unto Joshua Jones in the sum of fifteen hundred dollars, current money, to be paid to the above named Joshua Jones, or to his certain attorney, executors, administrators, heirs or assigns; to which payment, well and truly to be made and done, we bind ourselves and each of us, our and each of our heirs, executors, administrators or assigns, firmly by these presents, sealed with our seals, and dated this 23rd day of December, one [**2]  thousand eight hundred and forty-six.

(Stamp, 75 cts.)

"The condition of the above bond is such, that should the interest now due upon certain trust funds now in suit in the Court of Chancery, they being part of the fund left by Larkin Shipley, of Anne Arundel County, in the State of Maryland, by will bearing date 19th day of February, 1822, to Ann Shipley, now Ann Jones, and wife of the above named Joshua Jones, and held by Henry Wayman and Richard G. Stockett as trustees, according to the will of the aforesaid Larkin Shipley, should not be sufficient to refund to the above named Joshua Jones the amount of ----- dollars, which he has paid or become liable for the debts of the above named Ann Jones, with interest thereon, then this obligation to be in force, and the whole sum of the above bond or obligation, or so much thereof as shall be sufficient to make up the above amount of fifteen hundred dolls., in connection with the interest of the above mentioned trust fund now due; but should the above mentioned interest be sufficient to pay the sums paid with interest by the aforesaid Joshua Jones, for debts of the above mentioned Ann Jones, then this bond or obligation to be [**3]  null and void and of no effect.

"In testimony of the foregoing bond or obligation, we have this 23rd day of December, one thousand eight hundred and forty-six, set our hands and seals.

"MILTON A. JONES,   [Seal.]

"WM. E. JONES,   [Seal.]

"ELIZABETH A. JONES,   [Seal.]

"Signed, sealed and delivered, in presence of--"Chas. H. Pitts."

The affidavit stated the debt to be $ 214.00, with interest thereon from the 20th of October, 1852. The defendant was returned "non est." The garnishee pleaded limitations and nulla bona. The execution of the bond was admitted, and it was agreed that the plaintiff should not be required to prove the breach of the condition thereof; but that if he were entitled to recover at all, and the fund was liable to condemnation in the action, the amount properly recoverable would be $ 214, with interest thereon from the 20th of October, 1852. Larkin Shipley of Anne Arundel County, left to his niece, Ann Shipley, the wife of the plaintiff, a legacy of $ 7000, the interest of which was to be enjoyed by her during her natural life, and upon her death the principal was to be equally divided among her children.

Exception.  [**4]  --The plaintiff at the trial, offered in evidence, the bond, the cause of action, and the admission in respect to the breach of its condition, &c., and proved that the defendant, Milton A. Jones, was a son, by a former marriage, of Ann Jones, the wife of the plaintiff, and that she died in 1869; and in order to show funds in the hands of the garnishee the plaintiff offered in evidence the auditor's account filed on the 23rd December, 1870, in the case of Jones, et al. vs. Stockett, et al., distributing the legacy which had been left to Mrs. Jones by Larkin Shipley, among those entitled to the same. This account of the auditor, which had been finally ratified on the 7th of January, 1871, showed that the entire share, or portion of Milton A. Jones, the defendant, in the fund, was audited to Frederick B. Snyder, his assignee. The plaintiff then further offered in evidence the assignment from Milton A. Jones, to Frederick B. Snyder, filed in the Equity case, and also an order passed by the Circuit Court of Baltimore City, on the 28th of May, 1872, directing the garnishee to pay over to said Snyder, as the assignee of Milton A. Jones, the sums audited to him by the said auditor's account.  [**5]  

The garnishee then offered in evidence a petition filed by the plaintiff in the said Equity case, on the 23rd July, 1870, by which he sought to obtain out of the fund to be distributed in that case, payment of the money which he claimed to be due on the bond, the cause of action in this case. The garnishee, also offered in evidence a general demurrer to said petition, by Milton A. Jones, and the order of the 22nd November, 1871, sustaining the demurrer; also a petition of Frederick B. Snyder, filed 5th December, 1871, asking that the trustee, (the garnishee) should be ordered to pay to the petitioner the amount which had been audited to him under the assignment from Milton A. Jones. On this petition the order of the 28th of May, 1872, offered in evidence by the plaintiff, was passed, directing the trustee to pay to the petitioner the sums audited to him as assignee of Milton A. Jones.

The plaintiff offered four prayers, which were granted; the third and fourth, relating to limitations, were by agreement of counsel omitted from the record, the first and second are as follows:

1. The execution by the defendant of the bond which constitutes the cause of action in this case,  [**6]  the breach of the condition of the bond, and the non-residence of the defendant being admitted, and the quantum of damages being settled by the agreement of the parties, the said bond is such an instrument as will sustain an attachment on warrant, under the provisions of Article 10 of the Code of Public General Laws.

2. If the jury find that the garnishee has in his hands funds which, but for the assignment from the defendant to Frederick B. Snyder, would belong to the defendant, then the said assignment does not protect the said funds from attachment, except as to the amount of the principal and interest of the debt therein mentioned.

The garnishee offered six prayers, all of which were refused; the third, relating to limitations, is omitted, the others are as follows:

1. If the jury find the filing in the case of Jones vs. Stockett, in the Circuit Court of Baltimore city, of the petition of the plaintiff, offered in evidence, filed on the 23rd of July, 1870, and the filing in the same cause of the petition of the claimant, Frederick B. Snyder, on the 5th day of December, 1871; and shall further find that the statement of the auditor's account, filed in said cause on [**7]  the 23d of December, 1870, and the passage of the order nisi and final order thereon; and shall further find the passage of the order of said Court, filed on the 28th of May, 1872, then the plaintiff is not entitled to recover in this action.

2. If the jury find the execution of the assignment from the defendant, Milton A. Jones, to the claimant, Frederick B. Snyder, then the plaintiff is not entitled to recover.

4. That the plaintiff cannot maintain the attachment upon the cause of action declared upon in this case.

5. That there is a variance between the claim made by the affidavit and warrant, and the short note in the cause, and the plaintiff cannot recover in the action.

6. That there is a variance between the short note and the cause of action in the cause, and there can be no recovery.

The garnishee excepted to the refusal of the Court to grant his first, second, fourth, fifth and sixth prayers, and to the granting of the first and second prayers of the plaintiff.

The jury rendered a verdict for the plaintiff for $ 343.19, and judgment of condemnation against the garnishee was entered for the amount, with interest and costs. The garnishee appealed.  [**8]  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Attachment -- What is a sufficient Evidence of Debt to support an Attachment -- When Funds in the hands of a Trustee may be Attached -- What is not an Estoppel -- Interest or Right liable to Attachment -- Acquittance.

A bond conditioned for the payment of money, although failing to state the exact amount it was intended to secure, if it contain all the elements or data necessary to enable the Court and jury to ascertain the amount due thereon, and to justify the plaintiff in verifying the same by his oath, is a sufficient evidence of debt to support an attachment.

Money held by a trustee appointed by a decree of the Court of Chancery, and belonging to a non-resident may be attached by his creditors, where the final audit has been ratified by the Court, and the amount belonging to the debtor has been ascertained, and an order passed directing the trustee to pay it over.

A certain fund in the hands of a trustee in Chancery, being about to be distributed, J. who had obtained from one of the parties entitled to a distributive share or portion of such fund, a bond conditioned for the payment of money, the amount of which was not stated, filed a petition in the Chancery Court, praying for an order directing the trustee to pay the claim out of the funds in his hands. To this petition, a demurrer was filed by the debtor, which was sustained. Thereupon the petitioner sought to maintain his claim by process of attachment, and had the writ laid in the hands of the trustee. HELD:

That the plaintiff was not estopped from maintaining his claim by process of attachment, by the adjudication of the Chancery Court; the order of the Chancery Court was not an adjudication upon the merits of the claim--it simply decided that the plaintiff was not entitled to relief in a Court of Equity.

An attachment was issued against a non-resident debtor, and laid in the hands of a trustee appointed by the Court of Chancery, to affect certain funds in his possession belonging to the debtor. The garnishee pleaded nulla bona. Prior to the attachment, the debtor had assigned by way of mortgage, his entire share of the fund, which, as shown by the final audit, exceeded a $ 1000, to S., to secure the payment of $ 300, with a power to him to collect the whole. It was objected by the garnishee, that by the assignment to S., the debtor had divested himself of all interest in the fund, and no part of it was liable to condemnation at the suit of the plaintiff. HELD:

1st. That the operation and effect of the assignment was to convey to S., a beneficial interest to the extent of the debt due him, and to leave in the debtor a similar interest or right to the surplus, which he had the right to assign to another, and which was liable to attachment by his creditors, and the amount of the plaintiff's claim being admitted, he was entitled to a judgment of condemnation for the same, against the garnishee.

2nd. That the payment of the judgment would be an acquittance to the trustee to that extent, and afford him as full and ample protection as if he had paid it to the debtor himself, or to an assignee from him, claiming by assignment subsequent to that of S.  

COUNSEL:
William A. Fisher and Charles Marshall, for the appellant.

The proposition asserted in the first prayer of the garnishee is that when an attachment is laid in the hands of a trustee acting under the order of a Court of Equity, condemnation cannot be had against the trustee as garnishee, in order to give the fund a different direction from that given to it by the final order.

This proposition, applicable to all cases, is further enforced in this case by the fact, that the plaintiff was a party to the distribution proceedings, and could have appealed and taken any other course to which he might have been advised.

If the attachment is to have any effect when laid in the hands of the trustee before the final ratification of an account, it can only bind any fund which may be finally distributed to the defendant, and no modification of the proceedings will be made, even in the equity case, "for the benefit of the attaching creditor." McPherson vs. Snowden, 19 Md., 233.

Unless, therefore, the plaintiff shows that there has been a final account, and something has been audited to the defendant, he cannot recover. The proof here not only shows nothing [**9]  of the kind, but it appears that the fund, of which condemnation is sought, has been distributed to another person, and the trustee has been ordered to pay it to him. Under these circumstances, Mr. Snyder, who is no party to, and not bound by, the attachment proceedings, could bring his action against Mr. Williams and his securities. Scott vs. the State, &c., 2 Md., 284; State, &c. vs. Mayugh & Bell, 13 Md., 377-8.

The assignment from Milton A. Jones to Snyder, filed in the equity cause, states in the preamble an indebtedness to Snyder, and then follows a general assignment, without condition, to Snyder, of the whole interest of Jones in the fund in the equity case, and a power of attorney empowering Snyder to collect and release for the same. The Court below seems to have acted upon the theory that, inasmuch as there was the recital of a debt in the preamble, the assignee could not take the entire fund, although there was an absolute and unconditional assignment of it to him. And, acting upon this erroneous theory, the Court treated the assignment as a mortgage, which left a part of the fund open to the attachment of the general creditors of Jones.

But the Court was wrong [**10]  in this conclusion, for the question was not what was the effect and meaning of the assignment, but of the auditor's account, which gave to "Frederick B. Snyder, assignee of Milton A. Jones, his share, one-sixth, $ 977.68," of principal, and his share, $ 74.36 1/3 of interest and dividends, and the order that "George H. Williams, trustee, pay over to F. B. Snyder, assignee and attorney of Milton A. Jones, the sums audited to him."

If the plaintiff thinks that any part of the fund audited to Mr. Snyder belongs to Milton A. Jones, or that the assignment is fraudulent, of which there is no proof or pretence, he can proceed by attachment laid in the hands of Snyder, or by bill in equity, to set the assignment aside, but he cannot make the present attachment answer all the purposes of an attachment, a bill of review and an appeal to the Superior Court, against the decision of the Circuit Court of Baltimore City.

The second prayer of the appellee should have been rejected, and that of the appellant granted, for the assignment is absolute in its terms, and, in a Court of law at any rate, no other effect can be given to it.

In support of his fourth prayer, the appellant referred [**11]  to Hinkley & Mayer on Att., 12, sec. 34; State vs. Beall, 3 H. & McH., 347; Hepburn's Case, 3 Bl. 119.

John T. Mason and Wm. M. Merrick, for the appellee.

There was no adjudication of the case on its merits in the Court of Equity, the demurrer admitted the facts, and only denied that a case was made for relief in a Court of Equity. The petition certainly showed a cause of action against Milton A. Jones in some Court; and the order sustaining the demurrer, simply decided that the remedy was not in equity, nothing more. Bigelow on Estoppel, 30, 32 and n., (3,) 121, 122; Herman on Estoppel, sec. 50; Beere vs. Fleming, 13 Irish Com. L. Rep., 513; Night vs. DeKlyne, 1 Peters C. C. R., 198, 202-3; Wash. Alex. & Geo'town S. P. Co. vs. Sickles, 24 How., 344-5; Griffin vs. Seymour, 15 Iowa, 32; Schindel vs. Suman, 13 Md., 314.

Moreover, there is no identity of parties, which is essential to create an estoppel. Bigelow on Estoppel, 47; Buttrick vs. Holden, 8 Cush., 233; Lawrence vs. Vernon, 3 Sumner, 22, 26.

The bond, the cause of action in this case, is not a bond with collateral condition, but a bond with condition to pay money; this distinction between bonds conditioned [**12]  to pay money, and those conditioned for the doing of some collateral thing is well defined. Evans on Pleading, 82.

A bond with condition to pay money, differs only in form from other money bonds, and does, therefore, come within the ruling of State, use of Beall vs. Beall, 3 H. & McH., 347; which in the case of Bouldin vs. Steibel, 31 Md., 37--is especially restricted to bonds with collateral condition for the faithful performance of official duty.

In this case the condition of the bond is for the payment of money, and a standard is furnished by which the amount due upon it may be easily and exactly ascertained, and it may therefore properly be made the foundation of this attachment suit. Wilson vs. Wilson, 8 Gill, 194-5; State, use of Bouldin vs. Steibel, 31 Md., 37; Warwick vs. Chase, 23 Md., 161, 162; Fisher vs. Consequa, 2 Wash., C. C. R., 387; McAllister vs. Eichengreen, 34 Md., 55, 56; Hough vs. Kugler, 36 Md., 194.

The assignment to Snyder protects the share of Milton A. Jones only to the extent of the debt and interest due the former, beyond this it is, and is expressed to be, simply a power of attorney, which is in its nature revocable. The garnishee then certainly [**13]  has funds in his hands belonging to the defendant, and that being the case, they are certainly liable to be garnished for his debts.

The assignment itself shows that the assignee has a beneficial interest in a part only of the fund, and the balance belongs still absolutely to the defendant. Now, as the defendant, if present, could claim this balance, so may his creditor claim it in this attachment suit. Art. 10, sec. 11, of the Code; First Nat. Bk. vs. Jaggers, 31 Md., 38; Clapp vs. Hancock Bank, 1 Allen, 394; Fay & Co. vs. Smith, 25 Vt., 610.

The appellee should not be compelled to wait until the money is paid to Snyder before attaching it. It is essential to the effectual use of the attachment process that a creditor should not be compelled to wait. A debtor should not be permitted to protect his property from attachment, by giving a power of attorney to another to receive it. The true theory of the attachment law undoubtedly is, that the property of a non-resident debtor shall be liable to attachment, whenever and in whatever shape or form it may be found.

There is no variance between the bond, which is the cause of action, and the declaration, which was filed instead [**14]  of a short note. The principal sum in the bond was declared on, and the breach and quantum of damages were settled by agreement of the parties.

There is no variance between the affidavit and warrant and the declaration. The plaintiff is not bound to make affidavit to the whole amount of damages laid in the declaration. The issuing of an attachment for a greater sum than is proved to be due, will not justify the Court in quashing the attachment. Dawson vs. Brown, 12 G. & J., 60; Lee, et al. vs. Tinges, 7 Md., 233. And certainly the plaintiff can issue his attachment for a less sum than he claims in the declaration, and proves to be true.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*565]  BARTOL, C. J., delivered the opinion of the Court.
The bond of Milton A. Jones and others, which constitutes the cause of action in this case is a sufficient evidence of debt to support the attachment.
It is a bond conditioned for the payment of money, and although the exact amount it was intended to secure is not stated in the condition, yet this may be certainly ascertained. The instrument contains all the elements [**15]  or data necessary to enable the Court and jury to ascertain the amount due thereon; and to justify the appellee in verifying the same by his oath. This is all that is required by our attachment laws, as was decided in Wilson vs. Wilson, 8 Gill 192, and McAllister vs. Eichengreen, 34 Md. 54.
In this case it has been settled by the agreement of counsel, that the amount stated in the affidavit is the true 

 [*566]  amount the plaintiff is entitled to recover, provided the attachment can be sustained.
The garnishee is a trustee appointed by a decree of the Court of Chancery, and the writ is laid in his hands for the purpose of subjecting to condemnation certain money held by him in that character, alleged to belong to Milton A. Jones, the non-resident debtor; but no valid objection to the proceeding exists on account of the fiduciary character of the garnishee, inasmuch as the final audit has been ratified by the Court of Chancery, and the share, or portion of the fund belonging to Milton A. Jones, or his assignee, has been ascertained, and an order has been passed in that Court directing the trustee to pay it over. Cockey vs. Leister, 12 Md. 124; [**16]  McPherson vs. Snowden, 19 Md. 197, 233.
The chief grounds of objection relied on by the appellant are First. That the rights of the appellee to maintain the claim have been finally adjudged and decided against him by the Chancery Court, and that he is thereby estopped.
And Secondly. That by the assignment from Milton A. Jones to Frederick A. Snyder, the former was divested of all right and interest in the fund, and no part of it is liable to condemnation in the present suit.
These will be disposed of in their order, and first, as to the estoppel. It is very clear to us that this defence cannot prevail. There was no adjudication by the Chancery Court of this claim upon its merits.
The appellee filed a petition in that Court praying for an order directing the trustee to pay this claim out of the fund in his hands. To this petition a demurrer was filed, which was sustained. But that was merely an adjudication that the appellee was not entitled to relief in a Court of Equity. The decision was obviously correct; because the appellee had no lien or charge upon the fund specifically, and was seeking to enforce in that Court a mere 

 [*567]   [**17]  personal debt due him by Milton A. Jones, which could be asserted only in a Court of Law.
Secondly. As to the effect of the assignment to Snyder. This appears on its face to be a mortgage only, for the purpose of securing to Snyder the payment of a debt of $ 300.00.
For that purpose the whole share of Milton A. Jones in the fund was assigned, with a power of attorney, to him to collect the whole. The operation and effect of the assignment was to convey to Snyder, a beneficial interest to the extent of the debt due to him; and to leave in Jones a similar interest or right to the surplus. This he had the power to assign to another, and it is consequently liable to the process of attachment by his creditors.
Upon the filing by Snyder of the assignment in the Chancery Court, the order to the trustee to pay the fund to him was a matter of course. But the money has not been paid, it still remains in the trustee's hands; belonging to Snyder only to the extent of the debt due to him, secured by the assignment, and the surplus belonging to Milton A. Jones, subject to the claim of the appellee, and liable to condemnation under his attachment. The entry of such a judgment in no manner interferes [**18]  with the jurisdiction of the Chancery Court over the fund. It adjudges and settles the rights of parties thereto, who were not parties in that Court; and the payment of the judgment will be an acquittance to the trustee to that extent, and afford him as full and ample protection as if he had paid it to Milton A. Jones, himself, or to an assignee from him, claiming by assignment subsequent to Snyder's.
It appears by the record that the counsel of the garnishee were also counsel for Snyder in the Chancery suit. No objection has been made at the bar, on the ground of want of notice to him of this proceeding. Having notice 

 [*568]  of it, he had full opportunity to defend, and will be bound by the judgment.
Finding no error in the ruling of the Superior Court, the judgment will be affirmed.
Judgment affirmed. 

10 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. THOMAS BOTELER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 568; 1873 Md. LEXIS 81 

July 10, 1873, Decided 

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

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

Defendant's First Exception.--At the trial of this case the plaintiff, to support the issues on his part joined, proved that on the night of the 21st of November, 1867, in returning from Harper's Ferry to his home, near Weverton, he missed the entrance to the bridge of the defendant, provided for foot passengers, and walked over an abutment or embankment some twenty feet high, placed there by the defendant, and was greatly injured, and crippled for life; that the defendant charged toll for crossing the bridge, which was paid by the plaintiff; and further proved that the accident happened about nine o'clock at night; that the night was very dark; that no lights of any kind were kept about the premises by the defendant at that time; that the ground was levelled off, and the wall of the abutment or embankment was level with the ground, and had no railing or other structure to prevent accident. The defendant then proved by W. S. Brashears that he had known the plaintiff for twenty-five years, and knew his habits; that on the night of the accident he saw him about [**2]  seven o'clock, in a barber's shop at Harper's Ferry, very much intoxicated--he was quarrelling with a stranger then being shaved. The defendant then offered to prove by said witness that the plaintiff was a most intemperate man for a long time before, and up to the time of the injury; was an habitual drunkard during all that time, and would become intoxicated whenever he could get the liquor; that he often went to Harper's Ferry, and never went there without becoming intoxicated if he had money to get the liquor, and when intoxicated was unable to attend to any business whatever.

To the proof so offered, the plaintiff objected, and the Court, (MOTTER and PEARRE, J.,) sustained the objection, and the defendant thereupon excepted.

Defendant's Second Exception.--The defendant, further to maintain the issue on its part joined, offered to prove by several witnesses that the plaintiff since his injury, and up to the trial, had continued to be a very intemperate man, often getting very drunk, and under the influence of liquor whenever he could get it, and by his excessive intemperance had greatly abused himself. To this offer of proof, the plaintiff objected and the Court sustained [**3]  the objection. The defendant thereupon excepted.

Defendant's Third Exception.--The defendant then proved by E. Crowl, that on the evening of the accident between six and seven o'clock, he saw the plaintiff whom he had known for many years, leaning against the Galt House, a drinking saloon, intoxicated; and by Mr. McCarty, who was the toll collector on the bridge the night of the accident, that he saw the plaintiff about 8 o'clock entering the opening of the bridge from the Virginia shore, in a very intoxicated condition, staggering from side to side of the bridge, and persuaded him not to go across, telling him that in his condition it was a dangerous undertaking--that the plaintiff thereupon went back, the witness accompanying him beyond the bridge as far as the Y track. The defendant further proved by Mr. Woods, that during the spring following the accident, he asked the plaintiff how it happened, and he replied, "he could not tell anything about it; he did not know anything about it." Other evidence adduced at the trial will be found in the opinion of the Court.

The plaintiff offered eight prayers; the third, fourth, seventh and eight, of which the Court granted, the others [**4]  it rejected. The following only, it is deemed proper to insert:

3d. That in considering the question of ordinary care and prudence on the part of the plaintiff, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of men to guard themselves against danger.

4th. That if the jury find from the evidence in this cause, that the plaintiff had used intoxicating drink on the night of the 21st of November, 1867; but shall further find that he was not drunk when he started from the Galt House, distant 75 or 85 feet from the bridge of the defendant, such use of intoxicating drink is not evidence from which the jury may infer the want of ordinary care and prudence on his part.

The defendant submitted the following prayers:

1. If the jury shall believe from the evidence, that the injury complained of, happened to the plaintiff by falling from the retaining wall of the Y track of the Baltimore and Ohio Railroad, fifteen feet or more above the bridge, and that the place where the accident occurred is not in nor a part of the highway, then the plaintiff is not entitled to recover.

2. If the jury shall [**5]  believe from the evidence, that the plaintiff fell from the retaining wall of the Y track of the defendant, beyond the bridge, at the place shown by the evidence in the case, (if the jury shall believe the same;) and shall also believe that the place where the accident happened is not a thoroughfare, and not in the highway, and not used by the public in approaching the bridge, but was owned, used and occupied by the defendant as a switch or track for its own use and purposes, separate and distinct from the bridge, that then the plaintiff is not entitled to recover.

3. If the jury shall believe from the evidence that the place where, as is alleged, the accident happened, was along the travelled path for footmen approaching the bridge from the passenger depot of defendant, or other point west of the bridge, going eastward to the mouth or south end of the bridge, but was beyond the travelled path for footmen, approaching the bridge from the Galt House, that then the plaintiff is not entitled to recover; provided the jury shall believe, at the time he received the injury complained of, he started from the Galt House to cross over the bridge.

4. If the jury shall believe from [**6]  the evidence the facts set forth in the foregoing third prayer, that then the plaintiff is not entitled to recover, unless he exercised ordinary care and diligence to prevent the injury complained of.

5. If the jury shall believe from the evidence, that the plaintiff started from the Galt House to cross the river on the bridge, and walked over the tracks of the Winchester Rail Road, and also over and across the highway leading into and across the bridge, and to a point fifteen feet, or more, west of and beyond the bridge, or to any other point west of the same, and to a place where the injury complained of happened, on the grounds of the defendant used for railroad purposes, and not appertaining to the bridge, and not being or belonging to any part of the highway; and that the place where the injury happened, is not along the travelled path for footmen or other travellers approaching the bridge from the direction of the Galt House, that then the plaintiff is not entitled to recover.

6. If the jury believe the facts stated in the foregoing fifth prayer, that then the plaintiff is not entitled to recover, unless he exercised ordinary care and diligence to prevent the injury [**7]  complained of.

7. If the jury shall believe the facts stated in the foregoing fifth prayer, and shall also further believe from the evidence, that the plaintiff, previous to the injury, had often crossed the bridge in going to and returning from Harper's Ferry, and was acquainted with the location and situation, and the ways over it, and the grounds and premises contiguous to and surrounding the bridge, and was admonished by defendant or its agent, on the night of, or just before, the accident, of the danger of crossing the bridge, that then he did not exercise that ordinary care and diligence which will entitle him to recover.

8. If the jury shall believe from the evidence, that the plaintiff, by his own negligence or want of care and caution, so far contributed to his misfortune; that but for such negligence or want of ordinary care and caution on his part, the misfortune and damage complained of would not have occurred, that then he is not entitled to recover.

9. If the jury shall believe from the evidence, that there was negligence on the part of the defendant; yet if they further believe that the plaintiff would have escaped the injury by the exercise of ordinary [**8]  care and diligence on his part, that then he is not entitled to recover.

11. If the jury believe that the injury complained of occurred by reason of any degree of negligence on the part of the plaintiff, he is not entitled to recover, although there may have been concurrent negligence on the part of the defendant.

12. If the jury find that the plaintiff was intoxicated at the time he suffered the injury complained of in this cause, that the same is a circumstance to be considered by the jury upon the question of the due care to be exercised, required upon the part of the plaintiff in avoiding such injury, more or less strong, according to the degree of intoxication.

13. If the jury find that the plaintiff, by the use of ordinary care in passing on and along the highway connecting with the said bridge upon the Virginia shore, for the purpose of crossing the same to the Maryland shore, could have avoided such injury, then the plaintiff is not entitled to recover.

14. That if the jury find that there is no risk of danger or injury to any traveller using ordinary care in passing on and along the said highway connecting with the said bridge on the Virginia shore, for [**9]  the purpose of crossing on the same to the Maryland shore, either by night or by day, by reason of there being no railing or other guards upon the wall at the place where it is alleged the plaintiff received the injury complained of, that then the plaintiff is not entitled to recover.

15. If the jury find the facts set forth in the fourteenth prayer, and further find that the plaintiff did not use ordinary care in going in and along said highway, connecting with said bridge, for the purpose of crossing the same to the Maryland shore, and because of the want of the use of such ordinary care he received the injury complained of, that then he is not entitled to recover.

16. If the jury find that the injury complained of could have been avoided by the plaintiff by the use of ordinary care in going on and along the said highway, for the purpose of crossing the said bridge to the Maryland shore, that then the plaintiff is not entitled to recover; although the jury should further find that the defendant was guilty of negligence in not putting up railing or other guards upon the wall, at the place where it is alleged the plaintiff received his injury.

17. If the jury find that [**10]  the defendant built the retaining or water wall, over which it is alleged the plaintiff fell, and no railing or other guards thereupon, and that the same was built upon the defendant's own grounds; and shall further find, that at the place upon said wall, where it is alleged the accident to the plaintiff occurred, such part of said wall was not connected with said highway, passing to and on said bridge, and was no part of said highway, or of an approach thereto; and shall further find that said grounds extending from said retaining or water-wall south, to and including the said Y track, connecting the main stem of the Baltimore and Ohio Rail Road with the Winchester Branch, and thence all the grounds east to the said highway, for common travel, leading to the same over said bridge, were the grounds of the defendant, and for its own use, or for railroad purposes, and upon which there was no travelled highway for common travel by passengers or vehicles, but that all the same was made, prepared and used by the defendant for the purposes of its railroad; and if the jury shall further find that the plaintiff was at the Galt House, on the eastern side of the said Winchester track, on the [**11]  night the accident happened to him, and that he started thence upon said highway to cross the river thereupon, and so starting crossed the said Winchester track and then crossed over the said highway and went upon the said grounds of the defendant as aforesaid, if the jury should so find them to be, and walked over said wall, at the place where it is alleged the said accident happened, and being upon the said grounds of the defendant, if the jury should find it, then the plaintiff is not entitled to recover.

18. If the jury find further, that the plaintiff, on the night he received the injury complained of, was intoxicated, and that as he was approaching said bridge to cross the same, and within a short time before said accident happened, he was met by the agent of the defendant and admonished of the danger of attempting to cross said bridge, and persuaded by him to return to Harper's Ferry, and went with him beyond the said bridge and beyond said retaining or water-wall, and then saw him returning upon said highway into the town, and that the plaintiff afterwards returned and received the injury complained of, that then these facts are evidence to show a want of ordinary care [**12]  to be exercised by the plaintiff, and also evidence to show that the defendant was upon that occasion using due care in preventing accidents by reason of any defect in and about said bridge or said wall.

The Court granted the eighth, ninth, twelfth, fifteenth and sixteenth, the rest, with the exception of the tenth, which was withdrawn, it rejected, and gave, in addition the following instructions:

1. If the jury find from the evidence in the cause, that the plaintiff, at the time he received the injury sued for, was seeking to pass from the Galt House, by a common highway, to the entrance of the carriage and foot-way upon the defendant's bridge at Harper's Ferry, in the night time, and when it was dark, and could, by the use of ordinary care on his part, have avoided the injury, then he cannot recover, even though they shall find that the place at which he fell over was one dangerous to persons passing along said highway in the night time, provided the jury shall find that but for the want of such ordinary care the injury would not have happened.

2. If the jury shall find from the evidence that the defendant, in erecting its bridge over the Potomac river, at Harper's [**13]  Ferry, and its connecting works and protections, erected the wall over which the plaintiff fell and was injured, and by such erection created and made a place so near to the said highway as to be dangerous to persons passing along said highway, in the night time, and exercising ordinary care and caution, and that the plaintiff, while endeavoring to pass along said highway to the entrance of the foot and carriage-way on the defendant's bridge, in the night time, and when it was dark, and while capable of and in the exercise of ordinary care and caution, walked over said wall at a part thereof so near to the said highway as to be dangerous to persons passing along said highway in the night time, and exercising ordinary care or caution, then the plaintiff is entitled to recover; provided they shall find that such place was made dangerous as aforesaid by the defendant, after said highway was established leading to the entrance of said way over said bridge; but if the jury find that such highway, leading to said bridge, was not established until after the said bridge was built, then there was no obligation on the part of the defendant to put guards at such place to prevent accident to persons [**14]  passing along said highway and seeking to enter said bridge; and the plaintiff is not entitled to recover for an accident which may have happened to him for the want of such guards.

To the rejection of its prayers as above indicated, and to the second instruction given by the Court, the defendant excepted.

Verdict was rendered for the plaintiff for $ 3000, and judgment was entered accordingly. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Liability of a Railroad Company for not placing a Railing or other guard along the Supporting wall of an Embankment adjoining a Highway, or providing other protection against Accidents -- Practice: Instruction -- Inadmissible Evidence in an Action of Damages.

The Balt. & Ohio R. R. Co., in the construction of its bridge across the Potomac river at Harper's Ferry, made an embankment or precipice twenty feet deep, extending from the end or abutment of the bridge along the river, and near the highway leading to the bridge. The embankment was supported by a wall erected by the company, the top of which was on a level with the highway and the contiguous ground; there was no railing or guards at and along the wall, or light to indicate the entrance to the bridge, or watchman for the protection of travellers. A person who had paid the toll collected by the company, in attempting to walk upon the bridge for the purpose of crossing about 9 o'clock at night, missed his way and fell over the embankment or precipice, sustaining serious injury. Between the highway leading to the bridge, and the retaining wall or edge of the precipice, there was a space of ground belonging to the Railroad company over which the person had to pass before he reached the place from which he fell, which was about ten or fifteen feet from the entrance to the bridge. The whole surface of the ground about the highway, up to the entrance to the bridge, and out to the edge of the retaining wall, or verge of the precipice was levelled off smooth; there was nothing to indicate the location or line of the highway, or to distinguish it from the contiguous ground on the west side, and a deviation of a few steps in that direction precipitated the person over the wall. In an action by the injured person against the Railroad company, the latter contended that inasmuch as the accident did not happen upon the highway or the bridge, but on the private property of the defendant where, as it was alleged, the plaintiff had no right to be, he was not entitled to recover. HELD:

1st. That under the circumstances, the accidental deviation of the plaintiff from the highway, did not necessarily deprive him of the right of action.

2nd. That under the law it was the duty of the defendant in constructing its bridge and making the lateral embankments adjoining the highway, so to construct them as not to render the approach to the bridge along the highway dangerous for passengers by day or night; and a failure to perform this duty subjected it to liability for the consequences; provided the party thereby injured had used reasonable and ordinary care to avoid the danger.

On the trial of an action to recover damages for injuries sustained by the plaintiff from an accident caused by the alleged negligence of the defendant, where the facts are numerous, it is not proper to separate a few from their connection with others by which their force and meaning are, or may be materially modified, and ask the Court to instruct the jury that these enumerated facts are evidence to show a want of ordinary care on the part of the plaintiff in avoiding, and the exercise of due care by the defendant in preventing the accident by which the plaintiff was injured.

On the trial of an action to recover damages for injuries sustained by the plaintiff falling over an embankment, in consequence of the alleged negligence of the defendant, it is not competent for the latter, to enable the jury to ascertain the loss suffered by the plaintiff, and the amount of compensation to which he was entitled, to show that for a long time prior and up to the time of the injury, and since, he was a man of intemperate habits, and when intoxicated was unable to transact business, and by his excessive intemperance had greatly abused himself.  

COUNSEL:
Z. S. Claggett and Wm. T. Hamilton, for the appellant.

The ruling of the Court was wrong in rejecting the evidence offered by the defendant in its first and second exceptions. In assessing compensation to the plaintiff, "the jury are to consider what, before the injury complained of, was the health, and physical and mental ability of the plaintiff to maintain himself, as compared with his condition in those particulars, after and up to the institution of the suit, in consequence of the injury complained of, and how far it is permanent in its results, as well as the physical and mental suffering he has sustained by the injury." Stockton vs. Frey, 4 Gill, 406; 2 Greenleaf's Ev., sec. 254, note; Lincoln vs. Saratoga and Sch'y R. R.  [**15]  Co., 23 Wendell, 425.

The evidence offered by the defendant and rejected by the Court, shows that the plaintiff was an habitual drunkard, and that by reason of his intemperate habits he possessed neither physical nor mental ability to support himself before he sustained the injury, and that his incapacity to support himself, from the same cause, continued after the injury. This evidence was admissible on the question of damages, to show that from habitual drunkenness the physical and mental ability of the plaintiff had been so impaired that he was utterly incapable of making a living, and that his pecuniary loss, and the injury to his business, amounted to nothing. Sherman and Redfield on Negligence, 663, note 1, sec. 606; Wade vs. Leroy, 20 Howard, 34.

It is to be observed, that the plaintiff was not a passenger on the Baltimore and Ohio Rail Road, but a traveller on the highway, and the defendant is not sued for injuries received on the railroad, but on the bridge; and the evidence shows, that the place where the injury was received, is beyond the limits of the highway, above and beyond the bridge and its approaches, and above the abutment of the bridge, on ground not occupied [**16]  and used by the public, but the ground on which is constructed the Y track of the Baltimore and Ohio Rail Road Company. The question arises, is it the duty of the defendant to erect railing for miles along the Potomac and Shenandoah rivers, and also along the Chesapeake and Ohio Canal, to prevent a drunkard from travelling out of the highway? A traveller on a highway who, without necessity, diverges from the travelled path, cannot recover for injuries received while travelling outside such path. Sherman & Redfield on Negligence, sec. 384; Howard vs. Inhabitants of North Bridgewater, 16 Pickering, 189; Sparhawk vs. City of Salem, 1 Allen, 30; 2 Hilliard on Torts, 397; Rice vs. Town of Montpelier, 19 Vermont, 470; Farnum vs. Concord, 2 N. H., 392; Howland vs. Vincent, 10 Metc., 371.

The plaintiff was twice warned of the danger of crossing the bridge, and twice desisted, but finally started from the Galt House, crossed the Winchester track, and the highway (leading to the bridge) to the private grounds of the defendant, and walked over the wall of the defendant, at a considerable distance beyond the entrance to the bridge. He voluntarily put himself in peril against the protestations [**17]  of the defendant, and then makes a claim upon the defendant for compensation for the injuries he sustained. He was the author of his own misfortunes--the heedless instrument of his own injury. Besides being warned of the danger, he well knew it himself. He was frequently in Harper's Ferry, and was well acquainted with the locality. Tisdale vs. Inhabitants of Norton, 8 Metc., 392; Saunders on Negligence, by Hooper, 25; Shepardson vs. Inhabitants of Colerain, 13 Metcalf, 55.

If the facts set forth in the seventh and eighteenth prayers are true, they show, as matter of law, that the plaintiff did not exercise that ordinary care and diligence which will entitle him to recover. They further show, that the defendant used due care in preventing accidents, by reason of any defect in and about the bridge or wall. How far the owner of a bridge is responsible for accidents, in attempting to cross a bridge obviously unsafe or dangerous, or in fording a stream, in such case, are mainly questions of law, calling for special instructions from the Court. See 2 Hilliard on Torts, 396, sec. 14, and 393 and 394, sec. 11; Rice vs. Montpelier, 19 Vermont, 470 and 476; Farnum vs. Concord, 2 N. H.,  [**18]  392, 394; Howard vs. The Inhabitants of North Bridgewater, 16 Pickering, 189.

The evidence in this case shows clearly that the acts of the plaintiff were so "glaringly careless and negligent," that the Court should declare them to constitute negligence in law, and preclude him from recovery. B. & O. R. R. vs. Shipley, 31 Md., 368; B. & O. R. R. vs. Fitzpatrick, 35 Md., 46; B. & O. R. R. vs. State, use of Dougherty, 36 Md., 366.

George Schley and Attorney-General Syester, for the appellee.

It is unquestionable law, that where the limits of a highway, as in this case, are not indicated by any visible objects, and there is nothing to show a traveller that the course he is pursuing is outside of the way intended for the public, and he becomes injured, in passing along the general direction, by reason of causes existing outside of the highway, but so near to the highway, and adjoining it, as to render it dangerous to persons passing there, and there is nothing to give warning to the public of the dangers; in such case the party causing the danger is responsible for any damage or injury to a traveller, provided the traveller used reasonable, or ordinary care to avoid the danger.  [**19]  Hayden vs. Inhabitants of Attelborough, 7 Gray, 338; Vale vs. Bliss, 50 Barb., 358; Alger vs. City of Lowell, 3 Allen, 402; Jones vs. Inhabitants of Waltham, 4 Cush., 299; Coggswell vs. Inhab. of Lexington, 4 Cush., 307; Willey vs. Portsmouth, 35 N. H., 303; Davis vs. Hill, 41 N. H., 329; Barnes vs. Ward, 9 C. B., 392, (67 Eng. C. L.); Reed vs. Northfield, 13 Pick., 94, 98; Fox vs. Sackett, 10 Allen, 535.

But the fact that the appellee was a trespasser, at the time of the accident and injury, affords no ground of defence for the negligence of the appellant. If he was a trespasser at all, in view of the license to the public to walk there, yet he was not a wilful or voluntary trespasser. He was not a wrong doer. He was engaged in no unlawful act. And the mere circumstance that he was on the appellant's grounds, and if he had not been there, the accident would not have happened, affords no answer to the action.

A trespasser is liable for the injury which he does, but he does not forfeit his right of action for an injury sustained. Kerwhacker vs. C. C. & C. R. R. Co., 3 Ohio St. Rep., 172; Barnes vs. Ward, 9 M. G. & S., (393), (67 E. C. L. R., 392); Birge vs. Gardiner, 19 Con.  [**20]  , 507; Lovett vs. S. & S. D. R. R. Co., 9 Allen, 557; 1 Hilliard on Torts, (2nd Ed.) 160; Chaplin vs. Hawes, 3 Carr. & P., 554; Isbell vs. N. Y. and N. Haven R. R. Co., 27 Conn., 393; Norris vs. Litchfield, 35 N. H., 271; Hardcastle vs. South Yorkshire Railway Co., 4 H. & N., 67; Binks vs. S. Y. Railway Co., 113 Eng. C. L., 244; Hownsell vs. Smyth, 97 Eng. C. L., 729.

The seventh prayer of the defendant was properly rejected. It left out all the facts of the case, except two. It seggregated these two facts: 1st--that the appellee was acquainted with the situation and location of the bridge; and, 2nd, that he was admonished of the "danger in crossing the bridge;" and asked the Court to say, that if these were true, they were conclusive of the question that due care and diligence were not exercised by the appellant. There were numerous and complicated facts from which that question was to be decided; and this is not one of the class of cases where Courts will take upon themselves the obligation and responsibility of saying, that certain facts, if found, constitute negligence. The cases in Maryland, on this subject, are numerous. See Baltimore and Ohio R. R. Co. vs. Dougherty, 36 [**21]  Md., 366; Fitzpatrick's Case, 35 Md., 32; Shipley's Case, 31 Md., 369; Miller's Case, 29 Md., 252; Price's Case, 29 Md., 421; Worthington's Case, 21 Md., 275. See also, Williams vs. Town of Clinton, 28 Conn., 204.

The eighteenth prayer was properly rejected:

1st. Because it collected and presented to the jury only a partial statement of the facts.

A party cannot be allowed to separate a few facts from their connection with others, by which their force and meaning is or may be materially modified, and ask a Court to say to the jury, "these facts now selected are proper for your consideration."

Here many facts that would modify those seggregated and presented, were wholly omitted. But the attention of the jury would have been directed under the sanction of the Court, to the enumerated facts, as forming the capital and material circumstances for the consideration of the jury.

2nd. Besides, the facts enumerated did not present the truth of the case. The appellee never was admonished of the danger that actually befell him.

No warning had ever been given him of the dangers of the wall; the danger of crossing the bridge, against which Crowl admonished the plaintiff,  [**22]  consisted in the fact that there were openings "between the sills on the bridge itself, and that there was danger on the Maryland side from the Canal; and the witness McCarty, on cross-examination, stated that the reason why he persuaded the appellee not to cross was, that the bridge was in a dangerous condition--planks being out, and it was dangerous to cross at night on that account.

These were dangers growing out of defects in the highway itself; dangers which occasioned no injury in this instance; and when they are selected as facts, of which the appellee had knowledge, and against which he was warned, it is plain that this knowledge and warning could have had nothing to do in determining his action in reference to dangers existing at an entirely different place; and hence were not evidence of want of care, &c.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*583]  BARTOL, C. J., delivered the opinion of the Court:
This suit was brought by the appellee to recover damages for injuries sustained by him, from an accident caused by the alleged negligence of the appellant.
The ground of the action is that the Railroad Company [**23]  in the construction of its bridge across the Potomac, at Harper's Ferry, had made an embankment or precipice twenty feet deep, extending from the end or abutment of the bridge along the river, so near to the highway as to be dangerous to persons approaching the bridge at night; and the plaintiff in attempting to walk upon the bridge for the purpose of crossing, missed his way and fell over the precipice. The accident occurred in November, 1867, at about 9 o'clock at night.
The embankment is supported by a wall erected by the defendant, the top of which is on a level with the highway and the contiguous ground; and the alleged negligence consisted in not providing railing or guards at and along the wall, a light to indicate the entrance to the bridge, or a watchman for the protection of travellers.
On the west side of the bridge next to the retaining wall, there is a highway for common travel, the entrance to which between the columns, is ten feet wide, and by 

 [*584]  the side thereof, between the carriage way and the railroad tracks of the Winchester branch on the west, is a foot-way for travellers; the bridge being designed for ordinary travel in carriages and on foot, as well [**24]  as for the railways; the defendant received toll from persons crossing, and toll was paid by the plaintiff.
There is a space of ground between the highway leading to the bridge, and the retaining wall or edge of the precipice, belonging to the defendant, over which the plaintiff must have passed before he reached the place from which he fell, which according to the testimony, and as indicated on the plat used at the argument, was about ten or fifteen feet from the entrance to the bridge. It thus appears that the accident did not happen upon the highway or the bridge, but outside thereof, on the private property of the defendant, upon which it is alleged the plaintiff had no right to be, and it is contended that this fact deprives him of the right to recover; and for this proposition we have been referred to Howard vs. Inhabitants of North Bridgewater, 33 Mass. 189, 16 Pick. 189; Rice vs. Montpelier, 19 Vt. 470; Farnum vs. Concord, 2 N.H. 392, and Howland vs. Vincent, 10 Met. 371.
Without stopping now to consider the particular points ruled in those cases, it may be conceded as a general principle that "a traveller [**25]  who without necessity diverges from the travelled path, cannot recover for injuries received while travelling outside such path." But the facts of this case do not bring it within that general principle. It appears from the proof that the whole surface of the ground about the highway, up to the entrance to the bridge, and out to the edge of the retaining wall or verge of the precipice was levelled off smooth; there was nothing to indicate the location or line of the highway, or to distinguish it from the contiguous ground on the west side, and a deviation of a few steps in that direction precipitated the plaintiff over the wall.

 [*585]  Under such circumstances we hold the law to be clear, both upon reason and authority, that the accidental deviation from the highway such as occurred in this instance, does not necessarily deprive the plaintiff of the right of action.
The law imposed the duty upon the defendant in constructing its bridge, and making the lateral embankment adjoining the highway; so to construct them as not to render the approach to the bridge along the highway dangerous for passengers by day or night; and a failure to perform this duty subjects it to liability [**26]  for the consequences; provided the party thereby injured has used reasonable and ordinary care to avoid the danger.
This proposition is supported by Barnes vs. Ward 67 Eng. C. L. R. 392, and was affirmed by the Court of Exchequer in Hardcastle vs. S. Y. R. Way, 4 Hurl. & Nor. 67. The same principle was decided in Coggswell vs. Inhabitants of Lexington, 4 Cush. 307; Norris vs. Litchfield, 35 N.H. 271; Davis vs Hill, 41 N.H. 329; Vale vs. Bliss, 50 Barb. 358, and Alger vs. City of Lowell, 3 Allen 402.
In the case last cited, the Court say, "the true test is not whether the dangerous place is outside the highway, or whether some small strip of ground, not included in the way, must be traversed in reaching the danger; but whether there is such a risk of a traveller, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient."
It follows from what has been said, that there was no error in refusing the first, second, third, fifth,  [**27]   and seventeenth prayers of the defendant.
There was evidence in the case that the plaintiff had often crossed the bridge, and was well acquainted with the place and the contiguous grounds and premises, and that on the evening of the accident, at about 7 o'clock, 

 [*586]  and afterwards, at about 8 o'clock, being about to cross, he was warned by defendant's watchman of the danger of crossing the bridge, and that he was intoxicated at that time.
The defendant by its eighteenth prayer, asked an instruction to the jury, that if they found the plaintiff was intoxicated at the time of the accident, and also found that he was admonished of the danger of crossing the bridge, that "these facts were evidence to show a want of ordinary care to be exercised by the plaintiff, and also to show that the defendant was upon that occasion using due care in preventing accidents by reason of any defect in and about said bridge or said wall.
Unquestionably the facts enumerated in the prayer were proper to be considered by the jury in connection with all the other facts in the case, in passing upon the question of negligence; but it has often been decided by this Court, that it is not proper [**28]  to separate a few facts from their connection with others, and make them the basis of an instruction of this kind. Such a course would tend to mislead the jury; and if the practice were sanctioned, each separate fact might be made the basis of a similar instruction. It may be added, that by the twelfth prayer which was granted, the defendant had the benefit of an instruction, that the intoxication of the plaintiff at the time of the accident, if the jury so found, was a circumstance to be considered by them upon the question of the care exercised by him in avoiding the accident. And so far as the eighteenth prayer related to the warning given to the plaintiff, it was not supported by the evidence; for that showed that the only warning given related to the danger arising from the condition of the bridge, and had no reference to the danger that actually befell him. For these reasons we think the eighteenth prayer was properly refused.
The question whether the plaintiff had exercised ordinary and reasonable care to avoid the accident, was one 

 [*587]  for the jury to decide upon all the evidence in the cause; and there was therefore no error in rejecting defendant's seventh [**29]  prayer which asked the Court to take that question from the jury and to decide it as a conclusion of law from the facts therein stated. These were not of such a character as to authorize the Court to withdraw the question from the jury, and to declare that they constituted negligence in law.
Upon a careful examination of the whole case, we find no error in the rulings of the Court below upon the prayers. In granting the third and fourth of the plaintiff and the eight, ninth, twelfth, fifteenth and sixteenth of the defendant, and in the two instructions given by the Court, the law of the case was clearly and correctly stated to the jury for their direction. It is not material to notice the other prayers of the defendant. These, so far as they stated correct propositions of law were substantially granted in the instructions given to the jury. Their rejection therefore can furnish no ground for reversing the judgment.
It remains only to consider the appellant's first and second bills of exception; and we are of opinion that the evidence therein stated was properly rejected.
It is contended that it was admissible on the question of damages, to enable the jury [**30]  to ascertain the loss suffered by the plaintiff, and the amount of compensation to which he was entitled: but evidence that he was a man of intemperate habits, and when intoxicated was unable to transact business could not tend to elucidate that question, and was not admissible for that purpose.
Judgment affirmed. 

11 of 144 DOCUMENTS 

SAMUEL D. LEWIS vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 588; 1873 Md. LEXIS 82 

July 10, 1873, Decided 

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

This suit was instituted in the Court of Common Pleas by the appellant to recover damages from the appellee, for an injury alleged to have been occasioned by the negligence of its agents. On the suggestion and affidavit of the defendant the case was removed to the Circuit Court for Howard County, for trial. The facts showing how the plaintiff was injured, are sufficiently set out in the opinion of the Court.

The plaintiff at the trial offered in evidence, sections 1, 4, 5, 6, 7, 9, 13, 14, 17, 105 and 117 of Article xxxvi of Baltimore City Code; and the defendant read in evidence section two of the same Article.

Exception.--The plaintiff offered the following prayers:

1. That the attempt of the plaintiff to pass over the platform of the defendant's cars, in the manner and under the circumstances detailed in the evidence, was not an act in violation of the second section of Article 36 of the Baltimore City Code.

2. If the jury find from the evidence, that on or about the 16th day of January, 1871, the plaintiff was injured by the cars of the defendant, while operated by its agents on its road, and that said injury [**2]  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, or from the unlawful act of the said plaintiff, directly contributing to the injury, then the plaintiff is entitled to recover.

3. Even if the jury believe that the plaintiff was guilty of a want of ordinary care and prudence in attempting to pass between the cars of the defendant, under the circumstances disclosed in the evidence, and that in doing so he violated an ordinance of the City Council of Baltimore; yet, if the jury further find, that if the agents of the defendant had used, in and about the running or moving of the train that injured the plaintiff, ordinary prudence and care in giving reasonable and usual signals before putting the train in motion, and in keeping a reasonable look-out, the injury would not have occurred, then the plaintiff is entitled to recover; provided the jury find the other facts set out in the first prayer of the plaintiff.

4. If, under the instructions, the jury should find for the plaintiff, he is entitled to such damages as will fairly compensate him for the time lost during, and [**3]  reasonable expenses in effecting, his cure; for the physical and mental suffering caused by the injury, and for the permanent reduction of his power to earn money, considering the reasonable probabilities of the life of the plaintiff.

5. If the jury find from the evidence that the agents of the defendant did not conform to the ordinances of the City of Baltimore, prescribing certain regulations to govern the defendant in the use and management of its cars, trains and engines, within the limits of the said city, at the place where the accident occurred, and that the failure to conform to said regulations contributed directly to the accident by which the plaintiff was injured, then the plaintiff is entitled to recover; unless the jury shall find that the plaintiff, by his negligence, or by some unlawful act, directly contributed to his own injury.

6. In considering the question of negligence, it is competent for the jury, in connection with the other facts and circumstances of the case, to infer the absence of fault on the part of the person injured, from the general and known disposition of men to take care of themselves and to keep out of the way of difficulty and danger.  [**4]  

7. If the jury find from the evidence that the plaintiff was guilty of negligence, which contributed to his injury, and also find that the plaintiff's injury was not the ordinary and likely result of such negligence, but was due to some wholly unlooked for and unexpected event, which could not reasonably have been anticipated or expected to be likely to occur, then the plaintiff is not disentitled to recover by reason of such negligence.

8. If the jury believe from the evidence that the plaintiff's act, in crossing between the defendant's cars, was invited or induced by the unlawful act of the defendant or its agents in obstructing or blocking up the street, the plaintiff is not debarred from his recovery by his negligent act so invited or induced, although such negligent act directly contributed to the injury of the plaintiff.

The following prayers were offered by the defendant:

1. That if the jury shall find from the evidence that the injury complained of occurred when the plaintiff was getting upon the platform of a freight-car, (part of a train of the defendant then at the intersection of Camden and Howard streets,) which train was then in the course of being [**5]  made up, and that such injury would not have occurred if the plaintiff had not attempted to get upon said freight-car, then the plaintiff is not entitled to recover in this case.

2. That if the jury shall find from the evidence that the injury complained of would not have occurred if the plaintiff, in crossing Howard street, had not attempted to get on a freight-car of the defendant, at the intersection of Howard and Camden streets, and that he could have crossed Howard street in safety, by walking less than a square, and passing around the train of which said car formed a part, then he is not entitled to recover in this case.

3. If the jury believe from the evidence, that at the time of the injury complained of, the defendant was engaged in making up a train on Howard street, north and south of Camden street, preparatory to taking the train out of the city, by coupling together a number of cars standing on said Howard street, by attaching an engine to the south end thereof and backing the cars up Howard street, coupling them together as they were brought in contact with each other, and that the cars north and south of Camden street had already been coupled together, thus [**6]  forming a continuous train across the crossing of Howard street at Camden, and if, at the time the company were thus making up its train, the plaintiff attempted to cross Howard street by climbing over the platform of one of the cars so being made up, and was caught between the bumpers of the car and injured, then the act of the plaintiff was such a want of ordinary care as contributed directly to the injury, and he cannot recover.

The Court, (HAMMOND, J.,) rejected the prayers of the plaintiff and granted those of the defendant; the plaintiff thereupon excepted, and the verdict being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Contributory Negligence -- Province of the Court and Jury -- Negligence or want of ordinary care -- Concurrent Negligence.

Between six and seven o'clock in the evening in the month of January, the Balt. & Ohio R. R. Co., by its agents, was engaged in making up a train of freight cars on the line of Howard street, north and south of Camden street, preparatory to its leaving the city of Baltimore. The engine was attached to the south end of the train, some distance below Camden street, and was backing the cars up Howard street to couple with cars north of Camden street. A person being at Camden Station, started to go to the Fountain Hotel, on the north side of Camden street, a short distance from the corner of Howard street. On reaching the corner of Howard and Camden streets, he found the crossing blocked up by the cars as above described, but instead of waiting until the train had moved, or walking up to Pratt street, the distance of a square, when he could have crossed without risk, he attempted, although it was dark, and without looking or inquiring whether an engine was attached to the train, to climb over the platform of the car and thus cross to the opposite side of the street. While in the act of pulling himself up by the handle attached to the car, with one foot on the platform and the other hanging down, the train suddenly moved and his leg was caught and crushed between the two cars. In an action by the injured party against the railroad company to recover damages, it was HELD:

That the attempt of the plaintiff to get on the platform of the car, under the circumstances, was such an act of carelessness as amounted in law to contributory negligence, and disentitled him to recover.

Although it is the province of the jury to decide matters of fact when evidence legally sufficient for that purpose is submitted to their consideration, yet this legal sufficiency is a question of law, of which the Court is the exclusive judge; and where the testimony is so slight and inconclusive, that no rational mind can infer from it the fact which it is offered to establish, it is not only the right, but the duty of the Court, when appealed to for that purpose, to instruct the jury that there is no evidence before them, to warrant their finding the fact so sought to be established.

In an action against a railroad company to recover damages for an injury sustained by the plaintiff, through the alleged negligence of the defendant, and in all cases of the like kind, the proper question is, whether the injury complained of was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff so far contributed to the misfortune by his own negligence or want of ordinary care and prudence, that but for such negligence, or want of ordinary care and prudence, the injury would not have happened. In the first case the plaintiff would be entitled to recover; in the latter he would not, unless the defendant, by the exercise of care and prudence on his part, might have avoided the consequences of the negligence of the plaintiff.

An action will lie in some cases when there has been negligence on both sides, but in such cases it must appear that the defendant by a proper degree of caution might have avoided the consequences of the plaintiff's neglect; or that the latter could not by ordinary care and prudence have avoided the consequences of the defendant's negligence. This implies, however, time for one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other's negligence. But where there is no opportunity for one party to become aware of the negligence of the other, and the injury is occasioned by the concurrent and co-operating negligence of both, an action will not lie.  

COUNSEL:
Joseph Packard, Jr., and Richard M. Venable, for the appellant.

The Circuit Court was not warranted in instructing the jury that the act of the plaintiff was contributory negligence.

This Court has on several occasions intimated that Courts under certain circumstances are warranted in declaring acts to be negligent as a matter of law, and has discussed the characteristics of such acts. These characteristics form the tests by which it may be determined when the Courts are to assume the province of declaring an act negligent. They are--

1st.  [**7]  The complexity or simplicity of the act. The Courts will not leave the question of negligence to the jury where the case presents some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ; when the act in question is not dependent upon surrounding circumstances for its quality, and when that quality can be determined only by considering all the attendant circumstances of the case. Balt. & O. R. R. vs. Fitzpatrick, 35 Md., 32, 46.

The act of the appellant in this case was no more prominent or decisive, and no less dependent on surrounding circumstances for its quality than the acts of the persons injured in the following cases: Shipley's Case, 31 Md., 368; Fitzpatrick's Case, 35 Md., 32; Trainor's Case, 33 Md., 542.

2nd. The act must be proved by uncontroverted testimony. Prayers taking a case from the jury necessarily concede the truth of all the evidence in the cause, and all legitimate inferences therefrom tending to disprove negligence in the plaintiff. Shipley's Case, 31 Md., 368, 370-1.

3rd. The act must be the proximate (and not the remote) cause of the injury. An act is the proximate cause of all [**8]  effects which are reasonably probable to follow from it. And this test merely means, that an act is the proximate cause of those injuries which an ordinary mind would reasonably judge that the act would lead to. In other words, an incautious act may be a proximate cause--and a cautious act can never be. So the inquiry into proximate and remote causes is merely an inquiry into the prudence of the act. Trainor's Case, 33 Md., 542, 553-4; Sher. & Red. on Neg., secs. 10 and 33.

The prudence of Lewis' act is to be judged in the light of the following considerations:--his trade (brick-mason) made him an expert climber and sure of hand and foot; he had a practical test of the prudence of his course in having seen several (six or seven) adopt it (Shipley's Case, 31 Md., 368;)--he had the judgments of these six or seven as to its prudence; practically he had the judgments of the railroad employes as to its prudence, since they had left the crossing unguarded; he had the right to conclude that the employes of the railroad would signal before moving the train, and that he would have time after the signal and before the moving to extricate himself from any situation of danger in which his [**9]  act might involve him; he had a right to expect that the employes would see that no one was exposed to danger at the crossing, before moving the train; he was not bound to anticipate negligent conduct on the part of the employes--(Sher. & Red. on Neg., sec. 31;) he did not know there was an engine attached to the train, and he might naturally infer from its remaining stationary at the crossing for five or seven minutes, that there was no engine to it--and he did not know the distance he would have to walk to go around the train. See Price's Case, 29 Md., 420; Shipley's Case, 31 Md., 368; Trainor's Case, 33 Md., 542; Sher. & Red. on Neg., sec. 490.

But in order that the Court may be justified in declaring an act negligent in law, it should have all these characteristics at the same time. It should be uncomplex and decisive and rash or incautious, and should be proved without conflict of evidence. (Vide, 31 Md., 368-370.)

[Counsel argued that both on grounds of logical consistency and of public policy questions of negligence should always be submitted to the jury.]

Conceding that Lewis was guilty of negligence, he does not thereby lose his right to recover. Where the [**10]  defendant might prevent the consequences of the plaintiff's negligence, it is well settled that he is punishable in damages for not doing so. (Geis' Case, 31 Md., 357, 366.) This Court, by approving the plaintiff's second prayer in the Trainor Case, (33 Md., 542, 544,) established the doctrine that whatever may be the negligence of the plaintiff, if the accident could be prevented by the defendant's ordinary prudence and care, in giving reasonable and usual signals, and in keeping a reasonable lookout, the plaintiff would not lose his right to recover. The third prayer of the plaintiff in this case is taken from the plaintiff's second prayer in the Trainor case, and it is as appropriate to the facts of this case as it was to those of the Trainor Case.

Ferdinand C. Latrobe and Thomas Donaldson, for the appellee.

The theory of the defendant's prayers was, that the acts of the plaintiff, as testified to by himself and other witnesses at the trial, were in themselves such glaring acts of negligence and carelessness on his part, that the Court should declare them as constituting such contributing negligence in law as would prevent the plaintiff from recovering in this action.  [**11]  

This Court has said frequently, that while in most cases the question of negligence is one for the jury, yet there are cases where the acts of the injured party are so glaringly careless and negligent, that the Court will declare them to constitute negligence in law. B. & O. R. R. Co. vs. State, use of Miller, 29 Md., 262; B. & O. R. R. Co. vs. Shipley, 31 Md., 368; Northern Central R. R. Co. vs. State, use of Price, 29 Md., 421; B. & O. R. R. Co. vs. Fitzpatrick, 35 Md., 32; B. & O. R. R. Co. vs. State, use of Dougherty, 36 Md., 367.

In this case there was no necessity for the plaintiff's exposing himself to unnecessary danger in attempting to cross the street by climbing over the platforms of two cars forming part of a train, to which an engine was attached, and which, if not actually moving at the time, was liable to be put in motion at any moment. Had he walked up Howard street to the end of the train, he could have crossed in perfect safety. His attempt to cross where he did, was simply consulting his own convenience, at the risk of his safety, and if injured, as he was, it was such a prima facie contribution to his own wrong, as prevents his recovery against the defendant.  [**12]  

There are two cases, one in Massachusetts, and the other in Illinois, where the facts were almost identical with those in the present case; in both of which the Court ruled, that the attempt of the injured plaintiff to climb between the cars of a connected train, liable to be moved at any moment, for the purpose of crossing a public thoroughfare, was negligence in law. Gahagan, Administratrix, vs. Boston and Lowell R. R. Co., 1 Allen, 187; Chicago, B. and Quincy R. R. Co. vs. Dewey, Adm'x, 26 Illinois, 255.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*597]  ROBINSON, J., delivered the opinion of the Court.
This suit was brought to recover damages for injuries alleged to have been caused by the negligence of the defendant.
The undisputed facts are as follows: Between six and seven o'clock, on the evening of January 16th, 1871, the appellee, by its agents, was engaged in making up a train of freight cars on the line of Howard street, north and south of Camden street, in Baltimore, preparatory to its leaving the city. The engine was attached to the south end of the train, some distance below Camden street, and [**13]  was backing or jarring the cars up Howard, to couple with cars north of Camden. The plaintiff being at the depot of the defendant, whither he had gone to take the train for Washington, started to go to the Fountain Hotel, on the north side of Camden street, a short distance from the corner of Howard. Arriving at the corner of Howard and Camden, he found the crossing blocked by the freight cars of the defendant. He did not see the engine attached to the train, although the street lamps were lighted, but he admits he did not look particularly for it; nor did he see any employes of the defendant at or about the crossing. The street had been blocked by the cars from twenty-five to thirty minutes; and a number of persons had collected at the crossing waiting for the train to move. The plaintiff waited from five to seven minutes, during which time he saw several persons climb up to the platform of one of the cars and thus pass to the opposite side of the street; he also saw a policeman stop two women who were attempting to crawl under the coupling of the cars. Finally he determined to climb over the platforms of the two cars, and taking hold of the handle used for getting on the cars, while [**14]  in the act of pulling himself up, with one foot on the platform and the other hanging down, the train suddenly moved, and his leg was caught and crushed between the two cars. The plaintiff also read 

 [*598]  certain ordinances of the city for the purpose of showing that the defendant was making up the train and blocking up the crossing in a manner prohibited by the same.
Upon these facts, the Court, in granting the defendant's and in refusing the plaintiff's prayers, instructed the jury substantially, that the plaintiff had by his own negligence contributed to the injury, and was not, therefore, entitled to recover. We fully agree with the counsel for the appellant, that in cases of this kind the question of negligence, as a general rule, is a matter for the determination of the jury, under instructions from the Court defining the degree of care required of each party, according to the nature of the relations borne by the defendant to the party injured.
But we have said more than once "that cases may and do sometimes occur, where the Court is required to declare some plain act of carelessness on the part of the plaintiff, to be in law such contributing negligence as [**15]  will prevent a recovery, or, on the other hand, where the proof of negligence on the part of the defendant is so slight and inconclusive in its nature as to demand from the Court an instruction as to its legal insufficiency to prove negligence, in order to prevent the jury from indulging in wild speculation or irrational conjecture."
In this, as in all other cases, the burden of proof is on the plaintiff, and, although it is the province of the jury to decide matters of fact when evidence legally sufficient for that purpose is submitted to their consideration, yet this legal sufficiency is a question of law, of which the Court is the exclusive judge; and where the testimony is so slight and inconclusive that no rational mind can infer from it the fact which it is offered to establish, it is not only the right, but the duty of the Court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact so sought to be established.

 [*599]  Without reviewing the many cases in which the subject of negligence has been considered, the question in this and in all cases of the like kind, is whether the injury [**16]  complained of was caused entirely by the negligence or improper conduct of the defendant, or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that, but for such negligence or want of care and prudence, the injury would not have happened. In the first case, the plaintiff would be entitled to recover--in the latter he would not, unless the defendant, by the exercise of care and prudence, might have avoided the consequences of the plaintiff's negligence. The rule thus laid down in Tuff vs. Warman, 94 E. C. L. Rep. 583, avoids the distinction between remote and proximate causes, a subject which PIGOT, C. B., says has perplexed metaphysicians from the days of the disquisitions of the schoolmen, down to the essays of Hume and Browne, and presents the law in clear and intelligible terms, suited to the capacities of men of good common sense and ordinary information.
The question in this appeal resolves itself then into this, was the attempt on the part of the plaintiff to get on the platform of the car, under the circumstances, such a glaring act of carelessness [**17]  as to amount in law to contributory negligence? To this, we think, there can be but one answer. On reaching the crossing at Camden and Howard streets, instead of waiting until the train had moved, or walking up to Pratt street, the distance of a square only, where he could have crossed without risk, he attempted, although it was dark, to get on the platform of one of the cars, at a time too when the defendant was making up its freight train, and without even looking or inquiring whether an engine was attached thereto. For such negligence, it is no excuse to say that he had seen five or six of the crowd of persons there collected make a like attempt without injury, and, especially in the face of 

 [*600]  the admonition given by the policeman, who, in the very presence of the plaintiff, had prevented two women from exposing themselves to a danger so imminent. The ordinary care which the law requires is the exercise of such caution and prudence as are fairly proportioned to the danger to be avoided, judged by the standard of common prudence and experience. Tested by this standard, the conduct of the plaintiff in thus exposing himself to a danger so threatening, can be viewed in [**18]  no other light than as an act of carelessness, amounting in law to contributory negligence.
But it was also contended that the plaintiff is not prevented from recovering, if the defendant, by the exercise of ordinary care, might have avoided the consequences of the plaintiff's negligence. An action, it is true, will lie in some cases, where there has been negligence on both sides, but in such cases it must appear that the defendant, by a proper degree of caution, might have avoided the consequences of the plaintiff's negligence, or that the latter could not, by ordinary care and prudence, have avoided the consequences of the defendant's negligence. "This, however, implies time for one party to become aware of the conduct and situation of the other, for neither could be required to anticipate the other's negligence." Northern Central Railway Co. vs. State, use of Geis, 31 Md. 357.
A man asleep on the highway, or walking negligently, it may be, upon a railroad track, is not to be run over, provided it can be avoided by the exercise of ordinary care. Or, take the case of a vessel failing to exhibit the proper lights and to take the right side of [**19]  the channel as required by the Navigation Act, such acts of negligence are no defence in a suit against a colliding vessel, provided the latter being aware of the negligence of the former, could have avoided the collision by the exercise of ordinary care. Where, however, there is no opportunity for one party to become aware of the negligence of 

 [*601]  the other, and the injury is occasioned by the concurrent and co-operating negligence of both, it is well settled that no action will lie. In the case before us, if it be conceded there was negligence on the part of the defendant in the use of the engine at the time of the injury, it is equally clear, there was concurrent negligence on the part of the plaintiff in attempting to get on the platform of the car, and although the crossing was temporarily blocked, it cannot be imputed as negligence to the agents of the defendant, that they did not anticipate such recklessness on the part of the plaintiff. After the attempt was made to get on the cars, it was impossible for the defendant to have avoided the injury by the exercise of ordinary care, because there was no interval of time during which the agents of the latter could become [**20]  aware of the danger to which the plaintiff was exposed.
Then on the other hand, so far as regards the prior acts of negligence of the defendant, such as using an engine on the track in the city, and blocking the crossing, in a manner prohibited by the city ordinances, it is very clear, that such acts of negligence did not exempt the plaintiff from the use of ordinary care in order to avoid the consequences of the defendant's negligence. The fact that a train of cars is unlawfully blocking a crossing, is no reason why a person should throw himself under the wheels, or recklessly expose himself to danger. He is bound, notwithstanding such acts of negligence, to exercise proper care and prudence, and if he fails to do so, he cannot hold another responsible for an injury which may be fairly traced to his own negligence.
In any aspect, therefore, in which this case may be considered, we are of opinion, there was contributory negligence on the part of the plaintiff, and that the judgment below ought to be affirmed.
Judgment affirmed. 

DISSENTBY:
STEWART 

DISSENT:

 [*602]  STEWART, J., delivered the following dissenting opinion:
It has been so often decided by this Court, that [**21]  the question of negligence is, as a general rule, for the determination of the jury, from the facts in the case, that it seems to be superfluous to undertake to restate it.
The proposition is a plain one, that where there is any conflict of evidence, it is for the jury to decide, and not the Court. The relative duties of the Court, in such cases, and those of the jury, are best discharged where the Court in plain and intelligible terms defines for the jury the standard by which to apply the evidence, leaving to them to determine the question according to their judgment.
The cases where questions of this sort have arisen, were fully and ably reviewed by the Judge who delivered the opinion in the very recent case of Dougherty, 36 Md. 366.
Upon examination it will be found, in the multiplicity of cases brought here for review, there is only one where the Court undertook to deviate from the general rule, to submit the question to the jury, and to decide the question of negligence as matter of law. That was the case of the Baltimore City Railway vs. Wilkinson, 30 Md. 224. In that case, the regulations of the Railway, prohibited persons from getting [**22]  on or off the front end of the car. It was a peculiar case, and the Court say, the question of negligence is a legal question for the Court to decide, and was unlike the case where the facts from which negligence is to be inferred, are controverted, and where no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily to be submitted to the jury. There being really no dispute about the fact, the Court decided a pure question of law, the violation of a regulation of the Company, announcing at the same time the existence of the general rule.

 [*603]  In this case there was much contrariety of testimony, and the facts as to the conduct of the defendant, its alleged violation of the city ordinance, whether there was or not an engine on the train of cars, and the length of the train--were there any signals--whether the train was stationary, and for what length of time--whether there were proper employes in charge of the cars--whether persons were passing over or under the cars, on the usual passway across the street--whether the ends of the train could be readily seen from the point where the accident occurred--the conduct of the plaintiff--whether [**23]  grossly negligent of his safety, or merely incautious--whether by ordinary prudence on the part of the defendant, in having a person stationed at the crossing, to warn travellers of the danger of attempting to cross;--were all questions to be weighed and considered by the jury, in reaching a reasonable conclusion as to where the fault was, that directly occasioned the accident.
There is no distinct and uncontroverted fact, that the Court can at once pronounce to be conclusive evidence of the question of negligence.
The three prayers of the defendant were objectionable, because they withdrew from the determination of the jury the question of negligence.
The instruction given to the jury in the second prayer of the defendant, seems to me to be unprecedented, and outside of any rule recognized by any law that I am aware of. To say nothing of its interference with the duty of the jury, it is entirely abstract, speculative, and puts the jury upon the enquiry, as to a mere probable course of safety on the part of the plaintiff if he had adopted the specific line of conduct suggested by the prayer--such an investigation is utterly foreign to the issues regularly before the jury.
It might [**24]  as well have undertaken to instruct the jury upon any other hypothesis of probabilities not in the least 

 [*604]  germane to the legitimate subject for their investigation and decision.
The first prayer of the plaintiff is immaterial.
The second prayer of the plaintiff furnished the jury with the true standard of care necessary to be employed by both parties, and ought to have been granted.
It is substantially the same as that affirmed by this Court in giving the first instruction in Trainor's Case, 33 Md. 542.
The plaintiff's third prayer ought to have been granted. It is to the same effect as the second prayer in Trainor's Case, ruled to be right by this Court.
The fourth prayer of the plaintiff, as to the measure of damages, ought not to have been refused.
The plaintiff's fifth prayer, although somewhat inartificial, embraces a correct view of the duties and responsibilities of the defendant, which constituted a material element in the question of negligence. Where a railroad company does not conform to legal requirements, and disregards the city ordinances, and the fact is established, it is responsible for any accident occasioned by its instrumentality,  [**25]  unless the injured party was also in fault. Miller's Case, 29 Md. 252.
The plaintiff's seventh prayer, was much like the defendant's second prayer, at least speculative and not pertinent to the true enquiry before the jury.
The eighth prayer of the plaintiff was objectionable, in ignoring altogether the question of contributory negligence on the part of the plaintiff. The question of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, is essentially one of fact, for the consideration of the jury, and it is exceptional for the Court to undertake to decide it as matter of law.
There is danger of commingling the relative duties of Court and jury in interfering with such questions. When 

 [*605]  the Court lays down the standard, it is quite as competent for the jury to determine such question as the Court. Arguments derived from supposed prejudices and feelings of the jury, cannot be considered in such an enquiry; if there is any defect in that quarter the Court has no power to correct it, except in the exercise of their undoubted authority to grant a new trial, where the case is one authorizing and requiring such [**26]  interposition.
That, however, is a matter for the determination of the Court below, and is not a subject of appellate review.
As to the respective duties of Court and jury, I refer to the dissenting opinions in the case of Tyson vs. Tyson, 37 Md. 567. 

12 of 144 DOCUMENTS 

JESSE H. WHITEHURST vs. JAMES C. ROGERS, trading as COLEMAN & ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 503; 1873 Md. LEXIS 76 

July 3, 1873, Decided 

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

The facts are stated in the opinion of the Court, which also sets forth so much of the prayers of the appellant and appellee as is necessary to the understanding of the points involved in the decision.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Pleading and Evidence -- Judgments and Decrees -- Res Adjudicata -- General Verdict -- Practice in the Court of Appeals.

However numerous the questions involved in a suit, if they were tried and decided, the renewal of litigation for any one of the same causes, violates the doctrine of res adjudicata as much as if the first suit presented but one issue.

The jury are to inquire under the plea of res adjudicata, whether the right asserted or the wrong complained of, is virtually or substantially identical with that involved in the first suit, and this identity is determined not by the pleadings only, but, when submitted to the jury, by parol proof.

The date of the acts charged, does not necessarily affect the operation of the plea of res adjudicata; a verdict and judgment between the same parties, used either in pleading or evidence, as a protection in a second suit, is equally conclusive, where the same damages are sought to be recovered, and where different damages are claimed for a posterior violation of the same right. If the same question of right is involved in the second suit, as was determined in the first -- whatever distance in time occurs between the acts bringing the right in question -- the former decision is effective.

W. had sued R. for an alleged violation of a trade-mark of a patent medicine, and verdict and judgment had been for R. In a subsequent suit by W. against R. for an alleged posterior violation of the same trade-mark, R's counsel in the first suit testified, that the issue there was "whether or not the defendant had the right to put up the medicine as he did," and that "they went before the jury on the simple fact, that R. had the right so to put it up and sell it." HELD:

1st. That this evidence was competent.

2nd. That the right to the trade-mark being the essential point in issue on the former trial, the judgment there against W. was a bar to this action.

Where several issues are presented in a case, and the instruction of the Court as to one of them, the issue raised by the plea of res adjudicata, is correct, and the jury find a general verdict for the defendant, it may be inferred, that they found on that issue, and it is unnecessary on appeal by the plaintiff, to review his prayers refused by the Court, which referred to the merits of the case, (as contradistinguished from the plea of res adjudicata,) and to the standard of damages.  

COUNSEL:
Perley R. Lovejoy and Henry Stockbridge, for the appellant.

In regard to the question of res adjudicata, the Court below erred in refusing the plaintiff's first, second and seventh prayers, and in granting the defendant's first prayer.

The plaintiff's seventh prayer, is based on the principle that the subsequent date of a similar act constitutes it "a different and distinct trespass," for which an action will lie, and that such action is not barred by former adjudication upon a similar act done at another date. The acts charged in this suit had not been committed, the year of their committal had not yet arrived, when the former suit was brought and decided, and therefore the acts complained of could not be the same in both. The date, in continuing or consecutive trespasses, is of the very gist of the action, according to authorities both in England and in the United States.

In Shadwell vs.  [**2]  Hutchinson, 4 Carr. & P, 334, Lord Chief Justice TENTERDEN says, "Unless I could say that the grievance during that time is the same grievance as the obstructing the light between two other and earlier dates, the plaintiff is entitled to recover." So also Goodrich vs. Yale, 8 Allen, 454; Bigelow on Estoppel, 133; Shafer vs. Stonebraker, 4 G. & J., 345, &c.; 2 Phillips' Ev. 44, note 271.

The four several utterances in the case of Shafer vs. Stonebraker, by Judge DORSEY, show how prominent in the mind of the Court must have been the principle that difference in date constitutes a difference in the cause of action. Phillips vs. Berick, 16 Johns. R., 139; Taylor vs. Carpenter, 2 Wood. & M., 7; Lentz vs. Wallace, 17 Penn. State, (5 Harris,) 415; Richardson vs. City of Boston, 19 How., 267, 268; Wash. Packet Co. vs. Sickles, 24 How., 333.

This position is further strengthened by considering that two causes of action are held in law to be the same, only when the same evidence will sustain both actions. Hitchin vs. Campbell, 3 Wilson R., 308; and 2 Wm. Black. R., 778, 827; Martin vs. Kennedy, 2 Bos. & P., 71; Wadsworth vs. Bentley, 23 L. J., Q. B., 3; Hunter vs. Stewart, 31 L. J.  [**3]  Ch., 350, and Dolphin vs. Aylward, 5 Ir. Eq. R., N. S., 583; 2 Taylor Ev., sec. 1512, citing all the above cases, states the present English rule thus: "A convenient and safe test for ascertaining whether or not the judgment in one action should be a bar to another, is to consider whether the same evidence would or would not sustain both." 2 Phill. Ev., 27; Herman's Estop., sec. 99; Lawrence vs. Hunt, 3 Sumner, 22; Rice vs. King, 7 Johns. R., 20; Johnson vs. Smith, 8 Johns. R., 383; Harding vs. Hale, 2 Gray, 400; Edwards vs. Stewart, 15 Barb., 69; Miller vs. Manice, 6 Hill, 121; Marsh vs. Pier, 4 Rawle, 285.

Applying this test in the present case, it is manifest that the same evidence would not sustain both actions, even if considered only as to differences of date.

The granting of the defendant's first prayer was clearly wrong for the further reason, that it bears a palpable inconsistency on its face; it presents two grounds on either of which the verdict in the former trial may have been given, as proof to the jury that that verdict was based upon one of those grounds alone; and further that it was based upon the particular one of those grounds which the cause of the defence [**4]  required should be established. The two grounds presented are, the right of the plaintiff to the trade-mark, and the violation of that right by the defendant. The particular ground on which the defendant relies, is the first of them. A decision at the former trial as to a violation, would not be in any way conclusive as to another violation, sued on in the second; while a decision as to the right to the trade-mark in any case would be conclusive as to that right in any other case between the parties.

But that instruction is equally condemned by the rule of law, that "We should make it a criterion of the conclusiveness of the verdict upon such a matter, that it clearly appear that the whole case turned exclusively upon its decision." Big. on Estop., 95; Lawrence vs. Hunt, 10 Wend., 85; Lentz vs. Wallace, 17 Penn. State R, 415.

The instruction, to be consistent with law, should have stated only one possible ground for the verdict; the suggestion of two such grounds is fatal to the conclusiveness asserted in the latter part thereof. Ryer vs. Atwater, 4 Day Rep., 431; Shafer vs. Stonebraker, 4 G. & J., 345.

It is the settled law of Maryland, that where the former verdict [**5]  is for the defendant, on general issue pleaded, or on presentation of more than one point to the jury as the possible ground of the verdict, such verdict does not decide any particular one of the points involved, and is no bar to the further litigation of any one of those points.

The points actually before the jury in the former trial can only be learned from the declaration, plea, and instructions to the jury in the former trial. These are the only proper evidences as to what points were there contested and decided. Those papers are direct, clear and full, in stating those points. There is in them no omission to be supplied, and nothing doubtful to be explained; and oral testimony is not admissible to go farther, and contradict them. Miles vs. Caldwell, 2 Wall., 43, (1864.)

The three points of right, infringement and damage, were stated in the declaration of the former suit, were contested in the evidence, were again stated in the instructions of the Court to the jury, and were argued before the jury, at least by plaintiff's counsel. Under the plea of general issue thereon the verdict for defendant did not affirm either of these points. The question of plaintiff's or defendant's [**6]  right to the trade-mark in question, did not therefore, by that verdict, become res adjudicata.

Robert D. Morrison, for the appellee.

Parol testimony as to what had been the actual issue at the former trial, was properly admitted. 2 Phillips on Ev., 4th Am. Edition, pages 21, 22, &c., (note 262, pages 45, 46;) 2 Phillips on Ev., (note on page 124;) Gardner vs. Buckbee, 3 Cowen, 126, 127; Burt vs Sternburg, 4 Cowen, 559; Wood vs. Jackson, 3 Wendell, 27; Wood vs. Jackson, 8 Wendell, 9; Cecil vs. Cecil, 19 Md., 79; Garrott vs. Johnson, 11 G. & J., 173.

The appellant's first prayer is vicious because it asks the Court to instruct the jury that unless "the question as to the right to the use of the trade-mark," was the sole question "presented for the consideration of the jury, and tried in the former suit," and that if "any other question were there presented and submitted to the jury," then the verdict in the former suit is no bar to the recovery in this action. Under this prayer the plaintiff would not be barred even if the jury should find that the question of right had been tried and decided in the former case, for this they might find even though other matters had been [**7]  "presented and submitted" to the jury in the first case.

The second prayer was properly rejected because it presented to the consideration of the jury an unmixed question of law. Williams vs. Woods, et al., 16 Md., 220.

As to the appellant's seventh, and the appellee's first prayer, see Outram vs. Morewood, 3 East, 366; Shafer vs. Stonebraker, 4 G. & J., 360; Beall vs. Pearre, 12 Md., 550; Hughes vs. Jones, 2 Md. Ch. Dec., 182; Cutler vs. Cox, 2 Blackford, 178, 181.  

JUDGES:
The cause was argued before STEWART, BOWIE, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*508]  BOWIE, J., delivered the opinion of the Court.
The appellant sued the appellee in the Superior Court of Baltimore City, on the 8th of September, 1871, declaring 

 [*509]  against him originally in two counts, but afterwards, by leave of the Court, adding a third.
The first charges that the appellant, being the manufacturer of a valuable specific, a preparation which at great expense he advertised and caused to be widely known by the name and trade-mark of "Forrest's Juniper Tar," by which it had acquired great reputation, etc., and whereby the appellant had acquired a valuable property in said name and trade [**8]  mark, etc., the appellee well knowing the same, and disregarding the rights of the appellant at sundry times, between the 4th of February, 1869, and the commencement of the suit, unlawfully infringed said trade-mark, and appropriated said name, and manufactured and sold, under the said name of "Forrest's Juniper Tar," and put up in bottles closely resembling those used by the appellant, and calculated and designed to deceive and defraud the public, a fraudulent and spurious article, calculated to bring The Forrest Juniper Tar, sold by appellant, into discredit, prevent the sales of the appellant, and destroy the reputation of the specific, manufactured and sold by the plaintiff, to the great damage and injury of the appellant.
The second count charged in substance, that the appellant manufactured and sold divers large quantities of a certain valuable specific, called "Forrest's Juniper Tar," which he was accustomed to sell in small oval bottles of a peculiar size and shape, wrapped up and labelled "Forrest's Juniper Tar," which had acquired great reputation, whereby the appellant gained great profit, the appellee on the 4th of February, 1869, and on divers other days and times before,  [**9]  etc., did prepare and make, etc., 25,000 bottles of a compound, in imitation of the specific of the appellant, and did wrap and label the same, with wrappers and labels, bearing the title "Forrest's Juniper Tar," in order to denote it as the genuine specific, and sold the same for his own lucre fraudulently, etc.

 [*510]  The third count charges that the appellant was the proprietor of Forrest's Juniper Tar, and a certain other specific known as "Forrest's preparation from the Oil of Tar," and the appellee, well knowing the same, disregarding the rights of the appellant, on the 4th of February, 1869, and divers other days, etc., did wrongfully, injuriously, etc., prepare, make and sell 25,000 bottles of the last mentioned specific, in fraud of the appellant's right to prepare and sell the same, and put up and label the same, with the labels, etc., of the first mentioned specific, so as to cause the same to bear the same name, with that prepared and sold by the appellant, whereby he caused great interruption and hindrance to the sale of the first mentioned specific, and great loss and injury to the appellant.
To which several counts, the appellant pleaded, first, a former action [**10]  brought by the appellant against the appellee, "at the trial of which the sole question presented for the consideration of the jury was the question as to the right to the use of the said trade-mark, and the verdict and judgment was for the defendant," which judgment is still in force and of record in said Court.
Secondly, the appellee further pleaded, that the appellant was not the owner of the trade-mark mentioned in the declaration, but that one John M. Forrest was the owner, under whose license and authority the appellee manufactured and sold the said Juniper Tar, under the said trade-mark. On which pleas, issues were joined; it is said in the appellant's brief that the general issue was pleaded, but we find no such plea in the record.
It would seem from the issues joined, the only questions submitted to the jury were, whether in a former action between the appellant and appellee, the appellant sought to recover damages, for infringing the same trade-mark, in the same manner as complained of in this, and in said action, the appellant's right to said trade-mark was 

 [*511]  denied by the appellee, and verdict and judgment were rendered therein for the defendant. Secondly, that [**11]  the appellant was not the owner of the trade-mark, the infringement of which was complained of, but the same belonged to one John M. Forrest.
Three bills of exception were taken by the appellant at the trial below.
The first to the exclusion by the Court of a letter of J. M. Forrest, (designated as the 4th letter) offered by the appellant, but objected to by the appellee. Second. To the admission by the Court of the testimony of John H. Warner, counsel of the appellee in the former trial, to show what were the issues presented and decided in the former trial.
Third. To the refusal of the prayers of the appellant, and granting of those of the appellee, and the instruction of the Court given in place of the appellant's eighth prayer.
The appellant's counsel have made no specific objection in their brief, or argument, (as far as recollected) in this Court, to the rulings of the Court, in the first and second bills of exception.
As to the first, it is apparent that the letter is only an overture for compromise of the disputes between the writer and the appellant; written some time after the alleged mutual release of all contracts, between the appellant and Forrest; and according to [**12]  the testimony of Rogers, after he had been induced by that release to enter into relations of business with him.
Under these circumstances, the letter, if relevant to the matters in issue, was "res inter alios," and therefore properly excluded.
There can be as little doubt as to the propriety of the decision involved in the second bill of exception.
The general principle as to the mode of establishing the identity of the right, or subject decided in a former 

 [*512]  action between the same parties, is thus announced by Greenleaf in his "Evidence," section 532, part iii., ch. 5.
"When a former judgment is shown by way of bar, whether in pleading or in evidence, it is competent for the plaintiff to reply, that it did not relate to the same property, or transaction in controversy in the action, to which it is set up in bar, and the question of identity, thus raised, is to be determined by the jury upon the evidence adduced. And though the declaration in the former suit may be broad enough to include the subject-matter of the second action, yet if, upon the whole record it remains doubtful whether the same subject-matter were actually passed upon, it seems,  [**13]  that parol evidence may be received to show the truth."
This Court has recognized the rule in Garrott vs. Johnson, 11 G. & J. 173, in this language: "Moreover it appears to be a principle of law, well established, that to make a record evidence to conclude any matter, it should appear by the record, or by other proof, that the matter was in issue and decided in that suit." Vide, also, Cecil vs. Cecil, 19 Md. 72.
The former action, verdict and judgment between the appellant and appellee are pleaded with an averment, that the plaintiff and defendant named in the record of the former suit, are the same parties as in this suit, and that the said trade-mark in the declaration in the former suit mentioned, is the same trade-mark mentioned in the declaration of the plaintiff in this suit, and the said plaintiff claims no other or further title or ownership, or right in the said trade-mark than was claimed by him in the former suit; allegations of identity, which could only be established by parol evidence, and on which issues were joined in the cause.
The appellant's counsel in their brief, have divided the questions raised by the third [**14]  bill of exceptions, which embraces all the prayers of both parties, and the instruction 

 [*513]  given by the Court, into two general heads or classes.
1st. The question of "res adjudicata," which is presented by the first, second and seventh prayers of the appellant, and the first of the appellee.
2nd. The merits of the present case--under which he contends the other prayers of the defendant ought not to have been granted, because they are insufficient, uncertain, and contrary to law; and that the Court below erred in its rulings on the subject-matter of the first exception, and the refusal of the remaining prayers of the appellant.
The propositions of the appellant, presented in his first, second and seventh prayers on the subject of "res adjudicata," are as follows, substantially:
1st. If the jury shall find "the question as to the right to the use of the trade-mark of 'Forrest's Medicated Juniper Tar,' was not the sole question presented for the consideration of the jury, and tried in the former suit, but other questions were submitted to the jury, the verdict in the former suit is no bar to the plaintiff's right to recover."
2nd. If the jury shall find the [**15]  third count of the plaintiff's nar. in this action, states a distinct cause or ground of action, not stated in the former suit, the verdict in the former is no bar.
7th. If the jury find the wrongful acts charged in the present suit, are charged as being done at a different date from those in the former, that difference makes the acts charged, different and distinct trespasses, and the verdict in the former suit is no bar.
The plea of "res adjudicata" is founded on the maxim, "that it is the interest of the State, there should be an end to litigation," and "no man should be twice sued for the same cause." However numerous the questions involved in a suit, if they were tried and decided, the 

 [*514]  renewal of litigation for any one of the same causes, violates these cardinal principles of public policy, as much as if the suit presented but one single issue. Gratia exempli, a plenary proceeding is instituted in the Orphans' Court, impeaching the validity of a will, and issues involving the factum, the sanity of the testator, undue influence, importunity, etc., are sent to a Court of law for trial, all or any of which are found by the jury "pro or  [**16]   con," and a decree rendered by the Orphans' Court, pursuant to the finding; could it be said, that because several questions, or issues were presented, the verdict and judgment thereon, should not be binding "pro tanto?"
So in the case of an action of replevin, where several issues may be joined, property in the defendant, property in a stranger, etc., if the finding is for the plaintiff, although several other questions may have been presented, the verdict and judgment are not less conclusive between the parties. Where the point was directly in issue in the former case, and determined upon its merits, whether there was but one or several points, the verdict and judgment thereon are equally decisive.
The second prayer of the appellant, asserts that if the jury find the declaration of the plaintiff states a distinct cause or ground of action, not stated in the former; and the seventh, that if the wrongful acts charged in the present suit, are laid as of a different date, the verdict and judgment are not conclusive.
These propositions, although not so designed, are evidently calculated to evade the rule of law, which prohibits vexatious litigation. If it is sufficient  [**17]  in a second case, to state a distinct cause of action, or lay the trespasses on different days, from those previously stated or charged, the rule would be nugatory.
The jury are to inquire under the plea of former recovery, or "res adjudicata," whether the right asserted, 

 [*515]  or the wrong complained of, is virtually the same, or identical, substantially with that involved in the first suit.
This identity is determined not by the pleadings only, but when submitted to the jury, by parol proof; it would be wholly illusory to make the identity of a cause of action depend on the form of pleading instead of the facts given in evidence.
The date of the acts charged does not affect the operation of the plea of "res adjudicata," necessarily, inasmuch as a verdict and judgment between the same parties, whether used in pleading or evidence, is equally conclusive, when relied on as a protection in a second suit, where the same identical damages are sought to be recovered, and where different damages are claimed for a posterior violation of the same right. Shafer vs. Stonebraker, 4 G. & J. 345.
It is not the same act that is passed upon always [**18]  in a case of former recovery; but if the same question of right is involved in the second case, as was tried and determined in the first, whatever distance in time occurs between the acts, bringing the right in question, the former decision is equally effective. The case of Shafer and Stonebaker does not we think sustain the propositions set out in the plaintiff's (appellant's) prayers. The Court in that case was considering the legal sufficiency of the defendant's plea of a former verdict and judgment between the same parties, as an estoppel, to which a special demurrer was filed, and they held it defective in form for want of the conclusive "prout patet per recordum."
In the course of the Court's opinion, the learned Judge delivering it, commented on the difficulty of ascertaining from the record as such, the identity of the question decided in a case, as in that before him, where the general issue was pleaded; he pointed out the numerous grounds not affecting the right, on which the verdict and 

 [*516]  judgment might be rendered, and argues that "All these questions were open for their consideration, under the pleadings in the cause, and on which of them their verdict [**19]  was founded, the record furnishes us no guide to discover. No matter of fact or right, therefore, having been distinctly put in issue on the former trial, the finding of the jury and judgment of the Court, form no estoppel to recover in the subsequent action." After reviewing the leading English cases on the subject, he says: "If the technicalities incident to pleadings by way of estoppel, and the diversity of effect as regards conclusiveness, when a verdict and judgment in a former suit are relied on as a bar, by way of plea or as evidence, be applied to cases where the second suit is not only predicated upon the same right, but upon the same identical cause of action, being for the recovery of the same damages, that necessary and wholesome principle of the common law, 'nemo debet bis vexari pro eadem causa,' so highly approved of by the most distinguished jurists of ancient and modern times, becomes in its operation for all purposes of practical utility, almost a dead letter."
"It is no longer true, in one out of one hundred actions on the case, or in assumpsit, that a verdict and judgment in a Court of law, is a bar by way of estoppel to a subsequent suit, [**20]  between the same parties for the same demand. In those forms of action, it is matter of rare, rather than usual occurrence, that any matter of fact or of right is so distinctly put in issue, by the pleadings, as to be pleadable by way of estoppel, in a subsequent suit, according to the strong and comprehensive expressions met with in the commentaries upon the law of pleadings and evidence; in the works of Chitty, Archbold, Saunders and Starkie, no discrimination is made, whether used in pleadings, or as evidence, between the conclusiveness of verdicts and judgments, when relied on as a protection in a second suit, where the identical damages are sought to 

 [*517]  be recovered, and where different damages are claimed for a posterior violation of the same right." 4 G. & J. 345, 358, 359.
The decision concludes with the enunciation of the general rule, that a verdict and judgment upon the merits, in a former suit, is in a subsequent action between the same parties, where the cause of action, damages or demand is identically the same, conclusive against the plaintiff's right to recover, whether pleaded in bar or given in evidence under the general issue, [**21]  where said evidence is legally admissible; and that such prior verdict and judgment need not be pleaded by way of estoppel. This decision does not warrant the conclusion of the appellant, which is a summary of his foregoing prayers, viz: "that it is the settled law of Maryland, that where the former verdict is for the defendant, on the general issue pleaded, or on presentation of more than one point to the jury, as the possible ground of the verdict, such verdict does not decide any particular one of the points involved, and is no bar to the further litigation of any one of those points," but affirming that the verdict and judgment is conclusive, if the issue involved those points, and their identity is established, decides that the record per se, pleaded as an estoppel, is not sufficient to prove what was in issue, so as to conclude the plaintiff. The direct question before the Court was, the sufficiency of the plea upon demurrer. If the plea had been good, the demurrer would have brought up the question, what point had been decided in the former suit, as appeared by the record, which would have been tried by the Court and not by the jury.
It was necessary therefore to [**22]  operate as an estoppel in law, that the record should show what questions were adjudicated and determined.
Taylor says, "that neither a judgment 'inter partes,' nor a deed, will operate conclusively as an estoppel, unless 

 [*518]  the matter of estoppel, appears on the record, and is met by demurrer, nor unless it has been expressly pleaded by way of estoppel, at least, where an opportunity of so pleading it has been afforded." 1 Taylor's Evidence, sec. 79, (6th Edition.) But in America, (according to Greenleaf,) the weight of authority is in favor of the conclusiveness of a judgment, when given in evidence, although not pleaded by way of estoppel, and cites Kilheffer vs. Herr, 17 Ser. & R. 325, 326; Shafer vs. Stonebraker, 4 G. & J. 345; Cist vs. Zeigler, 16 S. & R., 282; Betts vs. Starr, 5 Conn. 550, 553; and Marsh vs. Pier, 4 Rawle 273, 288, 289, in which the point is said to have been forcibly argued in the opinion of KENNEDY, J., which is particularly referred to in a note:--Vide 1 Green. Ev., sec. 531, note 4.
It is not necessary to the conclusiveness of the former [**23]  judgment, that issue should have been taken on the precise point, which is controverted in the second trial; it is sufficient, if that point was essential to the finding of the former verdict. 1 Greenleaf's Ev., sec. 534. The appellee's witnesses testify, that the issue in the former case was, "whether the appellee had the right to put up the medicine as he did," "they went before the jury on the simple fact, that Mr. Rogers had the right so to put it up and sell it." This position negatived the right of the appellant to the exclusive ownership of the trade-mark, and put in issue, a fact essential to the appellant's right to recover. Thus, where it was made to appear by competent evidence, that the right to the trade-mark, was the essential point in issue on the former trial and found against the appellant, he could not be permitted to put the same question in issue a second time, against the same defendant, upon the ground of a posterior violation, the cause of action involving as a necessary element, the existence of the right in the plaintiff, which the jury had negatived in the former suit.

 [*519]  The appellee's first prayer, is the converse of the several propositions,  [**24]  contained expressly, or impliedly in the appellant's first, second and seventh; it summarizes the several particulars, necessary to establish the evidence of identity in the right, or question at issue in the first and second actions, and upon the hypothesis, that the jury find these particulars, "and that no other question was disputed and litigated in the said former case, between the said plaintiff and defendant, but the right of the said plaintiff, to the use of the trade mark, and other alleged violation thereof by the defendant, and that in said former suit, the verdict and judgment were for the defendant," it concludes, that the said verdict and judgment constituted a bar to the plaintiff's recovery.
The instructions of the Court below, on the first issue, being in our judgment, sustained by principle and authority, and a general verdict, having been found from which it may be inferred, the jury found for the defendant on that issue, it is unnecessary to review the several prayers of the appellant, referring to the merits of the case, (as contradistinguished from the plea of "res adjudicata,") and the standard of damages.
The judgment of the Court below will be affirmed.  [**25]  
Judgment affirmed. 

13 of 144 DOCUMENTS 

CAROLINE A. HOFFMAN, by her next friend, EDMUND M. HOFFMAN, vs. FREDERICK RICE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 284; 1873 Md. LEXIS 58 

July 2, 1873, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Husband and Wife -- Husband's interest as Tenant by the Curtesy initiate, in the proceeds of the Sale of his Wife's real estate.

A married woman was seised in fee, previous to her marriage, of an undivided ninth part of certain real estate descended from her father. This land was sold for the purpose of partition, during the life of the husband and wife, and out of her share of the proceeds of sale, the auditor made an allowance to the husband in lieu of his interest as tenant by the curtesy initiate. The amount of this allowance was three-eighths of the whole sum assigned to the wife as her share of such proceeds, being equivalent to the interest of the husband for life in all the real estate of the wife, as ascertained under the 41st rule of the Circuit Court, being three times as much as would be allowed to a widow of the same age in lieu of dower. By a pro forma order of the Circuit Court, the trustees were directed to invest the sum so allowed the husband, in Baltimore City six per cent. stock, and to pay to the wife the interest thereon during her life, and after her death to pay the principal sum to certain judgment creditors of her husband, upon whose petition the order was passed. On appeal from this order by the wife, it was HELD:

1st. That the amount assigned by the auditor to the husband, was correctly calculated.

2nd. That the wife was not entitled to an allowance or settlement out of this sum.  

COUNSEL:
Allen E. Forrester, and Wm. F. Frick, for the appellant.

Samuel Snowden, for the appellees.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., STEWART, BRENT, GRASON, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
MILLER 

OPINION:

 [*285]  MILLER, J., delivered the opinion of the Court.
Our decision on the former appeal in this case (35 Md. 344,) has settled the question as to the right of the appellees, his judgment creditors, to intervene and claim the husband's interest in the fund arising from the sale of his wife's real estate, without reference to the time when the debts for which these judgments were rendered, were contracted. The wife before her marriage, which took place in 1845, was seised in fee of an undivided ninth part of this land, and her husband's interest as tenant by the curtesy initiate or otherwise, was not affected by the Code adopted in 1861, but the right of his judgment creditors to seize and sell that interest under executions on their judgments was controlled by the Act of 1841, ch. 161, which we said was not repealed,  [**2]  but in effect embodied in and continued by the Code. It had been previously decided that the effect of that Act was not to destroy tenancies by the curtesy, nor liens of judgments on such interests. It suspended the right of execution during the life of the wife, but left the judgment lien perfect on the life estate of the husband to be enforced on the death of the wife. Anderson vs. Tydings, 8 Md. 427; Logan vs. McGill and wife, 8 Md. 461. If therefore the land had not been sold the appellees could have enforced their judgments against this interest immediately upon the death of the wife, in case the husband survived her. But the land has been sold for the purpose of partition, during the life of the husband and wife, and it hence became necessary to set apart and assign to the husband a money equivalent for his interest. This conversion, however, we have said, did not withdraw from the proceeds of sale the protection afforded by the Act of 1841. In that respect we adopted the views of the Chancellor in Hall vs. Hall, 4 Md. Ch. 283, and said "that the proceeds arising 

 [*286]  from the sale of the wife's real estate [**3]  must be regarded as standing in the place of the real estate, and only so much thereof as may be allowed the husband in lieu of his interest as tenant by the curtesy, is liable to his creditors upon the death of the wife." By this we decided and intended to decide that whatever sum should be thus properly allowed to the husband, the appellees as his judgment creditors were entitled to upon the death of the wife. In the auditor's account the amount thus to be allowed the husband is stated to be $ 2030.49, and the order from which the present appeal is taken, directs the trustees to invest this money and pay to the wife the interest thereon during her life, and after her death to pay the principal sum to the appellees on account of their respective judgments. There can be no objection to the mode of disposition which the order adopts. It secures to the wife the protection of the Act of 1841, in so far as it can be applied to such a case, and seems to be the only just and practicable method of carrying into effect the decision of this Court on the former appeal. The only questions therefore open upon this appeal are:
1st. Has the auditor correctly ascertained the amount? and
2nd.  [**4]  Is the wife entitled to an allowance or settlement out of this sum?
1st. There is no difficulty as to the rule which must govern the ascertainment of this amount. The auditor states that he has calculated the value of the husband's interest under the 41st Rule of Court, and makes it three-eighths of the whole sum assigned to the wife for her share of the proceeds of sale. The record does not disclose what that rule is, but it seems to be conceded by the brief of the appellant's counsel that it is the same as the Chancery Rule for the allowance in lieu of a life interest in the whole estate, being treble the amount allowed in like cases in lieu of dower. Williams' Case, 3 Bland 186, 281, 282. 

 [*287]  This has been long accepted and adopted in the Chancery practice of this State as the correct method of ascertaining the present value of estates for life in land, and life estates of all descriptions other than dower, or those embraced by some legislative provision. This rule as we understand it to be conceded, has been followed and applied in the case before us, and in our opinion correctly so. By marriage and birth of living issue capable of taking the estate [**5]  by inheritance, the husband had become tenant by the curtesy initiate. This for all purposes of the application of the rule in a case like the present, was an interest for the life of the husband in all the real estate of the wife. The only event that now occurs to us upon the happening of which that interest could be destroyed during his life, and the judgment liens thereon diverted, would be a dissolution of the marriage by a decree of divorce a vinculo; and possibly to have that effect the decree should contain a clause restoring to the wife all her property. But this is a contingency too improbable to be allowed to constitute an element in the calculation of the present value of such an interest, or prevent the application of the rule to which we have referred.
2nd. With respect to the second question, a majority of the Court are of opinion that this sum is not to be diminished by an allowance to the wife; that it is not a case in which the doctrine of the wife's equity can be applied.
From these views it follows the order appealed from must be affirmed.
Order affirmed. 

14 of 144 DOCUMENTS 

ICHABOD JEAN, and others, vs. JOHN W. WILSON & SON, and others. HENRY McSHANE & Co. and N. W. HIRSHBERG & Co. vs. ICHABOD JEAN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 288; 1873 Md. LEXIS 59 

July 2, 1873, Decided 

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

The facts of the case in regard to the question of priority are stated in the opinion of the Court. The following are extracts from the portion of the opinion of the Court below, (PINKNEY, J.,) in regard to the validity of the several mechanics' liens claimed, which is referred to and concurred in by this Court:

"The proceeding being in rem, the object in stating the names of the parties connected with the structure, is a designation of the property and not of the person. This object is generally effected by naming the owner alone; still, when there is also a contractor, builder or architect, conformity with the statute requires him to be named; what would be the effect of a neglect to notice him in a proper case, we are not called on to declare, since it nowhere appears that there was in this case a distinct contractor."

"But I think it is perfectly competent for the Court, under the provision of the 41st section, to allow such amendments to be made in the liens filed, as shall make them conform to the facts and circumstances developed in the proofs, and upon the proper application I will sign the necessary order. Gault [**2]  vs. Wittman, 34 Md., 35. But if Greene be regarded as the owner, then, under the authority of the recent case of Weber vs. Weatherby, 34 Md., 656, Lester may be treated as his agent, and the work and materials, as done and furnished under Greene's authority, and he estopped by his own conduct from disputing his own claims, and surely Jean cannot occupy any stronger grounds than Greene and Lester."

"Having disposed of this general objection, I proceed to consider the special lien-claims:

"The lien-claim of Bevan & Sons is, I think, not defective, although the bill of the particulars has no date on it but what appears to be the date of the bill; it appears in the body of the lien that the mantels were furnished between the second day of May and the third day of June, 1871; I have frequently held that the bill of particulars is sufficient if it contains two specified days within which it is stated that the work was done or materials delivered. This has the authority of the Pennsylvania cases, and is, I think, a reasonable compliance with the requirements of Carson vs. White; and I think it sufficient if the same appears from the body of the claim, as in this case. See Sergeant's [**3]  Mechanics' Lien Law, pages 235 and 236; Calhoun vs. Mahon, 2 Harris, 58; Richabaugh vs. Dugan, 7 Barr, 394; Bayer vs. Reeside, 2 Harris, 167; Hillary vs. Pollock, 1 Harris, 186; Driesback vs. Keller, 2 Barr, 77; Shaffer vs. Hull, 3 Pa. L. J., 321."

"The second objection, which is as to notice, I have disposed of; no notice was necessary in the view I have taken of the case, whether Greene be regarded as owner and Lester as his agent, or Lester as owner and Greene as holding merely the legal title, with no beneficial interest in the property; and these remarks, of course, apply to the objections to all other liens on the ground of want of notice.

"The third objection, which is because the lien was not filed within the period required by the 12th section of the Lien Law, is not applicable in the case, in the view I have taken of the relation of Greene and Lester to the buildings.

"As to the lien of F. H. Davidson, I think there should be a deduction as claimed--the contract appearing to be at cash prices. But I think the claim is properly proved; Lester's declarations or admissions would not be admissible; (Carson vs. White, 6 Gill, 17;) but, under the Act of Assembly [**4]  of 1864, chap. 109, clearly he is a competent witness to prove delivery: see also, 7 Barr, 394; 12 Harris, 510; 5 Penn. Law Journal, 323. So in the case of Collinson's lien and the case of Wilson's lien, I think Lester is a competent witness to prove the delivery."

"The defect in Crout's lien is cured by the amended lien filed at the hearing. The lien of Hirshberg & Co. is wholly defective. There is no proof of the required notice to either Lester or Greene and the delivery is not proved."

"I think there is sufficient proof of the lien of Hirshberg & Bro. I think the lien of Joel N. Blake is not defective. See Sergeant's Mechanics' Lien Law, 233, 238, 239."

"The claim of Shorey & Eigelberner, itis very clear, was not filed in time. See the 23rd section."

In the case of Hirshberg & Co., the materials were charged to a painter named Wood, who furnished the materials and did the work under contract with Lester. Shorey & Eigelberner assigned their claim, with authority to file a lien in their name, to McShane & Co. on the 2nd of March, 1871, the date of the last item charged being 3rd of January, 1871. Some additional work was done by one of the firm, as an employe [**5]  of McShane & Co., on the 2nd of August, 1871, and the lien was filed on the 20th of November, 1871.  

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

HEADNOTES:

Article 61, section 15, of the Code -- Mechanics' Liens: priority of, as against other Incumbrances; what is the Commencement of a building in regard thereto.

J. and others were the owners of certain lots in Baltimore, which were of such grade with regard to the surrounding streets, and so covered with water, as to be unavailable either for building or leasing. In October, 1869, the owners, in order to make them available, but without any intention of erecting buildings at that time, began to grade and fill the lots; but in the front portion thereof, which was below grade, instead of filling in with earth, foundation walls and a tank were put in, in order to get rid of the standing water, and to avoid the expense of again removing the earth for cellars, when the owners should desire to build. These improvements were finished in December, 1869, and the workmen paid off. On the 23rd of February, 1870, the owners leased the lots, so improved, to G. for 99 years renewable forever, and on the same day, took from him mortgages to secure the rent reserved, and the payment of certain advances to be made for the erection of buildings; the mortgages reciting that their execution and recording were conditions agreed upon prior to the making of the leases and to the agreement for the advances, and also to the entry of the lessee, or the doing of any manner of work by him upon the premises. G. took only the legal title to the property, having consented to hold it for L., under whom building was begun in the spring of 1870, after the recording of the mortgages, substantially upon the foundations already laid. Liens were filed against the property by the mechanics and material-men interested, under the Mechanics' Lien Law. (Art. 61, of the Code.) Section 15 of that Article, provides that the lien thereby given "shall be preferred to all mortgages, judgments, liens and incumbrances which attach upon the said buildings or the ground covered thereby, subsequently to the commencement thereof." Upon appeal from a decree giving priority to the lien-claimants, it was HELD:

1st. That the putting in of the foundation walls by the owners, was not a commencement of the buildings within the meaning of the law.

2nd. That although after a building has been commenced, a change of ownership during its progress cannot affect the rights of the parties, yet in this case, the first work done by L., was the commencement of the buildings.

3rd. That the mortgagees were entitled to priority. 

COUNSEL:
R. F. Brent and Orville Horwitz, for Jean and others, mortgagees.

The true construction of the 1st and 15th sections of the Lien Law, has reference to that building for which the said work and materials are done and furnished: the foundations put in in this particular case had no reference to any buildings at all, but might have been entirely changed or greatly modified; the commencement of the buildings by Greene, the lessee was, in contemplation of law, the actual beginning of the buildings for which the work in question was done and the materials furnished. Presbyterian Church vs. Stettler, 2 Casey, 246; Smedley vs. Conaway, 5 Am. Law Reg., 442; Stevenson vs. Stonehill, 5 Whart., 304; Nelson vs. Campbell, 28 Penn., 156; Norris' Appeal, 30 Penn., 122.

In this case, the leases and mortgages were parts of one transaction; they were executed and recorded at the same time, and the mortgage being recorded, gave notice to the world that the lessee had agreed that "no manner of work had been done on the premises"  [**6]  for the erection of the particular buildings referred to in said contract; and had, therefore, notified the material men and mechanics that if any work had been theretofore done on the premises, it was not for the buildings which he (the lessee) was about to put up, and for which he was about to procure materials and have work done.

In one sense, both the lien claimants and the mortgagees claim adversely to the lessee--that is to say, they both desire to subject his interest to their claims; in another sense, they claim under the lessee, inasmuch as they can have no greater right than he: and as the lessee in this case was estopped from denying that the buildings were commenced after the execution of the mortgage; so also, were those claiming under him.

John P. Poe and William S. Waters, for Wilson and others, and McShane and others, lienors.

The foundations having been put in before the mortgages were executed and delivered, the question is, what in contemplation of the Lien Laws is to be regarded as the commencement of a building?

By the settled and unbroken current of decisions in Pennsylvania (from which State we have borrowed the Lien Laws) and in Maryland,  [**7]  the commencement of a building is plainly the first work done on the ground--the striking of the spade into the earth in digging the foundation, or, if there be no such foundation, the laying of the first stone or timber. Sergeant's Mechanics' Lien Law, 166; American Fire Ins. Co. vs. Pringle, 2 S. & R., 138; Pennock vs. Hoover, 5 Rawle, 307; Hern vs. Hopkins, 13 S. & R., 269.

This Court, in Brooks vs. Lester, 36 Md., 65, says, that within the meaning of the 15th section of Article 61, the first labor done on the ground, which is made the foundation of the building and is to form part of the work, suitable and necessary for its construction, constitutes the commencement of the building.

These cases, which decide the precise point, ought to be conclusive upon the question.

There is no pretence that there was any change made in the plan or design of these houses; and therefore the class of cases applicable to such a state of facts have no pertinency here.

If the commencement of the foundations is not to be regarded as the commencement of the buildings, it is difficult to understand what is to be so regarded. There is no hardship in this case in following the interpretation [**8]  established by the cases referred to.  

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

OPINIONBY:
GRASON 

OPINION:

 [*293]  GRASON, J., delivered the opinion of the Court.
The main question presented by the record in this case is, whether the mortgages or the lien claims are entitled to priority. The proof shows that the appellant Jean, William F. Burns and Samuel Meakin were the owners of certain lots in Baltimore city, fronting on the south side of Boundary Avenue, and that these lots were of such grade with regard to the adjoining streets and avenues, 

 [*294]  and so covered by water as to render them unavailable in their then condition for either building or leasing. In the fall of 1869 the owners determined to make such improvements upon them as would make them available for either leasing or building, and accordingly, without any intention of erecting buildings thereon at that time, began the improvements in the month of October, and completed them early in December, 1869, when the workmen employed were paid off and discharged. The improvements thus made consisted in removing earth from some parts of the lots and with it filling in other parts which [**9]  required filling; but where the houses now stand, instead of filling in with earth, foundations were made and walls built so as to avoid the trouble and expense of again removing the earth for cellars, whenever thereafter the owners might think proper to build. A tank was also put in, and there is proof to show that it was necessary to put in the foundation walls and tank in order to remove the water which lay upon the lots some four feet deep. Some time after the completion of these improvements, on the 23rd February, 1870, the owners leased the above-mentioned lots to one Benson M. Greene, and on the same day took from him mortgages to secure the rent reserved, as well the repayment of certain loans and advances to be made to the lessee to be used in the erection of buildings on the said lots, the mortgages reciting that their execution, delivery and recording were conditions agreed upon prior to the making of the leases, and prior to the agreement for the loans and advances, and also prior to the entry of the lessee or the doing of any manner of work by him upon the premises or any part thereof. These mortgages were recorded on the second day of March, 1870. It is shown by the evidence [**10]  that Benson M. Greene in reality took only the legal title to the property thus leased to him, having consented to take the lease and hold the property for his brother-in-law, 

 [*295]  J. Thomas Lester, who was the party really entitled to the property under the leases. In the spring of 1870 the improvements were commenced on these lots by J. Thomas Lester, and the liens set out in the record were filed by the mechanics and material men who had done work upon, and furnished materials for the construction of the houses. It further appears that, on the 12th day of June, 1871, four of the above mentioned lots were assigned by Greene to Amelia Berry, one of the appellants. Some of the parties filed the bill in this case in the Circuit Court of Baltimore City, to enforce payment of their liens, in which all other lien claimants, the mortgagees, and all other persons having any interest in the property were made defendants, and, upon final hearing, the Circuit Court passed a decree for the sale of the property, sustaining as valid the liens of the appellees, rejecting the liens of Hirshberg & Co. and Shorey & Eigelberner, and giving priority to the liens thus declared to be valid, over [**11]  the mortgages. From this decree Jean, who it seems is now the only party interested in the mortgages, Amelia Berry and her husband, and Hirshberg & Co. and McShane & Co., who are the assignees of the lien of Shorey & Eigelberner, have all appealed.
The 15th section of Article 61 of the Code, provides that, "The lien hereby given shall be preferred to all mortgages, judgments, liens and incumbrances which attach upon the said building or the grounds covered thereby, subsequently to the commencement thereof, and all the mortgages and liens other than liens which have attached thereto prior to the commencement of the said building, and which by the laws of this State are required to be recorded, shall be postponed to said liens, unless recorded prior to the commencement of said building."
It was contended by the counsel of the lien claimants that the foundations put in by the lessors of J. Thomas Lester, in the fall of 1869, constituted the commencement 

 [*296]  of the buildings erected by him, and that, as they were put in before the execution and recording of the mortgages of the lessors, the former are entitled to priority in the payment of these claims.
In the case of Brooks vs. Lester, 36 Md. 65, 70, [**12]  this Court has said, quoting from Pennock vs. Hoover, 5 Rawle 291, 308, "that the first labor done on the ground, which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction, constitutes the commencement of the building." The cases of American Fire Ins. Co. vs. Pringle, 2 Seargt. & Rawle 138; Pennock vs. Hoover, 5 Rawle 291, 308; Horn vs. Hopkins, 13 Seargt. & Rawle 269, and Seargt. Mechanics Lien Law, 167, 168, are to the same effect, and they are relied upon by the counsel of the lien claimants as conclusive of this question in their favor. While this Court, in the case of Brooks vs. Lester, declared what work should be regarded as the commencement of the building, as above recited, it decided that the building had not been commenced at the time the mortgage was recorded, nothing having been then done except to drive some pegs in the earth to mark where the foundations were to be dug. In the Pennsylvania cases, above cited, it appears that the work, which was held to be the commencement of the buildings, had been done with the intention and purpose,  [**13]  then formed, to continue the work to the completion of the buildings. Where work is done with the design to go on and construct a building, there can be no question that it must be regarded as the commencement of the building; and in such case all liens attaching subsequent thereto would, under the provision of the lien law, be postponed to the liens of mechanics and material men who might bestow labor or furnish materials for the construction of the building. The work done before the recording of the mortgage, so as to give mechanics liens priority, must, however, be the commencement 

 [*297]  of the building, and such is the very language of the lien law. In the case before us the proof shows that the work done was not done with any design or purpose of constructing a building at that time, but was done solely with the intention and for the purpose of grading the lot and removing the water therefrom, so that it might be in a condition to lease or to build upon at some future time. That this was the intention and purpose of the owners is conclusively shown by the fact, that when this object was accomplished, work was immediately stopped and the workmen paid off and discharged.  [**14]  How can it be held, with either reason or justice, that a building has been commenced in the face of the uncontradicted proof in the case, that the owners had no intention to erect any building, but merely to grade and remove the water from the lot, and when it is apparent that, when these objects were attained, nothing more was ever done upon the premises until the spring of 1870, and then, not by the parties who had made the improvements referred to, but by their lessee. Although, after the building has been once commenced, a change of ownership during its progress to completion cannot change or affect the rights of the parties; yet in view of the facts of this case, the first work done by J. Thomas Lester must be regarded as the commencement of the buildings, and, as the mortgages were executed and recorded before that time, they are entitled to be first paid out of the proceeds of the sales of the property.
We have carefully examined the liens of the appellees and the evidence relating to them, and concur in the views of Judge PINKNEY as to their validity as expressed in his opinion.
Upon the appeal of Hirshberg & Co., and McShane & Co., assignee of Shorey & Eigelberner, the [**15]  decree of the Circuit Court will be affirmed. In the case of the former, it appears that they furnished the articles charged in 

 [*298]  their account to Wood, who did the painting under a contract with J. Thomas Lester, and no notice whatever appears to have been given by them of their intention to file a lien. We think the proof of the delivery of the articles is also deficient. The lien of Shorey & Eigelberner was clearly not filed within the time required by the statute.
The decree appealed from will be reversed in part and affirmed in part, and the cause remanded for further proceedings in conformity with the views expressed in this opinion.
Decree affirmed in part, and reversed in part, and cause remanded. 

15 of 144 DOCUMENTS 

CHARLES W. SEMMES vs. BENJAMIN J. WORTHINGTON, Trustee, and others. BENJAMIN J. WORTHINGTON, Trustee, and others, vs. CHARLES W. SEMMES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 298; 1873 Md. LEXIS 60 

July 2, 1873, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Circuit Court for Baltimore County, in Equity.

The bill of complaint in this case was filed on the 28th of June, 1870, by Charles W. Semmes, against Benjamin J. Worthington, trustee under the will of Richard J. Worthington, deceased, and Mary J. Milnor, and Clara Semmes, infants, cestuis que trust, under said will, and J. N. L. Milnor, and Susan J. Milnor, his wife; the latter having under said will a contingent interest in the real estate in controversy. The object of the bill was to procure the specific execution of a parol contract, alleged to have been entered into between the testator, Richard J. Worthington, and the complainant in April, 1869, whereby in consideration of certain money paid, and certain services to be rendered, by the complainant to the deceased, the latter agreed to devise the former certain real estate situated in Baltimore County, and known as "Bloomfield Farm and Race Course."

The facts of the case are sufficiently disclosed in the opinion of the Court and the arguments of counsel. The Circuit Court (GRASON and YELLOTT, J.,) on the 27th of March, 1873, decreed that the complainant was entitled to the specific performance by [**2]  the defendants of the contract so far as the same related to the real estate known as "Bloomfield Farm," but not as to the "Race Course," and appointed a trustee to convey the said "Bloomfield Farm" to the complainant. Both sides appealed; the complainant from so much of the decree as limited his right to a conveyance of "Bloomfield Farm," and the defendants from the decree generally.  

DISPOSITION:
Decree reversed, and bill dismissed.  

HEADNOTES:

Equity Pleading -- Statute of Frauds -- Specific Performance of a Contract to Devise real Estate -- Specific Performance of Contracts -- Character of Proof required to establish the Contract -- Competency of a Witness -- When a Court of Equity will interfere to compel the Specific execution of a Contract -- Character of the acts of Part performance, to relieve a Contract of the operation of the Statute of Frauds.

Where a complainant seeks the specific execution of a parol contract, within the Statute of Frauds, and the defendant by his answer denies the making of the contract, it is not necessary for him to plead the Statute, or insist on it as a bar; but the complainant, in order to entitle himself to the relief prayed, must at the hearing fully establish the contract as alleged, and such acts of part performance thereof as will take the case out of the Statute.

A contract to devise real estate, if shown to be in all respects fair, just and reasonable, founded on sufficient consideration, and there be no doubt on the proof as to any of its terms, may be enforced by specific performance, by way of conveyance, as against the heirs or devisees of the party obligating himself to devise.

In all cases for specific performance the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. And in cases for the specific enforcement of a contract to devise real estate, where the property has been devised to other parties, the utmost certainty is required, as by the enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith.

In a proceeding in Equity to enforce against the estate of a deceased testator, an alleged parol contract on his part to devise a particular portion of his real estate to the complainant, in consideration of certain conduct and services to be performed by him, a person whose interest under the will of the testator, in the subject-matter in controversy, is altogether contingent and remote -- being dependent upon the dying in her life-time and without issue, of two other persons -- is a competent witness for the defendants, even according to the common law rule of evidence; and there is nothing in the Evidence Acts of 1864 and 1868, that can exclude, not being within the exceptions of these Acts.

Specific execution of contracts by Courts of Equity is not a matter of absolute right in the party applying, but of sound discretion in the Court, to be exercised upon consideration of all the circumstances of each particular case -- this discretion, however, to be controlled by the established doctrines and settled principles upon the subject.

A Court of Equity will not, as a matter of course, exercise the power to compel or effect a specific execution of a contract, because the legal obligation under it may be perfect. In every case the question is, whether the exercise of the power is called for to subserve the ends of justice? and unless the Court is satisfied that the application to it, for this extraordinary assistance, is fair, just and reasonable in every respect, it will refuse to interfere, and leave the party to other remedies for redress.

Where an act of part performance is relied on to relieve a contract of the operation of the Statute of Frauds, such act must in itself furnish evidence of the identity of the contract; it is not enough that it is evidence of some contract; it must relate to, and be unequivocal evidence of the particular contract charged in the bill. The contract must be clear and definite, and the act done should be equally clear and definite, and solely with a view to the performance of the particular agreement. The act done must be of a substantial nature, and such that the party would suffer an injury amounting to a fraud by the refusal to execute the agreement.  

COUNSEL:
John P. Poe, and I. Nevett Steele, for Charles W. Semmes.

The bill in this case seeks to procure the specific performance of a parol contract to devise real estate, upon the ground of part performance, sufficient under the established rule in such cases, to remove the bar of the Statute of Frauds.

The principle that equity in a proper case will specifically enforce an agreement to make a devise, is clearly and fully established. 2 Parsons on Contracts, 563; 3 Parsons on Contracts, 406; Newland on Contracts, 111; Story's Eq. Jur., 781, 785; Bingham on Sale of Real Prop., chap. 6, p. 310; Logan vs. McGinnis, 12 Penn. St. Rep., 32; McClure vs. McClure, 1 Penn. St. Rep., 374; Brinker vs. Brinker, 7 Barr, 53; Johnson vs. Hubbell, 2 Stockton, 332; Van Dyne [**3]  vs. Vreeland, 3 Stockton, 370; Davison vs. Davison, 2 Beasley, 246; Watson vs. Mahan, 20 Indiana, 223; Rhodes vs. Rhodes, 3 Sandford Ch., 279; Lobdell vs. Lobdell, 36 N. Y., 327; Freeman vs. Freeman, 51 Barb., 306, and 43 N. Y., 34; Wright vs Tinsley, 30 Mo, 389; Gupton vs. Gupton, 47 Mo., 37; Izard vs. Middleton, 1 Dessaus., 116; Rivers vs. Ex'rs. of Rivers, 3 Dessaus., 195; Walpole vs. Orford, 3 Vesey, 402; Dufour vs. Pereira, 1 Dick., 419; Loffus vs. Maw, 3 Giffard, 592; Smith's Manual of Equity, 253-257; Mundorff vs. Kilbourn, 4 Md., 463; Johns vs. Johns, 20 Md., 58; Whitridge & Alexander vs. Parkhurst, 20 Md., 62; Frisby vs. Parkhurst, 29 Md., 58; C. D. Owings' Case, 1 Bland, 397.

"Every agreement to merit the interposition of a Court of Equity to enforce it, must be fair, just, reasonable, bona fide, certain in all its parts and mutual." Gelston vs. Sigmund, 27 Md., 343; Smith vs. Crandall, 20 Md., 500.

"If the contract be by parol and the party setting it up 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 [**4]  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."

"The complainant must establish the very contract set up in the bill--and 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." Ches. & Ohio Canal Co. vs. Young, 3 Md., 490; Mundorff vs. Kilbourn, 4 Md., 462; Stoddert vs. Bowie, 5 Md., 35; Billingslea vs. Ward, 33 Md., 51-52; Nunn vs. Fabian, 1 Chancery App., 35 (L. R.;) Shillibeer vs. Jarvis, 8 De G. M. & G., 79.

Has the complainant made out by clear and satisfactory proof the existence of the contract as alleged?

The proof upon this point is uncontradicted and conclusive.

Wilson C. Nicholas, testifies that after Semmes had left his uncle, Richard J. Worthington's place, (the real estate in controversy,) Franklin Slade was employed by Mr. Worthington to manage the farm. In a few days Worthington became dissatisfied and was anxious that Semmes should come back. He [**5]  went to Nicholas and authorized him to go to Semmes and say that if he would come back and "attend to his business as he had done before he went away, that he, Mr. Worthington, would leave him Bloomfield at his death, and if he did'nt, he should never see a damned cent of his property." Nicholas made known to Semmes the proposition--reasoned with him about it--urged him to accept it--and finally Semmes agreed to accept the terms offered, and did go back and take charge of the place upon the very terms proposed and none other. It became necessary then to get rid of Slade. The services of Nicholas were again invoked, and after some negotiation Slade was induced to leave, Semmes paying him in money and provisions one hundred dollars.

The testimony of so unimpeachable a witness as Nicholas, ought, standing alone, to be sufficient to prove the contract; but he is thoroughly and entirely corroborated by Henry Schwartz, whose testimony is to the same effect precisely. They were the neighbors and friends of Mr. Worthington; as such, they were applied to by him to prevail on Semmes to return. They bore his proposition to Semmes. They remonstrated with Semmes upon the folly of rejecting [**6]  so beneficial and voluntary an offer from his uncle, and finally had influence enough with him to overcome his reluctance to go back, and to induce him to accept it. They reported his acceptance to Worthington, and Semmes accordingly did, in fact, return and remain there, discharging faithfully and fully his duties until Worthington's death, one year afterwards.

The existence of his will does not afford any ground for a presumption or inference against the contract, because the will was made some months before the contract, and the evidence shows that he intended to revoke it, but was prevented by his, to him, unexpectedly sudden death. In addition to Nicholas and Schwartz, other witnesses speak of the contract.

The contract was fair, just, and reasonable.

Mr. Worthington was about sixty years of age, and a bachelor--Semmes was his nephew--had lived with him for several years--knew his habits--attended diligently to his affairs, and enjoyed his confidence and affectionate regard.

The agreement relieved him of all care and responsibility in the management of his estate, while at the same time preserving for him, during his life, as full and beneficial enjoyment of [**7]  its revenue as he could secure by a regular letting on shares to a stranger to his blood. It operated as a perpetual restraint upon Semmes, and secured his fidelity and vigilance by every consideration of duty, good faith and self interest. It was at once the inducement to and the reward of affectionate treatment, and careful and profitable husbandry. Having no design, desire or occasion to sell, encumber or dispose of his estate, and there being not the least likelihood that he ever would wish or be obliged to do so, and having no wife or children to inherit his property, it was the most natural thing that he should have endeavored to secure a comfortable enjoyment of the remainder of his days by so sensible an agreement, while at the same time making a proper provision for his nephew, who had served him so long and so faithfully. If he had lived for twenty years after making it instead of one, everybody would readily admit that in his condition it would have been a most wise and prudent arrangement.

It is forbidden by no rule of law or of public policy. On the contrary, it belongs to a class of contracts, which as we have seen, equity constantly recognizes and enforces. It was [**8]  freely and voluntarily made, without suggestion from any one, least of all from Semmes. Mr. Worthington had a full and complete knowledge of his situation and his affairs, and there is no pretence that he was not competent to manage them with judgment, discrimination and independence. He had a right to make the contract. He was free to make it. The property was his own and he could dispose of it as he pleased, either by contract, sale or devise. No objection can be made to it as being unreasonable that does not equally apply to all such agreements. And to hold that equity ought not to decree specific execution of this contract, because it may be supposed to be unreasonable, is in effect to overrule all similar cases and to say that no such agreement can hereafter be enforced in Maryland.

The relations of the parties must be considered, and what might be unreasonable or even unfair between strangers, would be perfectly natural between two persons standing towards each other as Semmes and Worthington did. Shepherd vs. Bevin, 9 Gill, 39; Hays vs. Hollis, 8 Gill, 367; Haines vs. Haines, 6 Md., 435.

The contract was certain in all parts. The contracting parties are distinctly [**9]  designated. The service to be rendered is plainly mentioned; its character and terms are clear and unambiguous. The subject-matter is absolutely certain. The obligations of both parties are wholly free from doubt.

"If you, Semmes, will come back and do as you did before, I will leave you this place at my death." "I, Semmes, agree to come back on these terms and no other." Semmes did go back and did do everything that was required of him. Is not this a certain bargain? Is anything necessary to make it complete and definite? And was it not performed by Semmes? Worthington agreed to leave him his place.

If the contracting parties are clearly named, the consideration sufficient and plainly expressed, and the subject-matter distinctly declared and proved, what more is necessary to make a contract certain? In a case of this kind reasonable certainty as to the fact and terms of it are all that Equity requires. Any other degree of certainty in such a case is unattainable. Neale vs. Neales, 9 Wallace, 1; Lester vs. Foxcroft, 1 Leading Cases in Equity, 630; Mundy vs. Joliffe, 5 Mylne & Craig, 177.

It was mutual--"Mutuality of a contract means an obligation on each party to do [**10]  or permit to be done something in consideration of the act or promise of the other. It does not imply that every stipulation is absolute and unqualified." Spear vs. Orendorf, 26 Md., 43.

Here, so soon as Semmes accepted Worthington's proposition, each of the contracting parties came under a valid obligation to the other. Semmes to take possession and manage and cultivate the farm during Worthington's life, and Worthington in consideration thereof to devise it to Semmes. Both were bound. If Semmes had violated his engagement, would he not have been liable for its breach?

Independently of the Statute of Frauds, the contract as alleged is clearly proved.

There is not a particle of evidence tending to disprove it.

It is supported by a consideration not merely sufficient, but abundant.

It possesses all the ingredients essential in such a case, viz: it is fair, just, reasonable, certain in all its parts and mutual.

If it were evidenced by a writing, a decree enforcing it would be a matter of course. Smoot vs. Rea & Andrews, 19 Md., 405; 2 Story's Eq. Jur., sec. 751.

Not being in writing, however, and the Statute of Frauds being interposed as a defence,  [**11]  the complainant relies on part performance to take his case from the operation of the Statute.

Is the proof of part performance clear and definite? and is such part performance exclusively referrible to the identical contract set up?

When Worthington sent Nicholas and Schwartz after Semmes with his proposal, Semmes had left the farm. His connection with it, and the affairs of his uncle had wholly ceased, and nothing remained to be done but to make an inventory and appraisement of the personal property, in order that a settlement might the more readily be had between them. Slade had arrived with his family, and taken possession--and Semmes was preparing to go to the West. Up to the time of his departure Semmes had been cultivating the farm for his uncle as a sort of tenant upon shares--his uncle receiving a clear one-half of the crops, &c., and Semmes paying all the expenses of carrying on the farm, including his uncle's board and lodging, out of the other half.

After his uncle's new proposition was communicated to him, and the new bargain entered into between them, Semmes returned to the farm. Possession was delivered to him by Mr. Worthington, and he assumed control [**12]  at once. This has always been considered as "a strong and marked circumstance." Wills vs. Stradling, 3 Vesey, 378; Browne on Statute of Frauds, sec. 467.

He remained in possession continuously until Mr. Worthington's death, which happened in March, 1870--complying faithfully in all respects with his obligations under his new contract. He, moreover, paid to Slade out of his own means the $ 100 in money and provisions, for which Slade agreed that he would vacate the premises.

The proof upon both these points is uncontradicted, clear and definite. He performed fully everything that was required of him by the terms of the compact. He accepted the proposal; agreed to do what it exacted; did do it to the letter; and was ready and willing to continue on fulfilling its terms when his uncle's death released him from its further burden. The acts of part performance relied on are, therefore, indisputably established.

Nor can they upon any analysis of the facts be referred to any other contract than the identical one set up.

He was not in possession when the contract was made, but took possession, says Nicholas, "under the agreement, and only under such agreement." And, says [**13]  Schwartz, "he would not come back upon any other terms."

Here there was no continuance of his former relations, but a new contract--and a fresh possession taken after an actual and notorious departure from the farm, by a return to it equally actual and notorious.

The case broadly differs, therefore, from that class of cases where a parol agreement for a lease or a sale alleged to have been made during the existence of the tenancy by the landlord with the tenant, is sought to be enforced by the tenant upon the ground of part performance, and where the Court refuses to grant the relief prayed, because the acts of part performance can be reasonably accounted for by the mere continuance of the character which the tenant all along filled, and be referred to a title distinct from the alleged agreement. Rosenthal vs. Freeburger, 26 Md., 80; Billingslea vs. Ward, 33 Md., 54; Spear vs. Orendorf, 26 Md., 44-45; Surcome vs. Pinniger, 3 De G. M. & G., 571; Fry on Specific Performance, 250-252.

Here, however, it is impossible to refer the acts of part performance to the old tenancy, for that had been determined. Nor to a new tenancy distinct from the agreement, because the evidence [**14]  establishes that the new occupation was solely "upon the foot of the new agreement"--and that Semmes was "not a tenant."

There is nothing ambiguous or equivocal in the acts relied on. They are capable of but one construction. But for this new contract, Semmes would not have returned to the farm and conducted it as he did until his uncle's death, but would have gone West. His reluctance to return was overcome solely by the value of the prize which under the contract was distinctly promised to him.

To deny to him now the benefit of his fair bargain while retaining the consideration which was asked from and rendered by him, is to perpetrate a fraud upon him. Md. Savings Ins. vs. Schroeder, 8 G. & J., 93; Moale vs. Buchanan, 11 G. & J., 324; Loffus vs. Maw, 3 Giffard, 595; Smith's Manual of Equity, 253, 595; Loxley vs. Heath, 27 Beav., 532, &c.; Laver vs. Fielder, 32 Beavan, 12.

Fielder C. Slingluff, Arthur W. Machen and Thomas Donaldson, for Worthington and others.

There is no evidence of such acts of part performance, unequivocally pointing to the contract set up, and unsusceptible of other explanation, as to remove the bar of the Statute of Frauds. The proved and [**15]  acknowledged relation of landlord and tenant accounts for every fact. Frame vs. Dawson, 14 Ves., 387.

It is undeniable in the present case, that the complainant on his return to the farm became tenant again upon the same terms as before; that he occupied and cultivated the farm as tenant--paid rent as tenant. That relation determined in all respects the character of his occupation. Whether the alleged agreement existed or did not exist, makes no visible difference. His occupation was of precisely the same nature before he quitted the farm that it was after his return to it. He held before in accordance with the terms expressed in the old written lease made with Schwartz. He holds it subsequently, and down to, and after his uncle's death upon the same conditions, and governed by the same Schwartz lease. During the previous period no agreement to devise existed, as Nicholas acknowledges. How then can that occupation be considered as necessarily referrible to the agreement in question?

The test is, was the complainant's occupation such as to make him a trespasser, if we suppose that the alleged agreement did not exist. 1 White & Tud. Lead. Cases, 630, 631, (marg.) note to Lester [**16]  vs. Foxcroft, and the passage from Lord REDESDALE'S opinion there quoted; 2 Story Eq. Jur., secs. 760-4; Bunton vs. Smith, 40 N. H., 353.

As to the payment of $ 100 to Slade, (even if it be assumed that Semmes furnished the money,) he can be fully recompensed by money. Payment of money never amounts to part performance in equity. This is now the settled doctrine: and the ground is that Equity only interferes at all to prevent fraud. 1 White & Tud. L. C., 630, (marg.) 731 in American note to Lester vs. Foxcroft; Hughes vs. Morris, 2 De G. Mac. & G., 356; Hamilton vs. Jones, 3 G. & J., 127; Parkhurst vs. Van Cortlandt, 1 Johns. Ch., 284.

But even this payment is fully explained by the uncontroverted facts. It arose out of circumstances independent of the alleged agreement, and was the result of a compromise between two tenants disputing about the possession. Certainly there is nothing either in the fact of such a payment being made, under the circumstances in evidence, nor in the amount paid, to indicate that it was the consideration given for the reversion in fee to a great estate. Unless the principle that the acts relied on as part performance must be such as to point of [**17]  themselves to the identical contract which is set up--be circumstantial evidence of it--be inflexibly adhered to, the Statute of Frauds is indeed overruled, and all the protection it was designed to afford, utterly broken down. Chesapeake & Ohio Canal Co. vs. Young, 3 Md., 490; Rosenthal vs. Freeburger, 26 Md., 80.

The acts cannot be taken as part performance if they "may be accounted for upon grounds other than those of the contract alleged." Smith vs. Crandall, 20 Md., 482, 501; Owings vs. Baldwin, 1 Md. Ch. Dec., 125, and 8 Gill, 338, 356; Billingslea vs. Ward, 33 Md., 52.

The circumstance that a tenant, after a suspension of occupation, and before his accounts are adjusted, resumes possession upon the same terms as to occupation, cultivation and rent as at first, has no tendency to prove any collateral agreement. Still less can it be considered as pointing to the special agreement here contended for, that is to say, an agreement comprehending two distinct ingredients, viz: first, a substitution of tenancy of life for the old holding from year to year; and secondly, a purchase of the reversion. All outward and visible circumstances being the same as those which lately [**18]  resulted from the original tenancy, and that tenancy being renewed, nothing else is indicated. 2 Story Eq., secs. 762, 763; Beard vs. Linthicum, 1 Md. Ch. Dec., 348.

The contract is not proven. The proof should be clear. An agreement vague and uncertain in its terms will not be specifically executed, even if it be in writing. Myers vs. Forbes, 24 Md., 598; King's Heirs vs. Thompson, 9 Pet., 204, 218. A fortiori, if the evidence be unwritten; for then the uncertainty is multiplied--the imperfect and doubtful character of the proof adding to the difficulties arising out of the contract itself. Wingate vs. Dail, 2 H. & J., 76; Hall vs. Hall, 1 Gill, 383; Stoddert vs. Bowie's Exec'r, 5 Md., 18.

The nature of the supposed contract must be regarded.

"Agreements to devise are to be dealt with no less strictly in equity than other contracts within the Statute of Frauds. Indeed, there are considerations which should subject them to a more rigid application of the Statute." Mundorff vs. Kilbourn, 4 Md., 463.

In this case the great improbability that Mr. Worthington should have entered into such a contract, and the extreme disproportion between anything that can be conceived [**19]  of as a consideration moving towards him, and the value of what he is supposed to have offered so lightly, cannot be lost sight of.

At most the evidence shows no more than the case--a very common one--of a promise for the performance of which the promisee relied on the honor or good feeling of the promisor--a promise of the kind illustrated in Maunsell vs. White, 7 Irish Equity R., 413, before SUGDEN, L. C., whose decree was affirmed by the House of Lords, 4 Ho. Lds. Cas., 1039.

Is it conceivable that a person of Mr. Worthington's character consented to reduce himself to the situation of a tenant for life in his own land? This goes far beyond the case of a father tieing his hands in favor of a son. The plaintiff was not only not a son, but not the heir, nor one of the heirs of the testator. In case of intestacy, he would not have succeeded to a dollar of the property. He had not the slightest legal claim upon his uncle; nor was there any moral obligation. He had come to him penniless, had been received with kindness, and allowed not only to farm the land, as Schwartz had been, but supplied, as Schwartz was not, with stock and capital to work it; and was not required to pay [**20]  any more rent than Schwartz had paid for the use of the land alone. See Waters vs. Howard, 1 Md. Ch. Dec., 115, and 8 Gill, 262, 277.

The alleged agreement is altogether indefinite. Upon the complainant's own showing, the contracting parties did not treat together directly, but the terms of the agreement are to be derived from disjointed declarations of Mr. Worthington, or the vague and uncertain recollection of persons who passed between them. It is not in this way that the Court can be assured that Mr. Worthington intended to assume an obligation of so momentous a character, and to divest himself, in substance, of the title to by far the larger part of his estate.

The bill states that one term of the agreement was that the complainant undertook to cultivate the farm during the life-time of his uncle. But there is not a particle of evidence that Semmes entered into any such obligation. There is nothing whatever to show that Semmes was not perfectly free to go or stay as he pleased, subject to the responsibilities of an annual tenancy. Again, there is nothing in the evidence to show that Mr. Worthington promised, under any circumstances, to give Semmes the land in fee. Giving [**21]  the utmost effect to his expressions--even as reported by Mr. Nicholas--they would be gratified by an estate during life.

So, as to the subject-matter of the gift there is almost equal uncertainty. One witness says, "Bloomfield," the other "the place." The plaintiff himself produces the will of 1868 as evidence of Mr. Worthington's original intentions in his favor. And the terms of that will do not coincide with any version of the alleged proposal. Waters vs. Howard, 1 Md. Ch. Dec., 118.

To justify the interference of Equity the agreement should appear to have been mutual. But upon all the proof Semmes bound himself to nothing beyond the common obligations of a tenancy from year to year. Gelston vs. Sigmund, 27 Md., 343, 344; Billingslea vs. Ward, 33 Md., 48; Duvall vs Myers, 2 Md. Ch. Dec., 401, 405; Tyson vs. Watts, 1 Md. Ch. Dec., 15; Dorsey vs. Pack-wood, 12 How., 136, 137; Marble Co vs. Ripley, 10 Wall., 359; Simmons vs. Hill, 4 H. & McH., 252.

Some reasonable consideration should appear. But here there is hardly so much as the colorable semblance of a consideration. Mr. Worthington promises all, and receives nothing. Black vs. Cord, 2 H. & G., 100; Geiger vs. Green,  [**22]  4 Gill, 475.

A decree for specific performance is not ex debito justitioe. It is the settled doctrine in Maryland "that even if a contract is sufficiently established or admitted, it still remains with a Court of Equity as matter of sound discretion, whether under the circumstances, they will decree the specific performance." Waters vs. Howard, 8 Gill, 283; Wadsworth vs. Manning, 4 Md., 70; Oxford vs. Provand, 2 P. C. Appeals, 151, (L. R.)

The claim of the complainant is most improbable, the proof of it doubtful, the known and undisputed facts do not support it, and every act of supposed part performance is otherwise explained.

Mrs. Milnor, whose testimony was excluded by the Court below, was a competent witness. Her interest under the last will of Richard J. Worthington is not such as would disqualify her at common law. She has no more than a bare and remote possibility, dependent upon the contingency of the dying in her life-time, and without issue, of two other persons. The interest that excludes must be fixed and certain: a remote and contingent interest never made a witness incompetent. Mitchell vs. Clagett, 9 Md., 51; Melvin vs. Melvin, 6 Md., 541; Reynolds, &c.  [**23]  vs. Manning, &c., 15 Md., 510; Falls vs. Belknap, 1 Johns. R., 491; Hawes vs. Humphrey, 9 Pick., 358; Galbraith's Lessee vs. Scott, 2 Dallas, 95.

Mrs. Milnor renounced the executorship and never acted; which prevents objection on that account. Alexander vs. Totter, 8 Jur., 418.

But the Code would make her competent, if she were not so at any rate. The exception created by the Act of 1868, ch. 116, does not affect devisees. There is no reason why it should, unless on the ground of interest; and mere interest as a cause of disqualification is removed by the 1st section of the Act of 1864. In Johnson vs. Heald, 33 Md., 352, the devisees all testified, and without objection on that ground. To carry the exception to the general rule abolishing the disqualification of interest beyond the letter of the statute, would be extremely inconvenient in its consequences, and defeat the general policy of the present law of Evidence. A party to the contract on the one side, and the executor on the other, (where he is party to the litigation as executor,) are excluded; but devisees and legatees are competent. Schull vs. Murray, 32 Md., 17; Jones vs. Jones, 36 Md., 448; Denison vs. Denison,  [**24]  35 Md., 381.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*314]  ALVEY, J., delivered the opinion of the Court.
The bill in this case was filed for the purpose of procuring the specific execution of an alleged contract, 

 [*315]  whereby the late Richard J. Worthington, deceased, agreed, in consideration of certain conduct and services to be performed by the plaintiff, to devise to the latter certain real estate, known as the "Bloomfield Farm and Race Course."
The bill alleges that, in the fall of 1866, the plaintiff was requested by his uncle, the late Richard J. Worthington, to take possession of his real estate, known as the "Bloomfield Farm and Race Course," containing about twelve hundred acres of land, more or less, and to work and manage the same as a tenant, upon the agreement and understanding that the profits should be equally divided between them; that the plaintiff did take possession of the farm, and cultivate the same under the agreement, until some time in the month of April, 1869; that during this period the uncle repeatedly assured the plaintiff that he would devise the farm to him; and that the uncle did [**25]  execute a will on the 29th of January, 1868, whereby he devised to the plaintiff an equitable life estate in an undivided half of the farm. That subsequently, and after the occurrence of a disagreement between the uncle and the plaintiff, this will of the 29th of January, 1868, was cancelled, and another will, dated the 21st of January, 1869, was executed, wherein no provision whatever was made for the plaintiff. It is then alleged, that the plaintiff remained in charge of the farm until some time in April, 1869, when, in consequence of the disagreement between himself and his uncle, the agreement between them was rescinded, and the plaintiff vacated the farm; that the uncle thereupon employed a man by the name of Slade, to work and cultivate the farm in the place of the plaintiff, but soon becoming dissatisfied with Slade, and being desirous to re-establish friendly relations with the plaintiff, and to secure his services upon the farm, he opened negotiations with the plaintiff, proposing that if the latter would pay to Slade the money necessary to 

 [*316]  induce him to vacate the farm, and would moreover again take possession of and cultivate the farm during the life-time of [**26]  the uncle, he, the uncle, would devise the farm to the plaintiff. To this proposition, as it is alleged, the plaintiff, being unwilling again to subject himself to the whims and caprices of the uncle, at first positively refused to accede, but finally, after further negotiation, consented, being greatly influenced by the fact that from 1866 to 1869, he had, in reliance upon the assurance of the uncle, that the farm should be devised to him, expended upon the same all of his share of the crops and profits thereof; and that it was thereupon clearly, definitely and distinctly agreed between the plaintiff and his uncle, that the former should pay out of his own proper means such sum as Slade might exact as the price of relinquishing possession of the farm, and should himself take possession thereof, and manage, work and cultivate the same, paying to his uncle the clear one-half of the profits thereof, and with the other half, or so much thereof as might be necessary, defray the expenses of carrying on the farm during the life-time of his uncle; and, in consideration of his so doing, the uncle would devise the farm to him. It is further alleged that the plaintiff did induce Slade to vacate [**27]  the farm, upon the payment to him of one hundred dollars, and did enter into possession of the farm, and in all respects performed his part of the agreement until the death of the uncle, which occurred on the 13th of March, 1870, less than one year from the date of the agreement.
It is further alleged, that the plaintiff was aware of the existence of the will of the 21st of January, 1869, at the time of entering into the agreement with the uncle, but that he did not know until after the uncle's death that the latter had failed to revoke it, as he had frequently declared his purpose so to do, and to make his will conform to the agreement with the plaintiff.

 [*317]  With the bill are exhibited the cancelled will of the 29th of January, 1868, and also the last will of the 21st of January, 1869, which has been admitted to probate.
By the cancelled will the testator gave to the plaintiff an equitable life estate in one-half of the real estate in controversy, with other property, and appointed him one of his executors. And by the last will no provision is made for the plaintiff at all, but the real estate in question is devised to one of the testator's brothers, in trust for the use [**28]  of two grand-nieces, and in the event of their dying without issue living, then to a niece, Mrs. Susan J. Milnor, in fee.
The adult defendants, by their answers, deny the existence of the contract and part performance thereof, as charged in the bill, and, consequently the plaintiff is put to full proof of his case. The contract alleged is evidenced by no writing whatever, but rests entirely on parol as contradistinguished from writing. The Statute of Frauds has not been invoked or relied on by the defendants in their answers; but where a parol contract, within the Statute, is set up by the plaintiff, and the defendant by his answer denies the making of the contract, it is not necessary for him to plead the Statute or insist on it as a bar; but the plaintiff, in order to entitle himself to the relief prayed, must, at the hearing, fully establish the contract as alleged, and such acts of part performance thereof as will take the case out of the Statute. Billingslea vs. Ward, 33 Md. 48.
The Court below was brought to the conclusion that the contract alleged was sufficiently established and partly performed as to part of the real estate mentioned in the bill, and [**29]  decreed execution accordingly, by appointing a trustee to convey such part to the plaintiff. From this decree there have been cross-appeals; and the whole case has been most fully and ably argued at the bar of this Court by the solicitors of the respective parties.

 [*318]  That a contract to devise real estate, if shown to be in all respects fair, just and reasonable, founded on sufficient consideration, and there be no doubt on the proof as to any of its terms, may be enforced by specific performance, by way of conveyance, as against the heirs or devisees of the party obligating himself to devise, is a proposition fully sustained by authority, and we do not understand that such proposition is at all controverted in this case. But in all cases for specific performance the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. And in cases for the specific enforcement of a contract to devise, like the present, where the property has been devised to other parties, the utmost certainty is required, as, by the [**30]  enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith. To such cases may well and most aptly be applied the rule so clearly and forcibly stated by the late Mr. Justice GRIER, of the Supreme Court, in delivering the opinion of that tribunal, in a case of an application for specific performance. In speaking of the character and certainty of proof required on such applications, he said: "Such proof must be clear, definite and conclusive, and must show a contract leaving no jus deliberandi or locus penitentioe. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversations, which the witness had no reason to recollect from interest in the subject-matter, which may have been imperfectly heard or inaccurately remembered, perverted or altogether fabricated; testimony, therefore, impossible to be contradicted." Purcell vs. Miner, 71 U.S. 513, 4 Wall. 513, 18 L. Ed. 435. 

 [*319]   [**31]  And in this case, without intending in the slightest degree to question the integrity and good faith of any witness examined in the cause, it is proper to observe and bear in mind, that all the evidence offered to establish the contract, consists of the mere verbal declarations and statements of the deceased, and that the witnesses who depose to them had no other means of identifying the expressions used, or the intention of the declarant, than their mere power of recollection after the lapse of a considerable time. The wisdom of the Statute of Frauds, in requiring contracts of great importance to be evidenced by writing, is within the constant experience and observation of every one engaged in the administration of justice; and it has been a matter of regret by the ablest Judges that the provisions of that Statute should ever have been so far relaxed, as to allow the titles of parties to their estates to depend in any considerable degree upon the chances, the uncertainty and imperfections of human memory, to say nothing of their great exposure to fraud and perjury. As, however, the Statute has in some cases been relaxed, and its literal and strict provisions departed from in order [**32]  to prevent fraud, the rule established as applicable to those exceptional cases must be observed; the Court, however, requiring in all such cases full and complete proof, as to all the conditions upon which the bar of the Statute can be removed.
In this case, seeing to what standard the proof must be measured, we are of opinion that the plaintiff has failed to relieve his case of all rational doubt as to the factum of the contract alleged. That there were hopes raised and expectations created on the part of the plaintiff, by the conduct and declaratious of the deceased, the evidence abundantly shows; but that they assumed the solemn form and obligation of a distinct and definite contract in respect to the devise of the farm, we think may and does admit of serious question. The plaintiff 

 [*320]  had occupied the estate from 1866, to April, 1869, as tenant on the usual terms of leasing. The estate was large and valuable, supposed to be worth over one hundred thousand dollars; and the plaintiff being poor and without a cent to apply to the stocking of the farm, his uncle furnished all the stock and utensils, and exacted only the rent paid by his former tenant Schwartz. Upon some [**33]  disagreement with his uncle, the plaintiff left the farm in April, 1869, in the midst of a current year of his tenancy, and was succeeded in its occupation by Slade, but for a few days only. By the fault of which of the parties the disagreement occurred does not appear; but by the intervention and upon the suggestion of mutual friends a reconciliation was effected, and the plaintiff was again placed in possession of the farm as before. It is manifest from the evidence that the idea of this reconciliation, and the restoration of the plaintiff to the possession of the farm, did not originate with the uncle, but would appear to have been conceived and proposed by Schwartz, Nicholas and Bosley. They stopped the appraisement which they were called on to make, and proposed that one of them should go to Worthington, the uncle, and ascertain whether he was willing that the plaintiff should return to the farm, and, upon his signifying assent, arrangements were initiated to get Slade to vacate and the plaintiff to resume the possession of the farm as formerly. This fact is proved by Schwartz, one of the plaintiff's witnesses. The payment of the hundred dollars to Slade to induce him to surrender [**34]  possession, appears to have been made only in part by the plaintiff; but the surrender was manifestly for the benefit of the plaintiff, as thereby he was not only restored to the possession of the farm, but to the benefit of his winter's work done on the farm, and of the crop then growing. He might well, therefore, agree to pay the hundred dollars for the surrender of the farm.

 [*321]  The two witnesses upon whose testimony the main reliance is placed to establish the making of the contract as charged in the bill, are Nicholas and Schwartz. The first named of these witnesses, says: "Mr. Worthington sent down for me specially to come up there; I had been one of the appraisers to appraise the property. When I went up there, Mr. Worthington told me that, as I had started this business, I must get Charles Semmes back, and Frank Slade away; that if Charles Semmes would come back and attend to his business as he had done before he went away, that he, Worthington, would leave him Bloomfield at his death, and if he didn't, he should never see a damned cent of his property." This proposition according to the testimony of the witness, was submitted to the plaintiff, who, after considerable [**35]  difficulty, was induced to accede to it. Schwartz, the other witness, testified that Worthington told him "to tell Charles Semmes that if he wouldn't come back and attend to his work like he did before, he shouldn't have a damned cent, and if he would come back he would give him the place." This proposition was also taken to the plaintiff by the witness, and it was not until after considerable hesitation that the plaintiff finally acceded to it, and returned to the farm. Neither of these witnesses as will be observed, profess to give the exact language of the deceased, nor everything that was said by him; nor do they undertake to state the language of the plaintiff when these propositions were made to him, to show how he understood and in what sense he accepted them. These are the only two witnesses who profess to have any knowledge of the making of the contract; the other witnesses for the plaintiff testifying to declarations of the deceased, all of which are of a vague and indefinite character as evidence of a contract, such as that set up in the plaintiff's bill.

 [*322]  Now, without laying any particular stress on the discrepancy between the contract as alleged in the bill,  [**36]  and the evidence offered in proof of it, which is much more than merely verbal, is it rational to conclude, in view of all the circumstances of the case, that the deceased intended to make a binding and conclusive contract for the final disposition of the estate in question, as contended by the plaintiff's counsel? To justify such a conclusion the most positive and unequivocal proof should be furnished; as the effect of such contract, if made, was not only to revoke the solemn last will and testament of the deceased, as to the estate in question, consisting at least of two-thirds of his entire estate, but forever to deprive him of all power of disposition over it, and to reduce him to the condition of a mere life annuitant, depending for the amount to be received upon the skill and attention with which the estate might be managed by the plaintiff. By the contract as attempted to be established, the plaintiff became entitled to the devise upon his taking possession and cultivating the farm during the life of his uncle, upon the same terms and in the same manner as before, when merely a tenant, without any reference whatever to the possible change of feeling, or to any future relation [**37]  that might exist between them. For this extraordinary contract, the only apparent consideration to the deceased, was the preference of one tenant to another to cultivate and manage his estate, on being paid the usual rent. And it is really difficult to imagine that a sensible man, as the deceased is said to have been, would, by solemn contract on such consideration, so entirely denude himself of all power and control over his estate, and place himself in a condition of such dependence in reference to it.
But turning to the conduct of the plaintiff, how did he understand the transaction between himself and his uncle? Did he understand from the beginning that it was a binding 

 [*323]  and conclusive contract that would secure to him, absolutely and unconditionally the farm, upon his remaining on it and cultivating it as tenant during the life-time of his uncle? With such understanding of it, it was certainly strange that he should have had reluctance in regard to accepting the offer, and entering into the contract; he, a young man and poor, and his uncle far advanced in years. If such was his understanding of the matter, there existed every incentive for having the contract reduced [**38]  to writing. In his bill he characterizes his uncle as a man of whims and caprices, and by the proof he has shown him to have been changeable and perverse in his disposition; and therefore his declared intents and purposes were not to be relied on. He knew, moreover, according to the allegation of his bill, that his uncle had revoked the will of January, 1868, in which he was provided for, and had made the will of January, 1869, under circumstances that gave him no reason to hope for a provision; and with this knowledge he has not alleged or attempted to prove, that he ever on any occasion inquired of his uncle whether he had made or intended to make his will conform to the alleged contract, or requested him to do so. This would have been but a proper precaution, and quite natural to one who had reluctantly entered upon the performance of a binding contract of the grave importance of the one in question. He knew, or should have known, that the contract without writing was no sufficient security to him. He could have had no delicacy upon the subject; it was no longer a mere question of option and bounty on the part of the uncle, according to the pretension now set up, but was a question [**39]  of absolute right in the plaintiff which he should have been forward to assert. But, instead of asserting his right under the contract, will or no will, his own declarations both before and after the death of his uncle would seem to be quite inconsistent with the 

 [*324]  claim now made. According to the testimony of several of the witnesses, the plaintiff meditated leaving the farm at the end of the year 1869. He told Mrs. Milnor, his sister, in the summer of 1869, that he expected to leave Bloomfield as soon as he got in his crops. In the summer before the death of his uncle, he told Clara Madden, "that he didn't expect his uncle Dick would give him anything;" and after the death, and before the will of the deceased was produced, he said to Mrs. Milnor and also to Clara Madden, that he did not expect to get anything by the will. Such would hardly have been his language, if he had been relying upon a positive contract, determining his rights, and leaving his uncle no option as to the manner of disposing of his farm. At least, associated with such language would likely have been some reference to, or assertion of, his claim under the contract. But no such reference or assertion [**40]  appears to have been made by him.
The competency of Mrs. Milnor as a witness has been excepted to, on the ground that she is a party to the suit for the enforcement of a contract against a deceased party's estate, and that she is interested in the subject-matter in controversy. But there is nothing in the Evidence Acts of 1864 and 1868, that would exclude her, not being within the exceptions of those Acts; and her interest being altogether contingent and remote, she would be competent even according to the common law rule of evidence. The exception therefore cannot prevail.
Then, upon the whole evidence bearing upon the question of the existence of the alleged contract, without entering further into the details of it, and laying out of view the declarations of the deceased which have been excepted to by the plaintiff, we are not satisfied, to the exclusion of all rational doubt, as to the making of the contract or the real understanding and intention of the 

 [*325]  parties. Some of the facts proved do certainly give the semblance of a contract; but the circumstances of the case are exceedingly cogent to justify the belief that, according to the understanding of the parties themselves,  [**41]  what occurred between them in reference to the devise of the farm, amounted to nothing more than mere inducement and expectation, uncoupled with anything like positive and binding obligation. The conduct of both parties would seem to consist with this idea of their understanding. That there has been disappointment on the part of the plaintiff is most probable, but whether there has been bad faith, amounting to breach of contract on the part of the deceased, the record before us does not in our opinion, justify us in declaring.
But if we could surmount the doubt in regard to the existence of the contract, and conclude that it was established with sufficient certainty, we should then be brought to the question, whether the contract is of a character to be specifically enforced by a Court of Equity. Specific execution of contracts by Courts of Equity is not a matter of absolute right in the party applying, but of sound discretion in the Court, to be exercised upon consideration of all the circumstances of each particular case. The Court will be controlled, of course, in the exercise of its discretion, by the established doctrines and settled principles upon the subject; but it does not [**42]  follow, as matter of course, that because the legal obligation under the contract may be perfect, therefore the equitable power of the Court will be exercised to compel or effect specific execution. In every case, the question is, whether the exercise of the power is called for to subserve the ends of justice; and unless the Court is satisfied that the application to it, for this extraordinary assistance, is fair, just and reasonable, in every respect, it will refuse to interfere, and leave the party to other remedies for redress. Waters vs. Howard, 1 Md. Ch. 112; S. C., 8 Gill 262; 2 

 [*326]  Sto. Eq. Jur., secs. 767, 770; Seymour vs. Delancey, 6 John. Ch. 222; Willard vs. Tayloe, 75 U.S. 557, 8 Wall. 557, 19 L. Ed. 501.
Here, upon the assumption that the contract was sufficiently established, we think it exceedingly questionable whether, upon settled principle, a Court of Equity would be warranted in lending its assistance. There would seem to be an absence of those equitable elements that commend a contract for specific execution. To say that such contract as is here alleged is in all [**43]  respects equal, just and reasonable, in view of all the facts of the case, would be saying what no known precedent justifies, and what it would be difficult in reason to prove.
But if we could come to the conclusion that a contract had been established by the evidence, and waiving this last objection to its specific execution, there would still remain an insuperable difficulty to its specific performance by a decree of a Court of Equity, and that is the bar of the Statute of Frauds. The acts, alleged to be in part performance of the contract, and relied on to relieve it of the operation of the Statute, are, in our opinion, wholly insufficient for that purpose. The only act in this case that can have any significance whatever as being in part performance of the alleged contract, is that of possession. But the partial and subordinate possession that was held by the plaintiff, under the peculiar circumstances of the case, was, to make the most of it, an equivocal act, susceptible of a variety of interpretations, and affording no evidence or presumption whatever of the particular contract alleged, and to allow such act, even if the contract were otherwise established, to remove the bar [**44]  of the Statute would operate a virtual repeal of it as applied to cases like the present, and let in all the mischief that was intended to be guarded against by the Statute. The principle upon this subject is well established. The act relied on as part performance must, in itself furnish evidence of the identity of the contract; and it is not enough that it 

 [*327]  is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill. Ches. & Ohio Canal Co. vs. Young, 3 Md. 480. And the Court is never anxious to grasp at slight circumstances to rescue a case from the operation of the Statute, nor does it indulge in any latitude of construction, where there is any equivocation or uncertainty in the case presented. It adopts the rule that the contract should be clear and definite, and that the acts done should be equally clear and definite and solely with a view to the performance of the particular agreement. Shepherd vs. Bevin, 9 Gill 32. The acts done must be of a substantial nature, and such, that the party would suffer an injury amounting to a fraud by the refusal to execute [**45]  the agreement. Frame vs. Dawson, 14 Ves. 387. This is the ground upon which Courts of Equity interpose their aid, in cases of clear part performance of verbal agreements. Hamilton vs. Jones, 3 Gill & John. 127; Hall vs. Hall, 1 Gill 383; Caldwell vs. Carrington's Heirs, 9 Pet. 86. But the acts done in this case, in the alleged part performance of the contract set up in the bill, if the contract were proved, were not of a character to make it fraudulent on the part of the defendants to rely on the Statute of Frauds as a bar to the plaintiff's case. Though it is alleged in the bill, it is not proved as a fact that the plaintiff made expenditures or improvements on the land on the faith of the alleged contract; and the mere possession, such as it was, under the particular circumstances, could afford no sufficient ground for relieving the case from the bar of the Statute of Frauds.
In the opinion of the Court, the plaintiff has failed to establish his case, and consequently the decree of the Court below must be reversed, and the bill of complaint dismissed, with costs to the defendants.
Decree reversed,  [**46]   and bill dismissed. 

CONCURBY:
MILLER 

CONCUR:

 [*328]  MILLER, J., delivered the following separate opinion:
I rest my assent to the reversal of this decree upon the sole ground that the agreement set up in the bill is not established by the requisite degree of proof. Fully concurring in and assenting to every thing said in the opinion of the Court, delivered by my Brother ALVEY, as to the necessity of clear and undoubted proof of the contract in a case like the present, I am of opinion that if the contract were thus established there would be no difficulty in decreeing its specific execution. In that case, taking possession by the nephew after the abandonment by him of the relation of landlord and tenant previously existing between him and his uncle, could be referred to that agreement and nothing else. It would be possession under it and not under the previous tenancy. Assuming the averments of the bill, that in consequence of a misunderstanding between them, the nephew, in April, 1869, in the midst of a year of his tenancy, abandoned the farm, that all existing relations of landlord and tenant were by mutual consent annulled and rescinded, and another tenant in place of the nephew, [**47]  engaged by the uncle and put on the place, and that, after this, there was a contract made between them, that if the nephew would come back and manage, work and cultivate the farm during the life of the uncle, paying to him one-half the clear profits thereof, the latter would devise the farm to the nephew, to be proved, I am unable to perceive how subsequent possession of the place by the nephew is not to be considered as part performance of that contract, so as to take the case out of the operation of the Statute of Frauds. Abandonment of the place, dissolution of existing relations, procuring and putting in possession a new tenant, and the coming back after this and taking possession again, are such "other unequivocal circumstances," (2 Story's Eq., sec. 763,) as point and refer the subsequent possession solely and exclusively to the contract, and not to the previous 

 [*329]  tenancy. It is not like the case put by Sir WILLIAM GRANT, in Frame vs. Dawson, 14 Ves. 388: "Suppose my tenant should set up an agreement for a purchase, and get a witness to swear to it, and then offer as evidence of part performance, his possession [**48]  and cultivation of the land, could that be deemed an act of part performance, which would have existed precisely in the same shape, whether there was any agreement for the purchase, or not?" In that case there was no interruption of possession, and the agreement set up by the tenant who remained all the while in possession, was for an extension of the lease for ten years, in consideration of the repair of a party-wall. It is clear that there the act of possession was equivocal and could be referred to the existing tenancy as well as to the alleged agreement. But the rule on this subject has been stated by this Court in the two cases of Spear vs. Orendorf, 26 Md. 37, and Rosenthal vs. Freeburger, Ibid., 75. In both, the possession was continuous, and the alleged agreements were for renewed leases. In the former, the Court said, "It is abundantly settled, that if one who is already in possession of land as tenant, verbally contracts with the owner for a new term, his merely continuing in possession after the making of the alleged contract, is not an act of part performance within the meaning of the rule, so as to justify a decree for a lease according [**49]  to the contract. In such a case, the continued holding is naturally and properly referable to the old tenancy and does not necessarily imply any new agreement between the parties." There must be something else besides mere continuance of possession, and a majority of the Court there held that the averment in the bill, that the tenant paid the increased rent of $ 1500 for the last year as part and parcel of the alleged agreement, and in performance thereof, was equivalent to an averment that the landlord accepted the additional rent upon the foot of the agreement, and, therefore, authorized 

 [*330]  the granting of the injunction prayed for, and specific execution of the agreement, if established by proof. In the latter case there was mere continuance of possession by a tenant who claimed a lease for five years, under an alleged agreement with the purchaser of the reversion that he should become his permanent tenant, and there the Court held that possession insufficient as part performance, and say, "The appellee as tenant continued in possession after the purchase by the appellant. This is a mere continuance of the character which he all along filled, and any act which [**50]  may be thus referred to a title distinct from the agreement, cannot be considered as taking the case out of the Statute." So in Billingslea vs. Ward, 33 Md. 48, there was a tenant in possession setting up a parol contract for the purchase of the land, and the Court, after stating that he was already in possession of the land previous to the alleged agreement, say, "Now it is evident that the possession of the appellee was not under or in execution of the alleged 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."
The distinction between the possession in the present case, upon the assumption that the alleged contract is clearly proved, and that in the cases referred to, appears to me broad and indisputable. The language of the Court in those cases and in all the authorities referred to in them, seems to have been studiously guarded, and framed to meet precisely a case of this character, where the possession was interrupted, the previous [**51]  tenancy completely ended, and possession again taken after the alleged contract was made. I have seen no case in which any Court has ever held or laid down a contrary doctrine.

 [*331]  But being satisfied upon a careful examination of all the testimony in the record applicable to the subject, that the alleged contract is not established by that clear and satisfactory proof, which is always required in such cases, I agree to the reversal of the decree and dismissal of the bill.  

16 of 144 DOCUMENTS 

STATE OF MARYLAND, use of MARY VIRGINIA THOMPSON, by CHARLES S. THOMPSON, her husband and next friend, vs. ELIZA JANE WILSON, WILLIAM W. WILSON, MASON L. WEEMS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 338; 1873 Md. LEXIS 62 

July 2, 1873, Decided 

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

This was an action of debt on the testamentary bond of the appellee, Eliza Jane Wilson, given as executrix of her deceased husband, William John Philips. The appellant, the plaintiff below, declared:

For that William John Philips died on or about the twenty-seventh day of August, in the year eighteen hundred and sixty-six, in the city of Baltimore, and he left a last will and testament, duly proved and admitted to probate, and of record in the office of the Register of Wills of Baltimore city, whereby he did give and bequeath unto his daughter, Mary Virginia, the plaintiff in this action, the sum of one thousand dollars, and did by said will appoint his wife, the defendant, who is since married to the defendant, William W. Wilson, executrix of his said will, and letters of administration were duly granted to her by the Orphans' Court of Baltimore city, and she gave a certain bond, commonly called an "administration bond," as executrix as aforesaid, and with the other defendants, Mason L. Weems, and William B. Kirwin and Henry G. Hazen as sureties, which is signed and sealed by her and the said sureties, and is to the Court here shown,  [**2]  and is filed with this declaration, and whose date is the tenth day of September, in the year eighteen hundred and sixty-six, whereby the said Eliza Jane Wilson, (then Philips,) and the said Mason L. Weems, and William B. Kirwin and Henry G. Hazen bound themselves, and their heirs, executors and administrators, unto the State of Maryland, in the sum of twelve thousand dollars, to be paid to the said State.

And the said bond was conditioned for the faithful performance by the said Eliza Jane of her duties as executrix of said William John Philips; nevertheless the said Eliza Jane did not faithfully fulfil her duties as executrix as aforesaid, and the plaintiff shows wherein she did not fulfil her said duties, namely, that on the eighth day of November, in the year eighteen hundred and sixty-seven, the said Eliza Jane was, as executrix as aforesaid, possessed of assets of the personal estate of her said husband, William John Philips, sufficient to pay said legacy of one thousand dollars to said Mary Virginia; nevertheless she did not do so, although requested, and has not, at any time since, paid said legacy, or any part thereof, to said Mary Virginia, or to any person for her,  [**3]  or any part thereof, although requested so to pay; whereby the said Mary Virginia became and was and is entitled to have paid to her, by the defendants, the said sum of one thousand dollars, with interest from the said eighth day of November, in the year eighteen hundred and sixty-seven. And the plaintiff claims therefor two thousand dollars, ($ 2,000.)

With the declaration was filed a copy of the testamentary bond.

The defendants demurred to the declaration, and assigned the following reasons in support of the demurrer:

First. Because the declaration doth not sufficiently disclose whereof the said defendants are liable at law.

Second. Because it doth not allege or disclose in what lawful respect the said plaintiff seeks to maintain said proceeding against Eliza Jane Wilson as executrix therein.

Third. Because it doth not allege or disclose that the matter whereof the said plaintiff claims is specific, assented to by said named executrix, and that the alleged interest therein or thereto of said plaintiff had become vested.

Fourth. Because it doth not allege or disclose that the said plaintiff had, before the institution of this suit, acquired the lawful [**4]  right to prosecute in this action the alleged administration bond.

The Court, (GAREY, J.,) sustained the demurrer, and a judgment of non-suit was entered. The plaintiff appealed.  

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

Right of Action on the Bond of an Executrix, for the Non-payment of a Pecuniary Legacy -- Practice.

A testator bequeathed to his daughter the sum of a thousand dollars, which was made payable generally out of the assets of his estate, without contingency or limitation as to the time of payment. He appointed his wife his executrix, and letters testamentary were duly granted to her, and she gave bond, dated the 10th of September, 1866, for the faithful performance of her duties as such executrix. The legacy so bequeathed not having been paid, on the 30th of September, 1872, an action was brought, for the use of the legatee, on the bond of the executrix. The breach of the bond assigned in the declaration was, that notwithstanding the executrix had sufficient assets, she had failed to pay the legacy, so bequeathed, to the party for whose use the action was brought. On demurrer to the declaration, it was HELD:

1st. That by the failure of the executrix to pay the legacy, after the lapse of thirteen months, the bond was forfeited, and the right to maintain an action thereon in respect of the breach complained of, was clear and undoubted.

2nd. That it was not necessary that a previous order of the Orphans' Court should have been obtained, to authorize a suit on the bond; nor was it necessary, to entitle the plaintiff to sue, that she should allege that the estate had been fully administered, or that a final account had been settled in the Orphans' Court; provided the legacy had become payable by the lapse of time within which the estate ought to have been settled.  

COUNSEL:
Edward Otis Hinkley, for the appellant

Suit on an administration bond, given in the name of the State, may be brought by anybody interested, without leave of the Orphans' Court first obtained. Code, Art. 93, secs. 75, 102, 106, 110, 119; State, use of Mayor, &c. of Baltimore vs. Norwood et al., 12 Md., 177.

The jurisdiction in chancery, on suits for legacies, is not exclusive of that at law on the bond. Code, Art. 93, secs. 75, 102, 106, 110, 119; Coward vs. Worrell, 7 G. & J., 475; Morgan vs. Slade, 2 H. & J., 38; Mann vs. The State, 3 H. & J., 237; Downes vs. The State, 3 H. & J., 239; Blakeman vs. Sherwood, 32 Conn., 324; Colt vs. Colt, 32 Conn., 422; State vs. Boyd, 2 G. & J., 373; Charlotte Hall School vs. Greenwell, 4 G. & J., 409; Barnes & Ferguson vs. Compton, 8 Gill, 391, 397, 398; Budd vs. The State, use of Posey, 22 Md., 49; Harrison vs. Harrison, 22 Md., 469.

E. Swinney, for the appellees.

The basis of this action being for the [**5]  recovery of a pecuniary legacy, payable out of the general funds of the testator, the demurrer was rightfully sustained; first, because the declaration failed to aver that a full or final account of the administration had been made; for until then, according to Lowe vs. Lowe, 6 Md., 354, payment of legacies cannot be demanded or made. Secondly, it is not competent for a legatee to maintain an action at law against an executor for the recovery of a pecuniary legacy payable out of the general assets. Kent vs. Somervell, 7 G. & J., 265.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*342]  ALVEY, J., delivered the opinion of the Court.
It can hardly be a question at this day, in this State, whether an action at law can be maintained on an administrator's or executor's bond, for the non-payment of a legacy, whether pecuniary, payable out of the general assets of the estate, or otherwise. The condition of the bond is, that the executor or administrator, as the case may be, shall well and truly perform the duties of his office, according to law, without any injury or damage to any person interested in the faithful discharge of such duties. [**6]  Code, Art. 93, sec. 49. It is the duty of the executor, within thirteen months, to pay the creditors of the estate; and any surplus he may have on hand after the lapse of that time, he should pay out to legatees or distributees. Coward vs. Worrell, 7 Gill & John. 475.
In this case, the bond in suit was given on the 10th day of September, 1866, and the action was brought on the 30th of September, 1872; more than six years from the date of the bond. The legacy sued for is made payable generally out of the assets of the estate, without contingency, or limitation as to time of payment. The breach of the bond assigned is, that, notwithstanding the executrix had sufficient assets, she had failed to pay the 

 [*343]  legacy of one thousand dollars, bequeathed by the testator to the party for whose use the action is brought. By the failure to pay this legacy, after the lapse of thirteen months, the bond was forfeited, and the right to maintain an action on it in respect of the breach complained of, is too well established to admit of a doubt. This is abundantly shown, if authorities were needed, by cases cited by the counsel for the appellant, and to those cited,  [**7]  several others could be added.
It is by no means necessary, as seems to have been supposed, that a previous order of the Orphans' Court should have been obtained, to authorize suit to be brought on the bond; nor is it at all necessary that the plaintiff should allege that the estate has been fully administered, or that a final account has been settled in the Orphans' Court, to entitle her to sue; provided the legacy had become payable by the lapse of time within which the estate ought to have been settled. If any legal excuse exists for the non-payment of the legacy, such as the exhaustion of the assets in the payment of the proper debts of the estate, or the insufficiency of the assets to pay legacies, in due course of administration, such excuse or justification of non-payment should be pleaded by the defendant.
What was said by the Court of Appeals in the case of Kent vs. Somervell, 7 Gill & John. 265, and which has been much relied on by the appellees, has no application to this case whatever. That was not an action on an executor's bond, nor was it against an executor in his representative character; but, in the course of the opinion in that case, it was [**8]  said that, as a general principle, an action at law will not lie against an executor to recover a pecuniary legacy payable out of the general funds of the testator, upon the mere assent of the executor to the bequest, on the ground that the law raises no implied promise by the executor to pay the legacy upon proof only of his admission of assets. This is certainly 

 [*344]  true; but the present action is not against the executrix for the recovery of the legacy, but is an action of debt upon her official bond, founded upon a breach of duty imposed by law, to secure the performance of which the bond was given. It became the duty of the executrix to pay the legacy, and her failure to do so, occasioned the breach of the condition of the bond, whereby the penalty became forfeited. The recovery in the action will be for the penalty of the bond, to be released on payment of such damages as may be assessed in respect of the particular breach assigned; (Code, Art. 75, sec. 63,) and the legacy due, with such interest as may have accrued thereon, will be the measure of damages which the plaintiff will be entitled to have assessed.
The breach assigned in the declaration appearing [**9]  to be sufficient to give the plaintiff a right of action upon the bond, the Court below was in error in sustaining the demurrer thereto by the defendants, and, consequently, the judgment must be reversed, and the cause remanded that the defendants may have liberty to plead.
Judgment reversed and cause remanded. 

17 of 144 DOCUMENTS 

RHODES & WILLIAMS, et al. vs. AMSINCK & CO., Creditors of JOHNSON & BEHR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 345; 1873 Md. LEXIS 63 

July 2, 1873, Decided 

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

This was an appeal from an order of the Court below instructing the auditor that the appellees, Amsinck & Co., as assignees of Solomon, were entitled to priority in the distribution of the assets of Johnson & Behr among their creditors. The other facts are stated in the opinion of the Court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

How far a Decree in Creditors' suit is a Final decision as to the claim of the Complainants -- Priority between Creditors -- Assumption of control of Partnership assets by a Court of Equity, a bar to proceedings at Law -- Authority of Partner to Confess judgment -- Judgment against a single Partner binds the Firm -- Attachment on judgment.

Where the claim of the complainants, in a bill to distribute the assets of a debtor for the benefit of his creditors, is not excepted in the decree, it is to be taken as established as legal and valid, not only as against the debtor, but as against all the creditors coming in to claim distribution.

Where proceedings in attachment, on judgment or on warrant, have been taken by a creditor, but no judgment of condemnation obtained before the filing of a bill, by the attaching creditor and others, for distribution of the assets of the debtor, the claim of the attaching creditor is entitled to no priority by reason of his attachment.

Where a Court of Equity has assumed control over partnership assets and ordered distribution to be made under its direction, no creditor, after such decree, can institute or continue the prosecution of a pending suit at law for the purpose of obtaining a priority over the other creditors; and any lien asserted as a consequence of a judgment thus obtained will be disallowed.

Even during the existence of a partnership, there is no implied authority in one partuer to voluntarily appear and confess judgment to bind copartners. Such a judgment binds only the partner confessing, and, in an execution on such judgment, the confessing partner's separate interest in the partnership property can alone be seized and sold. A fortiori, after dissolution of the partnership, such an act of a partner, not professing to bind his copartner, will not be effective as a partnership act.

In the case of a proceeding in invitum on a partnership contract, judgment may be recovered against a single partner to bind the firm and its effects.

An attachment on judgment, while having some of the attributes of an execution, has, at the same time, especially as against the garnishee, many qualities of mesne process. The mere laying of the attachment, or the seizure of property under it, creates simply an inchoate lien, which can only be perfected by judgment of condemnation. 

COUNSEL:
J. D. Ferguson, for the appellants.

The desire of a Court of Chancery in administering funds under its control, is to give an equal portion to each creditor. Cross et al. vs. Cohen, 3 Gill, 257; and Gibson vs. Finley, 4 Md. Ch. Dec., 79. It is only when bound by a perfected and established lien that this rule of equality will be departed from. In Sanderson vs. Stockdale, 11 Md., 572, the rule is laid down that "Partnership creditors have no lien on partnership effects unless their debt is reduced to judgment, which will create a lien on real estate, and when execution is issued thereon a lien is created on the personalty."

The decree itself gives the creditor complainant no priority over the others, where (as in this case,) there is a deficiency to pay all. Baltzell vs. Foss, 1 H.  [**2]  & G., 504.

As to the attachment on warrant; conceding that this attachment, although professedly aimed only at Johnson's interest, was capable of affecting through his equity over them, as a partner, the assets of the firm, yet under the rule in Sanderson vs. Stockdale, this procedure created no lien for Solomon. An attachment on warrant is not an execution. Fisher vs. Johnson, 6 Gill, 361. It is not a final but a mesne process. Corner vs. Mallory, 31 Md., 473.

The inchoate lien created by the attachment in this case was waived, and the attachment itself virtually abandoned by the subsequent act of Solomon in filing the bill of complaint six months after. By invoking the aid of equity for the benefit of himself and all other creditors, he caused "a jurisdiction to attach which would be maintained for the protection and final adjudication of all the rights and interests involved." Kunkel vs. Fitzhugh, 22 Md., 577.

And when as in this case this attachment proceeding remained "in statu quo" until the decree was passed and notice given to creditors, it became impossible for it to be carried to a final judgment to the prejudice of other creditors coming in. Ellicott vs. U.  [**3]  S. Ins. Co., 7 Gill, 319.

As to the lien attributed to the judgment confessed by Behr and attachment issued thereon.

It was held below that from the proof and agreements in the previous record, and the coincidence of the amount of the confessed judgment with the debt set forth in the vacated deed, there could be no doubt that the cause of action was a partnership debt due by Johnson & Behr to Solomon. Conceding this to be the case, Behr had no right, two years after the dissolution of the firm, to bind it by a confession of judgment. Dixon & Mills Case, 6 Rich. S. C. Law, 487; Ward vs. Howell, 5 H. & J., 60; Ellicott vs. Nichols, 7 Gill, 117; Thompson vs. Frist, 15 Md., 24.

He could not impose new obligations on the firm or vary the character or form of those already existing. Hurst & Berry vs. Hill, 8 Md., 399.

Even if he had a right to confess a judgment which would bind the assets of the firm, the rule in Sanderson vs. Stockdale, has not been gratified so as to create a lien, in that no execution has been issued on the judgment which will bind the assets for distribution, they being purely partnership. For the attachment on the judgment, if regarded as an execution,  [**4]  is levied on the individual interest of Behr, and the whole record shows that the plea "nulla bona" of the garnishee is as true to-day as when it was filed. Harden & Carson vs. Moores, 7 H. & J., 11; Thompson vs. Balt. & S. S. Co., 33 Md., 315.

The plea of the garnishee could not be set aside, and a judgment of condemnation given by a Court of Equity. McPherson, et al. vs. Snowden, 19 Md., 233.

If the attachment on judgment did create an inchoate lien, it was not perfected when the decree was passed in this case, nor has it, or could it have been since that time. To have perfected it a judgment of condemnation ought to have been had against the garnishee and execution executed; for before such application he is liable to be sued by the defendant on the attached choses. Brown vs. Somerville, 8 Md., 457.

The plaintiff in the attachment could have tested the validity of the deed by prosecuting his attachment, and having neglected to do so, he cannot complain because he loses its benefit.

The legal effect of the confession of judgment by Behr, and the acceptance thereof by Solomon was to extinguish Solomon's claim against the firm, and reduce it to an individual debt [**5]  against Behr, and an open account demand against Johnson, a merger being prevented by Art. 45, Code, sec. 10. Barker vs. Ayers, 5 Md., 207; Thomas vs. Mohler & Graff, 25 Md., 45.

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

The decree heretofore passed, establishes beyond question the debts to Solomon, to be debts due by the firm of Johnson & Behr, in its copartnership capacity.

The foundation of the decree is the debt, and without that debt having been proved, no decree could have been passed, or if passed, would have been affirmed. Strike's Case, 1 Bland, 67-69; Welch vs. Stewart, 2 Bland, 37; Hammond vs. Hammond, 2 Bland, 359; Ward vs. Hollins, 14 Md., 158, 166.

In a creditor's suit, the claim of the creditor who files the bill of complaint, is established as stated in the bill, by the decree. Maddox vs. Dent, 4 Md. Ch. Dec., 543; Griffith vs. Reinard, 6 Gill, 445, 453.

After a decree on a creditors' bill, no other suit will be allowed to go; but until decree, other creditors prosecuting their claims will not be restrained. Simmons vs. Tongue, 3 Bland, 360; Tessier vs. Wyse, 3 Bland, 29; Innes vs. Lansing, 7 Paige, 583-4.

The complainants [**6]  have obtained a lien which has fastened on the fund now for distribution, and by virtue of that lien are entitled to the same. To establish this lien they filed a duly authenticated record of a judgment obtained March 11th, 1867, and an attachment on that judgment laid in the hands of the trustee under the deed, and also an attachment on warrant. No rule of pleading requires that in a declaration against a copartnership, it is necessary to allege the copartnership. Partners are jointly and severally liable. 1 Saunders Rep., 153, n. 1, 291, b. n. 4; 2 Saunders on P. & Ev., 707; Smith vs. Cooke, 31 Md., 179; McCulloh vs. Dashiells, 1 H. & G. 98.

One partner being in Court, the Court had jurisdiction, and a judgment rendered for a copartnership debt, against one of the partners, will bind the partnership assets. Inbusch vs. Farwell, 1 Black, (U.S.,) 566. Johnston vs. Mathews, 32 Md., 363.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*349]  ALVEY, J., delivered the opinion of the Court.
This case has been in this Court on a former appeal, (34 Md. 646,) when the main question involved was the 

 [*350]   [**7]  validity of the deed of assignment from Johnson & Behr, partners, to Eugene Cummiskey; and the deed having been vacated and set aside, the question on the present appeal arises in regard to the distribution of the fund, the proceeds of the effects of the partnership, among the creditors. Amsinck & Co., as assignees of Solomon, one of the original complainants in whose name the bill was filed to vacate the deed, not only claim to participate with the other creditors of the partnership in the distribution of the fund, but claim to have priority in such distribution; and hence the appeal.
The bill for the vacation of the assignment was filed on the 30th of August, 1867, by D. Bitter and D. Solomon, suing for themselves and all the other creditors of the alleged fraudulent grantors; and after the filing the bill, but before the decree vacating the deed, Solomon assigned his claim to Amsinck & Co., and the latter assumed the former's position, as complainant in the further progress of the litigation. The decree vacating the deed and requiring the administrator of the deceased assignee to pay over the assets to a trustee appointed by the Court, was passed on the 11th of February, 1871, and [**8]  which decree was affirmed by this Court on the former appeal.
With respect to the nature and extent of the claim in controversy, the bill charged that Johnson & Behr in their partnership character, were indebted to D. Solomon in the sum of $ 5800, for goods sold and delivered to them previous to the date of the deed of assignment; and, in the deed of assignment itself, the debt due to Solomon is stated to be $ 5666.66. Behr, one of the debtor partners, was examined as a witness for the complainants, and he testified that the debt due Solomon at the date of the deed was about $ 5000, and thought it might have been as much as $ 5600. In this state of the proof in regard to the claim, and prior to the passage of the decree setting 

 [*351]  aside the deed, it was agreed by and between the then parties to the cause, that the creditors then mentioned as preferred in the deed of assignment were, at the date of the deed, partnership creditors of the firm of Johnson & Behr, and that neither of the partners owed to such creditors any part of the amounts for which they were so preferred, except in their partnership capacity. This agreement was construed on the former appeal, to be an admission,  [**9]  not only of the partnership character of the debts referred to, but also of their amounts as stated in the deed. But the agreement could only bind those who were parties to it, and therefore, such of the creditors as might thereafter come in under the decree not bound by the agreement, were left at liberty to question the validity and character of the claims of those who were bound, except in so far as the decree may be regarded as having established beyond question the existence and validity of the claims of the complainants in the cause.
The general rule upon the subject as to how far the decree in a creditors' suit will be taken as a final decision on the claim of the original complainants, is well stated by Chancellor BLAND, in the case of Welch vs. Stewart, 2 Bl., 38. It was there said by the Chancellor, "I take it to be a well settled rule of this Court, that on a creditors' bill, the decree for a sale in the usual general terms, virtually and necessarily establishes the claims of all the originally suing creditors, unless some of them should, by the decree itself, be specially excepted; since it is very clear, that no sale can be ordered, but to pay some one or more [**10]  debts which have been established to the satisfaction of the Chancellor. But such a decree only establishes the claim of the plaintiff as a debt due from the estate of the deceased debtor, without prejudice to third persons, and consequently, if any others, who may have been allowed to come in as parties to the suit, can shew fraud or any other circumstance by which it shall appear 

 [*352]  that the debt, as so far established, ought not to be permitted to stand in the way of their interests, it may be then shown and taken advantage of; because the introduction and reliance upon any such new and collateral matter, is not in any way incompatible with an admission of the stability of any of those points which had been previously adjudicated upon and determined by the decree." See. also, Strike's Case, 1 Bl., 68 & 69; Hammond vs. Hammond, 2 Bl., 359; Griffith & Keys vs. Reigart, 6 Gill 445.
It is not contended, or attempted to be shewn, that the claim of Solomon is founded in or tainted with fraud, or that any collateral circumstances exist, such as to render it inequitable, as against those coming in under the decree, that the claim should be [**11]  allowed. The decree therefore, not having excepted this particular claim, must be taken as having established it as a legal and valid one, not only against Johnson & Behr, but as against all their creditors coming in to take distribution of their assets; and though the decree is silent, as to the amount of the claim, and whether it be due from the grantors in the deed of assignment in their partnership character or otherwise, the facts of the case fully warrant the conclusion that the amount of the debt stated in the deed is correct, and that it was contracted as a partnership debt.
It is claimed, however, that the debt is not only thus established, but that it has acquired a right to priority in the distribution of the partnership assets, by reason of certain attachments which were laid in the hands of the assignee Cummiskey, before the deed of assignment was vacated; and, as a lien is claimed under the attachment proceedings, it becomes necessary to refer to those proceedings with some particularity.
There were two attachments; one by way of execution on a judgment against Behr, and the other on warrant 

 [*353]  against Johnson. Neither of which resulted in judgment of condemnation. [**12]  
On the 11th of March, 1867, Solomon sued Johnson & Behr, in an action of assumpsit, as joint contractors, declaring against them, as for goods sold and delivered; work done and materials provided; money lent; money paid for the defendants; money received by the defendants to the plaintiff's use; and money found to be due from the defendants to the plaintiff on accounts stated. There was no claim filed, and there was nothing disclosed on the face of the declaration, to show that the contract sued on was of a partnership character. It appears, that a few days before the institution of this suit, Behr, one of the defendants, executed a warrant of attorney, which authorized the attorney therein named to appear for him, and, by consent, to have the action docketed, and to confess judgment as against himself for $ 5657.69, with interest and costs; and, at the institution of the suit the warrant of attorney was filed, the appearance of Behr, by his attorney, entered, and judgment confessed as against Behr alone, no process appearing to have issued against Johnson. And on the 12th of March, 1867, the day after the confession of the judgment, an attachment by way of execution was issued thereon,  [**13]  commanding the sheriff "to attach any of the lands, tenements, goods, chattels and credits of the said William Behr," but containing no command or direction as to partnership property as such. This attachment was laid in the hands of Cummiskey on the 13th of March, 1867, and, upon the return thereof, the garnishee appeared and pleaded nulla bona on which issue was joined, and in that condition of the proceedings the case has been allowed to remain ever since.
Now, even during the existence of the partnership, there is no implied authority in one partner to voluntarily appear and confess judgment to bind his copartners; and 

 [*354]  where one partner does voluntarily appear to an action and confess judgment as against all the partners, without the consent of his copartners, the judgment thus confessed binds only the partner confessing; and, under an execution on such judgment, the confessing or acting partner's separate interest alone in the partnership property can be seized and sold. Green vs. Beals, 2 Caines 254; Crane vs. French, 1 Wend. 311; McBride vs. Hagan, Id., 335; Grazebrook vs. McCreedie, 9 Id., 437; Waring vs. Robinson, 1 Hoff. Ch. 524; [**14]  Pars. on Partn., 179, note. This being so, a fortiori, the act of the partner in appearing voluntarily and confessing the judgment against himself alone, after the dissolution of the partnership, and in no manner professing to bind his copartner, will not bind and be effective as a partnership act. The deed of assignment was made on the 29th of June, 1865, and from that time the partnership ceased to exist. By the terms of the deed, the partners, as between themselves, surrendered all power to bind the partnership assets, and divested themselves of all right and title thereto, in favor of their creditors. It was said by this Court in the case of Ellicott vs. Nichols, 7 Gill 85, 100, and again repeated in Hurst & Berry vs. Hill, 8 Md. 399, that "the doctrine is fundamental, that from the moment the partnership terminates the partners become distinct persons with respect to each other, and that, consequently, one partner can have no power to subject, by his acts or declarations, his former associate to new obligations, burdens, or responsibilities," and in 3 Kent's Com., 62, it is said that, after dissolution, the partners become [**15]  distinct persons, and tenants in common of the joint stock; that one partner cannot impose new obligations on the firm, or vary the form or character of those already existing. This principle does not, however, apply to an adverse proceeding against a partner, for the recovery of a judgment in invitum; and judgments may be recovered on partnership 

 [*355]  contracts against a single partner to bind the firm and its effects. Johnston vs. Mathews, 32 Md. 363; Inbusch vs. Farwell, 1 Black U.S. Rep., 566. It is clear, therefore, that the judgment confessed by Behr was binding upon him alone, and the attachment that issued thereon was directed only against his individual property.
But, if the position of the appellees were maintainable that the judgment and attachment could be executed against the partnership effects, still there has been no such proceeding on the attachment as to fix and secure a perfect lien on those effects. The attachment, while having some of the attributes of an execution, has, at the same time, especially as against the garnishee, many qualities of mesne process. It contains a scire facias clause, requiring the garnishee to [**16]  be notified to appear and show cause against condemnation. To the writ and return the garnishee may plead as to an action. It is only after final judgment of condemnation on the return that final process of execution can issue. The mere laying of the attachment, or the seizure of property under it, creates simply an inchoate lien, which can only be perfected and rendered effectual by judgment of condemnation. In the attachment proceeding under consideration, the garnishee appeared upon the return of the writ, and pleaded nulla bona. Upon that plea an issue has been formed, and, until it be tried and determined, and judgment of condemnation entered, which, as we have seen, have not been done, there is no such lien created as can be enforced by a Court of Equity. And, indeed, the Court below, as a Court of Equity, having assumed jurisdiction and control over the partnership assets for the benefit of all the creditors, and having ordered distribution to be made under its direction, no creditor, after such decree, was at liberty either to institute or to continue the prosecution of a pending suit at law, for the purpose of obtaining a priority over the other 

 [*356]  creditors in [**17]  the distribution of the fund; and any lien asserted as a consequence of a judgment thus obtained would be rejected and altogether disallowed by the Court of Equity as an unwarrantable interference with its jurisdiction. Ellicott vs. U.S. Ins. Co., 7 Gill 307, 319.
The attachment on the judgment against Behr, therefore, affords no ground whatever for the claim of priority in the distribution of the fund now under the control of the Court.
Nor does the attachment on warrant against Johnson, the other partner, furnish a better claim for such priority. That attachment was issued on the 11th of March, 1867, and laid in the hands of Cummiskey on the 13th of the same month; and upon the return of the writ, the garnishee appeared, and, on behalf of the defendant in the attachment, pleaded not indebted; and, for plea in his own behalf, pleaded nulla bona. These pleas have never been determined, and, of course, there has been no judgment of condemnation, and it follows, from what has already been said, in reference to the attachment on judgment against Behr, that no lien has been created that can be recognized and enforced by a Court of Equity.
The claim of priority,  [**18]  therefore, by reason of these attachments, instead of being allowed should have been rejected by the Court below; and as another audit may be required, the order appealed from will be reversed, and the cause remanded for further proceedings.
Order reversed and cause remanded. 

18 of 144 DOCUMENTS 

WILLIAM P. WEBB, and others, vs. JAMES L. RIDGELY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 364; 1873 Md. LEXIS 65 

July 2, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Order granting injunction affirmed, and case remanded for further proceedings.  

HEADNOTES:

Equity Pleading -- Injunction -- Construction of Act of 1868, ch. 471, (General Corporation Law,) in connection with a special Act of incorporation -- Repeal by implication.

Although a bill may pray for relief by way of injunction, yet if it does not pray for the process of injunction, the process will not be granted. But such prayer need not be included in the prayer for process of subpoena, if it is sufficiently set forth elsewhere in the bill.

Where a bill charged that transfers of stock of a corporation had been colorably made, for the purpose of fraudulently controlling an election, to certain persons, "as appears from a list of the stockholders furnished" by the President, one of the defendants, and praying an injunction against the voting of said stock, it was HELD:

1st. That injunction was the appropriate remedy.

2nd. That the list was in no way material to the granting of the injunction, and need not be filed as an exhibit to the bill.

The B. & L. Turnpike Co. was chartered by the Act of 1860, ch. 274. The 4th section of its charter provides that "at all elections, each stockholder shall be entitled to one vote for each share of stock held by him, not exceeding twenty votes in all." Section 53, of the Act of 1868, ch. 471, (General Corporation Law,) provides that "in all corporations in which there are stockholders, **** each stockholder shall be entitled to as many votes as he owns shares of stock." A question having arisen as to the effect of the latter section upon the 4th section of the charter, it was HELD:

That under the provisions of section 216 of the General Corporation Law, which subjects all corporations theretofore formed to its regulations, so far as the same be applicable, the two sections in question could stand together, and that the 4th section of the charter was binding upon the stockholders.

A law may be repealed by a subsequent law, without any express clause of repeal, where the two provisions are so repugnant that they cannot stand together.

"A full and adequate remedy at law," as a defence in Equity pleading, means such a remedy at law as ousts the jurisdiction of a Court of Equity -- a remedy in a Court of Law.  

COUNSEL:
Samuel Snowden, for the appellants.

In order to obtain a preliminary injunction to restrain the defendants' proceedings pending the suit, there should be a formal prayer for such process. Wood vs. Beadell, 3 Sim., 273; Walker vs. Devereaux, 4 Paige, 248; Union Bk. vs. Kerr, 2 Md. Ch. Dec., 467; Story Eq. Plead., sec. 44; Lewiston Falls Co. vs. Franklin Co., 54 Maine, 402, 404; Hilliard on Injunctions, 53.

The bill in this case contains in the prayer for relief a prayer for an injunction, but in the prayer for process it only asks for subpoenas, which, under the authorities cited is not sufficient, and the injunction should not have been granted.

To warrant a Court of Equity in issuing an injunction, strong prima facie evidence of the facts on which complainant's equity rests must be presented to the Court to induce its action; and if the complainant is in possession of such evidence, it must be filed with the bill or its absence satisfactorily accounted for. Union Bank vs. Poultney,  [**2]  8 G. & J., 332; Nusbaum vs. Stein, 12 Md., 318; Mahaney vs. Lazier, 16 Md., 69; Hankey vs. Abrahams, 28 Md., 588; Banks vs. Busey, 34 Md., 437.

The complainants in this case rely for their equity against the defendants upon a list furnished by William P. Webb, from which it appears, that the parties named are fraudulent transferrees. This list is, therefore, the very foundation of their case; for from it they obtain the knowledge that any transfers have been made, and to whom they were made. The fact alleged by them that fraudulent transfers have been made, is the very gist of their equity, upon which all the other allegations in their bill are founded, and it was, therefore, of the first importance that all the evidence of that fact in their possession should have been presented with the bill.

So much of section 4 of the Act of 1860, ch. 274, as provides, "that each stockholder shall be entitled to one vote for each share of stock held by him not exceeding twenty votes," is repealed by section 53 of the Act of 1868, chapter 471, which provides, "that in all corporations in which there are stockholders, all elections shall be by ballot, and each stockholder shall be entitled [**3]  to as many votes as he owns shares of stock in said corporation." As the last named law prescribes an entirely different rule from the Act of 1860, and is wholly inconsistent with and repugnant to that provision, it must be held to be a repeal of so much thereof as it is thus inconsistent with. Potter's Dwarris, 155; Johnson vs. Boyd, 1 Hemp., 434; Southport vs. Ogden, 23 Conn., 128; Daviess vs. Fairbain, 3 How., 636; U. S. vs. Tynen, 11 Wall., 92; Dash vs. Vankleeck, 7 Johns., 497; Balto. & Susquehanna R. R. vs. Woodruff, 4 Md., 242, (256); Great Cen. G. C. Co. vs. Clarke, 13 Com. Bench, (N. S.,) 838; Same Case, 11 Com. Bench, 814; Comrs. of Wash. Co. vs. Nesbitt, 6 Md., 468.

It is admitted, that Courts do not favor the repeal of laws by implication, and will only hold a law to be repealed by a subsequent law without any express clause of repeal, when the two provisions are so repugnant that they cannot stand together. No two provisions could be more repugnant than that quoted from the Act of 1860, and that from the Act of 1868. Livingston vs. Harris, 11 Wend., 334.

The complainant had a full and adequate remedy at law, and a Court of Equity had, therefore, no jurisdiction.  [**4]  1868, ch. 471, secs. 8, 9, 10 and 11.

The sections of the law above referred to, provide a mode by which the title of the electors to their stock may be investigated before they are allowed to participate in the election, and the form of the oath prescribed by section 9, covers precisely the ground upon which the complainants place their right to ask for an injunction in this case; it is made the duty of the judges of the election to administer that oath to every stockholder, and requires it to be annexed to every proxy. A Court of Equity could not, therefore, presume that the judges would act contrary to their duty, and supersede their authority altogether by undertaking before-hand to say what stockholders should vote.

Fielder C. Slingluff, for the appellees.

Although the appellants have filed their answers, and they appear in the record, they are not to be considered in this appeal, but the Court is confined to the case as made by the bill. Wagner & Marshall vs. Cohen, 6 Gill, 97; Guyton vs. Flack, 7 Md., 402; Haight & O'Connell vs. Burr, 19 Md., 133.

The appellees rely upon the equities disclosed by their bill, as proper grounds for the granting of the injunction.  [**5]  Campbell & Voss vs. Poultney, Ellicott & Co., 6 G. & J., 94.  

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

OPINIONBY:
BRENT 

OPINION:

 [*368]  BRENT, J., delivered the opinion of the Court.
The object of the bill in this case is to restrain by injunction William P. Webb and others from voting certain shares of stock, at the annual election of directors of the Baltimore and Liberty Turnpike Company, which it is charged were colorably and without consideration, transferred by said Webb to divers persons, who are named in the bill, with the fraudulent intent of evading the fourth section of the charter of the Company, (Act of 1860, ch. 274,) which provides that each stockholder shall be entitled to one vote for each share of stock held by him, not exceeding twenty votes in all.
The Court below passed an order granting the injunction as prayed, from which the appellants, after filing their answer, have taken the present appeal. The only question before this Court, as it was before the Court below is whether the bill presents sufficient grounds for the interposition of a Court of Equity by way of injunction.
The first objection to the bill is,  [**6]  that it contains no prayer for process by way of injunction. There is no doubt under the established rules of Equity pleading, that in order to obtain a preliminary injunction there must be a formal prayer for such process, for although a bill may pray for relief by way of injunction, yet if it does not pray for the process of injunction, the process will not be granted. 4 Paige 248; 2 Md. Ch. 460, 467; Story's Eq. Plea., sec. 44; Hilliard on Injunc., p. 53, sec. 126. But we do not think, upon an examination of the present bill, that it is liable to this objection. It is true that the injunction is not asked for in the prayer for process of subpoena; but in a clause of the bill immediately preceding and after the prayer "for relief 

 [*369]  by the writ of injunction," the following application is found set out: "Wherefore your orators pray that the writ of injunction may issue, prohibiting the said Abner Webb" and others specially named, "from voting the said stock, at the ensuing election to be held on the 10th inst., in person, and the said William P. Webb, the president of said Company, C. H. Gundersdorff, the secretary, and the [**7]  directors of said Company, their officers, agents or servants, from voting the said stock by virtue of any power of attorney to them from the above fraudulent transferrees, and prohibiting the judges of election from receiving any of said votes, which may be tendered in person or by virtue of any power of attorney which may be executed as aforesaid." We do not understand that the bill could contain a more formal prayer than this for process by way of injunction; and we can see no reason, and know of no authority why such a prayer should necessarily be included in the prayer for process of subpoena. If the prayer is sufficiently set forth in the bill, it is all that equity pleading requires, and it is unimportant whether it is made a separate prayer, as in the bill in this case, or is united with the ordinary prayer for subpoena.
The next objection to the order granting the injunction is, that the bill charges that certain persons named therein "are the fraudulent transferrees, so far as appears from a list of the stockholders furnished by the said Webb to your orators, and taken from the books of said Company," while the list is not produced and filed as an exhibit with the [**8]  bill. This list is in no way material to the granting of the injunction. In the case of Campbell & Voss vs. Poultney, Ellicott & Co., 6 G. & J. 94, the names of the fraudulent transferrees were not set out, yet the injunction as granted by the County Court was sustained. The foundation of the equity of the complainants in this bill is in the transfer colorably and without consideration of the 

 [*370]  stock of the Company, with the fraudulent intent of evading the charter of the Company, and of controlling thereby an election for directors. The parties named are only stated to be stockholders as appears by the list furnished, but it is not charged that the list furnishes any proof of the fraudulent transfer. If they are not stockholders, they are not injured by the injunction; and if they are stockholders, the fraudulent transfer of the stock to them is matter of proof upon the final hearing. The cases cited by the appellants are materially different from this. In each of them, the paper, which was not exhibited with the bill, went to the foundation of the application for an injunction. In the present case, the list is but a copy, from the books of the Company,  [**9]  of the names of certain alleged stockholders, and cannot be regarded as evidence proper to sustain any of the important averments of the bill. Had any allusion to it been altogether omitted, the bill would have been as perfect as it is in its present form. There could therefore have been no reason or necessity for filing it as an exhibit.
The Baltimore and Liberty Turnpike Company was chartered in 1860 by a special Act of the Legislature, (ch. 274,) and by the fourth section of its charter, as before stated, it is provided, that "at all elections, each stockholder shall be entitled to one vote for each share of stock held by him, not exceeding twenty votes in all." This section, which is the foundation of the present bill, it is now contended by the appellants, has been repealed by section 53 of the Act of 1868, ch. 471, known as the General Corporation Law, which provides, that "in all corporations, in which there are stockholders, all elections shall be by ballot, and each stockholder shall be entitled to as many votes as he owns shares of stock in said corporation." The power of the Legislature to modify the charter of this Company is not contested, but it is denied that this [**10]  has been done by the section last referred to. 

 [*371]  The authorities cited by the appellants fully sustained the position, of which there can now be no doubt, that the Courts will hold a law to be repealed by a subsequent law, without any express clause of repeal, where the two provisions are so repugnant that they cannot stand together. If, however, they can stand together, there is no repeal by implication. Upon referring to section 216 of the Act of 1868, we think it very clear that the 53rd section has no application to the 4th section of the charter of this Company. That section, (216 of Act of 1868,) provides, that "all corporations heretofore formed under the general laws of this State, relating to corporations, or under any special law, are hereby declared to be entitled to the benefit of and subject to all the regulations in this Article contained for the government of the corporation herein referred to, so far as the same be applicable to said several corporations heretofore formed as aforesaid." Under the provisions of this section, the doctrine of repugnancy cannot be applied to the case before us, for if the 53rd section is inapplicable to any corporation [**11]  formed before the Act of 1868, by the express terms of the section just quoted, its provisions are not to be regarded as having any reference to it. By this construction the two sections in question can stand together, and the 4th section of the charter of this Company must be held to be still in force and binding upon its stockholders.
The allegations in the bill in this case are similar to those in the case of Campbell & Voss vs. Poultney, Ellicott & Co., et al., 6 G. & J. 94. In that case, as in this, the bill charged that transfers of stock had been colorably made for the fraudulent purpose of increasing the number of votes in violation of the provisions of the charter of the Company, and asked for an injunction to restrain the fraudulent transferrees of the stock from voting at an election shortly thereafter to be held. The Court held, that the facts stated in the bill were "a violation of the 

 [*372]  principles and spirit of the charter, and if carried into effect would be a practical fraud upon the appellants, and in derogation of their chartered rights, for the protection of which an injunction was the appropriate remedy." In this view we concur; and [**12]  think the Court below properly granted the injunction in this case.
Another objection taken by the appellants will be disposed of in a few words. It is contended that sections 8, 9, 10 and 11 of the Act of 1868, give to the appellees a full and adequate remedy at law. These sections do not provide any remedy in a Court of law. They require certain things to be done in regard to the canvassing of votes at an approaching election, the administration of an oath to the elector by the judges of such election, and designate the form of the oath to be taken by a person voting stock owned by a corporation, and the mode of voting by proxy. Although these proceedings are under authority of law and are intended as safe-guards to promote a fair election, they do not constitute such a remedy at law as ousts the jurisdiction of a Court of Equity. "A full and adequate remedy at law" to accomplish this must be a remedy in a Court of Law.
Order granting injunction affirmed, and case remanded for further proceedings. 

19 of 144 DOCUMENTS 

CHARLES C. BROWNE vs. JOHN F. PRESTON and R. H. GOLDSBOROUGH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 373; 1873 Md. LEXIS 66 

July 2, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Jurisdiction of the Orphans' Court -- Construction of Code of Public General Laws, Art. 7, sec. 7, and Art. 93, sec. 5.

M. E. B., deceased, left a will devising her estate to L. One of her heirs, B., instituted proceedings to procure his appointment as administrator, and filed a caveat to the will. He entered into an agreement with P. & G., attorneys at law, that they should prosecute to determination the suit or suits to recover the estate of M. E. B. for her next of kin. By the agreement P. & G. were to receive for their services such remuneration as the Orphans' Court of Baltimore City should allow: B. was not to dispute the award of said Court; and, in case he was appointed administrator, he agreed to pay the fee allowed. B. was appointed administrator; and while P. & G. were prosecuting the caveat, he compromised with the caveatees. Thereupon, P. & G. petitioned the Orphans' Court to make an allowance for their services as provided in the agreement. HELD:

1st. That the Orphans' Court had no jurisdiction over the case presented by the petition.

2nd. That the claim of P. & G. for contingent fees under the agreement was not within Art. 93, sec. 5, of the Code, which provides that administrators are entitled to an allowance for costs and extraordinary expenses (not personal) which the Court may think proper to allow, laid out in the recovery or security of any part of the estate.

Art. 7, sec. 7, of the Code of Public General Laws, conferring on Orphans' Courts the power, with the consent of the parties, to arbitrate between a claimant and an administrator, refers only to claims against the estate of the decedent, which are asserted against the administrator in his fiduciary character, and does not apply to such as are contracted by him in his individual character, and which are only binding on him personally. 

COUNSEL:
Thomas H. Bevan and William S. Waters, for the appellants.

The Orphans' Court of Baltimore City has no jurisdiction of this case.

1st. The Orphans' Court has limited powers. None are implied. They are such as are expressly granted. Their jurisdiction must appear affirmatively. To raise a question of jurisdiction before them no plea is required. Lowe vs. Lowe, 6 Md., 347.

2nd. No jurisdiction arises in this case under Article 7, section 7, of the Code. The right to arbitrate grows out of the agreement of the parties to be entered upon the proceedings of the Court.

The parties to the agreement were not such as could submit a question to arbitration in the Orphans' Court, under Art. 7, sec. 7, of the Code. The appellant was not then administrator, and held no fiduciary relation to his sister's estate.

The subject-matter of the agreement is not such as could be subjected to arbitration under the Code. If the appellant had been administrator, and as such was contesting the will of his sister, and employed the appellees,  [**2]  this agreement could not bind the assets of his sister. No one but the deceased could make an agreement to bind the assets. It would be a personal debt of the appellant only, and the Orphans' Court might allow it, if paid by him by virtue of Article 9, section 35, of the Code. Austin vs. Munro, 47 N. Y., 361; Ferrin vs. Myrick, 41 N. Y., 315; Reynolds vs. Reynolds, 3 Wend., 244; Demott vs. Field, 7 Cow., 58; Compton vs. Barnes, 4 Gill, 56; Townshend vs. Brooke, 9 Gill, 91.

The claim of the appellees is not such a one as can be allowed by the Orphans' Court against the appellant, or against him as administrator c. t. a. of his sister. The Court cannot allow a claim for attorney's fees for objecting to a will against the administrator c. t. a., whose duty it is to sustain and execute the will. Code, Art. 93, secs. 34, 68, 69, 318; Hanna vs. Placide, 3 Md., 230; Georgetown College vs. Browne, 34 Md., 230; Compton vs. Barnes, 4 Gill, 56; Townshend vs. Brooke, 9 Gill, 91; Cain vs. Warford, 3 Md., 454; Winchester vs. Union Bk., 2 Gill & John., 79; Hunter vs. Bryson, 5 Gill & John., 483; Stevenson vs. Schriver, 9 Gill & John., 324; 1 Wms. on Exrs., 412; 2 Bl. Comm., 507; Bowling vs.  [**3]  Lamar's Admr., 1 Gill, 358; Offut & Clagett vs. Gott, 12 G. & J., 385.

3rd. If it were possible that the parties could by their contract give the Orphans' Court jurisdiction, then, by the terms of the contract itself, no contingency has arisen, which by any construction would give the Orphans' Court the power to determine what amount of fees was due under the contract.

If the Orphans' Court has no jurisdiction of the case, the order will be reversed and the petition dismissed. Stockton vs. Frey, 4 Gill, 406; Geiger vs. Green, 4 Gill, 473; Hall vs. State, 12 G. & J., 329; Bruce & Fisher vs. Cook, 6 G. & J., 345.

If the Court has jurisdiction, the issues ought to be awarded. There is no exception to the right in plenary proceedings. If we could imagine that the power and duties of the Orphans' Court could be created, taken away or modified by agreement, then by the terms of the agreement referring the matter to the Orphans' Court, it must be understoood that it is the Court as constituted by law, with the duty to send issues to a Court of Law in a plenary proceeding which is meant. Howard's Case, 1 Bland, 366.

John Stewart and S. Teackle Wallis, for the appellees.  [**4]  

The Orphans' Court had jurisdiction by virtue of the 6th and 7th sections of Article 7 of the Code of Public General Laws.

By the agreement filed in this cause, the question of fees was one for the Orphans' Court and for the Orphans' Court alone to determine, and the Orphans' Court would have had no right to order issues to be framed to be heard by another tribunal.

The application in this case is practically against the estate of Mary E. Browne for professional services rendered to the defendant, who is the administrator and sole distributor of said estate, and who agreed that in case of his acquiring the rights therein, which he now has, the fees of the petitioners should be paid out of the same as the Orphans' Court should direct, and without appeal. The proceeding is therefore in a matter within the Court's ordinary jurisdiction and submitted to the absolute determination of the Court without other recourse, so that the granting of issues would have been in violation of the agreement and a submission of the question to a tribunal other than that selected by the parties.

The counsel for the appellees commented on Hanna vs. Munn & Placide, 3 Md., 233.  

JUDGES:
The [**5]  cause was argued before BARTOL, C. J., BOWIE, BRENT, GRASON and MILLER, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*376]  BARTOL, C. J., delivered the opinion of the Court.
This is an appeal from an order of the Orphans' Court of Baltimore City, refusing to send certain issues of fact to a Court of Law for trial. In order to understand the nature of the case and the questions involved, it seems to be necessary to preface what we have to say with a brief statement of facts.
Mrs. Mary E. Browne, deceased, left a will devising her estate to the Rev. Thomas Lilly, and appointing him her sole executor; he died before the testatrix, leaving a will by which he devised all his property and estate to 

 [*377]  the President and Directors of Georgetown College, a corporation in the District of Columbia, and appointed them his executors; after his death his heirs at law and legal representatives conveyed to the College all their title and interest in his estate.
After the death of Mrs. Browne a contest arose in the Orphans' Court with respect to the right of administration on her estate; which was decided in this Court in Pres. &c. of G. Town College, et al. vs. Browne, 34 Md. 450. The [**6]  appellant C. C. Browne was her brother, and one of her heirs at law, and filed a caveat to her will, alleging for the reasons therein stated, that it was invalid and ought not to be admitted to probate. To maintain the caveat the appellant employed the appellees as his attorneys, and entered into an agreement with them with respect to the compensation they should receive for their services, which has given rise to the present controversy. The agreement is as follows:
"It is hereby agreed this 23rd day of February, 1871, between Charles C. Browne, of the first part, and John F. Preston and R. H. Goldsborough of the second part, that the said Preston and Goldsborough will further prosecute the suit or suits of Charles C. Browne vs. the President and Directors of Georgetown College, both at law and in equity, (the purpose of said suit being the recovering for the next of kin, the estate of the late Mary E. Browne, deceased,) to its or their final determination, without charge to the said Charles C. Browne, individually; unless the said estate is recovered, and if said estate or any part of said estate should be recovered, then the said Browne is to pay his proportion as heir [**7]  of said estate, of such fee as the Orphans' Court of Baltimore City shall allow. And it is hereby further agreed by the said parties of the first and second part, that the said Preston and Goldsborough shall receive for their professional services in said suit or suits, such remuneration 

 [*378]  from the estate of the said Mary E. Browne, as the said Court shall allow. And the said Charles C. Browne hereby agrees on his part, that he will not dispute the award of said Orphans' Court, and in the event of his being appointed administrator of said estate, that he will pay unto said Preston and Goldsborough, without delay, such sum for their said services as the Orphans' Court shall allow as aforesaid.
"(Signed)   R. H. GOLDSBOROUGH,
"JOHN F. PRESTON, "Attorneys."
Appended to the above is an agreement of Goldsborough with respect to his individual indebtedness to the appellant, not material to this case.
It appears that after the filing of the caveat to the will, issues thereon were sent by the Orphans' Court to a Court of Law for trial; and the appellees, acting as attorneys under the foregoing agreement, engaged in the trial on behalf of the caveator, but unsuccessfully;  [**8]  a verdict being rendered sustaining the will. The appellees reserved exceptions to the ruling of the Court at the trial; and took an appeal thereon to this Court. While the appeal was pending, a compromise was effected between the parties whereby the appeal was dismissed, the caveat abandoned; and for the sum of $ 15,000.00 the whole estate of Mrs. Browne devised by her will, was conveyed to the appellant. He had before that time been appointed administrator with the will annexed, in accordance with the decision of this Court in 34 Md. 450, (before referred to.)
The appellees not having received compensation for their professional services, rendered under the agreement; filed their petition in the Orphans' Court, against the appellant as administrator, c. t. a. of Mary E. Browne, praying the Court "to pass an order allowing them for 

 [*379]  their said services such fee as the Court may deem proper and right." To this petition the appellant answered, denying that anything was due the appellees under the agreement, and alleging that the Orphans' Court has no jurisdiction in the premises.
The Court proceeded to hear the case and after considerable testimony [**9]  had been taken, the appellant filed a petition praying that issues might be made up and sent to a Court of law for trial; this application was resisted by the appellees, and the Court passed an order refusing the same; from this order the present appeal was taken.
The case has been very fully and ably argued, and several interesting questions discussed; but we are all of opinion that the case is not one, which the Orphans' Court has the power to hear and determine, we shall confine our decision to the single question of jurisdiction.
It is contended on the part of the appellees that the jurisdiction is conferred on the Orphans' Court by Art. 7, sec. 7, of the Code, which is in these words:
"The several Orphans' Courts of this State shall have power, with the consent of both parties, to be entered on their proceedings, to arbitrate between a claimant and an executor or administrator, or between an executor and a person against whom he has a claim, or the dispute may by the parties be referred to any person or persons approved by the Orphans' Court."
It is very clear to us that this section refers only to claims against the estate of a decedent, which are asserted against the executor [**10]  or administrator, in his fiduciary character, and does not apply to such as are contracted by the executor or administrator in his individual character, and which are only binding on him personally.
The section is codified from the Act of 1798, ch. 101, s. c. 8 and 12, constitutes a part of our testamentary system, and is found in the original Act in connection with rules respecting accounts of executors and administrators, 

 [*380]  and the provisions regulating the powers of the Orphans' Court in the administration of estates.
The claim of the appellees arising under their agreement with the appellant, set out in their petition is not one which existed against the testatrix in her life-time, nor is it in any sense a claim against her estate, or against the appellant as administrator, c. t. a.
At the time it was entered into, the appellant was not administrator, it was made by him in his individual capacity, as heir-at-law, and next of kin of the deceased; with respect to a matter in which he was personally concerned; for the promotion of his own interests and not for the benefit of the estate; it is therefore not such a claim as is contemplated by this section of the Code,  [**11]  which the Orphans' Court has power to pass upon, or which may be submitted to their arbitrament; but being a claim against the appellant personally, must be asserted in another form. Even if the agreement had been made by the appellant after he became administrator, he could not have bound the estate; and the Orphans' Court would have no power to allow out of the assets, any claim due the appellees under the agreement; for the reason before stated, that it creates only a personal liability, of the appellant, and would not be such an allowance as is authorized by Art 93, sec. 5, of the Code. Under that section the executor or administrator is entitled to an "allowance for costs, and extraordinary expenses, (not personal,) which the Court may think proper to allow, laid out in the recovery or security of any part of the estate."
****It is obvious that the claim of the appellees for contingent fees, under the agreement before us, is not within the section last quoted.
The Orphans' Court is a tribunal of limited jurisdiction having no general or implied powers, but restricted by the law, to the exercise of powers expressly delegated.

 [*381]  We find no provision [**12]  of law, conferring upon them the jurisdiction claimed by the appellees.
This proceeding cannot, of course, be maintained upon the theory that this is an agreement of reference to the arbitration of the Orphans' Court, not in the exercise of its ordinary jurisdiction as a Court, under the Code; but as arbitrators selected by the parties. The agreement will not bear that construction, but if it could be so construed; then it was in the power of either party to revoke the submission, and the powers of the arbitrators are at an end.
It follows from what we have said that the application of the appellant to have issues framed was properly refused; the order appealed from will therefore be affirmed; but being of opinion that the Court is without jurisdiction in the case, it will be remanded to the end that the petition of the appellees may be dismissed; but without prejudice to the assertion of their claim by proceeding in a proper forum.
Order affirmed, and cause remanded. 

20 of 144 DOCUMENTS 

THE PLANTERS' MUTUAL INSURANCE COMPANY OF WASHINGTON COUNTY vs. THOMAS DEFORD, et al., trading as DEFORD & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 382; 1873 Md. LEXIS 67 

July 2, 1873, Decided 

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

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

At the trial of the cause in the Court below the plaintiffs offered the following prayers, which the Court, (PEARRE, J.,) granted:

1. If the jury shall find from the evidence that the plaintiffs, before the 17th day of July, 1871, furnished to the defendant the preliminary proof of loss by fire of the 30th of June, 1871, offered in evidence, and that the defendant retained said proof of loss, and made to the plaintiffs no objection to the same on the ground of any formal defect therein, and that said defendant did not, previous to the 17th day of October, 1871, make to the plaintiffs any denial of the defendant's liability for any loss on the policy offered in evidence, and that the letters of the plaintiffs and of Geo. W. Pole, dated between the first day of July and the last of October, 1871, and read in evidence, passed between said plaintiffs and the said Pole, as agent of the defendant; and if they shall further find, that the defendant sent an agent or agents to the Bottle Run Tannery, on or about the 16th day of August, 1871, to examine and ascertain [**2]  the amount of the plaintiffs' loss by said fire, then the defendant cannot now object to any formal defect in said preliminary proof under the conditions annexed to the said policy.

2. If the jury shall believe from the evidence, that before the 2nd of May, 1871, Thomas Deford, one of the plaintiffs, and the Union Fire Insurance Company of Baltimore, contracted for an insurance in said Company of $ 2,500 on stock of hides and leather in process of tanning, and $ 2,500 on the building at Bottle Run Tannery, and that by mistake the clerk of said Company filled up the policy offered in evidence for an insurance of $ 5,000 on the stock alone, and that subsequently, on the 3rd of June, 1871, the memorandum of that date, signed by Otis Spear, secretary of said Company, was written on the face of said policy in order to rectify the same, and for the purpose of expressing the real contract made as aforesaid before the 2nd day of May, 1871, then the insurance in said policy of $ 2500 on the building must be considered as made previous to the insurance made by the defendant in the policy of May 6th, 1871, on which the present action is brought.

3. If the jury shall believe from the [**3]  evidence that the paper signed by Shields, Topper and Smouse was honestly believed by the plaintiffs, when the same was made out and sent to the defendant, to contain a correct statement of the amount of property covered by the insurance, and at the place of and damaged by the fire, and a fair and bona fide estimate of the loss thereon occasioned by the fire, so far as such loss could be ascertained by them at the time, then the fact (if the jury shall find such fact from the evidence) that the number of hides actually at the Bottle Run Tannery, at the time of the fire, was less than that contained in the statement of said paper, cannot defeat the plaintiffs' right to recover for the actual loss sustained by them.

The defendant offered the following prayers, which the Court rejected, except the first, fourth, fifth and tenth, which were conceded by the plaintiffs, and the third, which was granted with a modification:

1. If the jury shall find from the evidence in the cause the sending by the defendant to George W. Pole, the treasurer of the defendant, of the letter of July 15th, 1871, and the paper signed and sworn to by Smouse, Topper and Shields, and that the plaintiffs [**4]  knowingly stated in the said paper a greater quantity of hides or sides as being at the tannery when the fire occurred than had actually been received there, and that the said paper was not honestly believed by the plaintiffs at the time the same was made out and when sent to the said Pole, to contain a correct statement of the amount of the hides or sides covered by the insurance and at the place of, and lost or damaged by the fire, and a fair and bona fide estimate of the loss thereon occasioned by such fire, so far as such loss could be ascertained by them at the time, then the plaintiffs are not entitled to recover, even if the jury should believe that in fact the loss of the plaintiffs exceeded the insurance.

2. If the jury shall find from the evidence that the plaintiffs furnished George W. Pole, the treasurer of the defendant, the paper in the handwriting of the plaintiff, Thomas Deford, in which occur the words following: "Hides and leather stock in tannery, 56,500.00 dollars, belonging to Deford & Co.," such words refer to the stock of hides and leather, and if they find that the plaintiffs knowingly stated in said paper a greater quantity of hides and leather as being [**5]  on hand at the tannery at the time of the fire than was actually there at the time, and that said statement was not honestly believed by the plaintiffs or the said Thomas Deford when the same was made out and sent to said Pole, to contain a correct statement of the stock of hides and leather in the tannery at that time, then their verdict should be for the defendant, even although they should think that the plaintiffs have sustained loss to the amount of the insurance.

3. If the jury shall find the sending by the plaintiffs to George W. Pole, treasurer of the defendant, of the paper signed by Smouse, Topper and Shields, and that by said paper a greater quantity of hides or sides was stated to be at the tannery at the time of the fire than was then actually there; and shall further find that the plaintiffs believed the said statement to be correct at the time the same was sent, but that they afterwards and before the writing of the letter from them to said Pole, dated 30th September, 1871, discovered the incorrectness of such statement, and that they did not correct the same, then the plaintiffs cannot recover. (Modified by the Court as follows:)

"Provided the plaintiffs did [**6]  not make such correction of the number of hides or sides, knowing the number of the hides or sides therein stated, and knowing the same to be incorrectly stated therein with intent to defraud the defendant."

4. If the jury find that there has been any fraud or intentional false swearing by the plaintiffs, or any of them, with respect to their claims against the defendant, then the verdict should be for the defendant.

5. That the law imposed upon the plaintiffs the obligation to take care of the damaged stock after the fire, and they could not have surrendered the said stock to the defendant.

6. If the jury shall find that the application offered in evidence was written by George W. Pole, the treasurer of the defendant, and was, on the 24th of April, 1871, sent by him to the plaintiffs, at Baltimore, to be examined and executed by the plaintiffs, and that the same was so signed by the plaintiffs, at Baltimore, and returned by mail to said Pole, at Hagerstown, on or about the 2nd day of May, 1871, and that the policy offered in evidence was thereupon issued to the plaintiffs; and shall further find that there was not an insurance of four thousand dollars on the interest [**7]  of Deford & Co., the plaintiffs, in the tannery building, and an insurance of at least five hundred dollars upon their interest in the bark mentioned in said policy, then the plaintiffs cannot recover, and an insurance of the interest of the trustees of Jones is not such an insurance as can be considered.

7. That the proofs of loss furnished by the plaintiffs to the defendant are insufficient, and there is no sufficient evidence of any waiver by the defendant of the requirements of the policy with regard to said proofs.

8. If the jury shall find that Topper and Shields were laborers at the plaintiffs' tannery, and that Smouse was a farmer or mechanic, residing in the neighborhood of the tannery, and not an agent of the plaintiffs, and that the defendant had no notice or knowledge that the said Topper, Shields or Smouse were not agents of the plaintiffs, then the defendant cannot be regarded as having waived the defects in the proofs of loss, arising out of the fact that the said proofs are not signed by the plaintiffs or some agent of the plaintiffs, and the plaintiffs cannot recover.

9. If the jury shall find from the evidence in the cause the facts set forth in the [**8]  preceding prayer of the defendant, and shall further find the issuing to the plaintiffs by the Union Insurance Co. of Baltimore of the policy offered in evidence, and the making of the endorsement on the same, at and under date of the third day of June, 1871, at the instance of the plaintiffs, then their verdict should be for the defendant.

10. If the jury shall find from the evidence in the cause that the plaintiffs furnished to George W. Pole, the treasurer of the defendant, on or about the 15th of July, 1871, as part of the proofs of loss, the paper in the handwriting of the plaintiff, Thomas Deford, on which occurs the words following: "Hides and leather, stock in tannery, 56,500 dollars, belonging to Deford & Co.," and that the plaintiffs knowingly stated in the said paper a greater amount of stock as being on hand at the tannery, at the time of the fire, than was then actually there, and that said statement was not honestly believed by the plaintiffs or the said Deford to be correct, then their verdict must be for the defendant, although they should think that the loss of the plaintiffs on building and stock exceeded the insurance on the same.

The defendant offered [**9]  an eleventh prayer which was rejected by the Court, but it does not appear in the record. The defendant excepted to the granting of the plaintiffs' prayers, to the rejection of its second, sixth, seventh, eight, ninth and eleventh prayers, and to the modification of its third prayer. A verdict for $ 5346.66 2/3 was rendered for the plaintiffs, and judgment was entered accordingly. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence: Parol testimony admissible to prove a Collateral fact; and to determine the subject-matter of a Contract -- Insurance: Waiver of defects in Preliminary proofs -- Errors in, and failure to correct, Preliminary proofs, where not fraudulent, do not Forfeit policy -- Effect of breach of Warranty in a Policy, where attributable to Agent of assurer -- Prayers: Not to assume one of two possible interpretations of a written instrument.

On the 6th of May, 1871, the P. Mut. Ins. Co. issued to D. & Co. a policy of insurance on a tannery, and stock of hides, &c. The policy provided that any subsequent insurance of the property by D. & Co. would render it null and void. The property having been burned on 30th June, 1871, suit was brought on the policy. At the trial, a policy for $ 5000, issued May 2nd, 1871, by the M. F. Ins. Co. to D. & Co. on stock of hides and leather, was offered in evidence. On it was endorsed "1871, June 3. After this date this policy covers $ 2500 on stock and $ 2500 on building." The plaintiffs offered to prove that the policy was, by a mistake of the Clerk of the M. F. Ins. Co. filled up for $ 5000 on stock, instead of $ 2500 on stock and $ 2500 on the building as applied for; and that the error was not discovered until 3rd June, when the Company made the endorsement. HELD:

That the effect of the evidence offered was not to contradict or vary the terms of the policy upon which the suit was brought, but to prove a collateral fact, and that it was therefore admissible.

The By-Laws of an Insurance Company provided in case of loss by fire, that the insured should give notice thereof in thirty days, and should deliver a particular account thereof to the secretary, verified by affidavit of the insured or his agent. In this case the loss occurred June 30th, 1871. The proof of loss was made out, verified by the affidavit of three disinterested persons, and furnished the Company on the 15th July following. A correspondence in regard to the adjustment of the loss, was carried on between the insured and the Company from July 15th to October 24th. Nothing was said in this correspondence in regard to the defect in the preliminary proofs, the Company placing its refusal to pay on the grounds of subsequent insurance and over-estimate of loss. HELD:

That the Company waived its right to object to the proofs as defective.

On loss of a tannery by fire, preliminary proofs were furnished to the Insurance Company, in which there was the following statement of value, "Stock in tannery, hides and leather, $ 56,500." HELD:

That the statement being susceptible of two interpretations, a prayer, which assumes that it referred exclusively to hides and leather, and not to other stock properly belonging to the tannery, was properly rejected.

On the loss of a tannery by fire, sworn preliminary proofs were furnished to the Insurance Company, in which the number of hides destroyed and injured was stated to be 388 1/2 more than, on testimony, were found to be in the tannery. The By-Laws of the Company provided that the policy should be forfeited by fraud or false swearing. HELD:

That if the statement was a mistake, and the insured failed to make a correction of the error without intention to defraud, he did not by such failure forfeit the policy.

D. & Co. applied to the P. Mut. Ins. Co. for a policy of insurance on a tannery. In their written application they stated, "We propose an insurance of $ 3000 on the aforesaid property, in addition to $ 4000 on the same in City Companies. ... We propose an insurance of $ 1000 on bark in addition to $ 500 now on same." On suit on the policy, it appeared that there was at the time of the application no insurance on the interest of D. & Co, but that there was an insurance of $ 3000 on the property in the names of D. & A., as Trustees, who had a lien on it for unpaid purchase money, and one for $ 500 in their own names on the bark. HELD:

That parol testimony was admissible to determine whether the interest of D. & Co., or that of D. & A. was the subject-matter referred to in the application, as insured.

Semble. Whenever a breach of warranty or representation by a person insured can fairly be attributed to the fault of the agent of the Insurance Company, parol testimony is admissible to show the fault of the agent, and the Company will not be allowed to set up such breach as a defence to an action on the policy.  

COUNSEL:
H. Kyd Douglas and Wm. A. Fisher, for the appellant.

The evidence offered under the second and third exceptions should have been excluded. The effect of the evidence was to vary by parol a written contract between the plaintiffs and the Union Insurance Company. If a suit had been brought at law by the plaintiffs against the Union Insurance Company, such evidence would have been inadmissible, and it should be more so in a suit against the appellant, which had the right to a full disclosure as to all insurances enforcible at law. The second prayer of the plaintiffs presents the same proposition as that involved in the admission of the evidence. Henderson vs. Mayhew, 2 Gill, 409; Alderson vs. Ames & Day, 6 Md., 52; Anderson vs. Tydings, 8 Md., 440.

The [**10]  second prayer of the appellant presents a proposition which is unobjectionable. The Court is to construe the meaning intended by the parties to be given to the paper mentioned in the prayer, and it is clear that it was the stock of hides and leather which was stated to amount to $ 56,500. The bona fides of such statement should have been submitted to the jury.

Although a statement, untrue in fact, may have been innocently made, it cannot be innocently reiterated after the mistake has been discovered. The modification of the appellant's third prayer by the Court was unnecessary and only tended to confuse and bewilder the jury. Neptune Ins. Co. vs. Robinson, 11 G. & J., 256; Campbell vs. Charter Oak Ins. Co., 10 Allen, 213, 218-9; Kerr on Fraud, 24, 74.

The sixth prayer asserts that as the application stated that there was an insurance of $ 4000 on the interest of Deford & Co. in the building, and $ 500 on bark, at the time the application was made, and as no such insurance existed, the policy was void. The application is referred to and made part of the policy, and has the operation of a warranty. Kennedy vs. St. Lawrence Co. Mutual Ins. Co., 10 Barb., 285; Flanders on Insurance,  [**11]  secs. 210-11; Burritt vs. Saratoga Ins. Co., 5 Hill, 188; Gahagan vs. Union Ins. Co., 43 N. H., 176; Egan vs. Ins. Co., 5 Denio, 326; Philbrooke vs. New England Ins. Co., 37 Me., 137; Jennings vs. Chenango Ins. Co., 2 Denio, 76.

It must therefore be literally complied with. Augusta Ins. Co. vs. Abbott, 12 Md., 348.

In order to escape from the operation of these principles the plaintiffs rely upon the evidence of B. F. Deford that in April, ten days prior to the time when the plaintiffs signed, sealed and forwarded the application, he explained to Mr. Pole that the insurance alluded to was on the interest of the trustees of Jones, and claim that the appellant is estopped from relying upon the breach of warranty. Such course, if sanctioned, would strike a fatal blow at the security of all writings, and is contrary to the rulings of the Courts in Maryland, and to the best considered cases elsewhere. Wilson vs. Boyce, 32 Md., 122; National Ins. Co. vs. Crane, 16 Md., 260; Phillips Ins., secs. 66 and 116; Weston vs. Emes, 1 Taunton, 115; Flinn vs. Tobin, 1 Moody & Malk., 367; Higginson vs. Dall, 13 Mass., 96; Whitney vs. Haven, 13 Mass., 172; Wiggin vs. Boardman, 14 Mass., 12;  [**12]  Atherton vs. Brown, 14 Mass., 152; Vandervoort vs. Smith, 2 Caines, 154; Cheriot vs. Barker, 2 Johns., 347; Jennings vs. Chenango Ins. Co., 2 Denio, 76; Tibbets vs. Hannibal Ins. Co., 3 Allen, 569; Graves vs. The Boston M. I. Co., 2 Cranch, 442-4; Alston vs. Mechanics' Mut. Ins. Co., 4 Hill, 340-1; Angell on Ins., secs. 20 to 23; Bliss on Life Ins., secs. 80 and 81; Draper vs. Charter Oak Co., 2 Allen, 569; Plumb vs. Cataraugus Co., 18 N. Y., on which all the other cases of the appellees are based, was decided by a bare majority, the three best Judges dissenting. See also their opinion, delivered by J. STRONG, in the case of Brown vs. Cataraugus Co., 18 N. Y., 389.

The danger of the application of estoppel is more apparent as no Court of Equity could, on the conflicting evidence in the record, reform the contract so as to make the application allude to insurance on the trustee's interest. 2 Cranch, 442-4; Nat. Fire Ins. Co. vs. Crane, 16 Md., 270.

The misrepresentation and breach of warranty as to part, avoids the policy with regard to all its subjects. Assum vs. Insurance Co., 5 Md., 165.

There was no sufficient evidence of waiver of the defects in the preliminary proof.  [**13]  The condition required an affidavit by the assured or their agent, and it was not disclosed until the trial that neither Tupper, Shields nor Smouse was an agent.

There can be no waiver in the absence of knowledge of the defect. Reynolds vs. Mut. Ins. Co., 34 Md., 289.

Thomas Donaldson and S. Teackle Wallis, for the appellees.

The second and third exceptions were to the admission of the proof on the part of Thomas Deford, and Otis Spear, Secretary of the Union Insurance Company, that the contract for insurance between the appellees and that Company, made before May 2nd, 1871, was for $ 2500 on stock, and $ 2500 on the buildings; but that by a mistake of that Company's clerk, the policy was originally made out for the whole $ 5000 on the stock; and that on the 3rd of June, 1871, when the Defords discovered the mistake, the endorsement on the face of the policy of that date was made by the Secretary of that Company for the purpose of correcting the mistake, and expressing what was the original contract of insurance made before 2nd of May, 1871.

This evidence was rightly admitted, and the rule that parol testimony cannot be received to contradict or vary the terms of [**14]  a written contract, applies only in suits between the parties to the instrument. Where the enquiry is collateral to the main question, such testimony is always admissible. 2 Taylor on Evidence, secs. 1053, &c.; Natl. Fire Ins. Co. vs. Crane, 16 Md., 260.

The fourth exception is to the Court's rulings on the prayers:

It does not admit of doubt that the facts proved and set forth in the plaintiffs' first prayer clearly establish the waiver. Citizens' Fire Ins. Co. vs. Doll, 35 Md., 89; Franklin Fire Ins. Co. vs. Chicago Ice Co., 36 Md., 119, 132; Flanders on Fire Insurance, 543-4.

The defendant's second prayer, which was rejected, differs from the defendant's tenth prayer, which was conceded, by asking the Court to instruct the jury, that the words following, used in a written statement sent by the Defords, together with the preliminary proof: "Hides and leather, stock in tannery, $ 56,500, belonging to Deford & Co.," referred to the stock of hides and leather. If the word "stock" did not clearly include the bark and other property for the use of the tannery, it was a technical term to explain which testimony was admissible, and the decision of its meaning was within the [**15]  province of the jury. Indeed, as the construction of this paper depends upon collateral facts in the case, it might on that ground alone be properly left to the jury. 1 Taylor on Ev., secs. 36, 37; 1 Greenl. Ev., sec. 279; Grove, Trustee, &c. vs. Rentch, 26 Md., 378; Brown vs. McGran, 14 Pet., 493-4.

The defendant's third prayer, before it was modified by the Court, assumes that the preliminary statement was believed by the plaintiffs to be correct at the time it was sent, but asks the instruction, that if the plaintiffs, before writing the letter of September 30th, 1871, discovered the error in said statement in regard to the number of hides at the tannery at the time of the fire, and did not then correct it, that the plaintiffs could not recover.

The Court, in the modified prayer, certainly gave fully as much as the defendant had a right to ask, when requiring, that to defeat the action there should have been a fraudulent intent on the part of the plaintiffs in not making the correction. It is only by "fraud and false swearing" that the claimant forfeits all claim by virtue of the policy.

The defendant's eighth prayer, which was rejected, is to the effect that the [**16]  defendant cannot be regarded as having waived the defects in the proof of loss, if Topper, Shields and Smouse, were not agents of the plaintiffs, and if the defendant had no notice or knowledge that they were not such agents.

The preliminary proof must show on its face a compliance with the seventh condition attached to the policy, otherwise there would be a formal defect. "The particular account of the loss must be signed with the hand of the assured or by their guardian or agent," and the terms of the statement in this case, and the circumstances under which it was sent, could leave no doubt on the mind of the defendant that the proof was technically defective.

The defendant's sixth prayer assumes that the statement in the application of Deford & Co., that they proposed an insurance of $ 3000 on the building "in addition to the $ 4000 on same in City Companies," was a warranty incorporated in the policy, and that the insurance of the trustees for $ 4000 on the same building, cannot be considered, although B. F. Deford testified that he brought it to the knowledge of Pole at the time when the agreement for insurance was made.

This prayer was rightly rejected:

1.  [**17]  The application was drawn up by Pole, the Company's own officer and agent, and is to be construed most strongly against the Company. If he was informed by the Defords that the $ 4000 on the building, and the $ 500 on the bark, were on account of the trustees, and he wrote in the application that they were for the Defords, the Company cannot take advantage of it. Plumb vs. Cataraugus Ins. Co., 18 N. Y., 392; Rowley vs. Empire Ins. Co., 36 N. Y., 550; North American F. I. Co. vs. Throop, 22 Mich., 146; Miner vs. Phoenix Ins. Co., 27 Wisc., 693; Reaper Ins. Co. vs. Jones--Ins. Law Journal, June, 1872, p. 759; Miller vs. Mutual Benefit Life Ins. Co.--Ins. Law J., Sept. 1871, p. 28; Union Mutual Ins. Co. vs. Wilkinson, 13 Wallace, 222; 2 Am. Leading Cases, 916; McBride, et al. vs. Republic Fire Ins. Co., 2 Ins. Law Journal, (April, 1873,) 272, 273.

2. The statement that there were already $ 4000 insured on the same building was strictly true, and the proof that it was insurance on account of the trustees, does not contradict, vary or add to, but only explains the terms of the application.

3. The application did not become part of the policy. The language of the policy should rather [**18]  be construed to make the description of the property, as contained in the application, a part of the policy. French vs. Chenango Mut. Ins. Co., 7 Hill, (N. Y.,) 122; Phoenix Ins. Co. vs. Slaughter, 12 Wall., 404; Flanders on Insurance, 211, 225, 226.

And if this is the proper construction, the statement was only a representation, and the question of a substantial compliance depends on the materiality of the representation, which is a question for the jury. That it was not material in this case is very clear. Frank. Fire Ins. Co. vs. Coates & Glenn, 14 Md., 285.

4. Even if the meaning of the policy is that the application was made part of it, it does not follow that all its statements are warranties.

Policies of insurance are to be construed like other contracts, and all parts of the instrument are to be considered to ascertain the intention. The endorsement on the policy, in regard to prior insurances, is inconsistent with the view that the statement in the application is a warranty; it makes that statement immaterial. Angell on Ins., sec. 143; Md. Fire Ins. Co. vs. Whiteford, 31 Md., 225; U. S. Ins. Co. vs. Kimberly, 34 Md., 231-2; Wash. Fire Ins. Co. vs. Kelly, 32 [**19]  Md., 421.

The written part of the policy has greater effect than the printed parts. 2 Tayl. Ev., sec. 1033, and cases in note.

5. The agreement, made between B. F. Deford and Pole, at the end of April, was that there should be an endorsement on the policy, by which "all other insurances should be permitted without notice," and, under the authorities already cited, the defendants were estopped from making any objection in regard to other insurance, whether prior or subsequent. In this view, the ruling of the Court in regard to the change of the policy of the Union Ins. Co. becomes immaterial. Rathbone vs. City Ins. Co., 31 Conn., 193; 2 Am. Leading Cases, 905, 906.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*395]  ROBINSON, J., delivered the opinion of the Court.
This action was brought on a policy issued by the appellant on the 6th of May, 1871, insuring the property of the appellees, known as the Bottle Run Tannery, against loss by fire, to the amount of eight thousand dollars, distributed as follows:

________________________________________________________________________________

"On tannery with additions	$ 3000 	
 Hides and leather tanned, and in process	
   of tanning	2000 	
 Bark in sheds	3000"	
________________________________________________________________________________

 [**20]  
On the 30th of June, 1871, the tannery building was entirely destroyed by fire, and the stock of hides in part destroyed and in part injured. The loss on the building was estimated at twelve thousand dollars, and on the stock of hides and leather, $ 18,507.05, thus making the entire loss $ 30,507.55.

 [*396]  The building was insured in different companies, including a policy of $ 4000 in favor of Deford & Appold, trustees, to the amount of $ 10,500, and the stock of hides and leather $ 18,500, making altogether $ 29,000.
The policy of the defendant, provided that any subsequent insurance of the property by the appellees, should render it null and void.
At the trial, a policy of $ 5000 on the stock of hides and leather issued by the Union Fire Insurance Company of Baltimore, on the 2nd of May, 1871, was offered in evidence, upon which was the following endorsement:
"1871, June 3rd, after this date, this policy covers $ 2500 on stock, and $ 2500 on building."
This endorsement by which $ 2500 of the $ 5000 was transferred to the tannery building, being subsequent to the date of the defendant's policy, the plaintiffs offered to prove by Thomas Deford, a member of their firm,  [**21]  and also by Otis Spear, agent and actuary of the Union Fire Insurance Company, that he, Deford, just before the issuing of the policy applied to the Union Insurance Company for a policy of $ 2500 on the building and $ 2500 on the stock of hides and leather, but by a mistake of the clerk of said Company, the policy was filled up for $ 5000 on stock, that this error was not discovered by the plaintiffs until about the 3rd of June, following, when upon their application the Company made the endorsement of June 3rd, as it now appears on the face of the policy, in order to correct the mistake thus made, and for the purpose of making the policy conform to the original contract of insurance made on the 2nd of May, the day it was issued.
This evidence is objected to on the ground, that the effect of it is to contradict or vary the terms of the policy issued by the Union Insurance Company on the 2nd of May, 1871. Although a policy of insurance may be reformed in a Court of Equity, where, by a mistake it does not express the contract between the parties, it is very clear 

 [*397]  that in an action at law, upon the policy between the parties thereto, parol evidence is inadmissible [**22]  to contradict or vary the terms of the same. But the evidence offered here does not contradict or vary the policy upon which this suit is brought, but is offered to prove an independent and collateral fact, namely, that the plaintiffs had not insured the property subsequent to the issuing of the defendant's policy. The latter denied its liability on the ground of a subsequent insurance, to prove which it relied on an endorsement made upon the policy of another Company. On the other hand, the plaintiffs offered to prove not only by themselves, but also, by the agent of the Union Fire Insurance Company, being the two parties to the contract, that the endorsement thus relied on by the defendant was made for the purpose of correcting a mistake of the clerk in filling up the policy, and that the original contract of insurance was as it now appears by said endorsement; under such circumstances, we take the law to be, that where the writing itself does not constitute the cause of action or contract between the parties, but is offered in evidence to prove a distinct collateral fact; parol evidence is admissible in respect of such fact, although it may contradict or be inconsistent [**23]  with the written evidence.
There may be exceptions to this rule, in cases of deeds and mortgages, or other instruments which are required by law to be recorded in order that the public may have notice of their contents, and in regard to which the parties thereto, in a suit with strangers, will not be permitted to contradict the same by parol evidence. Such are the cases relied on by the appellant. In Henderson vs. Mayhew, 2 Gill 393, an action was brought to recover for supplies furnished a master of the ship, and it was held that the grantees of an absolute bill of sale could not prove by parol evidence, that it was intended as a mortgage, and that by mistake it was drawn as an absolute bill of sale. The Court say:

 [*398]  "The appellants, after obtaining an absolute deed, and authorizing the community to regard them as owners of the vessel, cannot now, for their own benefit, be permitted to allege that their bill of sale is a mortgage."
The effect of the evidence here offered not being to contradict or vary the terms of the policy upon which the suit was brought, but to prove a collateral fact, we are of opinion that it was admissible.
II. The by-laws [**24]  of the defendant provide in case of loss by fire, the insured shall give notice of the same within thirty days, and, shall deliver to the Secretary a particular account of such loss, verified by affidavit of the insured, or his agent, &c. The proof of loss was made out and verified by three disinterested persons, an employe of the plaintiffs, and two farmers living in the neighborhood, and is objected to on the ground, that it is not verified by the plaintiffs or their agent. Preliminary proofs are furnished for the benefit solely of the insurer, and if they are defective in any respect, good faith and fair dealing require that the insured should be notified of such defect within a reasonable time, in order that he may correct the same. If, however, instead of doing this, the Company puts its refusal to pay upon other distinct and independent grounds, it will be considered as having waived objections to such defects, and will not be permitted to rely upon the same as a defence to an action on the policy.
The preliminary proof here, was furnished on the 15th of July, and in the correspondence extending from that time to October 24th, in regard to an adjustment of the loss, not a word [**25]  is said about any defect in the proof; on the contrary, the refusal to pay, was placed upon other distinct and independent grounds, namely a subsequent insurance of the property, and over-estimate of the loss. Conceding then that the proof furnished in this case was defective, we are of opinion that the defendant has waived the right to object to it on that ground.

 [*399]  III. Appended to the proof of loss was a statement by the plaintiffs of the several insurances on the property, and also the following statement in regard to the value of the property:

________________________________________________________________________________

Machinery	$ 1000	
Stock in tannery, hides and leather.	$ 56,500	
________________________________________________________________________________

The defendant's second prayer assumes that his statement refers exclusively to the hides and leather, and if the plaintiffs knowingly misrepresented the value of same, they are not entitled to recover, although the jury should find the loss equal to the amount of the insurance. On the other hand the plaintiffs contended, that the sum of $ 56,500, was intended to represent the value not only of the hides and leather, but also bark and other stock properly belonging to the tannery, and that this interpretation [**26]  is warranted not only by the language used, but also by the circumstances under which the statement was made. The interpretation of a written instrument belongs no doubt as a general rule to the Court, and where parties have expressed their intention in clear and definite terms, the paper must be construed according to the true meaning of the words used. The question here is what did the plaintiffs mean by this statement:
"Stock in tannery, hides and leather $ 56,500" appended to the proof of loss? Did they mean to value the hides and leather at $ 56,500? or did they include in addition thereto, bark and other stock in the tannery at the time of the fire? Now if the language used be liable to the construction assumed in the defendant's prayer, no one will question, but what it is equally susceptible of the meaning placed upon it by the plaintiffs. Here then is a paper which upon its face is liable to more than one interpretation, and the prayer was therefore properly rejected. The question as to whether parol evidence was admissible to show what the plaintiffs meant, becomes unnecessary to decide.

 [*400]  IV. It appears the whole number of hides sent from Baltimore to [**27]  Cumberland for the tannery was 3964, of which 180 had been returned, and 625 had not reached the tannery, but were at Cumberland at the time of the fire. The actual number of hides at the tannery was therefore 3159, or what is equivalent 6318 sides, thus showing an error in the preliminary proof of 388 1/2 hides. At the time of the valuation, the hides and sides were classified in lots, and the damages to each lot valued separately. No addition was made at the time by the appraisers, nor subsequently by the plaintiffs, and the error was not discovered when the preliminary proof was furnished. The defendant in its third prayer assumes that if the proof of loss stated a greater number of hides to be at the tannery at the time of the fire than was actually there, that the plaintiffs believed such statement to be true, but afterwards, and before writing the letter of September 30th, discovered the error and did correct the same, they are not entitled to recover. Now the letter of September 30th, was written in reply to one received from the defendant, in which the latter placed its refusal to pay upon two grounds. 1st. subsequent insurance, and 2nd, over-estimate of loss. Not one word [**28]  about an error of 388 1/2 hides, or that any such error had been discovered; on the contrary, the whole evidence shows that the defendant's refusal to pay was based upon other grounds. And yet if the plaintiffs inadvertently failed to correct this error in their letter of September 30, in which they denied a subsequent insurance, and averred their ability to prove the loss, they are not entitled to recover, and this too in the absence of fraud or bad faith on their part, and without the slightest pretence that the failure to correct said error, worked any injury to the defendant. The modification of the prayer by the Court,
"Provided the plaintiffs did not make such correction of the number of hides or sides, knowing the number of 

 [*401]  the hides or sides therein stated, and knowing the same to be incorrectly stated therein, with intent to defraud the defendant," presented the law as favorably for the defendant as it had any right to expect. It was by fraud and false swearing that the plaintiffs forfeited the policy under the provisions of the by-laws, and not by inadvertently failing to correct an error which could not, and did not work any injury to the defendant.
V.  [**29]  In their written application, the plaintiffs stated, "we propose an insurance of $ 3000 on the aforesaid property in addition to the $ 4000 on same in City Companies * * *." "We propose an insurance of $ 1000 on bark in addition to the $ 500 now on same."
It appears there was an insurance at the time of $ 4000 on the property in the name of Deford & Appold, trustees, who had a lien on the same for unpaid purchase money, and also an insurance in their names of $ 500 on the bark, but there was no insurance of the plaintiffs' interest, either on the building or bark.
The defendant's sixth prayer assumes, that the application by the terms of the policy became a warranty, and is to be construed as a representation by the plaintiffs that there was an insurance on their interest of $ 4000, and if the jury should find there was no insurance of their interest, the verdict must be for the defendant; and further that the insurance of the interest of Deford & Appold, trustees, was not such an interest as could be considered.
On the other hand the application having been prepared by the agent of the defendant, evidence was offered to prove that he was informed at the time that [**30]  the insurance of $ 4000 was on the interest of the trustees, and the plaintiffs contend that if the paper does not state the facts truly, it was the fault of the agent, and the defendant is estopped from setting up the same as a representation by the plaintiffs--they also deny that it is made a warranty 

 [*402]  by the terms of the policy, and if a warranty that it is liable to the interpretation put upon it by the defendant; they further contend, that evidence in regard to the insurance of the interest of the trustees was admissible and was to be considered, in determining whether the application referred to such insurance, or to an insurance of the plaintiffs' interest.
Whether the application in this case is to be construed as a warranty; or whether parol evidence is admissible to prove that the agent was informed at the time as to the nature and character of the insurance of $ 4000, and that the defendant is thereby estopped from relying on such a defence, are questions not necessary to be decided. Whatever conflict there may be in the decisions in regard to the latter question, it has been held in many well considered cases that such evidence is admissible, [**31]  and whenever the breach of warranty or representation can be fairly attributed to the fault of the agent of the Company, the latter will not be allowed to set up such breach as a defence to an action on the policy. Union Mutual Ins. Co. vs. Wilkinson, 13 Wall. 222; 2 Am. Leading Cases 916, 20 L. Ed. 617; Hough vs. City Fire Ins. Co., 29 Conn. 10; North American Fire Ins. Co. vs. Throop, 22 Mich. 146.
But conceding for the purposes of this case that such evidence is not admissible, and further that the application is to be construed as a warranty, questions we are not to be understood as deciding, the prayer of the defendant was properly refused on other grounds. No principle is better settled, than that policies of insurance, like all other contracts, are to be construed with a view to ascertain and give effect to the intention of the parties. This intention it is true, is to be ascertained from the face of the policy itself, provided the language used is clear and unambiguous, and in such cases it is the duty of the Court to ascertain the true meaning of the words used, and when ascertained [**32]  to subject them to the established rules of law. 

 [*403]  Where, however, the language used is not clear and unambiguous, but is susceptible of two or more interpretations, extrinsic evidence is admissible upon the same principles and subject to the same rules, that are applicable to all other written contracts. And it may, and does sometimes happen, that upon the evidence thus offered, taken in connection with the language used in the contract, Courts give to the instrument an interpretation different from that which it would have received from the face of the paper itself. In such cases the extrinsic evidence is not offered, nor is the effect of it, to contradict the written terms of the contract, but to explain the meaning of the parties thereto, by pointing out and connecting it with the subject-matter to which it refers.
The question here is, what did the plaintiffs mean by saying to the defendant, we want an insurance by you of $ 3000, in addition to the $ 4000 on the property now in City Companies? Is it to be interpreted as a declaration by them that there was such an insurance on their interest, and looking to the paper itself, does such an interpretation exclude [**33]  all others; or are the terms used consistent with the meaning put upon it by the plaintiffs, namely, as a statement by them of the amount of insurance on the property at the time, without intending to designate the interest insured? Now it must be conceded, they do not state in so many words it is their interest that is insured to the amount of $ 4000, and if the language used is liable to such an interpretation, it is also equally susceptible of the meaning put upon it by the plaintiffs. The application does state in explicit terms that there is an insurance of $ 4000 on the property, but it does not state in clear and unambiguous language whether the insurance is on the interest of the plaintiffs, or of parties having liens on the property. Under such circumstances, it was clearly competent for the plaintiffs to prove that there was an insurance of $ 4000 on the building and $ 500 on 

 [*404]  the bark in the name of the trustees, at the time the application was made, and such evidence was to be considered in determining whether it was the insurance meant by the plaintiffs in their application. Such evidence does not contradict, nor is it inconsistent with [**34]  the written terms of the application,--the effect of it is to point out and identify the subject-matter referred to and thus enable the Court and the jury to ascertain the true meaning of the parties.
From what we have said it follows, the plaintiffs' prayers were properly granted, and that no error was committed in the modification of the defendant's third, and in the refusal of its sixth, seventh, eighth, ninth and tenth prayers.
Judgment affirmed. 

21 of 144 DOCUMENTS 

THE FREDERICK COUNTY MUTUAL FIRE INSURANCE COMPANY vs. THOMAS DEFORD, et al., trading as DEFORD & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 404; 1873 Md. LEXIS 68 

July 2, 1873, Decided 

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

This was a suit brought by the appellees against the appellant on a policy of insurance issued by the latter on the Bottle Run Tannery, in Allegany County, Maryland. The plaintiffs offered the following prayer, which the Court, (MILLER, J.,) granted:

That if the jury shall find from the evidence, that the plaintiffs, before the 17th day of July, 1871, furnished to the defendant the preliminary proof of the loss by fire of the 30th of June, 1871, offered in evidence, and that the defendant retained said proof of loss, and made to the plaintiffs no objection to the same, on the ground of any formal defect therein, and that the said defendant did not, until after the 17th day of October, 1871, make to the plaintiffs any denial of the defendant's liability for any loss on the policy of insurance offered in evidence, but merely contested the amount of the plaintiffs' claim, and refused to pay on the ground that said amount was beyond what defendant considered to be the actual loss; and if they shall further find, that between the said 30th of June, 1871, and the 17th of October, 1871, negotiations in regard to the amount of loss,  [**2]  and to ascertain the same were carried on between the said defendant and plaintiffs, and that a committee of the defendant's board of directors went to the Bottle Run Tannery on the 16th of August, 1871, to examine and ascertain the amount of the plaintiffs' loss by said fire, then the defendant cannot now object to any formal defect in said preliminary proof under their by-laws.

The defendant offered eight prayers, the first, second and third of which the Court granted, with a modification, the others, as follows, it rejected:

4. If the jury shall find the receipt by the plaintiffs of the letter of Mr. Pole, offered in evidence, and that it enclosed the application offered in evidence and signed; and shall further find that the said application was signed by the plaintiffs and returned to the defendant, and the policy offered in evidence was thereupon issued to the plaintiffs; and shall further find that there was, at the time said application was sent, less than seven thousand dollars of other insurance on the building or the interest of the plaintiffs therein, then the plaintiffs cannot recover, and the insurance in the name of Appold & Deford, trustees, offered in evidence,  [**3]  is not such an insurance as can be considered.

5. If the jury shall find the receipt by the plaintiffs of the letter of Pole, offered in evidence, and with it the application offered in evidence; and shall further find that the application was then signed by the plaintiffs and sent to the defendant, and that the policy offered in evidence was then issued, and that before the time of the receipt by the defendant of the said application, and at the time said policy was executed, the policy of the Union Insurance Company, offered in evidence, on stock, had been obtained by the plaintiffs, then the plaintiffs cannot recover in this action.

6. That the proofs of loss furnished by the plaintiffs to the defendant are insufficient, and that there is no sufficient evidence of any waiver by the defendant of the requirements of the contract and by-laws, with regard to the said proofs.

7. If the jury find that the plaintiffs signed the application offered in evidence, and forwarded it to the defendant, and that the same was received by defendant, and is the same application referred to in the policy; and if they shall further find, that on the 2nd day of May, 1871, the Union Insurance [**4]  Company issued to the plaintiffs the policy in that Company offered in evidence, the plaintiffs are not entitled to recover.

8. That if the jury shall find that none of the parties who made the affidavit attached to the proofs of loss, offered in evidence, was an agent or attorney of the plaintiffs, and that during the time referred to in the prayers of the plaintiffs, the defendant had no knowledge or notice that no one of said affiants was in fact an agent or attorney of the plaintiffs, then the defendant cannot be regarded as having waived the defects in the proofs of loss arising out of the fact that the affidavit to the same was not made by an agent or attorney of the plaintiffs, and the plaintiffs cannot recover in this suit.

Mr. Pole, mentioned in the fourth and fifth of the foregoing prayers, was the agent of the appellant referred to in the opinion of the Court, where a statement of the case will be found.

The defendant excepted to the rejection of its prayers, and to the granting of the prayer of the plaintiffs. A verdict was rendered for the plaintiffs for $ 5305.83, and judgment was entered accordingly. The defendant thereupon appealed.  

DISPOSITION:
Judgment affirmed.  [**5]  

HEADNOTES:

Construction of a Policy of Insurance -- Admissibility of evidence -- Waiver of Preliminary proof of loss.

D. & Co. applied to the F. Co. Mut. Fire Ins. Co. for a policy of insurance. The application, dated May 2nd, 1871, proposed an insurance of $ 1000 on a tannery "in addition to $ 7000.00 on the same now in other offices:" also "an insurance of $ 4000 on leather and hides tanned and in process of tanning, in addition to $ ----- on same in other companies." On the 6th of May the Ins. Co. issued the policy. In it was written, "other insurances permitted without notice, but all other provisions of the by-laws retained." At the time of the application there was an insurance on the tannery of $ 4000, in the name of D. & A., trustees of J., who had a lien on it for unpaid purchase money; and D. & Co. had signed an application to the P. Mut. Ins. Co. for an insurance of $ 3000, and had delivered it to the agent of that Company, who was the agent of the F. Co. Mut. Fire Ins. Co. also, at the same time that the application to the latter Company was delivered to him. HELD:

1st. That the clause written in the policy permitting insurance without notice is applicable to prior as well as subsequent insurances.

2nd. That evidence in regard to the insurance by the trustees was admissible, to determine the question whether D. & Co. meant to represent the insurances of $ 7000 as on their interest, or as a statement of the insurances generally on the property.

An Insurance Company, which has received defective preliminary proofs of loss by fire, and which has not notified the insured of the defect in a reasonable time, or made objection to the proof of loss, and which placed its denial of liability under the policy upon other distinct and independent grounds, thereby waives its right to object to the proof as defective.  

COUNSEL:
Wm. A. Fisher, for the appellant.

The first exception is to the granting of the plaintiffs' first prayer.

That prayer relates to the effect of the supposed waiver by the defendant of the defects in the proofs of loss.

The prayer assumes that the insurance company is estopped by its acts from objecting to formal defects in the proofs of loss which the plaintiffs were bound to furnish under the 15th by-law. We suppose it is true, that it is the duty of an insurance company, if it intends to object to defects in the proofs of loss, to call for further and better proofs as soon as the defective proofs are furnished, and that the authorities treat its failure to notify the insured of such defects in his proofs as a waiver of objection.

But this waiver cannot be extended to embrace substantial defects in the proofs not known to the company when the proofs were furnished.

In this case it is proved by one of the plaintiffs that he procured the affidavits of Smouse, Shields and Topper to the proofs of loss, and that none of them were agents of the plaintiffs.

It was also proved, that this fact was not known to the defendant until it was proved at the trial.  [**6]  

It will be observed that although Boblitz, who was an agent of the plaintiffs, signed the proofs of loss, he did not swear to them, nor did B. F. Deford, although he was present when the affidavits were made.

There was not merely a neglect to comply with the 15th by-law, but a deliberate violation without any apparent reason, unless the agent and the principal were unwilling to swear to the statement, and preferred to put that responsibility upon others. Reynolds vs. Mutual Fire Ins. Co., 34 Md., 289; Flanders on Fire Ins., 430.

It appears by the terms of the policy, that the application was referred to and made part of the policy.

The application therefore became a part of the policy, and the effect of the reference is a warranty on the part of the insured of the facts stated in the application. Flanders on Fire Ins., 210, 211; French vs. Chenango Ins. Co., 7 Hill, 122; Williams vs. N. E. Mut. Fire Ins. Co., 31 Maine, 219; Abbot vs. Shawmut F. Ins. Co., 3 Allen, 213; Angell on Ins., secs. 140, 141, 142 & 143 and note; Egan vs. Ins. Co., 5 Denio, 326.

At the time the policy was signed, the plaintiffs had no other insurance on the building, nor was there any [**7]  insurance on it to the amount stated in the application of $ 7000. There was a policy of $ 4000 on the building held by Appold & Deford, trustees of Jones & Son, to cover their interest.

There was at the time the defendant's policy was issued, and at the date of the application, a policy of $ 5000 in the Union Fire Insurance Company of Baltimore, dated May 2nd, 1871, but running from May 1st 1871.

The application does not state this insurance. The warranty was thus broken, and consequently the policy was void. Flanders on Ins., 205 & 92; State Mu. Ins. Co. vs. Authur, 6 Casey, 315; Carpenter vs. Am. F. Ins. Co., 1 Story, 57; 5 Moore & Paine, 208.

In a mutual company, the officers cannot waive the by-laws or act otherwise than in conformity with them. Baxter vs. Chelsea Mutual Insurance Co., 1 Allen, 294; Mulrey vs. Shawmut Mu. Fire Ins. Co., 4 Allen, 116; Hale vs. Mechanics Mu. Fire Ins. Co., 6 Gray, 169; Brewer vs. Chelsea Mu. Fire Ins. Co., 14 Gray, 203; Priest vs. Citizens Mu. Ins. Co., 3 Allen, 602.

Thomas Donaldson, for the appellees.

The preliminary proof was not defective. It was signed, as is apparent upon its face, by an agent of the company, was verified [**8]  by affidavit, and was sent to the defendant within thirty days after the fire occurred. If there were any defect in the preliminary proof, the facts proved, and set forth in the plaintiffs' prayer, clearly establish a waiver of the requirements of the policy. Citizens' Fire Ins. Co. vs. Doll, 35 Md., 89; Franklin Fire Ins. Co. vs. Chicago Ice Co., 36 Md., 102; Flanders on Fire Ins., 543-4.

The defendant's fourth prayer assumes that the statement in the application of Deford & Co., that they proposed an insurance of $ 1000 on the tannery, "in addition to the $ 7000 on same in other offices," was a warranty incorporated in the policy, and insists that the insurance of the trustees of $ 4000 on the same building, cannot be considered as part of said $ 7000.

This prayer was rightly rejected:

1. The application was drawn up by Pole, the company's own agent, and is to be construed most strongly against the company. As there was $ 4000 of insurance on the same building in the name of the trustees, and as Pole, who was Treasurer of the Planters' Mutual Company, had agreed for $ 3000 of insurance on that building in the last named company, the statement in the application was [**9]  strictly true; and the proof in regard to these items does not contradict, vary, or add to, but only explains the terms of the application. Plumb vs. Cataraugus Ins. Co., 18 N. Y., 392; Rowley vs. Empire Ins. Co., 36 N. Y., 550; North Amn. F. I. Co. vs. Throop, 22 Mich., 146; Mince vs. Phoenix Ins. Co., 27 Wisc., 693; Reaper Ins. Co. vs. Jones, Ins. Law J., June, 1872, p. 759; Miller vs. Mut. Ben. Life Ins. Co., Ins. L. J., Sept. 1871, p. 28; Union Mut. Ins. Co. vs. Wilkinson, 13 Wall., 222; 2 Am. Lead. Cases, 916; 2 Ins. L. J., 86.

2. The application did not become part of the policy. The language of the policy should rather be construed to make the description of the property, as contained in the application, a part of the policy. French vs. Chenango Mut. Ins. Co., 7 Hill, (N. Y.,) 122; Phoenix Ins. Co. vs. Slaughter, 12 Wall., 404.

And if this is the proper construction, the statement was only a representation. The question of a substantial compliance depends upon the materiality of the representation, which is a question for the jury. That it is not material in this case is very clear.

3. Even if the meaning of the policy is that the application was made part of [**10]  it, it does not follow that all its statements are warranties.

Policies of insurance are to be construed like other contracts, and all parts of the instrument are to be considered, to ascertain the intention. The provision in the written part of the policy--"All other insurances permitted without notice,"--conclusively shows that the statement referred to was not meant to be a warranty. Flanders on Ins., 43; Kimball vs. Howard Ins. Co., 8 Gray, 33; Blake vs. Exchange Mut. Ins. Co., 12 Gray, 265; Fillebrook vs. N. E. Mut. Ins. Co., 37 Maine, 137; Angell on Ins., sec. 143; Md. Fire Ins. Co. vs. Whiteford, 31 Md., 225; U. S. Ins. Co. vs. Kimberly, 34 Md., 231-2; Furley vs. N. A. Fire Ins. Co., 25 Ward., 374; Washn. Ins. Co. vs. Kelly, 32 Md., 421.

The written part of the policy has greater effect than the printed parts. Coster vs. The Phoenix Ins. Co., 2 Wash. C. C. Rep., 51; 1 Greenl. on Ev., sec. 278; 2 Taylor's Ev., sec. 1033; Kimball vs. Howard Ins. Co., 8 Gray, 36.

The defendant's fifth prayer assumes, that the statement in the plaintiffs' application, that they proposed "an insurance of $ 4000 on leather and hides tanned and in process of tanning, in addition to $  [**11]  ----- now on same in other Companies," was a warranty incorporated in the policy, to the effect that there would be no insurance in other Companies, on the stock, at the time when the said application might reach the defendant; and charges as a breach of the warranty the insurance on stock made with the Union Company, on the day of the date of said application.

The defendant's seventh prayer charges that the obtaining an insurance on the stock in the Union Company, on the same day as that on which the application was dated, avoided the policy in this case.

The statement of "$ ----- now on same in other Companies," does not necessarily import that there was no insurance on stock in other companies, but is more properly to be construed as meaning, in this case, that the amount is immaterial, under the agreement made between the parties, allowing "other insurance without notice." 

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

OPINIONBY:
ROBINSON 

OPINION:

 [*412]  ROBINSON, J., delivered the opinion of the Court.
The plaintiffs, in their application, dated May 2nd, 1871, state:
"We propose an insurance in your company on the following described [**12]  property, *** to wit: one thousand dollars on Bottle Run Tannery, in addition to the seven thousand dollars on same now in other offices," *** also "an insurance of $ 4000 on leather and hides tanned and in process of tanning, in addition to $ ----- (dollars) on same in other companies."
On the 6th of May following, the defendant issued the policy on which this suit was brought, and in the printed body of the same was the following written clause:
"Other insurances permitted without notice, but all other provisions of by-laws retained."
It was proved at the trial, that on the 2nd May, 1871, a policy of $ 5000 on the stock of leather and hides tanned and in process of tanning, was issued by the Union Fire Insurance Company of Baltimore. The defendant's fifth prayer assumes that the application by the terms of the policy became incorporated into and formed a part of the 

 [*413]  same, and is to be construed as a warranty of the truth of the facts therein stated as of the day when the policy attached, and if the jury should find that prior to the acceptance of the defendant's policy the plaintiffs had insured the stock in the Union Company, they are not entitled to recover. [**13]  Apart from the question as to whether the application is to be construed as a warranty, the prayer is based upon the general rule that the insured, by his warranty, contracts that whatever may be the state of the facts when the application is made, they shall be as warranted on the day when the policy is accepted.
Now, conceding for the purposes of this case, that the application is to be construed as a warranty, a question we are not to be understood as deciding; and further, that it attached to the policy as of the day when it was accepted by the plaintiffs, we are of opinion that it does not come within the principle of the rule thus relied on.
The application, it will be admitted, was not a warranty when it was signed and delivered to the defendant, and if it became so afterwards it was by the terms of the policy which the plaintiffs accepted. When it was, however, accepted, there was a written clause in the body of the same, providing, that "other insurances permitted without notice."
Ordinarily the insurer requires notice of other insurances, both prior and subsequent--prior, in order that he may determine whether the insured has any such substantial interest [**14]  in the property as will guarantee on his part vigilance and care in the preservation of the same, and subsequent, in order to prevent an over-insurance after the policy is issued. This is a condition, however, which the insurer may waive, and whenever a clause is inserted in the body of the policy, in these words, "other insurances permitted without notice," we take the rule to be, that the language thus used, is to be construed as applicable to prior as well as subsequent insurances. The 

 [*414]  words are general and must be understood as having a general application, unless there is some other clause, showing the parties intended them to be understood in a restricted sense. If the intention be to include only prior or subsequent insurances, then these words ought to be used, in order that it may clearly appear to which of the two reference is made.
When the policy of the defendant was accepted and the application of the plaintiffs became thereby a warranty, there was an express provision waiving all notice of either prior or subsequent insurances. What was the necessity, then, of notifying the defendant of an insurance subsequent to the application, but [**15]  prior to the issuing of the policy? Whatever may have been the duty of the plaintiffs, apart from the terms of such a clause, it cannot be held that such notice was necessary in the face of a waiver so direct and explicit. Then, again, we cannot overlook the fact, that this clause was inserted in writing in the printed body of the policy, thus showing that whatever might have been the requirements of the by-laws in regard to notice of other insurances, it was the purpose of the defendant to waive such requirements, in so far as they affected the plaintiffs; and as a protection against over-insurance to rely upon the by-law, which provided that the policy should be null and void, if the plaintiffs insured the property above three-fourths of its value. The defendant may have looked upon this provision as affording ample security against over-insurance, and it was therefore unnecessary to require notice of the same.
The seventh prayer was also properly refused, not only for the reasons above stated, but also because although the policy of the Union Fire Insurance Company was issued on the 2nd May, it does not follow that it was issued prior in point of time to the application [**16]  signed by the plaintiffs on the same day. It may have been issued at 

 [*415]  a subsequent hour, and the representation of a blank insurance strictly true.
In regard to the proof of loss, conceding it to be defective, we think the plaintiffs have waived the right to object to it on any such grounds. It was signed by Henry Boblitz, the general agent of the plaintiffs, and if it was not verified by his oath, such defect was apparent on the face of the paper, and it was the duty of the defendant to have notified the plaintiffs of such defect within a reasonable time, in order that they might correct the same. No objection, however, was made to the proof of loss, on this ground, but the record shows that the denial of liability under the policy was placed upon other distinct and independent grounds.
The plaintiffs in their application stated, that they proposed an insurance of one thousand dollars in addition to the seven thousand dollars already on the building in other Companies. It appears there was an insurance at that time of $ 4000 on the building in the name of Deford & Appold, trustees of Jones, who had a lien upon the same for unpaid purchase money, and that [**17]  the plaintiffs had signed an application to the Planters' Mutual Insurance Company of Washington County, for an insurance of $ 3000 and had delivered the application to the agent of the Company who was also the agent of the defendant,--the insurance of the trustees and the proposed insurance thus making seven thousand dollars. The nature and character of the insurance of the trustees was known by the agent, or at least there was evidence offered to show that he was duly informed in regard thereto, and the application to the Washington County Insurance Company was of course known to him, having been made through him, and it also appears that the application was written by him and signed by the plaintiffs. The defendant's fourth prayer, asked the Court to instruct the jury, if they should find that there was at the time said application 

 [*416]  was sent, less than seven thousand dollars of other insurances on the building or the interest of the plaintiffs, they were not entitled to recover, and that the insurance of Deford & Appold, trustees, offered in evidence is not such an insurance as could be considered. In other words, that the statement of seven thousand dollars [**18]  insurances is to be considered as a warranty that there was insurances on the plaintiffs' interest to that amount, and not as a statement of the amount of insurances generally on the property--and further that in ascertaining what the plaintiffs meant, evidence in regard to the insurance of the trustees of Jones, was not to be considered. We are of opinion that evidence in regard to the insurance by the trustees, was admissible, and that in determining the question as to whether the plaintiffs meant to represent the insurances of seven thousand dollars as on their interest, or as a statement of the insurances generally on the property, in order that the defendant might judge whether the value of the same was fully covered by policies already issued, this evidence was to be considered by the jury. The grounds on which this evidence was admissible are stated at length under the defendant's sixth prayer in The Planters' Mutual Insurance Company of Washington County vs. Deford & Co., ante, 387, and it is unnecessary to repeat them here.
For these reasons we think the defendant's fourth, fifth, sixth, seventh and eighth prayers were properly refused, and the judgment below [**19]  will be affirmed.
Judgment affirmed. 

22 of 144 DOCUMENTS 

RICHARD H. WOOLLEN, Trustee, vs. WILLIAM F. FRICK and JAMES C. GOLDER, Exc'rs of HENRY WATSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 428; 1873 Md. LEXIS 70 

July 2, 1873, Decided 

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

The bill of complaint in this case filed by the appellant on the 9th of June, 1871, alleged that Rachel Watson, the mother of Henry Watson the appellees' testator, died in December, 1834, having made her last will and testament, whereby she constituted Zachariah Woollen, the father of the complainant, her executor and trustee, to execute certain trusts created by the will, and provided for the payment of certain annuities; that before he had settled his accounts as such executor, he died, and Nathaniel Williams was appointed administrator de bonis non, and afterwards by a decree of the Court of Chancery, Henry Watson, the appellees' testator, was appointed trustee in the place of Zachariah Woollen; that Henry Watson gave bond as such trustee, and received from Nathaniel Williams, administrator as aforesaid, all the residue of the personal estate of Rachel Watson, being of considerable value; that Henry Watson continued to act as trustee until his death, which occurred about sixty days before the filing of the bill; that while Henry Watson was so acting as trustee, a farm in Cecil County, of which the said Rachel Watson had been seized,  [**2]  was sold, and the proceeds of sale were received by Henry Watson, as such trustee; and that the complainant had been appointed as trustee in place of Henry Watson, deceased, and had duly qualified as such trustee; that letters testamentary on the estate of Henry Watson had been committed to the appellees, the executors named in his will, and that the complainant had called upon them to settle the trust account, and deliver to him the money and other personal property which were held by Henry Watson as trustee; but that the appellees declined to do so, because, by his last will and testament, Henry Watson undertook to dispose of some part of the trust estate absolutely as his own property, and the appellees asserted his right so to do.

The bill then charged that Henry Watson had but a life estate in the rents and profits of the trust estate, and that his said pretensions were without any legal warrant whatever. The bill prayed for an accounting as to the trust estate, and that the appellees might be required to deliver up to the appellant all moneys and other property received by Watson as such trustee.

The will of Rachel Watson, a copy of which was filed with the bill, will [**3]  be found sufficiently set out in the opinion of the Court.

The answer of the appellees, admitted all the material facts alleged by the bill, but asserted that Henry Watson had the absolute right to dispose of the estate, as he did by his will; it further stated that Henry Watson expended certain sums in improvements upon the real estate, and claimed allowance therefor.

The papers in the cause were referred to a special auditor, who made a report, in which he stated that he had not charged the estate of Henry Watson with the proceeds of the realty, or credited it with expenditures on the improvements, because he was of the opinion that the limitation over to Zachariah Woollen of the real estate was void for remoteness, and that Henry Watson had title thereto in fee simple, either as devisee or sole heir at law of Rachel Watson. The auditor stated an account in accordance with the views taken in his report.

A further account was stated, which allowed to the complainant as trustee, the proceeds of the realty, and to the defendants the expenditures for improvements. The defendants excepted to the former allowance, and the complainant to the latter.

It was admitted that [**4]  all the annuitants mentioned in Rachel Watson's will, except Caroline Price, died in the life-time of Henry Watson, and that he died unmarried and without issue.

An agreement was made for the payment and delivery to the appellant of the undisputed portion of the personalty, with a reservation of an amount sufficient to meet the allowances for improvements, if the Court should recognize the same.

The Court (PINKNEY, J.,) ruled that Henry Watson took under the will of his mother, Rachel Watson, an estate tail by implication, converted into a fee by the statute, and the limitation over to Zachariah Woollen was void for remoteness, and decreed that the executors of Henry Watson, were not entitled to a credit for expenditures for improvements, and were not accountable to the complainant for the proceeds of the real estate sold.

From this decree, the complainant appealed.  

DISPOSITION:
Order reversed, and cause remanded.  

HEADNOTES:

Construction of a Will -- Limitation not void for remoteness, as a Limitation over after an Indefinite failure of issue.

A testatrix by her will probated in 1835, after directing payment of her debts, devised to her friend, Z. Woollen, his heirs, executors, and administrators, all the rest, residue and remainder of her estate, real, personal and mixed, in trust, to pay out of the income, certain annuities, (the principal annuitants being her mother, her sister Caroline Price, and her two brothers,) and then bequeathed and devised as follows: "And the residue of such income, with the several sums or amounts above enumerated for my sister and brothers, as the same may cease to be paid to them, respectively as aforesaid, I give and bequeath to my son, Henry Watson, if he be living, during the residue of his natural life, and if he should be living after my said sister ceases to be single, or departs this life, which ever shall first happen, and he shall also (have) survived both of my said brothers, or left issue or descendants, then I give and devise to my said son Henry Watson, his heirs, executors, administrators and assigns, absolutely, not only the income, but also the entire principal of the said rest, residue and remainder of my estate; but in case of the decease of my said son Henry Watson, before my said sister ceases to be single, or if my two brothers above named or either of them, survives him, the (in case my said son shall not leave issue or descendants,) I give, devise and bequeath, to my said friend, Z. Woollen, his heirs, executors, administrators and assigns, absolutely, not only the income of my estate intended for my said son, but also the entire principal of the said rest, residue and remainder of my estate." Henry Watson survived his two uncles, the brothers of the testatrix named in the will, and died in 1871, without ever having had issue, leaving his aunt, Caroline Price surviving him, and unmarried. HELD:

That the limitation of the real estate to Woollen was good and took effect, and was not void for remoteness as a limitation over after an indefinite failure of issue. 

COUNSEL:
William A. Fisher and Charles Marshall, for the appellant.

Under the will of Rachel Watson, Henry Watson took a life estate in the realty, and upon this particular estate remainders were limited on "a contingency with a double aspect." 1st. In case Henry Watson [**5]  should survive his two uncles, and should also survive the natural or single life of his aunt, (or she should marry in his life-time,) OR in case he should die and leave issue during the life-time of his uncles and aunt, then his life estate should be enlarged to a fee simple estate. 2nd. And in case Henry Watson should not survive the uncles and the natural or single life of his aunt, and in case he should die without leaving issue during the life-time of his uncles and aunt, the fee should not vest in him but in Zachariah Woollen. The limitations in controversy are contingent remainders and not executory devises. Turner vs. Withers, 23 Md., 40.

Only a life estate is given in the first instance to Henry Watson, and there is no devise at all to his heirs--the after limitation, on the contingencies stated, is to himself in fee. The estate to Zachariah Woollen is not limited after a fee in Henry Watson, but only in the event that the life estate of Watson is not enlarged into a fee. See Clagett vs. Worthington, 3 Gill, 90, 91.

Even if a fee simple estate had been given in the first instance to Henry Watson, and the limitation to Woollen had been (in the words of the will,)  [**6]  "But in case of the decease of my said son, Henry Watson, before my sister ceases to be single, or my two brothers, or either of them survives him, then (in case my said son shall not leave issue or descendants,) I give, &c. to Z. Woollen," there would have been a limitation over after a definite and not an indefinite failure of issue, and it would have constituted a good executory devise. Hilleary vs. Hilleary's Lessee, 26 Md., 274; Dallam vs. Dallam's Lessee, 7 H. & J., 237.

The will gives to Henry Watson an estate for life, and then provides for its enlargement into a fee--1st, if he survives his uncles, and the death or marriage of his aunt, whether he has issue or not; and 2nd, if he does not survive the death of his uncles, and death or marriage of his aunt, then if he leaves issue.

The limitation over to Woollen is on the direct converse, and he is to take no estate, if Watson should be alive at the death of his uncles, and the death or marriage of his aunt, nor if they or any of them survived him, provided he had left issue.

The two clauses are to be construed together, and the leaving of issue in the seeond clause must mean the same as that in the first. Turner [**7]  vs. Withers, 23 Md., 42.

If Henry Watson, through any of the contingencies, once obtained a fee simple estate, Zachariah Woollen was to receive nothing; and the estate to Woollen was limited over only in the event that Henry Watson never took a fee; and all the circumstances necessary to determine whether Henry Watson would take a fee must necessarily have occurred in the life-time of one of his uncles or his aunt.

Substantially the devise over to Woollen was "in case my said son Henry Watson shall die without having taken a fee under the preceding devises of my will, then I give the estate to Z. Woollen."

The devise over to Woollen was not after the running out of issue, which is the case calling for the application of the rule against perpetuities, but the leaving of issue was to determine whether Watson took any estate in fee at all; eo instanti, this was determined, it was ascertained also whether Woollen took any estate. The first clause is entirely free from ambiguity on the subject. One estate was not, and the words of the second clause must be construed by it, intended to await the other for a moment. 1 Jarman on Wills, (492;) Gardiner vs. Sheldon, Vaugh., 259.

E.  [**8]  Wyatt Blanchard and Wm. F. Frick, for the appellees.

The language of the limitation to Woollen, standing alone, imports an indefinite failure of issue of Henry Watson, and the limitation is void as to real estate, unless there be found in the devise to Watson some expressions which fix the date of his death as the period at which the failure of issue is to take place. Torrance vs. Torrance, 4 Md., 25; Tongue's Lessee vs. Nutwell, 13 Md., 425.

In all cases the general intention of the testator shall prevail, and in doubtful cases will govern the construction of particular clauses in a will. Henry Watson was the only child of the testatrix.

Independently of his having or leaving issue, the testatrix gives him her whole estate the moment the trust ceases to be a necessary protection to the annuitants. Her devises to her son are in effect a disposition of the fee in his favor, subject to the charge of certain annuities for other collateral relatives; and the limitation to her friend and trustee, Woollen, is to take effect only in the event of the extinction of her own line, which could be continued only through Henry Watson.

Disregarding for the moment the possible [**9]  effect of the direct devise of the fee to Henry Watson in case of his death, leaving issue; the estate of Rachel Watson is thus devised: "I give my son Henry Watson the income of my estate during life, and in case of his death without leaving issue, I give the fee to my friend Z. Woollen." It cannot be disputed that, upon this statement of the devise, the limitation of real estate to Woollen is void,

1st.--Because there being no direct devise to the issue of Henry Watson, the manifest intention of the testatrix, that the issue of Watson should take title, can only be effectuated by giving him, by construction of law, an estate of inheritance, of which he dying seized his issue become seized by inheritance. The established construction of such a limitation is: That the life estate is enlarged by implication to an estate tail to let in the issue of the life tenant, which estate tail becomes an estate in fee in Maryland, and the limitation over fails for remoteness. Ridgely vs. Bond & Wife, 18 Md., 433.

2ndly.--Because there is no language used to except this case from the operation of this rule of estates tail by implication. There is no language used having relation to the [**10]  death of Henry Watson as the period of failure of issue. The words "leaving issue" import an indefinite failure. Torrance vs. Torrance, et al., 4 Md., 25; Tongue's Lessee vs. Nutwell, 13 Md., 425.

There was a life estate in Henry Watson, with alternative limitations of the fee, by way of contingent remainder; First.--To Henry Watson, upon his death leaving issue him surviving: Secondly.--To Z. Woollen, upon the death of Henry Watson without leaving issue him surviving; and the devise of the fee to Watson removes this case from the operation of the rule by which it would otherwise be governed, and fixes the death of Watson as the point of time when the failure of issue is to take place.

The direct devise of the fee to Watson contains no qualifying language. The failure of issue is referred to in the same technical words used in the limitation to Woollen, whose established meaning import an indefinite failure of issue.

It being clear that there is no language used in the limitation of the fee to Watson, which qualifies that used in the limitation over to Woollen, can the bare fact of the devise of the fee to Watson, affect the construction and prevent the operation of [**11]  the rule, which would otherwise vest in Watson an estate tail by implication?

In the first place, the direct devise expresses only what the law implies without it. Henry Watson, by the direct devise, could take no different estate than he would have by implication of law. Nor is the fact of a direct devise permitted to alter the construction or prevent the operation of the rule by which estates tail are implied. As in Daintry vs. Daintry, 6 T. R., 307, where a contingent estate tail was devised with remainder over on failure of issue, and an immediate estate tail was implied without awaiting the happening of the contingency.

It is clear, that the testatrix intended the issue of Watson to take. But there is no direct devise to his issue. His issue can take only by inheritance, that of which he died seized. Viewing the will according to the theory of the appellant, the moment of Henry Watson's death is the point of time when the life estate ending, it is to be determined which of the alternative limitations shall take effect. There could never be seizin of an estate in Henry Watson which could descend.

The direct devise of the fee to Watson, "in case he shall have left [**12]  issue," &c., could never literally take effect, and should be regarded as a mere expression of the intention of the testatrix that Watson's issue should succeed to the estate; an intention which would be implied without the direct devise, from the words used in the limitation to Woollen, and which could only be effectuated by such a construction as vests an estate of inheritance in Watson.  

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

OPINIONBY:
MILLER 

OPINION:

 [*436]  MILLER, J., delivered the opinion of the Court.
A very difficult and embarrassing question arises in this case, as to the construction of the will of Rachel Watson, executed in December, 1834, and admitted to probate in January, 1835. By this will the testatrix, after directing payment of her debts, devises to her friend, Zachariah Woollen, his heirs, executors and administrators, all the rest, residue and remainder of her estate, real, personal and mixed in trust, to pay out of the income thereof certain annuities, (the principal annuitants being her mother, her sister Caroline Price, and her two brothers,) and then follows these provisions:
"And the residue of such income, with [**13]  the several sums or amounts above enumerated for my sister and brothers, as the same may cease to be paid to them respectively as aforesaid, I give and bequeath to my son Henry Watson, if he be living, during the residue of his natural life; and if he should be living after my said sister ceases to be single, or departs this life, which ever shall first happen, and he shall also (have) survived both of my said brothers, or left issue or descendants, then I give and devise to my said son Henry Watson, his heirs, executors, administrators and assigns absolutely, not only the income but also the entire principal of the said rest, residue and remainder of my estate: But in case of the decease of my said son Henry Watson, before my said sister ceases to be single, or if my two brothers above named or either of them survives him, then (in case my 

 [*437]  said son shall not leave issue or descendants,) I give, devise and bequeath to my said friend Zachariah Woollen, his heirs, executors, administrators and assigns absolutely, not only the income of my estate intended for my said son, but also the entire principal of the said rest, residue and remainder of my estate."
Henry Watson [**14]  survived his two uncles, the brothers of the testatrix named in the will, and died without ever having had issue; but his aunt Caroline Price, survived him and had not been married up to the period of his death. In this state of case the question is, did the limitation of the real estate to Woollen take effect, or is it void for remoteness as a limitation over after an indefinite failure of issue of Watson? It appears that Watson in his life time, had consulted the most distinguished and eminent lawyers of the State as to his rights under this will, and the opinions of Messrs. JOHNSON, SCHLEY and MCMAHON, found among his papers have been printed and submitted for our consideration. In these opinions the very question we are now to pass upon has been elaborately discussed. In addition to these we have the very able arguments of counsel at bar. We have examined the question with the aid thus afforded, and are all of opinion the limitation to Woollen is good. The reasons upon which this conclusion is based we shall now state.
This will took effect prior to the passage of the Act of 1862, ch. 161, and it cannot be doubted that if it contained simply a devise to A for life [**15]  and "in case he shall not leave issue or descendants" then over, the limitation over as to real estate would be void. These words, according to their settled legal construction, import a general or indefinite failure of issue, and whenever found in a will must be taken in their technical legal sense, unless there be something clearly demonstrating a different intention on the part of the testator, restricting them to a 

 [*438]  definite failure of issue, or a failure of issue at the death of the first taker. Authorities need not be cited for a rule of construction so familiar and well established as this. If, therefore, the only previous devise in this will were to Henry Watson, for life, and that was, immediately followed by this limitation over to Woollen, there would be the implication of an estate tail in Watson, (made a fee by our statutes,) and of necessity the remainder over would fail, or be barred by law, and if there was not enough in these words to imply such an estate tail, still if there were nothing in the previous devises to give a meaning to the words "in case he shall not leave issue or descendants," they would make a limitation over, after an indefinite [**16]  failure of issue. But by reference to the previous devises it will be seen that these words in the limitation over, are what are termed referential words, the reference being to the same contingency in which the fee is given to Watson, only taking the converse side of that contingency. By the previous devises it is clear, the testatrix intended the life interest of her son should be enlarged to a fee if he survived the single life of his aunt, and the natural lives of both his uncles, or if he left issue or descendants, whether he survived his uncles and the single life of his aunt or not. Now leaving out of view the contingency depending upon survivorship, Watson is to have the property in fee if he leaves issue or descendants, and if he does not, then Woollen is to have it in fee. So that when you determine the moment when the "leaving of issue or descendants" gives Watson the fee you determine the moment when that contingency has either failed, or taken effect as to Watson, and therefore, also the period when the limitation over is to take effect if at all. The intention of the testatrix as to Watson's estate cannot be doubted. It cannot be questioned, that [**17]  if Watson leaves issue or descendants at his death, his title to the fee is complete, and that at his death or within the 

 [*439]  usual period of gestation thereafter, it must be determined whether he is ever to have that estate in fee. If he then has no issue or descendants, he never can have them, and therefore, all possibility of that contingent estate ever vesting in him then must cease. It must be observed, there is no estate given to the issue, or to await the running out of issue. Both the life estate and the contingent fee are given to Watson himself. The issue are not designated as parties to whom the estate is limited, but the leaving of them is fixed as the contingency upon which the tenant for life will take the fee. That is the period at which the fee is to begin and if there are none at the death of Watson, or within the usual period of gestation thereafter, there can be none afterwards to vest the fee. Now the testatrix certainly intended that when Watson's estate should fail, the limitation over to Woollen should take effect, and hence the will, after enumerating the contingencies in which the fee is given to Watson, when it gives the estate over [**18]  to Woollen, evidently refers to and repeats those contingencies, and in the direct and exact converse of them gives it over to Woollen. Thus it says: "if my said son should be living after my sister ceases to be single, or departs this life, and he shall have also survived both of my said brothers, or shall have left issue or descendants, then I give and devise to my said son" the property in fee; "but in case he dies before my said sister ceases to be single, or if either of my said brothers survive him, then in case he shall not leave issue or descendants, I give and devise to my friend Zachariah Woollen," the property in fee. Her plain design was that the moment the one estate in fee failed the other should take effect, and the words "left issue or descendants" in the devise to her son, and "in case he shall not leave issue or descendants" in the limitation over to Woollen, were intended to refer to the same contingency and the same period, and to give the estate in fee the one or the other 

 [*440]  direction according to the determination of that contingency. It is therefore the case of a devise for life to Watson, on which remainders in fee are limited on a [**19]  contingency with a double aspect. It is not the case of a fee to Woollen limited on a fee to Watson, and therefore not the case of an executory devise. If Watson once gets the fee by leaving issue or descendants, or by surviving both his uncles and the single life of his aunt, it cannot be doubted that all the limitations over forever cease. If the fee be once vested in Watson by either of these contingencies it forever excludes any possible future interest in Woollen. There are, therefore, here two contingent fees not limited to take effect the one upon or after the other, but the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect. It is a case falling within and illustrating the doctrine stated in Fearne on Contingent Remainders, 373, thus: "although a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives, one for the other, and not to interfere; so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former [**20]  should fail of effect." It is also very similar to the case of Clagett vs. Worthington, 3 Gill 83. It is very plain from this view of it, that this will does not present a case for the implication of an estate tail in Watson, nor for the application of the rule in Shelley's Case. There is no limitation to the issue of Watson, but all the limitations affecting his estate, are to himself by way of enlargement of his estate to a fee and not to a fee tail.
Such is the construction placed upon this will in the learned and masterly opinion of Mr. MCMAHON. We have taken the liberty of embodying the substance of his views, and to a great extent copying the very language 

 [*441]  he has used as expressing in more vigorous terms and clearer reasoning than we could hope to employ, our opinion of the true interpretation of this instrument. It has been objected to this construction, that the limitation in fee to Watson, if he left issue or descendants, is upon a contingency which could not possibly happen in his life time: that upon this construction it must be decided at the moment of Watson's death, whether the fee vests in Woollen, and if Watson should [**21]  leave a posthumous son his birth would be after the happening of the contingency which vested the fee in Woollen, and such son could take no title by devise, because there is no devise to the issue of Watson, and could take no title by inheritance because his ancestor did not die seized of the estate or land, and for this is cited the doctrine that a vested legal freehold must not only precede a legal freehold contingent remainder, but the antecedent estate in freehold must subsist and endure until the time when the contingent remainder vests, that is, until the contingency comes to pass; for it is a general rule that every remainder must vest either during the particular estate, or else at the very instant of its determination. Fearne, 307. But what difficulty is there in determining that the life estate of Watson and seizin in him of that estate continued during the usual period of gestation after his death, so that a posthumous child would take by inheritance from him? Why should not the possibility of the enlargement of his estate to a fee continue during that period?
If he had had issue during his life, the fee would have vested in him, subject to the contingency [**22]  of such issue dying before him and his leaving no other issue at his death or within the usual period of gestation thereafter. The point here suggested does not appear to have troubled the acute and accurate mind of Mr. MCMAHON, nor this Court, in the construction of the will in Clagett vs. Worthington. In that case there was a life estate in real 

 [*442]  property devised to Philip Key, and in case he should have issue of his body lawfully begotten, then to the said Philip Key in fee simple, but in the event of his dying without such issue, then over. There the contingency of having lawful issue could not be definitely ascertained until the expiration of the usual period of gestation succeeding the death of Philip Key, and we cannot doubt the Court would have held a posthumous child entitled to the estate by inheritance. They say there was no limitation over to the heirs or issue of the body of Philip Key so as to let in the operation of the rule in Shelley's Case, but the limitation over after his life estate is to Philip Key, himself, in fee simple, in the event of his having lawful issue. They do not say "in the event of his having such issue [**23]  in his lifetime;" on the contrary, such an expression of opinion is carefully avoided. They say the limitation over to other parties was not intended to follow the fee simple estate in Philip Key, and be enjoyed only after its investiture and contingent determination, but was intended as a substitute for that fee simple estate in case of its never coming into being according to the contingency provided for its creation. They then determine that according to the established principles of law applicable to such subjects, this intention of the testator could be carried into effect. On this point they state the general rule that a limitation in a will which may operate as a remainder, shall not be construed an executory devise, and hold that the limitation in fee simple to Philip Key cannot operate as a vested remainder as its coming into existence or vesting depends on a contingency which may never happen, to wit: his having lawful issue, but that it was good as a contingent remainder, because of the previously given particular estate for life, on which it depends, and which supports it. They say the happening of the contingency terminates the life estate in [**24]  Philip Key and creates a fee simple in him in its stead, and that 

 [*443]  the non-occurrence of the contingency and natural termination of the particular estate for life, gives effect to the substituted contingent remainder in fee in favor of other parties; that the vesting of the contingent remainder in fee in Philip Key depends on the contingent termination of his life estate by his having issue, whilst the substituted contingent remainder to other parties can only take effect or vest by the natural expiration of the life estate, that is to say, by the death of Philip Key without having had lawful issue. They then determine that this kind of alternative limitation is what is termed a contingency with a double aspect, and held that the ultimate limitation over was good, inasmuch as Philip Key had died without ever having had lawful issue born to him. The language and reasoning of the Court would seem to exclude the idea that the difficulty here suggested would have been deemed insuperable if it had arisen and been presented in that case.
But suppose we are wrong in this, and that there cannot be such a thing as a limitation over in fee to a life tenant, in case [**25]  he left issue or descendants, because of the impossibility of an estate in fee being given to a party to take effect only after his death. What is the result, as affecting the case and the question before us? Plainly and only this, that the law would hold the limitation to Watson on this contingency inoperative, and void. But that would not strike the words out of the will. They would still remain and afford clear demonstration of the intention of the testatrix that the limitation over to Woollen should take effect upon a definite and not an indefinite failure of issue of Watson, and the Court would look to them for the purpose of determining that question. The referential character of the words used in the limitation to Woollen would still exist. The reference would be the same, and that would control the construction of the latter clause of the will, and make the limitation 

 [*444]  dependent upon a definite failure of issue, and therefore good and effective.
In questions of this kind the general principles governing this branch of real estate law are well settled, and the numerous authorities by which they have been established need not be referred to. The difficulty [**26]  lies in their application to particular cases, and on this point decisions construing other wills are of little use. Sometimes identical cases may be found, but generally the language and provisions of different instruments are so variant and dissimilar that little or no aid in any given case can be derived from the authorities. We shall, therefore, content ourselves with a reference to a few cases in our own State, not because of their identity with the one before us, but because the reasoning of the Court, and the grounds upon which the decisions are rested, seem to support the conclusion we have here reached. Besides Clagett vs. Worthington, already referred to, there is the case of Watkins vs. Sears, 3 Gill 492. In that case a testator had devised all his real estate to his wife for life, and after her death, he devised one-half of it to his son, Dennis, in fee, "provided he shall attain the age of twenty-one years, or die leaving issue; but in case my said son, Dennis, shall die without issue, or before he arrives at twenty-one years, of age," then over to his daughters. Dennis died without issue, but after he had attained the age of twenty-one,  [**27]  and the Court held that by attaining that age he took the fee, though he afterwards died without issue. But they also said it was too clear for argument, that the word "or," in the succeeding part of the devise, prescribing the condition on which the limitation over to the daughters was to take effect, "is to be construed copulatively, as if it were 'and,' and that, thereby, the alternative condition (literally construing the will) of indefinite failure of issue, upon which the limitation over is made to depend, became a condition 

 [*445]  of definite failure of issue." We also, without stopping to point out the provisions of the particular wills, refer to the reasoning of the Court in the cases of Turner vs. Withers, 23 Md. 18, and Hilleary vs. Hilleary, 26 Md. 274, 287, 288, and Dallam vs. Dallam, 7 H. & J. 220, 247 to 250, and Taylor vs. Watson, 35 Md. 519.
Being satisfied the limitation over to Woollen was good and took effect, the order appealed from must be reversed, as it makes a different disposition of the funds arising from the proceeds of a sale of part of the real estate which [**28]  passed under this will, from that which the construction we have adopted would give to them. The costs both in the Court below and in this Court must be paid out of the fund.
Order reversed, and cause remanded. 

23 of 144 DOCUMENTS 

THE MONUMENTAL PERMANENT BUILDING AND LAND SOCIETY OF BALTIMORE vs. JOHN C. LEWIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 445; 1873 Md. LEXIS 71 

July 2, 1873, Decided 

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

Elizabeth Kirk, a stockholder in the Monumental Permanent Building and Land Society of Baltimore, borrowed therefrom the sum of $ 2400, upon a redemption of six shares of stock, and with her husband executed a mortgage of certain leasehold property in Baltimore city, as security for the repayment of the loan, with interest, &c., in weekly instalments of $ 8.77. The mortgage also contained a covenant to pay all fines imposed upon Mrs. Kirk by the mortgagee, in accordance with its by-laws. The appellee purchased the property in question, subject to the operation of the mortgage, and both he and the original mortgagors signified their approval of the appellant's charter and by-laws, by signing the same. The weekly instalments being over-due for three months, the appellant filed a petition to foreclose the mortgage, and a decree was accordingly passed for the sale of the mortgaged premises, and the same were sold. After the ratification of the sale, an account was stated by the auditor, in which he allowed the whole amount claimed by the appellant by its statement filed in the case, in which was included the sum of $ 381.36, for fines [**2]  claimed by it. To this account the appellee, who had been made a party, filed exceptions, and, after a hearing, the Court, (PINKNEY, J.,) rejected the account so stated, and referred the case again to the auditor, who stated another account in which the appellant was allowed the sum of $ 25.23, for twenty-nine weeks' fines, instead of $ 381.36, the sum allowed in the previous account. In the second account the appellant was allowed only one fine at the rate provided in the by-law for default in the payment of each weekly instalment as it fell due, while in the first account he was allowed a fine for every week such instalment remained unpaid. The second account was finally ratified by the Court, and from the order of ratification the appeal was taken.

The appellant's charter, Act of 1868, ch. 255, by its fourth section, provides that "the corporation shall have power to enforce the payment of all instalments and other dues due to the corporation from its members or stockholders, by such fines and forfeitures as the directors may from time to time provide in the by-laws;" and in the sixth section it provides, that in case of loans upon mortgage, the mortgage shall be conditioned [**3]  for the payment of the unpaid instalments on the shares redeemed, with interest on the sum advanced; "and all assessments, fines and penalties incurred according to the by-laws in respect thereof." The by-law of the appellant in controversy is as follows: "If any person shall neglect, omit or refuse to pay his or her weekly dues at the time required hereby, he or she, as the case may be, shall be fined ten cents weekly for each and every dollar remaining unpaid, and no person in arrears will be allowed to vote." 

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Construction of a By-Law of a Building Society -- Fines for the non-payment of Dues.

A by-law of a Building Society, provided that, "If any person shall neglect, omit or refuse to pay his or her weekly dues at the time required hereby, he or she, as the case may be, shall be fined ten cents weekly, for each and every dollar remaining unpaid, *** *. HELD.

That under the foregoing by-law, only one fine could be imposed for the non-payment of the weekly instalment as it fell due, and not repeated fines for every week that it may have been allowed to stand in arrear.  

COUNSEL:
John M. Carter, for the appellant.

The by-law in this case admits of but one construction, namely: that placed upon it by the corporation in the statement of its claim, that a fine of ten cents shall be imposed every week upon each and every dollar of dues remaining unpaid.

The by-law in question having been passed in pursuance of the authority contained in the charter, and assented to by the appellee, is as binding on him as any public law of the State; and, even though bad as against strangers, is good as a contract between him and the corporation. Angell & Ames on Corp., secs. 325 and 342.

Samuel Snowden, for the [**4]  appellee.

By the true construction of the by-law in question, the appellant is only entitled to charge one fine for each instalment as it becomes due, and cannot impose a fine for each and every week such instalment remains unpaid.

The evident intention of the Legislature in giving to the appellant the power to enforce the payment of the instalments as they fell due by such fines as it might provide for by its by-laws, was to enable it to compel the prompt payment of the instalments as they fell due, but not to authorize it to make a by-law to impose a fine for a continuing default. The by-law in this case is fully gratified by the imposition of one fine for such default, and upon the imposition by the appellant, of one fine for the default in payment at the time the instalment falls due, the power to fine is exhausted, and it has no right to impose another fine for a continuance of the same default. Nor does the language of the by-law authorize fines for continuing defaults; only a fine of ten cents weekly on each and every dollar remaining unpaid is imposed for the neglect, omission or refusal of the person to pay his or her weekly dues at the time required. Manifestly [**5]  meaning, that unless the instalments were paid at the time required, there should be a fine imposed upon the amount of the instalment which he should neglect to pay; any other construction would impose a fine not only for the neglect to pay the instalment when required, but for the non-payment of preceding instalments, because of the failure to pay the instalment when due, which would be most unreasonable and unjust. The by-law differs but little from the one in Shannon's case, 36 Md., 383.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*448]  ALVEY, J., delivered the opinion of the Court:
We entirely agree with the learned Judge who decided this case in the Court below, that, by a fair construction of the by-law of the appellants imposing fines and forfeitures for the non-payment of weekly dues at the time required, the terms of such by-law will be reasonably gratified by the allowance of only the fine for default of payment of the weekly instalment as it accrued due, and not repeated fines for every week that it may have been 

 [*449]  allowed to stand in arrear. And while it is true that the by-law would appear to be susceptible [**6]  of the more strict and rigid construction contended for by the appellants, yet we think it equally susceptible of the construction placed on it by the Court below; and this latter construction accords with the opinion of this Court, as expressed in the case of Shannon vs. The Howard Building Association, 36 Md. 383, in reference to a by-law of very similar import to that here involved. In point of principle, it would be difficult to distinguish the two cases, and we think the case in 36 Md. must govern this.
These associations should not expect of the Courts, and especially Courts of Equity, to indulge the severest construction of their by-laws, in reference to fines and forfeitures, that can be suggested; particularly where it can be seen that such construction would operate with harshness and oppression upon the party in default. At any rate, by the modes of computation adopted, the association is allowed to receive greatly more than the ordinary rates of interest, and that, with the summary proceedings devised for the foreclosure and extinguishment of the defaulting party's indebtedness, would seem to afford the association very ample protection.
Concurring [**7]  with the Judge below, we shall affirm the order appealed from, and remand the cause.
Order affirmed, and cause remanded. 

24 of 144 DOCUMENTS 

ALEXANDER SMITH vs. JOHN BOWES and ANDREW B. WISE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 463; 1873 Md. LEXIS 72 

July 2, 1873, Decided 

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

The bill in this case filed on the 15th of February, 1871, by the appellant against the appellees, charged that a certain George Isaacs and Morris Kahn, on the 7th of January, 1869, recovered, in the Superior Court of Baltimore City, a judgment for the sum of $ 986.80, which was assigned by the plaintiffs therein to the complainant on the 8th of February, 1869; that said judgment was superseded for six months on the 15th of January, 1869, by the appellees, and that the clerk of said Superior Court in filling up the supersedeas, by mistake wrote the words "7th day of June" instead of the words "15th day of July," although it was understood, and was the object and intention of the parties executing said supersedeas, that the latter words instead of the former should have been written; that said mistake could only be corrected in a Court of Equity; that Judson H. Smith, the defendant in the original judgment had become insolvent, and the appellees as sureties, as aforesaid, were endeavoring to escape the payment of their just obligation by the aforesaid mistake. The bill prayed that the mistake so made, might be corrected and reformed,  [**2]  in order that the supersedeas might conform to the intention and agreement of the parties when the same was executed. The appellees answered the bill, alleging that the entire subject-matter thereof, was res adjudicata by the decision of the Court of Appeals in the case of Bowes vs. Isaacs, et al., (33 Md., 535;) they also demurred to the bill. Pending these proceedings, the supersedeas judgment was, by order of the Court of Appeals, stricken out in the Superior Court. On the 17th of June, 1872, the Court, (PINKNEY, J.,) passed an order, dismissing the bill with costs. From this order the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Defective execution of Statutory Power not remediable in Equity on ground of Mistake.

On the 7th of January, 1869, a judgment was recovered in the Superior Court against J. H. S., which was superseded by a supersedeas filed on the 15th of January, 1869, with the appellees as sureties, who were informed at the time that the supersedeas would be for six months from the date of executing the same. The blank form of the supersedeas was signed by the sureties and attested by the clerk, who in filling up the blank, which was thus signed, inadvertently wrote the 7th day of June as the date for the expiration of the stay of execution. Subsequently on discovering his mistake, he, out of the presence, and without the authority, of the sureties, changed the last two letters in the word June to "ly," so as to make it read July. A motion was made by one of the sureties to strike out the supersedeas judgment, but the Superior Court overruled the motion. On appeal from this action of the Court, the Court of Appeals being of opinion that the supersedeas was not taken in conformity to law, and that the judgment should, therefore, be stricken out, reversed the judgment of the Superior Court. Afterwards, the appellant, to whose use the original judgment had been entered, filed a bill in Equity, alleging that the words the "7th day of June," had been through mistake written by the clerk instead of the "15th day of July," and asking that said mistake might be corrected and reformed. HELD:

That there was no power in the Court, in the exercise of its jurisdiction for the correction of mistakes, to make the supersedeas, which had been declared invalid as not in conformity to law, valid and effective.

A Court of Equity, in the exercise of its jurisdiction for the correction of mistakes, cannot relieve against the defective execution of a statutory power, nor dispense with or supply any of the formalities required for its due and legal execution.  

COUNSEL:
J. Alexander Preston and Henry Stockbridge, for the appellant.

John Henry Keene, Jr., for the appellees.  

JUDGES:
The cause was argued before STEWART, BOWIE, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*465]  ALVEY, J., delivered the opinion of the Court.
This is an application by bill in equity, to have corrected certain defects in a supersedeas judgment, which this Court has heretofore held to be void by reason of such defects. Bowes vs. Isaacs, 33 Md. 535. The facts, by which the defects are made to appear, are fully stated [**3]  in the report of the case on the former appeal, taken from the order of the Superior Court, refusing to strike out the supersedeas.
We have said that the clerk in taking the supersedeas, and approving the sufficiency of the sureties therein, did not so act as the clerk of the Court in which the original judgment was obtained as to be under its authority and control, as in the discharge of his ordinary duties as such; but he acted in taking and approving the supersedeas by virtue of a special power and authority conferred on him by the Code, Art. 18, sec. 23. And it was made to appear on the former appeal, as on the present, that the supersedeas was first signed in blank, and afterwards filled up by the clerk, and that he changed essential dates therein, out of the presence and without the authority of the parties signing the instrument; and 

 [*466]  that the correct date for the expiration of the stay of execution was never inserted in the supersedeas at all. This, we said, was a disregard of the requirements of the law, and a practice that could not be sanctioned; and we were clearly of opinion, upon the facts of the case, that the supersedeas, as it was not taken in conformity [**4]  to law, should, therefore, have been stricken out or set aside on the motion made for that purpose.
Now, the question is, has a Court of Equity, in the exercise of its jurisdiction for the correction of mistakes, the power to make the supersedeas thus taken valid and effectual, notwithstanding it has been declared to be invalid, because not in conformity to law? We think not, and for obvious reasons.
In regard to the equitable jurisdiction to remedy or supply defective execution of powers, the authorities are uniform in recognizing a plain distinction between powers created by private persons and such as are created or prescribed by statute. For, while a Court of Equity may, in a proper case, relieve against the defective execution of a power of the former class, it cannot relieve against the defective execution of a power of the latter class, nor dispense with or supply any of the formalities required for its due and legal execution; as, by so doing, equity might defeat the policy of the statute. In the case of statutable powers, therefore, equity must follow the law, no matter how meritorious the consideration may be; for the legislature is not presumed to have reposed discretion [**5]  in a Court of Equity to supply any of the circumstances or formalities made necessary to the valid execution of a special power or authority delegated by it. Darlington vs. Pulteney, Cowp., 267; 2 Chance on Pow. 541; Bright vs. Boyd, 1 Sto. 487; 1 Sto. Eq. Jur., secs. 96, 177.
As an instance of the application of the distinction just mentioned, the case of McBryde vs. Wilkinson, 29 Ala. 662, may be referred to. That was a case where a 

 [*467]  justice in taking the acknowledgment of a deed of husband and wife, by mistake or want of skill, failed to give in his certificate a sufficient reference to the particular deed intended to be acknowledged by the parties; and, upon a bill filed to correct the mistake of the justice, and to apply the words of reference contained in the certificate of acknowledgment to the particular deed intended, instead of another instrument on the same sheet of paper, it was held, that, as the application was, in substance and effect, to have the certificate aided and reformed, the principle that forbid a Court of Equity from supplying the defective execution of a power created by statute, applied, and [**6]  that, consequently, the complainant was not entitled to relief. That case is very analagous to the present.
But the case before us is not distinguishable in principle from that of Dilley vs. Shipley, 4 Gill 48. In that case, the magistrate, in entering the supersedeas on his docket, omitted to state the date of the confession, which was required, according to the formula prescribed by the statute; and, upon bill filed by the sureties in the supersedeas judgment to restrain execution thereon, on the sole ground of the mistake of the magistrate in not stating the date when the supersedeas was confessed, though stated that it was for twelve months, the proper period fixed by law, it was held that they were entitled to be relieved, and the supersedeas judgment was perpetually enjoined. This, clearly, would not have been done, if there had been any power in the Court to aid or supply the defect.
It seemed to be supposed that this Court had, in its opinion on the former appeal, given some intimation as to the availability of the remedy now invoked. But that is a misapprehension. It was simply said if there was any such mistake as could be corrected, a bill in equity [**7]  was the only mode by which it could be accomplished. We did not say that a bill in equity would lie for the 

 [*468]  purpose, nor give any intimation that could reasonably lead to that conclusion. The case is no doubt a hard one on the complainant, and we regret that there is not power to relieve him, but, under the law, we cannot do otherwise than affirm the order of the Court below.
Decree affirmed. 

25 of 144 DOCUMENTS 

JOHN H. LEWIN vs. WILLIAM H. SIMPSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 468; 1873 Md. LEXIS 73 

July 2, 1873, Decided 

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

The nature of the case is fully stated in the opinion of the Court. The following exceptions were taken by the plaintiff.

First Exception.--At the trial of this cause the plaintiff offered evidence tending to prove that he was in possession of the land conveyed to him by deed from Thomas G. Rutledge, et al., executors, etc., and offered evidence tending to prove what were the boundaries between the land of the plaintiff and that of the defendant around the mill-pond; and that the water was obstructed by the dam upon which the defendant, before the commencement of the suit in this case, had placed repairs; and that the defendant had repaired said dam by putting dirt or gravel upon the breast of said dam; and that the plaintiff, before the commencement of this suit, had notified the defendant that the land of the plaintiff was overflowed by the water dammed up and backed upon his land by said dam and obstruction; and that the defendant must remove said water from the plaintiff's land; and that unless the said water was so removed, the plaintiff would bring suit to compel him to do so; and that the defendant did not remove the [**2]  water from the land of the plaintiff before the commencement of this suit. And also offered evidence tending to prove that water was backed up by said defendant's dam, and the obstruction placed by him in the stream in which the same was erected, in a ditch which the plaintiff had cut on his own land for the purpose of draining it--which water flowed in said ditch, its natural course, upon the lands of the plaintiff, into a low piece of ground which emptied therefrom into the defendant's pond; and offered testimony tending to show that said ditch was entirely on the plaintiff's land; and that in consequence of the water being backed up in said ditch beyond the defendant's boundary line and upon the plaintiff's land, the plaintiff could not drain his land, and it was rendered much less productive than it would otherwise be. The plaintiff, for the purpose of showing the natural fall of his land above said pond, and that said land could be drained if the defendant kept the water of said pond within the boundaries of his land, offered proof by Nicholas Hoshall, tending to prove that the said land could be drained, if the water was within the aforesaid boundaries; that the witness was on [**3]  the property mentioned on Monday, 11th of March, 1872; that it is 250 yards, more or less, from said boundaries to the spring of the plaintiff; that when witness first arrived on the property on the day mentioned, the water was running down the stream leading from the spring-house into the low ground near the said pond, whence it empties into the pond, and was running without obstructions at and near the mouth of said stream; that the water of said pond was not then beyond the boundaries aforesaid; that he returned to said pond an hour and a half or two hours afterwards; that the water of said pond was then beyond the said boundaries, and was backed up said ditch sixty-three feet from the mouth thereof, and was eight inches and one-half deep at the mouth of said ditch, where it emptied into said low ground, that there is a fall of six feet and two inches from the plaintiff's spring-house to the mouth of said ditch, at the place just mentioned. The plaintiff then propounded the following question to said witness: "On the day that you were there, on the second occasion, what was the depth of the water twenty yards up the ditch, which you have said was eight and one-half inches deep at [**4]  the mouth of the ditch? this question being asked for the purpose of showing the fall of the ground, intending further to show that the ditch was regularly dug?"

To the propounding of this question to the witness, the defendant objected, and the Court sustained the objection, and refused to allow the plaintiff to propound said question. To this ruling of the Court and exclusion of testimony the plaintiff's counsel excepted.

Second Exception.--The plaintiff's counsel offered to propound to the said witness, Nicholas Hoshall, the following question: "Did you or not, on the 11th of March, 1872, examine the ditch of which we are now speaking and can you or not say whether said ditch is so dug that the bottom of the same is regularly graded and in conformity with the natural surface of the ground through which it passes?" The plaintiff's counsel stating at the same time, that they intended to follow up this question and proof, by evidence showing that the said ditch was in the same condition then, the time of the trial, that it was two years before that time, so far as the depth was concerned, except where partially filled by obstructions caused by the backing up of water by the [**5]  defendant.

To the propounding of this question to the witness, the defendant's counsel objected, and the Court sustained the objection, thereupon, the plaintiff excepted.

Third Exception.--The plaintiff, proved by Benjamin F. Jourdan, that he resides in Baltimore County; that he knew the property of the plaintiff and defendant; was on the property on the 23rd day of September, 1871--the day on which they attempted to arbitrate; that he was shown the boundaries between the plaintiff and defendant in their presence; that the land of the plaintiff could be drained except about one acre, if the pond of the defendant were kept within the boundaries, as shown to him. The plaintiff then offered to propound the following question: "At the time spoken of--September 23rd, 1871--when you were on the property and the boundaries between the plaintiff and defendant around the mill-pond, were shown to you, did or not the water of the dam of the defendant extend beyond said boundaries, and overflow the plaintiff's land?" The plaintiff's counsel stating at the time to the Court, that he would follow this up by proof showing that the water was lower then than it had been for some time prior [**6]  to the bringing of this suit.

To the propounding of this question the defendant's counsel objected, and the Court sustained the objection. To this ruling of the Court and exclusion of the testimony, the plaintiff excepted.

Fourth Exception.--Caleb W. Royston, from whom the defendant purchased the property, being produced as a witness on the part of the plaintiff, testified that there were stones and a maple tree, which were boundaries of the land sold by him to the defendant, and which he pointed out to the defendant as the boundaries of the land before the purchase, as he thought; the defendant, being afterwards called at a subsequent stage of the trial, and sworn in his own behalf, testified that he bought the mill-property and lived there, and had done nothing to increase the water, and that he had not raised the dam or done anything to increase the volume of water; that the wheel of the mill was the same as when he bought it, and that he saw no difference in the force of the shot; and described how the dam was built, and that it was no higher than when he first knew the property in 1864. Defendant's counsel then asked him if he recollected an interview between himself [**7]  and said Royston, in which the latter pointed out on the ground the boundaries of the land; and if so, whether the conversation took place, before or after he purchased the property? Witness replied that Royston pointed out the boundary stones, but it was after he bought the land and paid for it; that the height of the dam varied with the season; and the defendant was then examined at some length by his counsel, with reference to the power and fall of the water, to the extent of the water towards the stones and maple tree, and testified that the water of said dam did not ever get up to these stones and tree, except in a freshet. And upon cross-examination, the witness testified that he was positive the water was not up to the stones on the 23rd of September last, and that Royston did point out the stones.

Plaintiff's counsel then proposed to ask the witness to "State all the conversation that took place between Royston and himself, when the former pointed out to him the stones and maple tree as boundaries."

To this proposition the defendant's counsel objected, and the Court sustained the objection. The plaintiff excepted.

Fifth Exception.--Upon cross-examination of the [**8]  defendant, the plaintiff's counsel were busily engaged in writing the exact language of the witness, with a view to contradict him when the defendant's counsel objected to the time being consumed in writing down the said evidence; and the Court decided that it would not wait to allow the plaintiff's counsel time to write down said evidence. To this ruling and decision of the Court, the plaintiff excepted.

Sixth Exception.--The defendant offered evidence tending to prove that the water in the mill-pond had been backed up by those in possession of the mill property, beyond the lines mentioned in the deed from Royston and wife to defendant, before defendant's possession, and that said water was beyond said lines and on the land now claimed by the plaintiff at the time the said defendant purchased the property from Royston and wife, and that if the defendant had backed up water on the land of the plaintiff beyond the lines of the said deed just above mentioned, it was backed up no further than he had a right to back it up.

After the defendant had closed his case, the plaintiff offered testimony by Caleb W. Royston, tending to prove that when the boundary stones named in the deed [**9]  from David Sampson and wife to Royston, and in the deed from Royston to the defendant, and heretofore referred to were fixed and placed, Nicholas Sampson, David Sampson and witness were present, and also Surveyor William Kelbaugh; that the water of the dam was not then beyond the boundaries then fixed; that the water of the said dam was not beyond the boundaries at the time the deed was given by Royston to the defendant; that he did not claim any right to back the water of the dam beyond the said boundaries whilst he owned the property; that he never did back the water up beyond said boundaries to his knowledge, and it was not beyond the said boundaries whilst he held the property, except in a freshet, and also offered evidence tending to prove that the witness showed the defendant, the said stones and boundaries before the execution of the deed to him from the witness, and before the payment of the purchase money, except the sum of one hundred dollars; and also offered testimony tending to prove that at the time of the negotiation for the purchase of said mill property, that the lines of said mill property did not include but little more than one-half of the pond as it stood at that [**10]  time. The plaintiff then proposed to prove by said witness, that when he was negotiating for the purchase of the said mill property, he refused to buy unless Nicholas Sampson would procure from his father, David Sampson, and his wife, a deed for as much land as was necessary for the mill-pond; that David Sampson, Nicholas Sampson and witness met on the said property, agreed upon what land was necessary for the mill-pond, made a survey of the lines and put down the stones mentioned in the deeds from David Sampson to witness for the purpose of limiting the water-right of the owner of the said mill property; and it was understood and agreed that the said stones and maple tree should be the boundaries thereof, and that the water of the said pond should not extend beyond the lines and bounds so fixed; that then said deeds were executed and delivered by the said David Sampson and Nicholas Sampson and wife to the witness, under the said understanding and agreement. And the plaintiff further proposed to prove by the said witness, that he told all this to the defendant, before he executed the deed to him for said property, and before any money was paid to him by the said defendant, except the [**11]  sum of one hundred dollars, and pointed out the stones and maple tree to the said defendant, as the limits to which the owner of the mill property had a right to back up the water of the said mill-pond. The plaintiff's counsel stated at the time that they did not offer this evidence to contradict the deeds above mentioned, or any of them, but to show the extent of the water-right under said deeds, and that it did not authorize the overflow of water beyond the boundaries named in the said deeds, and offered said evidence for any other purpose in the cause which did not vary the purport of the said deeds, or either or any of them. To the admissibility of which evidence the defendant's counsel objected, and the Court sustained the objection. To this ruling of the Court, the plaintiff excepted.

Seventh Exception.--The plaintiff then proposed to prove by Thomas G. Rutledge, that David Sampson instructed him, that Nicholas Sampson, his son, could not convey any water-right to a considerable portion of the upper part of the dam; that portion of the land which was afterwards conveyed by David Sampson and wife to Caleb W. Royston; that Nicholas Sampson at the time assented to this, and [**12]  admitted that he could not convey any water-right to the said portion of land embraced in the said deed from David and wife; that David Sampson instructed witness that the deed must convey the water-right to the upper portion of the dam, and that he and his wife must execute a deed along with Nicholas and his wife; that the stones, now the boundaries of the dam, were not up at the time the courses and distances were given, as contained in a deed from Nicholas Sampson and wife to Royston; that he prepared the deed that far; that on the day Justice Standiford and himself were called upon to take the acknowledgments of said deeds, at David Sampson's house; David Sampson said, "You can go on and finish the deed without the water-right, for they have persuaded me out of a deed, instead of a water-right, on the upper end of the dam. I suppose it does not make any difference to me; Conrad Kelbaugh has surveyed it, and is now writing the deed, and when it is completed, we will just acknowledge both deeds, and that will end or finish the matter." He finished his deed and Kelbaugh finished his, and the witness and Justice Standiford took the acknowledgment of the parties to them. The plaintiff's [**13]  counsel stated at the time that they did not offer this evidence to contradict the deeds above mentioned, or either of them, but to show the extent of the water-right under said deeds, and it did not authorize the overflow of water beyond the boundaries mentioned in the said deeds, and for any other purpose in the cause which did not vary the purport of the said deeds, or either of them.

To the admissibility of this evidence the defendant's counsel objected, and the Court sustained the objection. The plaintiff excepted.

Eighth Exception.--The plaintiff proposed to prove by himself, that in September, 1870, and before the bringing of the suit in this cause, he saw one or more persons wheeling dirt and gravel from the side of the road, and putting it on the top of the dam behind the loose stones, and about two-thirds of the way from the east side of the dam, and that the new earth placed thereon, for a considerable distance on the dam, was seen from the house of the witness, and seemed to be at least one rood in length, and that the defendant dammed up the water so as to raise it to the height of the first stump named in the plat exhibited by the defendant to the jury, and [**14]  nearest the breast of the dam, and then that the water was backed up a considerable distance over the boundary lines and up the ditch of the meadow of the plaintiff, and that up to the bend of the ditch, as shown on the plat aforesaid, the said ditch was full of water to the top. To the admissibility of this evidence the defendant's counsel objected, and the Court sustained the objection. The plaintiff excepted.

The jury rendered a verdict for the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

When an Appeal will not be Dismissed -- What is necessary for the Plaintiff to prove, to entitle him to more than Nominal Damages, in an Action for injury done his Land by the overflow of water backed upon it from the Defendant's mill-pond -- Admissible and relevant Evidence -- Evidence -- Irrelevant and inadmissible Evidence -- From what an Appeal does not lie.

An appeal will not be dismissed because the transcript of the record of proceedings in the case was not transmitted to the Court of Appeals within the time prescribed by law, it being shown by the certificate of the clerk of the inferior Court, which was not controverted, that the failure to transmit was occasioned by his inadvertence and misplacing of the original papers.

In an action to recover damages for injury done to the plaintiff's land by the overflow of water backed upon it from the defendant's mill-pond, to entitle the plaintiff to recover more than nominal damages, it is incumbent upon him to prove to the satisfaction of the jury that the water did flow back upon his land, that this was caused by the wrongful acts of the defendant, and that he had suffered some injury therefrom prior to the institution of the suit.

On the trial of an action to recover damages for injury done to the plaintiff's land by the overflow of water backed upon it from the defendant's mill-pond, the plaintiff, for the purpose of showing the natural fall of his land above said pond, and that said land could be drained and made productive if the water of the pond were kept within the prescribed boundaries between the plaintiff and defendant, offered to prove by N. H. that he was at the place in question on the 11th of March, 1872; that it was two hundred and fifty yards, more or less, from said boundaries to the spring of the plaintiff; that when he first arrived the water was running down the stream leading from the spring-house into a piece of low ground, whence it emptied into the pond; that the water of said pond was not then beyond the boundaries aforesaid; that an hour and a half, or two hours after, when he returned, the water of the pond was beyond said boundaries, and the water was backed up into a ditch, cut by the plaintiff on his own land for the purpose of draining it, sixty-three feet from the mouth thereof, and was eight and a half inches deep at its mouth, where it emptied into said low ground; that there was a fall of six feet and two inches from the plaintiff's spring-house to the mouth of said ditch. The plaintiff then propounded the following question to the witness: "On the day that you were there, on the second occasion, what was the depth of the water twenty yards up the ditch, which you have said was eight and a half inches deep at its mouth?" This question being asked for the purpose of showing the fall of the ground, intending further to show that the ditch was regularly dug. And the further question: "Did you or not on the same day examine the ditch, and can you or not say whether it was so dug that its bottom was regularly graded and in conformity with the natural surface of the ground through which it passed?" The plaintiff's counsel stating at the same time, that they intended to follow up this question and proof, by evidence showing that the said ditch was in the same condition then (at the time of the trial) that it was two years before that time, so far as the depth was concerned, except where partially filled by obstructions caused by the backing up of water by the defendant. The Circuit Court disallowed these questions upon objection by the defendant. On appeal, it was HELD:

That if the questions had been answered as the plaintiff's counsel assumed they would be, and the answers followed up by other evidence as proposed, the testimony thus elicited would have been relevant and admissible. It would have shown what was the grade of the plaintiff's land, how abruptly or gradually its surface ascended from the edge of the water; and would have corroborated other testimony showing the land was capable of being drained and cultivated, and to what extent, if the water was confined within the limits contended for by the plaintiff, and to what extent the overflow interfered with such drainage and cultivation. The witness should have been allowed to answer the questions.

On the same trial, a witness on behalf of the plaintiff testified that he was on the property on the 23rd of September, 1871, and was shown the boundaries between the plaintiff and the defendant in their presence; that the land of the plaintiff could be drained, except about one acre, if the pond of the defendant were kept within the boundaries as shown to him. The plaintiff then offered to propound the following question: "At the time spoken of -- the 23rd of September, 1871 -- when you were on the property, and the boundaries between the plaintiff and the defendant, around the mill-pond, were shown to you, did or not the water of the dam of the defendant extend beyond said boundaries and overflow the plaintiff's land?" The plaintiff's counsel stating that he would follow this up by proof showing that the water was lower than it had been for some time prior to the bringing of the suit. HELD:

That if the question had been answered in the affirmative, and followed up as proposed, the testimony would not only have been admissible for the same purpose sought by the previous questions, but would also have tended to prove another material part of the plaintiff's case, viz: that the water did overflow his land prior to the bringing of his action.

The defendant in the cause being on the stand as a witness, was asked by his counsel if he recollected an interview between himself and R. from (whom he purchased the property,) in which the latter pointed out on the ground the boundaries of the land, and if so, whether the conversation took place before or after he purchased the property? To which he replied that R. pointed out the boundary stones, but it was after he bought the land and paid for it. The witness was not asked to repeat, and in fact did not detail any part of the conversation that took place between them. HELD:

That the plaintiff, on cross-examination of the witness, had no right to require him to state all the conversation that then occurred between R. and himself, on the ground that he had already stated a part of it.

After the defendant in the cause had closed his case, the plaintiff offered testimony by C. W. Royston, tending to prove that when the boundary stones, named in the deed from David Sampson and wife to the witness, and in the deed from the witness to the defendant, were fixed and placed, the water of the dam was not then beyond these boundaries, nor at the time the deed was given by the witness to the defendant; that the witness did not claim any right to back the water beyond these boundaries while he owned the property; that he showed the said stones and boundaries to the defendant before the execution of the deed to him. The plaintiff then proposed to prove by the same witness that when he was negotiating for the purchase of the said mill property, he and David Sampson and Nicholas Sampson his son, met on the property, agreed as to what land was necessary for the mill-pond, made a survey of the lines, and put down the stones mentioned in the deed from David Sampson to the witness, for the purpose of limiting the water right of the owner of the said mill property; and it was understood and agreed that the said stones and maple tree should be the boundaries thereof, and that the water of the said pond should not extend beyond the lines and bounds so fixed; that then, under said understanding and agreement, the deeds were executed and delivered by the said David Sampson and Nicholas Sampson and wife to the witness. And the plaintiff further proposed to prove by the same witness that he told all this to the defendant, before he executed the deed to him for said property, and pointed out to him the stones and maple tree as the limits to which the owner of the mill property had a right to back up the water of the said mill-pond. The plaintiff's counsel stated at the time that they did not offer this evidence to contradict the deeds mentioned, or any of them, but to show the extent of the water right under said deeds, and that it did not authorize the overflow of water beyond the boundaries named in the said deeds. HELD:

That for such purpose the testimony was altogether inadmissible; but that as it was also offered for "any other purpose in the cause which did not vary the purport of said deeds," it would be admissible as tending to rebut a prescriptive right of flowage in those under whom the defendant claimed title.

The plaintiff proposed to prove by Thomas G. Rutledge, that David Sampson instructed him that Nicholas Sampson his son could not convey any water right to a considerable portion of the upper part of the mill-pond; that Nicholas assented to this; that David Sampson instructed the witness that the deed which he was employed to prepare to C. W. Royston must convey the water right to the upper portion of the mill-pond, and that he, David, and his wife must execute a deed along with Nicholas and his wife; that the stones, the boundaries of the dam, were not up at the time the courses and distances were given, as contained in a deed from Nicholas Sampson and wife to Royston; that witness prepared the deed that far; that when he went to David Sampson's where the deeds were to be executed, David said to him, "You can go on and finish the deed without the water right, for they have persuaded me out of a deed, instead of a water right, for the upper end of the pond" -- that the deeds were prepared and executed accordingly. The plaintiff's counsel stated at the time, the evidence was not offered to contradict the deeds, but to show the extent of the water right thereunder, and that it did not authorize the overflow of water beyond the boundaries mentioned in the deeds, and for any other purpose in the cause which did not vary the purport of the deeds. HELD:

That the evidence so proffered was entirely irrelevant, and inadmissible for any purpose.

At the end of the trial when the plaintiff's evidence was in, and the defendant on his part had closed his case, the plaintiff proposed to show certain acts and doings of the defendant in raising his dam and increasing the quantity of the water in the mill-pond, so as to overflow the land of the plaintiff. HELD:

That this evidence should have been offered in chief; it was in no sense rebutting testimony, and was therefore inadmissible at that stage of the trial.

The defendant being under cross-examination as a witness, and the plaintiff's counsel being busily engaged in writing down his exact language, with a view to contradict him; the defendant's counsel objected to the time being consumed in that way, and the Court decided that it would not wait to allow the plaintiff's counsel time to write down the evidence. HELD:

That from this action of the Court no appeal would lie.  

COUNSEL:
Wm. S. Keech and Wm. S. Waters, for the appellant.

Arthur W. Machen, for the appellee.  

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

OPINIONBY:
MILLER 

OPINION:

 [*480]  MILLER, J., delivered the opinion of the Court.
The motion to dismiss this appeal must be overruled. The certificate of the clerk, appended to the record, that 

 [*481]  it was through his inadvertence and misplacing of the papers, that the record was not sent up within the six months, not being controverted, gratifies the 16th Rule regulating appeals. It is unlike the case of Hannon vs. Robey, 9 Gill 440. There [**15]  the certificate of the clerk was to the effect that the record was detained by order of the appellant's counsel, and this Court refused to recognize it as evidence, on the motion to dismiss. As the law then stood, the delay in the transmission of the record, where the appeal was taken in due time, was presumptively the fault of the clerk, and not of the appellant. Under the present rule that presumption is reversed, and now the delay is presumed to be the fault of the party and not of the clerk. The appellant must now show the delay was occasioned by the neglect, omission or inability of the clerk, and where he shows this by the clerk's own certificate to that effect, it is sufficient, unless what the clerk states is disputed or controverted by the appellee, in which case the question must be determined upon affidavits taken under the order of this Court.
This suit was brought by the appellant against the appellee, to recover damages for injury done to his land by the overflow of water backed upon it from the defendant's mill-pond. It is one of that class of actions where damages can be recovered only down to the time of instituting the suit. The suit was instituted on the 16th of [**16]  November, 1870, and tried in March, 1872. During the progress of the trial eight exceptions were taken by the plaintiff, all of which, except the fifth, are to rulings rejecting evidence.
It appears from the testimony admitted and proffered on the part of the plaintiff, that the land now owned by the plaintiff, and the mill-site now owned by the defendant, formerly belonged to David Sampson and Nicholas Sampson, his son, the latter owning the mill-site, but not exactly of the same extent as at present; that Royston 

 [*482]  purchased the mill property from the son, but when negotiating for the purchase refused to buy, unless the father would convey to him as much of his land as was necessary for the mill-pond at its upper end; that all three of them then met on the property, agreed upon what land was necessary for the pond, made a survey, or had one made, put down stones and fixed boundaries showing the limits of the pond, and deeds were thereupon executed to Royston by the father and son separately, the latter conveying the mill-site as he had owned it, and the former the additional land agreed upon at the head of the pond. These deeds are not in the record, but it is stated that [**17]  the stones and boundaries above referred to are mentioned in them. From this it may be inferred these deeds, and especially that from the father, which seems to be the one of most importance in this controversy, were conveyances of a mill-site and property, and a piece of land by metes and bounds, and among the boundaries called for are the stones and maple-trees spoken of by the witnesses. Royston seems to have held the property as he purchased it, for some time, and then sold and conveyed it to the defendant. This conveyance is not in the record, and it does not appear (if it were material it should) how it describes the property, whether by simple reference to the deeds from the two Sampsons, or otherwise. The plaintiff became purchaser of the residue of the land owned by Sampson, the father, and he insists the defendant has no right, by raising his mill-dam or otherwise, to cause the water to flow back upon his land beyond these boundaries. This statement of the case is not derived from admitted facts, nor from any clear and consecutive narrative contained in the record, but from the testimony set out in the several bills of exception as offered and admitted, or proposed and rejected.  [**18]  We have made it as showing our understanding of the nature of the controversy and points in dispute, and shall proceed to dispose of, as far as can 

 [*483]  now be done, the questions presented by the several exceptions.
In order to make out his case and recover more than nominal damages, it was incumbent upon the plaintiff to prove to the satisfaction of the jury, that the water did flow back upon his land, that this was caused by the wrongful acts of the defendant, and that he had suffered some injury therefrom prior to the institution of this suit. It was his right to offer any evidence which tended to prove these points. Any testimony pertinent and relevant to these questions was pertinent and relevant to the issue, and should have been admitted. If the questions propounded to the witness Hoshall in the first and second exceptions had been answered as the plaintiff's counsel assumed they would be, and the answers followed up by other evidence as proposed, in our opinion the testimony thus elicited would have been relevant and admissible. It would have shown what was the grade of the plaintiff's land, how abruptly or gradually its surface ascended from the edge of [**19]  the water. It would have corroborated other testimony, showing the land was capable of being drained and cultivated, and to what extent, if the water was confined within the limits contended for by the plaintiff, and to what extent the over-flow interfered with such drainage and cultivation. It was the right of the plaintiff to submit all the evidence he could adduce on these points to the jury, by whom it was material to be considered in estimating the damages. The fact that what was offered and rejected might be cumulative did not render it inadmissible. Nor does the fact that the witness saw the stage of the water in various parts of the ditch in reference to which the questions were asked him, subsequently to the commencement of the suit, alter the case. It was proposed to connect it with proof showing that the same condition as to the grade of the land existed antecedently to the suit, that the surface of the land had not changed 

 [*484]  since that time. This, and not to enable the jury to give damages for any injury sustained since the action, was, as we understand it, the purpose of the proffered testimony. Confined to this purpose, it was admissible, and the witness [**20]  should have been allowed to answer the questions. So if the question asked the witness Jourdan in the third exception had been answered in the affirmative, and followed up as proposed, the testimony would not only have been admissible for the same purpose, but would also have tended to prove another material part of the plaintiff's case, viz: that the water did over-flow his land prior to the bringing of this action. It was an indirect but not an inadmissible mode of proving that fact. We are therefore of opinion the rulings in these three exceptions are erroneous.
The ruling in the fourth exception is entirely correct. The defendant, when on the stand as a witness, was asked by his counsel if he recollected an interview between himself and Royston, in which the latter pointed out on the ground the boundaries of the land, and if so whether the conversation took place before or after he purchased the property? to which he replied, that Royston pointed out the boundary stones, but it was after he bought the land and paid for it. He was neither asked to repeat, nor did he in fact detail any part of the conversation that took place between them at that time. The plaintiff, therefore,  [**21]  had no right to require of him to state all the conversation that then occurred between them on the ground that the witness had already stated part of it. It is not a case illustrating the familiar rule of evidence.
One of the purposes for which the rejected testimony in the sixth exception was offered, is as stated, not to contradict the deeds, "but to show the extent of the water-right under said deeds, and to show that the water-right under said deeds did not authorize the overflow of water beyond the boundaries named in the said deeds." 

 [*485]  Though the deeds are not in the record, it is quite clear they must speak for themselves on this subject. For this purpose the testimony was altogether inadmissible. But it was also offered "for any other purpose in the cause which did not vary the purport of said deeds," and it has been suggested in argument at the bar, that it was admissible to rebut the claim to the right of flowage by prescription, which the defendant had set up. If such a claim was in fact preferred, (and that it was, may perhaps be fairly inferred from the testimony offered by the defendant in the first part of this exception,) then, in our opinion,  [**22]  this testimony was admissible. But, this may be made more apparent upon another trial, and if the defendant shall then distinctly assert a prescriptive right of flowage in those under whom he claims title, it will be competent for the plaintiff to offer the testimony in this exception as tending to rebut and overthrow that right.
We are unable to perceive any ground upon which the testimony offered in the seventh exception could be admitted. It appears to us to be entirely irrelevant and inadmissible for any purpose, and was properly rejected. The testimony offered in the eighth exception was clearly such as the plaintiff ought to have offered in chief. It was in no sense rebutting testimony and was properly rejected at that stage of the trial.
From the fifth exception it appears that while the defendant was upon cross-examination as a witness, the plaintiff's counsel were busily engaged in writing down the exact language of the witness, with a view to contradict him, when the defendant's counsel objected to the time being consumed in this way, and the Court decided it would not wait to allow the plaintiff's counsel time to write down this evidence, and to this ruling this exception [**23]  was taken. It is manifest that this is one of those matters which must be left to the discretion of the Judges who preside at trials and cannot be reviewed on appeal. 

 [*486]  The practice of interrupting the progress of a trial to enable examining or opposing counsel to write down the very words of all the witnesses, a practice which, when insisted on, Judges are very reluctant to interfere with and stop, is often productive of great expense as well as tedious and unnecessary delay in nisi prius trials. In some cases it may defeat the ends of justice. It not unfrequently happens that the very rapidity of question and answer, especially on cross-examination, is the only mode of eliciting the truth. It is in this way that truth may be wrung from the lips of a prevaricating and unwilling witness, and the falsehood and studied fabrication of a dishonest and untruthful one, be detected and exposed. In such cases to allow delay for the purpose of having each question and answer written down by the opposing counsel, would often defeat the very ends and purposes for which the important right of cross examination is given. But whether the examination be a cross-examination, [**24]  or in chief, the conduct of the trial in this respect must rest with the discretion of the presiding Judges. Delay should be granted or withheld according to the importance of the cause and the testimony being given. Before careful and attentive Judges, injurious mistakes in this particular will rarely occur. But as we have said, in no case is such delay a matter of right in counsel, which, if denied, can be made the subject of appeal and review by this Court.
Judgment reversed, and new trial awarded. 

26 of 144 DOCUMENTS 

WILLIAM B. NORRIS and others, trading as NORRIS, CALWELL & Co., vs. BURTON DESPARD. BURTON DESPARD vs. WILLIAM B. NORRIS and others, trading as NORRIS, CALWELL & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 487; 1873 Md. LEXIS 74 

July 2, 1873, Decided 

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

Attachment on warrant issued on the 1st of December, 1870, at the instance of the appellants, against the appellee, a non-resident; affidavit, warrant, check and short note filed; "attached as per schedule;" defendant returned non est; copy of short note set up at the Court-house door. The short note alleged that the suit was instituted to recover the sum of $ 128.00 with interest thereon from the 22nd of May, 1861, due and owing from the defendant to the plaintiffs, on his check or draft, in words and figures, as follows: "$ 128.00. Clarksburg, Va., May 22, 1861. The Bank of Phillippi, Virginia, will pay to order of John J. Davis, Esq., one hundred and twenty-eight dollars, and charge B. Despard;" which check or draft was endorsed by the said Davis to the plaintiffs, for value, and the same was unpaid by said bank; whereupon the plaintiffs brought suit.

The defendant voluntarily appeared and pleaded that he was not indebted, and did not promise as alleged, and limitations. Issues were joined on the first and second pleas, and the plaintiffs moved to strike out the plea of limitations. This motion was granted by the Court, and the [**2]  plea was stricken out.

Plaintiffs' Exception.--At the trial of the cause the plaintiffs, to support the issues on their part joined, offered certain evidence, which is sufficiently stated in the opinion of the Court, and then rested their case. The defendant thereupon, at the suggestion of the Court, (SCOTT, J.,) prayed the Court to instruct the jury that there was no evidence in the case upon which the plaintiffs could recover. This prayer the Court granted; and the plaintiffs excepted.

Defendant's Exception.--The defendant excepted to the ruling of the Court in striking out his plea of limitations. A verdict was rendered for the defendant, and judgment entered on the verdict. Both parties appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

What is required to be done by the Holder of a Check, in order to charge the Drawer.

In an attachment on warrant against a non-resident, issued on the 1st of December, 1870, the short note stated that the object of the suit was to recover $ 128.00, with interest thereon from the 22nd of May, 1861, due and owing to the plaintiffs from the defendant on his check or draft for the sum aforesaid, bearing date at Clarksburg, Va., 22nd May, 1861, drawn on the Bank of Phillippi, Virginia, and payable to the order of John J. Davis, and by him endorsed to the plaintiffs for value, and which was unpaid by the bank. The defendant denied any indebtedness. The evidence showed that the check was drawn and endorsed as alleged; that it was never paid by the defendant; that it was never presented to the bank for payment, because the bank about the time the check was given had been removed, and by reason of the civil war at the time and the consequent interruption of mail communication between Baltimore and Phillippi, where the bank was located, the check could not be presented; that the check was given in payment of a debt due by the defendant's brother, of whom the defendant was executor with assets. There was no proof that the bank had not resumed business after the close of the war, and might not have paid the check, and no evidence that the plaintiffs ever afterwards presented the check to the bank, or that the defendant had no funds there to meet the check; nor was there any proof that notice of any sort was given to the defendant of its non-payment. HELD:

That the plaintiffs having failed to present the check to the bank, or to show any reasonable excuse for not doing so, and having failed to give the defendant notice of its non-payment, or to show that he sustained no injury in consequence, were not entitled to recover.  

COUNSEL:
J. Randolph Quinn, for Norris, Calwell & Co.

The Court erred in withdrawing the case from the jury, as there was evidence tending to prove the issue on the part of the plaintiffs. This evidence should have been passed upon by the jury. Byles on Bills, (10th Eng. Ed.,) 19, 20, or 5th Am. Ed., 93; Davis, et al. vs. Barney, 2 G. & J., 382, 403; Balt. & Ohio R. R. Co. vs. Thompson, 10 Md., 88; Morrison vs. Whiteside, 17 Md., 452.

A. C. Trippe,  [**3]  for Despard.

The contract laid is not the contract proven. The contract laid is against the defendant personally. The contract proven is with the defendant as executor of his brother, and in that capacity he should be sued. 1 Tidd's Prac., 61, 432; 1 Chitty Pl., 57.

It had been five and a half years from the war to the institution of this suit, and yet the plaintiffs had made no demand on the Bank or the defendant. Even admitting the personal responsibility of the defendant, the plaintiffs must show affirmatively that the defendant has sustained no loss by his negligence. Little vs. Phoenix Bank, 2 Hill, 425; Bradford vs. Fox, 39 Barbour, 204.

The check is not sufficient "evidence of debt" under the attachment. It does not "express the plaintiffs' cause of action," as is required of the short note. The original cause of action should have been filed in the one case and declared on in the other. Code, Art. 45, secs. 4 and 10; Ev. Pr., 162; Cumberland Coal & Iron Co. vs. Hoffman Steam Coal Co., 22 Md., 495.

The instruction by the Court was correct. There was nothing for the jury to find. The appellants have not been prejudiced by the ruling of the Court. No form of [**4]  prayer would have enabled the plaintiffs to recover. Morrison & Kildow vs. Hammond's Lessee, 27 Md., 604; Walker vs. Rogers, Exc'x of Rogers, 24 Md., 247.  

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

OPINIONBY:
STEWART 

OPINION:

 [*490]  STEWART, J., delivered the opinion of the Court.
The appellee in this Court, having abandoned his appeal from the ruling below, striking out the plea of limitation, the only question for our review is as to the instruction upon the appellee's prayer, that there was no evidence in the cause upon which the plaintiffs could recover.
The cause of action was described in the short note required, in a proceeding originating in attachment, which substantially alleged the non-payment of a check, for the sum of $ 128, bearing date at Clarksburg, West Virginia, 22nd May, 1861, drawn by the appellee, on the Bank of Phillippi, Virginia, and payable to John J. Davis, or order, and by him endorsed to the plaintiffs, for value, and which was unpaid by the Bank.
The defendant denied any indebtedness.
There was evidence that the check was drawn and endorsed, as alleged, and that the same was never paid by the defendant; that it [**5]  was never presented to the Bank for payment, because the Bank, about the time the check was given, had been removed, and that by reason of the civil war at the time and the interruption of mail communication between Baltimore and Phillippi, the check could not be presented--that the check was given in payment of a debt due by the defendant's brother, of whom he was said to be executor, with assets.
There was no proof that the Bank had not resumed business after the termination of the war, and might not have paid the check, but there was no evidence that the plaintiffs ever afterwards made any presentation of the check to the Bank, or that the defendant had no funds there to meet the check; nor was there any proof that notice of any sort was given to the defendant of the non-payment.
In Moses vs. Franklin Bank of Baltimore, 34 Md. 574, it was decided that a check of this description possesses 

 [*491]  properly certain incidents of an inland bill of exchange, and could be protested for non-payment.
Notice of non-acceptance and non-payment is required to be given that the drawer may take any necessary steps to protect his interest, under the circumstances, and [**6]  if notice be not given, it is the presumption of law that he is injured by the omission.
In the application of the principle Courts must enquire into the liabilities of the respective parties to the check, for the purpose of ascertaining whether this injury, either actual or presumptive, could take place.
The drawer who has no effects in the hands of the drawee, is not entitled to notice. Clopper's Adm'r vs. The Union Bank of Maryland, 7 H. & J. 92; Eichelberger vs. Finley & Van Lear, 7 H. & J. 381.
The general rule is, that the holder in order to charge the drawer, is bound to present the check for payment, and to give notice to the drawer, within a reasonable time, unless these requisites are waived. Chitty on Bills, 379.
If due diligence is not used by the holder of a check, and loss ensues, it falls on the holder, by whose laches it has occurred. Story on Prom. Notes, sec. 493. If the plaintiffs could not present the check during the war, they might have presented it afterwards, or shewn some reasonable excuse for not doing so, and have given notice to the drawer.--Lex non cogit ad impossibilia.
If a bill cannot be presented in due time from [**7]  some inevitable accident not involving the holder in any blame, as the occupation of the country in which the bill is drawn, by an enemy, rendering the presentment an impossibility, the delay will be excused; but the earliest possible presentment must be made when the impediment ceased. Chitty on Bills, 53.
Assuming that the circumstances relied upon in the proof were sufficient to excuse the plaintiffs for non-presentation 

 [*492]  of the check, certainly it was but just that they should give the defendant notice of the non-payment in reasonable time, before they brought their action, or to have shown that the defendant sustained no injury in consequence.
In the case stated in Woods vs. Schroeder, 4 H. & J. 276, although the drawers of the check had given notice to the Bank not to pay the check; from abundant caution and to guard against any inference of laches against the holders, it was alleged that the drawers were notified of the dishonor of the check.
The case of Eichelberger vs. Finley, 7 H. & J. 381, very distinctly recognized the necessity of notice of the non-payment of the check to the drawer, unless some sufficient excuse be shown for dispensing [**8]  with it, as if the drawer at the time when presentment should be made, had no effects in the hands of the drawee, or having such effects, should withdraw them before presentment, and should have no reasonable grounds to expect that his bill would be honored. The plaintiffs' case was fatally defective in failing to furnish the material evidence to show the defendant's liability, and we therefore find no error in the instruction given by the Baltimore City Court.
Judgment affirmed. 

27 of 144 DOCUMENTS 

EMILY J. FARDY and FRANKLIN KONE vs. JOHN B. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 493; 1873 Md. LEXIS 75 

July 2, 1873, Decided 

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

The bill of complaint in this case was originally filed by the appellee against Emily J. Fardy, for the specific performance of a contract in writing, alleged to have been made between them on the 4th of October, 1871. The bill charged that by this contract, the said Emily contracted to lease to the appellee, her property in the city of Baltimore, known as "Fardy's Wharf," for a term of six years from the first of January, 1872, at an annual rent of $ 2225, and the payment of the taxes and ground-rent on the property; that the appellee, on his part, agreed to pay the said rent semi-annually, in July and December of each year, except for the first year, when the rent was to be paid in advance, as follows: $ 1000 on the first of January, 1872, and $ 1225 on the first of March, 1872; and it was agreed, that at the expiration of the period of six years aforesaid, the appellee should be entitled to a further lease for a term of five or ten years, at his option, at an annual rent of $ 2725, and payment of the ground-rent and taxes, as in the first case, on the payment to the said Emily of a bonus of $ 3000, and that in case such additional [**2]  lease should be withheld, then the said bonus should not be payable by the appellee, but the said Emily should pay to him the sum of two thousand dollars as an equivalent for a warehouse, which he proposed to construct on the said property, and in case the appellee should refuse to renew the lease, then he should pay the said Emily the sum of $ 1500, and deliver to her the possession of the said warehouse, to be erected by him at a cost of not less than $ 5000; that the said Emily contracted that she would guarantee the appellee against demands for ground-rent to any greater amount than $ 275, and taxes to any greater amount than $ 500, and that there should be sufficient depth of water upon the east side of the pier to accommodate a vessel drawing sixteen feet, so that a vessel drawing sixteen feet or under might be enabled, with convenience, to lie alongside the said east side of the pier; and it was further agreed, that the said Emily should put the wharf in good order and repair, and should deepen the berth along the west side of the pier, so as to accommodate vessels drawing sixteen feet of water, in case the appellee required it, and on the understanding that in case the taxes [**3]  should be less than $ 500 per annum, the appellee should apply the difference between the taxes and $ 500 towards the deepening of said berth, and that the appellee should allow the brick store, on the south-west corner of the property known as "Fardy & Woodhull's Ship-Chandler's Store," to remain, and that there should be an alley-way of two feet in width left between the northern wall of said store and that part of the southern wall of the warehouse opposite to it; that all buildings then on the premises, except the said store and ice-house, should be removed by said Emily by the first of January, 1872, and the ice-house by the 26th of March, 1872; that the said Emily would; on or before the first of November, 1871, execute or cause to be executed, a lease, in accordance with the terms of said contract.

The bill further charged, that the lease was not tendered for execution on the said first of November, because negotiations had failed, that the appellee had made arrangements to enter upon possession of the said property and make the necessary arrangements for his business, and for the construction of a warehouse on the property, but that the said Emily had refused to comply [**4]  with the terms of said agreement, and had notified the appellee, through her agent, that she would repudiate the same--would execute no lease, and would not allow him to enter on the possession of the property--and the appellee had good reason to believe, and therefore charged that the said Emily was about to lease the property to some other person, and to put him in possession thereof; that the appellee was entitled to have a decree for a specific performance of said contract, and he was remediless at law.

The bill prayed for a specific performance of the contract, and that meanwhile the said Emily should be enjoined from selling, leasing or disposing of the said property until the further order of the Court.

With the bill was filed the written agreement, which purported to have been entered into by Emily J. Fardy, by her agent, Franklin Kone, and John B. Williams, by his agent, James Thruston. It was signed by Franklin Kone, agent, and James Thruston, agent. The injunction issued as prayed.

Emily J. Fardy filed an answer to the bill, alleging that she never made the agreement, and that she was not a party thereto, directly or indirectly; that, on the contrary, long [**5]  previous to the filing of the bill, and prior to the date named in the said agreement, she had in good faith, rented and leased the property in question, known as "Fardy's Wharf," to Franklin Kone; and that at the time of the issuing and service of the injunction, she had no legal control over the property, so far as to rent or lease it. The answer further stated, that the complainant had not complied with the terms and conditions of the agreement, and that he had a remedy at law in the matter of said agreement, and as against the proper party, and prayed that the injunction might be dissolved and the bill dismissed.

After the filing of this answer, the appellee filed a supplemental bill, in which he stated that he tendered to the respondent on the 1st of January, 1872, the sum of $ 1000, which by the agreement, he was required to pay on that day, as part of the first year's rent of the premises, and at the same time tendered to her for execution, the draft of a lease in exact conformity to the provisions of the contract, but that she (Franklin Kone being with her at the time,) refused to execute the same, or to receive the money. The supplemental bill made Kone a party, upon [**6]  the ground that he claimed an outstanding leasehold title in the property, and the same was asserted by the respondent in her answer; the bill prayed that an injunction might issue against both.

Kone filed an answer, in which he admitted that he signed the agreement, but stated that he was not authorized by Mrs. Fardy to do so as her agent; that at that time he was the lawful possessor of the property in question, under a prior agreement between Mrs. Fardy and himself; that he inadvertently signed the agreement as her agent, having been her agent in the transaction of other matters; that the appellee had failed to comply with the terms of the agreement, and that by reason of such neglect and non-compliance and the damage thereby caused him, Kone, he had, prior to the institution of this suit, sub-let and transferred all his right to a portion of the property to other parties, who had no knowledge of the agreement with the appellee, and that it was not then in his, Kone's power, to specifically perform said agreement.

This answer was excepted to, because the respondent failed to disclose to whom he had sub-let part of the property. The exceptions were sustained, and Kone filed [**7]  an amended answer, in which he stated that he signed his name to the agreement as agent at the request of Thruston, and through his own mistake and inadvertence; that he leased the property known as "Fardy's Wharf," from Mrs. Fardy on the 1st of April, 1868; that he entered into the agreement with the appellee in good faith, on the 4th of October, 1871, and that he tendered himself ready on the 1st of November, 1871, the time named in the agreement, to execute the lease, but Thruston declined to execute it, and stated at the time that the appellee said that he could not sign any paper whatever until he knew what the building would cost; that the architects had fooled him in the price, and that he did not know when he could be ready; the answer further stated that previous to the service of the injunction upon him, he, Kone, about the latter part of December, 1871, or the first part of January, 1872, leased to Jacob Frederick & Son, ice dealers, about forty feet front of the said wharf in question, with the ice-house thereon, for three years, with the privilege of three years more; that during the year 1871, he obtained from Mrs. Fardy, the privilege to have and retain said property [**8]  for six years from the 1st of April, 1872.

By agreement, the answer of Mrs. Fardy to the original bill was accepted as her answer to the supplemental bill. A commission was issued, and much testimony taken, which, from the conclusion reached by this Court, it is deemed unnecessary to state.

The Circuit Court, (PINKNEY, J.,) held that a specific performance of the agreement for a lease, should be enforced and so decreed; and the injunction previously issued, was made perpetual.

From this decree, the respondents appealed.  

DISPOSITION:
Decree reversed; and bill dismissed.  

HEADNOTES:

Specific Performance.

When a contract, which it is sought to have specifically executed, is definite in its terms and provisions, and established by unequivocal testimony, and the party complaining of its non-performance, has no adequate remedy at law, by way of compensation in damages, a Court of Equity will not hesitate to afford relief; -- if otherwise, it will refuse to interfere, and leave the party to his legal remedy.

A bill was filed for the specific performance of an alleged agreement by the defendant, to lease to the complainant certain wharf property, of which she was the owner. The agreement purported to have been entered into by the complainant and defendant through their respective agents, and the same was signed by them as agents. The defendant denied that she ever made the agreement; and the party who signed it as her agent, stated that he was not authorized by her to do so; that through his own mistake and inadvertence, he signed it as her agent, having been her agent in the transaction of other matters; that at the date of said agreement, he was himself the lessee of the property. A non-compliance with the terms and conditions of the agreement on the part of the complainant was also alleged. The proof being deemed insufficient to show that the defendant ever authorized the execution of the agreement, or that she subsequently ratified it, and the testimony so far from being clear and definite, being involved in obscurity and conflict, it was HELD:

That the complainant was not entitled to have the agreement specifically executed.  

COUNSEL:
N. W. Watkins and Wm. S. Waters, for the appellants.

The testimony is not sufficient to prove authority by Mrs. Fardy to sign the agreement. It is immaterial whether any effective lease was ever given by Mrs. Fardy to Kone or not. Certainly there is no evidence of authority to execute a contract like this. Unless the authority is clearly proved, specific performance should not be granted. The execution of such an agreement, is not an ordinary transaction of business--a general authority to manage the business of a party does not prove it.

The agreement itself, under the Statute of Frauds, if not in [**9]  writing, would be void. It would be a gross violation of the spirit of the Statute, if the authority to sign it could be proved by anything short of clear evidence.

Here there is no such proof. The agent says he never was authorized to do this act, and Mrs. Fardy denies it. No other person pretends to actual knowledge of it. 2 Story Eq., sec. 769; Nelson vs. Hagerstown Bank, 27 Md., 70; Philpott vs. Elliott, 4 Md. Ch. Dec., 273; Waters vs. Howard, 1 Md. Ch. Dec., 112; 2 Greenl. Ev., secs. 59, 60, 63, 64, 64a; 1 Greenl. Ev., secs. 113, 416, 417; Howard vs. Carpenter, 11 Md., 259.

An agency to manage the general business of a party, does not extend by implication to authorize such a contract as this. Story on Agency, secs. 69, 71, 88; Hawkins vs. Bruce, 7 M. & W., 595.

There is no evidence of ratification of the authority. When the $ 1000 was tendered to Mrs. Fardy, nothing that she said could be construed into an acknowledgment of an authority previously given or the ratification of it. She simply said that she knew nothing about the business, and must see Kone. The contract had then been repudiated by Kone. Howard vs. Carpenter, 11 Md., 279.

The contract sought [**10]  to be enforced is, that the appellant, Mrs. Fardy, will execute or have executed a legal instrument of lease in conformity with the terms of the agreement, before the first of November, 1871. There is no corresponding agreement on the part of Williams, and had a lease been executed and tendered within the terms of the contract, and Williams had refused to execute it, he could not have been compelled by a Court of Equity to execute it; there is, therefore, no mutuality in the agreement. Geiger vs. Green, 4 Gill, 472; Duvall vs. Myers, 2 Md. Ch. Dec., 401; Rider & Trotter vs. Gray, et al., 10 Md., 291.

The agreement is for an interest in land for more than seven years, and cannot therefore be enforced. Anderson vs. Critcher, 11 Gill & John., 453; Howard vs. Carpenter, 11 Md., 274. The remedy of the complainant is at law.

The appellee refused to accept the lease within the terms mentioned in the agreement. Whether, therefore, he had sufficient reason for and was justified in so doing, depends upon the testimony. This is conflicting. The testimony of Kone is clear to the point, that the contract was abandoned. If any difficulty or confusion has arisen on this point, it is due [**11]  to the want of promptness on the part of the appellee, and clear evidence should be required in his justification. The defendants cannot now execute the contract, and the Court will not therefore enforce it.

William A. Fisher, for the appellee.

Nothing is more clearly settled in equity, than that time is not to be regarded as of the essence of the contract in suits for specific performance, unless it be clearly made so by the terms of the contract, and the resisting party will suffer injury unless it be so treated. Fry on Specific Perf., secs. 709, 712, 745, (10 Law Lib.); Smoot vs. Rea & Andrews, 19 Md., 406-7.

Specific performance will be granted, although there has not been strict compliance by the complainant, if the non-compliance does not go to the essence of the contract. Smoot vs. Rea & Andrews, 19 Md., 406.

It is apparent that the failure of Williams to demand the execution of the lease on the first of November, 1871, did not go to the essence of the contract, as he was not to have possession, and the term was not to begin until January, 1872, and compliance had been refused by the defendants, and the bill filed before January 1, 1872. If the defendants [**12]  rely upon any abandonment of the written contract, they must prove it. Fry on Specific Perf., sec. 698.

Not only have they failed to prove it, but the testimony abundantly establishes that there never was any intention to abandon the written contract; that Mr. Williams wished to put up a more expensive house, if he could, and obtained an extension of time in order to enable him to mature his plans, and to negotiate for a change in the terms of the contract looking to the increased cost of the building.

During the negotiations, after November 1, 1871, Kone showed that he was relying on the written contract by a threat to enforce its terms at once.

Another objection made by the defendants is, that it does not sufficiently appear that Kone had authority to act as the agent of Mrs. Fardy in making the contract. This defence was wholly an after-thought. Mrs. Fardy did not pretend to question his authority when Mr. Thruston made her the tender on January 1st, 1872, and it was not even alluded to, until after Kone had an opportunity to make the suggestion to her.

As to the pretended lease from Mrs. Fardy to Kone, it is unimportant, as he is estopped from setting it up,  [**13]  having executed the contract as agent of Mrs. Fardy. But it was incumbent upon him to prove it.  

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

OPINIONBY:
STEWART 

OPINION:

 [*501]  STEWART, J., delivered the opinion of the Court.
The bill in this case was filed for the specific performance of a contract, alleged to have been made by Emily J. Fardy, through her agent, Franklin Kone, with John B. Williams, through his agent, James Thruston, for a lease of certain property in the city of Baltimore, known as "Fardy's Wharf," for the term of six years, with a further agreement that at its termination Williams was to have the option of an additional term.
There seems to have been no question that the property belonged to Mrs. Fardy, and by her answer she denies she ever made or authorized such an agreement.
There is no proof that she ever signed the alleged contract. It is averred that a certain Franklin Kone executed the agreement as her agent, and he states that he had no authority from her to sign the agreement as agent for her.
It is well settled by all the authorities, that the interference of a Court of Equity to decree specific performance 

 [*502]  of [**14]  contracts depends upon the exercise of a sound discretion and fair consideration of all the circumstances, of the alleged contract, and the conclusiveness of the testimony to establish it, as well as the nature of the property involved. Mundorff vs. Kilbourn, 4 Md. 459.
It is not a matter ex debito justitiae, and it is an indispensable preliminary that the contract must be made out by the clearest and most satisfactory proofs. Geiger vs. Green, 4 Gill 472.
When the contract is definite in its terms and provisions, and established by unequivocal testimony, and the party complaining of its non-performance has no adequate remedy at law, by way of compensation in damages, a Court of Equity would not hesitate to afford relief; otherwise it will refuse to interfere, and leave the party to his legal remedies. Sullivan vs. Tuck, 1 Md. Ch. 59.
Without considering the collateral or incidental questions discussed by the respective counsel, from a careful examination of the testimony, we do not think any contract to bind Mrs. Fardy is sufficiently made out to justify a Court of Equity in compelling its specific performance, according [**15]  to the well-established principles of equity applicable to such questions.
It appears from the testimony that Franklin Kone was the brother of Mrs. Fardy, to whom she confided much of her affairs, and he transacted her business. Notwithstanding this, in the absence of special authority or definite and clear proof of his general agency for such purpose, no sufficient inference can be deduced from his relations and dealings with Mrs. Fardy that he had any competent authority from her to execute a contract for the lease of the property in question.
It would be giving great latitude to a general agent, and would require the most satisfactory and conclusive proof of his authority to hold the principal bound by his act, in the execution of such an agreement as this.

 [*503]  It would be highly dangerous doctrine to hold the proprietor of real estate or leasehold property, usually incapable of personally attending to her affairs, estopped by any acts of an ordinary agent she was in the habit of employing, unless she was fully apprised of their nature and extent. Nor is the proof more satisfactory as to any ratification or recognition of the acts of Franklin Kone, as her agent in the [**16]  execution of the agreement in question.
It is well settled that, before she can be held to have ratified his acts, it is necessary to prove that she had full knowledge of all the facts affecting her rights. Howard vs. Carpenter, 11 Md. 259.
Finding no sufficient proof that Mrs. Fardy authorized Franklin Kone to execute the contract, or that she subsequently ratified what he had done, and the testimony, so far from being clear and definite, is involved in obscurity and conflict, we think the Court below erred in decreeing the relief granted.
Decree reversed, and bill dismissed. 

28 of 144 DOCUMENTS 

WILLIAM M. BUSEY vs. JOHN S. REESE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 264; 1873 Md. LEXIS 55 

June 26, 1873, Decided 

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

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

DISPOSITION:
Decree reversed, and bill dismissed.  

HEADNOTES:

Construction of Art. 24, sec. 16, of the Code -- A pre-existing Debt a good and valuable Consideration within the meaning of this Section.

Art. 24, sec. 16, of the Code, provides that "Where there are two or more deeds conveying the same lands or chattels real, the deed or deeds which shall be first recorded according to law shall be preferred, if made bona fide and upon good and valuable consideration." HELD:

That if a deed be taken in payment and satisfaction of a pre-existing debt, it is for a good and valuable consideration within the meaning of this section.  

COUNSEL:
Wm. M. Busey, for the appellant.

Where there are two or more deeds conveying the same lands or chattels real, the deed which shall be first recorded according to law shall be preferred, if made bona fide and upon good and valuable consideration. This to apply to deeds of mortgage also. Code of Pub. Genl. Laws, Art. 24, sec. 16.

The appellant's deed was recorded before the appellee's mortgage. The bona fides of the appellant's deed is not questioned, and the only question is, whether the consideration of the deed from Eichelberger to the appellant was such a good and valuable consideration as is required by the provision of the Code. Said deed was made in settlement and satisfaction of a past indebtedness. The acceptance of land in payment of a debt will entitle the creditor to be considered a purchaser for value. Donaldson vs. the State Bank, 1 Devereux Eq., 106; Ohio L. & Trust Co. vs. Ledyard, 8 Ala., 874.

The payment or discharge of a pre-existing debt is a valuable consideration. Swift vs. Tyson, 16 Peters,  [**2]  1; 3 Kent's Com., 81; Basset vs. Nosworthy, 2 Leading Cases in Eq., 103.

The appellee, contributed to the fraud practised upon the appellant, by placing his deed of mortgage in the hands of Eichelberger to be recorded; thus enabling Eichelberger to conceal the fact of its existence from Busey, and thereby induce him to accept a deed of property in satisfaction of his debt. Being thus deceived into a sense of security, Busey lost his opportunity of recovering from Eichelberger.

Whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. Broom's Legal Max., 686; Lickbarrow vs. Mason, 2 Term R., 70; Bank of the United States vs. Davis, 2 Hill, 461; Merchants' Bank vs. State Bank, 10 Wallace, 649.

Robert A. Dobbin, for the appellee, contended

1st. That Busey is not a bona fide purchaser for value, because the consideration which he gave for his deed was a pre-existing antecedent debt. 2d. That the mortgage to Reese, the consideration of which was a valuable one, being $ 300.00, passing at the time of the delivery of the mortgage, was entitled to priority to the deed to Busey. Ratcliffe [**3]  vs. Sangston, 18 Md., 381; Root vs. French, 13 Wend., 570; Dickerson vs. Tillinghast, 4 Paige Ch. R., 215; Rowan vs. Adams, 1 Smodes & Marshall Ch. R., 45; Powell vs. Jeffries, 4 Scammon, 307; Jackson vs. Myers, 11 Wend., 533.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*266]  BARTOL, C. J., delivered the opinion of the Court.
On the 5th day of October, 1870, Eichelberger borrowed from the appellee three hundred dollars, and on that day executed a mortgage of certain leasehold property, to secure its payment, the mortgage was, after its execution, handed to Eichelberger, who promised to have it recorded but failed to do so, retaining it in his own possession till the 29th day of October, 1870, when 

 [*267]  at 12 1/4 o'clock P. M., it was recorded. In the meantime, on the 25th day of October, 1870, Eichelberger executed to the appellant, an absolute deed of conveyance of the same property, which was recorded before the mortgage, viz: on the 29th day of October, 1870, at 11 1/2 o'clock, A. M.
The appellant had no notice or knowledge of the existence of the mortgage, at the time the deed to him was executed [**4]  and recorded; it was made "in consideration of a sum of money then and for some time previous due to him from Eichelberger;" or as charged in appellee's bill of complaint "in settlement and satisfaction of a past indebtedness long overdue and unpaid."
The single question for our consideration, is which of the parties is entitled to priority; and this we think depends upon the true construction of the Code, Art. 24, sec. 16, which is in these words:
"Where there are two or more deeds conveying the same lands, or chattels real, the deed or deeds which shall be first recorded according to law shall be preferred, if made bona fide and upon good and valuable consideration. This section to apply to all deeds of mortgage, and to all other deeds or conveyances, to the validity of which recording is necessary."
It is conceded that the deed to the appellant was made bona fide, but it is contended that although first recorded, it is not entitled to priority, because the consideration was a pre-existing debt due from the grantor to the grantee; which, it is said, is not a "good and valuable consideration" within the meaning of the Code.
In support of this position, the counsel [**5]  for the appellee has cited several cases, involving the question, when and under what circumstances, a party claiming to hold property by purchase or assignment from one having an imperfect title, will be protected as a bona fide purchaser for value, against the lawful owner, or one holding a prior equity.

 [*268]  On this question Ratcliffe vs. Sangston, 18 Md. 383, has been relied on by the appellee's counsel as conclusive of the present case. It was there held that where a party had purchased goods by means of false and fraudulent representations, he could not defeat the right of the defrauded vendor to reclaim them, by making a voluntary assignment to trustees for the benefit of his creditors. The nature of the consideration required to make a transfer of title from a fraudulent vendee valid, as against the defrauded vendor, was there explained, and it was decided that the assignees were not bona fide purchasers for a valuable consideration; but stood in the position of the assignor, and took the property subject to all the equities which were binding before the assignment. Ratcliffe vs. Sangston, was decided in conformity with the well settled [**6]  doctrine of Courts of Chancery, with respect to what constitutes a bona fide purchaser for value, entitled to protection against antecedent equities, and is in accordance with the current of authorities. The question as respects the effect of an assignment for the benefit of creditors, has been decided in the same way in a number of cases, which are collected in 2 Leading Cases in Equity, 104, (et seq.); among them we cite Holland vs. Cruft, 37 Mass. 321, 20 Pick. 321, and Twelves vs. Williams, 3 Whart. 485. Upon a review of Ratcliffe vs. Sangston, we think it was decided correctly. But even if the equitable doctrine to which we have referred, and which governed the decision in Ratcliffe vs. Sangston, could be held applicable to a case arising under the Code, Art. 24, sec. 16, which we by no means admit; that case would not control the present, they are not analogous. There the creditors had not released; "the interests of the parties remained as they were at the date of the assignment." Here the deed to the appellant was made in payment and satisfaction of a pre-existing debt, which was thereby extinguished; this constituted [**7]  a good and valuable 

 [*269]  consideration within the meaning of the Code. In the case of "The Cecil Bank vs. Heald, 25 Md. 562," this Court decided, following the ruling of the Supreme Court in Swift vs. Tyson, 16 Peters 1, that a party who takes negotiable paper bona fide, in payment of an antecedent debt, is a holder for valuable consideration, entitled to protection against antecedent equities. That was a case arising upon commercial paper, which in some respects is governed by other considerations: but "in this respect, equity and the commercial law perfectly agree, both being founded on principles of reason as well as convenience." We think the same rule applies to the transfer of lands or chattels; if taken in payment and satisfaction of an existing debt, the extinguishment of the debt constitutes a valuable consideration, entitling the purchaser to protection against antecedent equities. The contrary was decided by Chancellor WALWORTH in Dickerson vs. Tillinghast, 4 Paige 215. We agree however, with what was said by Judge STORY in Morse vs. Godfrey, 3 Story 390, where in speaking [**8]  of the decision in Dickerson vs. Tillinghast, the learned Judge remarks, "I do not say, that I am prepared to go quite to that length, seeing that by securing the estate as payment, the pre-existing debt is surrendered, and extinguished thereby." In this case there is much force in the argument of the appellant's counsel based on the fact, that the appellee after taking his mortgage, not only failed to have it recorded, but left it in the hands of the mortgagor, trusting to his promise to have it placed on record, and thereby enabled the mortgagor to impose on the appellant; thus bringing the case within the rule that "whenever one of two innocent parties must suffer by the acts of a third person, the loss ought in Equity to fall upon him, who has enabled the third person to occasion the loss." But we do not rest our decision of the case upon this principle. In our judgment the provisions of the Code are very plain 

 [*270]  and explicit. To entitle the deed first recorded to be preferred, nothing more is required than that it shall be made bona fide; and upon a good and valuable consideration. If taken in payment and satisfaction of a pre-existing debt, it is for a good [**9]  and valuable consideration within the meaning of the Code.
Being of opinion that the deed of the appellant is entitled to be preferred, and that he took the property free from the encumbrance of the appellee's mortgage, the decree of the Circuit Court will be reversed and the bill dismissed.
Decree reversed, and bill dismissed. 

29 of 144 DOCUMENTS 

JOSEPH S. HEUISLER, Trustee, and THE AMICABLE BUILDING ASSOCIATION, No. 2, OF BALTIMORE CITY vs. WILLIAM C. NICKUM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 270; 1873 Md. LEXIS 56 

June 26, 1873, Decided 

July 11, 1873, Filed 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Order affirmed with costs to the appellee.  

HEADNOTES:

Construction of Section 3 of Article 64 of the Code, entitled "Mortgages" -- When a Court of Equity will annul a Sale made under its Decree.

Section 3 of Article 64 of the Code, which provides that: "Whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser," applies only to vendor and vendee; -- to cases where the vendor having conveyed the land, takes at the same time from the purchaser a mortgage to secure the payment of the purchase money.

Where a purchaser, simultaneously with the deed to himself from his vendor, executes a mortgage to a third party to secure the payment of money which was applied to the extinguishment of the vendor's lien, such mortgage will not, under section 3 of Article 64 of the Code, be preferred to previous judgments which had been obtained against the purchaser.

A purchaser, at the same time that he received a deed from his vendor, executed a mortgage of the property to a third party, to secure the payment of money which was applied to the extinguishment of the vendor's lien. The mortgagor having made default according to the terms of the mortgage, a decree, with his consent, was passed by the Circuit Court for the sale of the mortgaged property. The trustee under this decree sold the property and received the cash instalment from the purchaser, and his notes for the deferred payments. An order nisi was passed, and before the time therein prescribed for the final ratification of the sale, the purchaser filed his petition praying that the sale might be set aside and annulled, because since the sale he had ascertained that there were two judgments against the mortgagor, prior in date to the mortgage, which were liens on the property, and the judgment creditors had not been made parties to the proceedings, and the property was not sold subject to said liens, and no provision was made for their payment. He alleged that the net proceeds of sale were insufficient to pay the judgments with the costs and accrued interest, and the trustee was unable to convey to him a clear title to the property. Short copies of the judgments were filed with the petition. The trustee answered the petition, denying that the judgments constituted any incumbrance prior to the mortgage debt, and alleging that even if they were of record prior to the mortgage, they could not affect the interest of the petitioner. The answer averred that there was no sufficient ground for exception to the ratification of the sale set out in the petition, and prayed that the exceptions might be overruled, and the sale ratified. HELD:

That the objections to the sale were well taken; that the property sold being liable to be resold at the instance of the judgment creditors, their liens being superior to that of the mortgage, the sale should be set aside and annulled, and the cash instalment of the purchase money and the notes for the deferred payments restored to the purchaser. 

COUNSEL:
Wm. J. O'Brien, for the appellants.

Under the Maryland statute the mortgage given to secure payment of the purchase money, at the time of the deed of the property, is preferred to previous judgments against the purchaser of the property. Art. 64, sec. 3, of the Code of Public Genl. Laws.

The mortgage given to a person not the vendor of the land--if given simultaneously with the deed of the land--to secure the purchase money, is preferred to prior judgments. Jackson vs. Austin, 15 Johns. Rep., 477; Haywood vs. Nooney, 3 Barbour S. C. Rep., 645; Clark vs. Monroe, 14 Mass., 351; Rawlings vs. Lowndes, 34 Md., 639.

The seizin of Wize, in so far as it affects the appellants, was an instantaneous seizin, and the preference claimed for the mortgagee, in this case, does no injury to the judgment creditors. In this view the purchaser is not prejudiced, and there exists no reason why the order of the Court below should not be reversed.

John M. Carter, for the appellee.

Though the money derived from the corporation was used [**2]  in the purchase of the property, yet there was a moment of time between the execution of the deed and mortgage, during which the judgments against Wize attached to the property, and became liens thereon in advance of the mortgage. Murphy vs. Cord, 12 G. & J., 182.

When Wize paid the entire purchase money to his vendor the vendor's lien was discharged. It could not be transferred to the corporation save by a proper assignment from the vendor himself; and in the absence of such an assignment the Building Association could not be subrogated to the rights of the vendor, to the injury of the judgment creditors. If the corporation wanted to be treated as assignee of the vendor's lien, it should have dealt with the vendor and not the mortgagor. Alderson vs. Ames & Day, 6 Md., 52; Reigle vs. Leiter, 8 Md., 405; Swan vs. Patterson, 7 Md., 164.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*273]  BOWIE, J., delivered the opinion of the Court.
McKeel T. Wize, of the City of Baltimore, on the 18th of September, 1869, executed a mortgage to the "Amicable Building Association, No. 2," of that City, to secure certain advances made to [**3]  him by the Association, and his compliance with certain conditions in said mortgage mentioned.
The mortgage contained a clause consenting that a decree might be passed for the sale of the property, (the sale to take place after a default in any of its conditions,) under the provisions of sections 782 to 792 inclusive, of Art. 4, of the Code of Public Local Laws, etc.
On the petition of the Amicable Building Association, filed in the Circuit Court of Baltimore City, alleging the mortgagor was largely in arrears to the Association, and that default had been made in the performance of its conditions, according to the terms of the mortgage, a decree was passed on the 27th of May, 1872, authorizing a sale, and appointing Joseph S. Heuisler, trustee, to execute the decree, with the usual provisions as to qualification, and prescribing the terms of sale, etc.
The trustee afterwards on the 3rd of July, 1872, reported to the Court, that he had sold the premises to the appellee, William C. Nickum, he being the highest bidder.
An order of ratification nisi was passed by the Court on the same day; and before the time prescribed in the order, for final ratification, viz: on the 3rd of August,  [**4]  1872, the appellee filed his petition praying that the sale might be set aside and annulled, for the following reasons, viz: Because since the sale, he has ascertained that the property sold is subject to two judgments, prior in date to the mortgage, which are liens on the property, and the judgment 

 [*274]  creditors were not made parties to the proceedings, and the property was not sold subject to said liens, and no provision is made for their payment.
He alleges that the net proceeds of sale are insufficient to pay said judgments, with their costs, and accrued interest, and the trustee is unable to convey to petitioner a clear title to the property.
Short copies of judgments are filed by consent of counsel, marked Exhibit W. C. N., No. 2, and No. 3, respectively--showing a judgment in the Court of Common Pleas, on the 11th of November, 1862, in favor of John P. Poe, receiver, etc., against McKeel T. Wize for $ 425, with interest from 6th of September, 1861, and costs. 26 February, 1870, attachment on judgment to May term, 1870; and a judgment of the Bank of Commerce vs. John T. Wize and McKeel T. Wize, on the 20th of September, 1862, for $ 255. Interest from 10th September,  [**5]  1862, and costs--fi. fa. issued to January term, 1863, returned "nulla bona."
The trustee answering the appellee's petition, admits he has received the cash payment, and notes of the petitioner for the residue of the purchase money, professes to be ignorant of the two judgments alleged to be of record, but denies they constitute any incumbrance prior to the mortgage debt.
The trustee insists that if such judgments are of record, they cannot affect the interest of the petitioner; he denies the necessity of making judgment creditors parties to the proceeding, and avers that any interest they may have in the purchase money, does not prejudice the petitioner, even though the net proceeds of sale would not pay the judgments, if so applied.
He avers, that he sold only the interest of the parties to the cause, and the purchaser bought the same, and there is nothing in his petition, which is a sufficient ground for exception to the ratification of the sale.

 [*275]  The Court below, after argument on the exceptions of the appellee, sustained the objections to the sale, and ordered that the same be set aside, and the trustee return to the purchaser, the cash payment, and notes [**6]  for the deferred payments; from which decree, the Amicable Building Association, No. 2, and the trustee appealed.
The appellants' counsel in their brief, say, "that McKeel T. Wize purchased the property in question from Mary C. Dempster, and simultaneously mortgaged the same to the Amicable Building Association, to secure a sum of money advanced to him, to enable him to purchase the property." They contend that the case comes within sec. 3, of Art. 64, Pub. Gen. Laws, which provides, "Whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment, which may have been obtained against such purchaser."
Whatever interpretation might be given to this section of the Code, if the record contained facts, requiring its application, it would be very premature in this Court, to decide its meaning upon a mere hypothesis.
Notwithstanding the appellee seems to admit the correctness of the appellants' statement, the record shows that the mortgaged premises were purchased by the mortgagor of Mrs. Dempster, on the 15th of September, 1869, and granted [**7]  and conveyed by deed on the same day to McKeel T. Wize in fee simple.
The mortgage, made part of the record, bears date the 18th of September, 1869, and recites, "whereas the said mortgagor, being a member of said body corporate, has received therefrom an advance of six hundred and seven dollars and fifty cents on his five shares of stock," etc., "and whereas, it was a condition precedent to said advance being made to him, that he should secure the payment of the sums of money," etc., wherefore these presents are 

 [*276]  executed. There is no reference whatever to the purchase by the mortgagor of Dempster, or the application of the money advanced by the Building Association to the payment of the purchase money. In our opinion this is not a case of instantaneous seizin. It was decided, in the case of Woollen vs. Hillen, 9 Gill 185, "that the release of a senior mortgage, let in a junior incumbrance on the same property, although it was proved no money was paid, but another mortgage was executed simultaneously with the release, as the consideration therefor?"
The principle of this case was recognized and reaffirmed in the case of Alderson vs. Ames & Day, 6 Md. 52, [**8]  where a mortgagee, who advanced money to a purchaser, part of which was applied in payment of the purchase money, and took a mortgage on the same day that the legal title was made to the mortgagor, was postponed to a prior mortgage, on the equitable estate of the mortgagor.
The Court in the case last cited, refer to the case of Clabaugh vs. Byerly, 7 Gill 354, where an attempt was made by a junior mortgagee to obtain a preference, by showing that his money covered by the mortgage, was applied in payment of judgments against the debtor, and that he should be regarded as assignee of the judgments. The Court in that case held, that if such was the design, the judgments should not have been paid; that he should have dealt, not with the debtor, but with his creditor, and taken assignments of the judgments. "When once paid, the lien was gone."
There is nothing in the record, to show privity between Mary Dempster, the vendor, and the Amicable Building Association, the mortgagee. The lien of the vendor, was extinguished by the application of the money borrowed from the mortgagee, and three days intervened, during which the mortgagor's interest in fee, was subject [**9]  to be seized by execution on the judgments.

 [*277]  In the case of Rawlings vs. Lowndes, 34 Md. 639, the right of dower of the appellant, was resisted on the ground that her husband had not a beneficial, but merely instantaneous seizin; it was insisted in support of the claim of dower, that to defeat it, the seizin must pass out of the husband, at the same time it passed into him, for which position, Clark vs. Munroe, 14 Mass. 351; 4 Kent 39; McCauley vs. Grimes, 2 G. & J. 318; 15 Pet., 21, were cited, and it was argued if the beneficial seizin was for one moment, the wife was dowable.
The Court held, that although Rawlings, the husband, at the time he received the deed from his vendor, gave his notes for $ 12,000, the consideration mentioned in the deed, and by a mortgage dated the same day, viz: 28th October, but not acknowledged until the 14th of November following, reconveyed the land, to secure the payment of the purchase money, yet, as sixteen days intervened between the execution and delivery of the deed, and the acknowledgment and delivery of the mortgage, the widow's [**10]  right of dower attached. It was laid down as a general rule that "in order to exclude dower in such cases, the deed and mortgage, should constitute and form part of one and the same transaction." Ibid., 644.
It results, we think, from the principles announced in the cases above cited, that the judgments existing at the time of the conveyance from Mary A. Dempster to McKeel T. Wize, against the latter, became liens on the land conveyed, and would bind them in the hands of a purchaser, buying from the trustee, who sold under a junior mortgage, without making the judgment creditors parties.
Although it is unquestionable, that in a sale by a trustee, under a power contained in a mortgage, or under a decree passed in pursuance of a covenant consenting thereto, as provided in the sections of Art. 4, of the Public Local Laws, that the trustee only sells, and the 

 [*278]  purchaser only buys the interest of the mortgagor, or the parties to the cause, as the case may be; yet, whilst the sale is "in fieri," and the funds are in the hands of the trustee, subject to the control of the Court, it is competent for the Court, upon any just cause being shown, affecting the title of the [**11]  purchaser, to vacate the sale, and restore to the purchaser the money paid and the securities given for the deferred payments.
The land in this case being liable to be resold at the instance of the judgment creditors, the appellee would take but a shadow of title under the decree in this case, if the sale should be finally ratified, we think therefore that the order of the Court below, annulling the sale and restoring the cash instalment and notes for the deferred payments, ought to be affirmed.
Order affirmed with costs to the appellee.
Since filing the foregoing opinion, the attention of the Court has been called to an agreement of counsel in the cause, (which had escaped the observation of the Court,) admitting that the mortgage given by Wize to the Amicable Building Association, No. 2, was given simultaneously with the deed of the property purchased by Wize, and the money received by Wize from the Building Association was used by Wize to pay for the property.
This agreement supplies, what was stated in the former opinion to be wanting, to enable the Court to determine the construction of the 3rd section of Art. 64, of the Code of Pub. Genl. Laws.
The language of that section [**12]  is susceptible of two constructions, the one, limiting it to the vendor and vendee, the other, embracing every one to whom the vendee may chose to mortgage his interest in the land, provided the 

 [*279]  money to be secured by the mortgage, is applied to the extinguishment of the vendor's lien.
The phraseology of the section plainly implies that it referred to cases where the vendor having conveyed the land, took at the same time from the purchaser, a mortgage to secure the payment of the purchase money. The terms "purchase money," do not include any money that may be borrowed to complete a purchase, but that which is stipulated to be paid by the purchaser to the vendor, as between them only it is purchase money; as between the purchaser and lender, it is borrowed money.
But it is said the spirit and equity of the Act, if not its language, would embrace any one advancing money, to pay for lands bought by another.
Such a construction is decidedly against the tenor of our decisions referred to in the previous opinion filed in this case. Vide 6 Md. 52, 56, and cases there cited.
It is equivalent to assigning the vendor's lien without limit, and might subject [**13]  judgment creditors to many embarrassments, not now foreseen.
Believing the framers of the law had no such latitudinarian views, we are of opinion that the mortgage given in this case, is not within the section referred to, and is not preferred to previous judgment creditors.  

30 of 144 DOCUMENTS 

JOHN C. DECKARD vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 186; 1873 Md. LEXIS 47 

June 25, 1873, Decided 

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

The appellant was indicted for perjury in the Circuit Court for Washington County. The indictment which was transmitted to the Circuit Court for Frederick County for trial, was in the following form:

STATE OF MARYLAND, Washington County, to wit:

The jurors of the State of Maryland, for the body of Washington County, do on their oaths present, that heretofore, to wit, on the 11th of July, 1872, the Honorable WILLIAM MOTTER, Associate Judge of the Circuit Court for Washington County, by the authority vested in him by the Constitution and laws of the said State, upon the petition and application of a certain J. Clarence Mobley, ordered that the State's writ of habeas corpus issue out of the said Circuit Court for Washington County, directed to Robert C. Bamford, the sheriff of the said county, commanding him, the said sheriff, to produce the body of the said J. Clarence Mobley, held in confinement by him, together with the cause of the detention of him, the said J. Clarence Mobley, and that the said writ of habeas corpus be returned immediately at the basement of the Methodist Episcopal Church in Hagerstown, before the [**2]  Honorable WILLIAM MOTTER, Associate Judge as aforesaid.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said writ of hubeas corpus did issue as ordered by the said Judge, directed to the said Robert C. Bamford, sheriff as aforesaid; and the said sheriff, according to the exigency of the said writ, did produce the body of the said J. Clarence Mobley, with the cause of his detention and confinement, before the said WILLIAM MOTTER, Associate Judge of the Circuit Court for Washington County as aforesaid, at the basement of the said Methodist Episcopal Church in Hagerstown, on the said 11th of July, 1872.

And the jurors aforesaid upon their oath aforesaid, do further present, that the said J. Clarence Mobley, produced as aforesaid, by the sheriff aforesaid, before the Honorable WILLIAM MOTTER, Associate Judge as aforesaid, did, on his own behalf and by his counsel, plead that he the said J. Clarence Mobley, did commit no offence, and that there was no sufficient legal cause for his detention and confinement by the said sheriff as aforesaid; and that the said Judge did then and there, to wit: on the said 11th of July, 1872, inquire into the legality,  [**3]  cause and propriety of the confinement and detention of the said J. Clarence Mobley as aforesaid.

And the jurors aforesaid, upon their oath aforesaid, do further present, that while the said Judge was inquiring into the legality, cause and propriety of the confinement and detention of the said J. Clarence Mobley as aforesaid, one John C. Deckard, late of Washington County aforesaid, yeoman, did then and there, to wit: on the said 11th of July, 1872, at Washington County aforesaid, appear before the said Judge as a witness in support of the legality of the said confinement and detention of the said J. Clarence Mobley, and did then and there, before the said Honorable WILLIAM MOTTER, Associate Judge as aforesaid, in due form of law, solemnly and sincerely declare and affirm, that the evidence that he, the said John C. Deckard, should give in the matter depending before the Court, (the legality and propriety of the confinement and detention of the said J. Clarence Mobley as aforesaid, then and there depending before the said Judge and Court,) should be the truth, the whole truth and nothing but the truth; (he, the said Honorable WILLIAM MOTTER, Judge as aforesaid, then and there [**4]  having sufficient and competent authority to administer the said affirmation to the said John C. Deckard in that behalf.) And the said John C. Deckard having affirmed as aforesaid then and there, to wit, on the said 11th day of July, 1872, at Washington County aforesaid, to prevent the said Judge of the said Court, from knowing the truth, and to continue the imprisonment and detention of the said J. Clarence Mobley, did, upon his affirmation, in answer to the questions propounded to him in the matter then and there depending before the said Judge of the said Court, (the said Judge of the said Court having then and there sufficient and competent authority to administer an affirmation to the said John C. Deckard, and to propound, and to permit to be propounded questions on that behalf to him) then and there wilfully, falsely, corruptly and knowingly, by his own act and consent, commit perjury upon his affirmation, in saying, deposing, affirming and declaring in answer to the questions propounded as aforesaid, (amongst other things) in substance to the effect following, that is to say, that the said J. Clarence Mobley, Daniel Ward, Jacob H. Zook, Joseph Bombarger, Oliver Ridenour, George [**5]  Dusang, John Wright, John W. Adams and James Pickett, five or six weeks ago, (meaning five or six weeks before the time of making said affirmation,) on one night, about nine or ten o'clock, did enter together into the saloon of Daniel Ward, kept in the house of James Pickett, and having entered the said saloon as aforesaid, some one of the above named persons in the said saloon said, "Let us break down Deckard, let us swear against him;" and that the others of the above named persons agreed and assented to the same, and that they did then and there enter into a conspiracy against him, the said John C. Deckard; whereas, in truth and in fact, the said J. Clarence Mobley, Daniel Ward, Jacob H. Zook, Joseph Bombarger, Oliver Ridenour, George Dusang, John Wright, John W. Adams and James Pickett, did not enter together into the said saloon of Daniel Ward, kept in the house of the said James Pickett, at the time alleged by the said John C. Deckard in his said affirmation, or at any other time; and whereas, in fact and in truth the above named persons were not together in the said saloon, nor did any one of them say to the others, "Let us break Deckard down, let us swear against him;" nor [**6]  did they or any of them then and there give any assent to the same, or agreed to do the same, or enter into a conspiracy against him, the said John C. Deckard.

And the jurors aforesaid, upon their oath aforesaid, do further present, that it then and there became necessary and material that the said Judge of the said Court should know whether the said J. Clarence Mobley, Daniel Ward, Jacob H. Zook, Joseph Bombarger, Oliver Ridenour, George Dusang, John Wright, John W. Adams and James Pickett, did enter together the said saloon five or six weeks before the making of the said affirmation by the said John C. Deckard, and whether, having entered as aforesaid, they did then and there, in the said saloon, agree to break down Deckard and swear against him, and did then and there enter into a conspiracy against him.

And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John C. Deckard, on the said 11th day of July, 1872, at Washington County aforesaid, before the said Judge of the said Court, (he, the said Judge, then and there having sufficient and competent authority as aforesaid,) upon his solemn affirmation aforesaid, by his own act and consent, and of [**7]  his own most wicked and corrupt mind, in a matter depending before the said Judge of the Circuit Court for Washington County, did wilfully, corruptly, falsely and knowingly commit perjury, contrary to the form of the Act of Assembly, in such case made and provided, and against the peace, government and dignity of the State.

To the foregoing indictment, the traverser entered a general demurrer, which was overruled by the Court. He thereupon entered his plea of "Not Guilty," and trial being had, the jury rendered a verdict of guilty.

Exception.--On the trial of this cause, it was proved on behalf of the State, that a certain J. Clarence Mobley, was arrested in July, 1872, in Hagerstown, and taken before a justice of the peace for Washington County, who upon a hearing, committed him to the jail of said county; that on the same day the said Mobley caused to be issued out of the Circuit Court for Washington County, the writ of habeas corpus, directing the sheriff of said county to produce said Mobley, with the cause of his commitment, before Judge MOTTER, one of the Associate Judges of the Circuit Court for said county; that in obedience to said writ, the sheriff did produce said [**8]  Mobley, before the said Judge, on the same day; that the Judge had a hearing before him relative to the detention of said Mobley, and examined witnesses; that the traverser, John C. Deckard, was a witness at said hearing, and deposed that four or five weeks before the time of the hearing then going on; he was taking a walk about nine o'clock at night in Hagerstown: that he saw some parties coming up the street in the direction of Ward's Saloon, and thinking something was wrong, he stopped nearly opposite the saloon, about twenty-five yards therefrom, and whilst there, he saw the said J. Clarence Mobley and Oliver Ridenour, Daniel Ward, Jacob H. Zook, Joseph Bombarger, George Dusang, John Wright, John W. Adams and James Pickett come up the street, and go into the said saloon; that he then crossed the street, and listened at the door of the saloon, when he heard some one of those inside say: "Let's break down Deckard--let's swear against him." After offering other testimony to sustain the indictment, the State closed. The traverser then offered to prove by one ----- Bryan, that some time previous to the time spoken of by the traverser, when he saw said parties go into said saloon, he,  [**9]  (Bryan,) before the arrest of Mobley had a conversation with John W. Adams, one of the parties whom the traverser deposed he saw go into said saloon, and that Adams said, that he and other of said parties said they would swear against Deckard, and send him to the penitentiary, and that these declarations of Adams were communicated to the traverser before the arrest of Mobley. To this testimony, the State objected, and the Court sustained the objection. The traverser thereupon excepted, and afterwards took this appeal.  

DISPOSITION:
Ruling and judgment affirmed, and cause remanded.  

HEADNOTES:

Writ of Habeas corpus -- Indictment for Perjury -- Act of 1862, ch. 36 -- Sufficiency of the averments in an Indictment for Perjury.

The doctrine that where a special limited jurisdiction, distinct from its general jurisdiction, is conferred by statute on any tribunal, its power to act must appear on the face of the proceedings, does not apply to proceedings in cases of habeas corpus.

The writ of habeas corpus is a common law writ having for its great object the liberation of persons imprisoned without sufficient cause; and the provisions of Article 43 of the Code were enacted for the purpose of enforcing the common law, and of securing to the citizen the benefits for which the writ was given, by preventing oppression consequent upon its evasion or delay in its issual and return.

In an indictment for perjury alleged to have been committed at the inquiry arising before a Judge upon return to a writ of habeas corpus actually executed, it is not necessary, in order to show that the false testimony was given in a judicial proceeding, or that the Judge had jurisdiction in the matter, to aver that in the particular case the party brought up under the writ was not embraced by the first of the provisos of the Act of 1862, ch. 36, or that the application was in conformity with either of the other two.

An indictment for perjury stated in direct and positive terms that Judge M., Associate Judge of the Circuit Court for Washington County, by virtue of the authority vested in him by the Constitution and laws of this State, did, upon the petition and application of a certain J. C. M., order the writ of habeas corpus to be issued out of the said Circuit Court directed to the sheriff of said county, commanding him to produce the body of the said J. C. M. held in confinement by him, together with the cause of his detention, and that the writ be returnable immediately at a designated place before the said Judge; that the writ did issue as directed, and the sheriff in obedience to it did produce the body of the said J. C. M. together with the cause of his detention and confinement, at the appointed place and time before the said Judge. HELD:

That these averments were quite sufficient to show that the enquiry thereupon instituted by the Judge into the legality, cause and propriety of the confinement and detention of the party, was a judicial proceeding before a competent jurisdiction.

The same indictment then proceeded to aver, in substance, that J. C. M. pleaded that he had committed no offence, and that there was no sufficient legal cause for his detention, and the Judge thereupon proceeded to enquire into the legality, cause and propriety of his confinement and detention; that while the Judge was conducting the enquiry, the traverser appeared before him as a witness in support of the legality of J. C. M's confinement and detention, and having been duly affirmed, did, in order to prevent the Judge from knowing the truth, and to continue the imprisonment and detention of J. C. M., wilfully, falsely, corruptly and knowingly commit perjury upon his affirmation, by deposing and affirming in answer to questions propounded to him in the matter depending before the said Judge, among other things, in substance to the effect following, that is to say, that the said J. C. M. and eight other named persons, five or six weeks ago (meaning five or six weeks before the making of said affirmation,) on one night about nine or ten o'clock, did enter together into the saloon of D. W. kept in the house of J. P., and having entered the saloon as aforesaid, some one of the above named persons said, "let us break down John C. Deckard, let us swear against him," and that the others of the above named persons assented to the same, and that they did then and there enter into a conspiracy against him the said John C. Deckard. This was followed by the requisite averments of the falsity of the statement and testimony so given. The indictment then went on to state: "And the jurors aforesaid, upon their oath aforesaid, do further present that it then and there became necessary and material that the said Judge should know whether the said" named parties "did enter together the said saloon" at the time testified to by the traverser, "and whether having entered as aforesaid, they did then and there, in the said saloon, agree to break down the traverser and swear against him, and did then and there enter into a conspiracy against him." HELD:

That the indictment averred with sufficient distinctness and clearness the materiality of the false testimony to the subject of the enquiry pending before the Judge.

In the same indictment it was averred that the traverser did before the said Judge (who had competent authority to administer the same) "in due form of law solemnly and sincerely declare and affirm that the evidence that he should give in the matter depending before the Court, should be the truth, the whole truth and nothing but the truth." HELD:

That the indictment was not defective in stating that the affirmation was made in a matter "depending before the Court," instead of in a matter depending before the Judge--it was a departure from the exact words of the proper affirmation in matter, not of substance, but of form merely, and did not exempt the traverser who made it, from the pains of perjury, if under it he wilfully gave false testimony material to the enquiry then depending before the Judge out of Court.  

COUNSEL:
Frederick J. Nelson, for the appellant.

The indictment is bad, firstly, because it fails to show that the judge had jurisdiction of the question concerning which the alleged perjury was committed. There can be no perjury where the oath is not taken before a competent jurisdiction. The King vs. Aylett, 1 Term, 63, 69.

The jurisdiction of the Judge in the matter of habeas corpus is special and limited under the Act of 1862, ch. 36, and Act of 1867, ch. 144. Where a special, limited jurisdiction, distinct from its general jurisdiction, is conferred by an Act of Assembly on any tribunal, its power to act must [**10]  appear upon the face of the proceedings. Bruce & Fisher vs. Cook, 6 G. & J., 347.

For anything which appears in this indictment, Mobley may have been, 1st. committed or detained "for treason or felony plainly expressed in the warrant of commitment," or may have been "convict or in execution by legal process" and if so, clearly the Judge had no jurisdiction over his person by habeas corpus; or he may have been, 2nd, "detained under color of a warrant of commitment;" in which event, the Judge could have no jurisdiction by habeas corpus, unless the "petition presented by him was accompanied by a copy of the warrant of commitment, or detainer, or cause of commitment or detainer, or otherwise by an affidavit that a copy thereof was demanded by him of the person in whose custody he was detained, and the same was neglected or refused to be given;" or that he was, 3rd, detained "on other color or pretence" (than a warrant of commitment;) in which event, the Judge had no jurisdiction by habeas corpus until there was "probable ground shown to him" that the said Mobley was detained "without just cause." Act of 1862, ch. 36. It will be observed, that each of these provisos of the statute [**11]  constitutes a condition precedent to the power of the Judge to issue the writ of habeas corpus. Not only does this indictment fail to shew on its face these foundations of jurisdiction, but it expressly negatives the jurisdiction by showing that Mobley was detained "under color of a warrant of commitment;" "said sheriff, &c., did produce the body, &c., with the cause of his detention and confinement," without the allegation that the petition was accompanied by a copy of said "cause of detention or confinement," or an "affidavit," accounting for the absence of the same. Queen vs. Overton, 4 Adol. & Ellis, 83, (45 Eng. C. L.;) Queen vs. Rawlins, 8 Carr. & Payne, 439.

Secondly. The indictment is bad, because it does not appear that the oath was taken in a judicial proceeding. The matter depending before the Judge was, "the legality, cause and propriety of the confinement and detention" of said Mobley. Before Judge MOTTER could be clothed with the judicial authority to make this inquiry, it was requisite that the Act of Assembly already quoted should have been complied with. Unless it was, whatever his judicial character otherwise, in a matter of habeas corpus, he was clothed with [**12]  no more power than a layman. Where there is no judicial power, there can be no judicial proceeding.

Thirdly. The indictment is bad, because it does not appear that the oath was material to the question depending. The question depending was the "legality, cause and propriety of the confinement and detention of Mobley."

The facts sworn to by Deckard were that "the said Mobley, &c., &c., did enter together into the saloon of Daniel Ward, &c., and having entered the said saloon as aforesaid, some one of the above named persons in said saloon said, 'Let us break down Deckard; let us swear against him;'" and that the others of the above named persons agreed and assented to the same; and that they did then and there enter into a conspiracy against him, the said John C. Deckard.

In what manner are these facts, thus sworn to, material to the inquiry then depending before the Judge? It is not alleged that the inquiry was as to whether Mobley was guilty of a conspiracy.

It is manifest that the materiality of the oath to the "question depending" does not appear upon the face of the indictment. Does the allegation of materiality supply this deficiency? If so, is the averment [**13]  of materiality properly made? The language of the indictment is, "and the jurors aforesaid, upon their oaths aforesaid, do further present, that it then and there became necessary and material that the said Judge of the said Court should know whether the said J. Clarence Mobley, &c., did enter," &c., &c. This averment is insufficient in not having stated that it then and there became material to the matter or inquiry then depending, &c. Where, upon an indictment for perjury, in an answer to a bill in equity, the averment was, that it then and there became a material question, whether, &c., without saying "upon the hearing," &c., or "in the suit," it was holden insufficient. 3 Arch. C. P., 598, (top paging.) Rex vs. Cutts, 14 Shaw's J. P., 655; Regina vs. Bartholomew, 1 Carr. & Kir., 366.

This language cannot be supplied by inference; for this would be to violate the well-known rule of criminal law, that the want of a direct allegation of anything material in the description of the substance, nature or manner of the crime cannot be supplied by any intendment or implication whatever. 2 Hawkins' P. C., Ch. 25, sec. 62.

It is of the very substance of the crime of perjury that [**14]  the oath should be not only material, but material to the question depending.

Fourthly. The indictment is bad, because in the assignment of the perjury, in the conclusion of the same indictment, it is not alleged that the false affirmation was taken in the same proceeding which, throughout the other parts of the indictment, was alleged as pending, &c. The allegation is that, in a matter depending, &c., the perjury was committed, without in any way referring to any preceding averment. Without the aid of inference, for any thing that is apparent in the indictment, there may have been two matters depending.

Fifthly. The indictment is bad, because it shows that the affirmation of said Deckard, was made in a matter "depending before the Court;" whereas, the testimony of said Deckard was given in a matter depending before Judge MOTTER of the Circuit Court for Washington County.

The "Court," and a "Judge of a Court," are separate tribunals in matters of habeas corpus, by the express terms of the Act of Assembly of 1867, chap. 144.

The indictment is clearly bad, and the demurrer thereto should have been sustained.

Attorney-General Syester, for the State.

It is [**15]  contended by the appellant, that it does not appear from any thing properly alleged in the indictment, that Judge MOTTER had jurisdiction of the matters and things brought before him in the matter of the suit of habeas corpus; and that the whole proceedings were coram non judice and void; and therefore, whatever was false in the oath of the party, was not perjury; that "for anything which appears in the indictment, Mobley may may have been committed or detained" under conditions and circumstances set out in the three provisos in the 3rd sec. of the 43rd Art. in the Code; and if so committed and detained, the Judge had no jurisdiction in the premises. Mobley had no right to the writ; and counsel enumerates the several conditions or circumstances, and says of them, "each of these provisos of the statute constitute conditions precedent to the power of the Judge to issue the writ of habeas corpus.

It cannot be possible that a party "committed and detained" in jail "for felony, plainly expressed in the warrant of commitment," is not entitled to the writ of habeas corpus. For that would be, in the very teeth of the concluding paragraph of the 3rd sec. of Art. 43 of the Code, which expressly [**16]  declares, that "nothing" therein "shall prevent the issuing of a writ of habeas corpus, at the instance of a person arrested on a charge of any offence, bailable by law," unless it is said that a party "charged with felony" is not entitled to be bailed.

The only "conditions precedent" are confinement and detention, and the application for relief to some officer clothed with power to hear the complaint; these are the special circumstances which constitute the right to this writ.

This is not the case of a party proceeding by force of a particular statute, out of the course of the common law. The power and duty of a judge to issue, and the right of the citizen to the benefit of this writ, is not "special" in the sense that the duty and right originated under and exists by virtue of the statute. Nor "limited" in the sense that in order to avail himself of the benefits of the writ, the injured citizen must strictly conform to particular proceedings specially enumerated in the statute.

No new right was established; no new remedy was given; the statute does not define and limit the right to modes of procedure unknown to the common law.

In the case at bar everything necessary [**17]  to clothe the Judge with jurisdiction is distinctly stated, to wit, the petition of Mobley, the granting the writ, the return thereof, and the production of the body of the petitioner, together with the cause of his detention. These circumstances were enough to invest the Judge with power to inquire into the case presented. See Art. 43, sec. 10 of the Code.

And such an inquiry was, beyond all question, a judicial inquiry.

It is said by the appellant that "it does not appear that the oath was material to the question depending." The materiality of the false testimony may be shown in one of two ways--either by way of recital and statement of facts in the record, which show the materiality, or by direct averment. In this case, it is alleged in the indictment that it "then and there became necessary and material that the Judge * * should know whether the said J Clarence Mobley, &c., did enter," &c. And the fact is found to be so by the verdict. Regina vs. Bennett, 4 E. L. & Equity R., 560; 2 Bish. Cr. Proc., sec. 845, and authorities cited in note 1; 3 Arch. C. P., 597-8.

But it is said, that notwithstanding the averment of the materiality of the question inquired into by [**18]  the Judge, yet the facts set out show that the false testimony was not in point of fact material to the subject-matter of the inquiry then depending before the Judge. The indictment says that it became material to know "whether Mobley (and others) did enter together the saloon, and whether, having entered, they did 'agree to break down Deckard, and swear against him.'"

That is averred as material to be inquired into. The false testimony alleged is, that Deckard swore that some one of the parties said, "Let us break down Deckard, let us swear against him." And that others of the parties "agreed and assented to the same," &c. If the subject inquired into, and alleged to be material, was really material to the inquiry at all, surely Deckard's testimony is alleged by this indictment to be directly and distinctly in response or answer to that inquiry. He swore that the very facts alleged to be material were true, every one of them.

It is also said, the indictment should in totidem verbis allege that all this was material "to the inquiry then depending" In answer to this objection, it is sufficient to say that the indictment had already recited the fact that the writ had issued--that [**19]  there was a return, with the cause of detention, and that it then (on that return) became necessary and material to know, &c.

That the inquiry was upon the hearing of the matters arising on the return of the writ of habeas corpus, and that there was no other matter, question or thing depending, would seem to be very plain.

The previous statement of the return of the writ, and that the said Judge did then and there inquire into the legality, cause and propriety of the confinement and detention of Mobley, coupled with the statement that it "then and there became material * * to know," leaves no room for doubt, conjecture or inference that the inquiry was upon the return of the writ, and into the legality, &c., of the confinement.  

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

OPINIONBY:
MILLER 

OPINION:

 [*200]  MILLER, J., delivered the opinion of the Court.
The appellant has been tried and found guilty of the crime of perjury. The only matter to be reviewed on this appeal is the judgment overruling a general demurrer to the indictment. The exception taken at the trial to the ruling upon the admissibility of evidence has been very properly abandoned [**20]  in this Court without argument. The correctness of that ruling is too clear to admit of a moment's doubt, and if the appeal rested alone upon that exception, there would have been great impropriety of conduct on the part of counsel for the accused in making the affidavit required by the Act of 1872, ch. 316. That Act has introduced a new feature into the administration of criminal law in this State. It allows exceptions to be taken in criminal trials to any ruling or determination of the Court in the same manner as is now practiced in civil cases, and gives an appeal from such ruling or determination, provided the counsel for the accused shall make oath that such appeal is not taken for delay. This proviso was inserted for the purpose of preventing delay in the punishment of offences, by appeals on points too plain to be controverted. It does not permit a party found guilty of crime to secure a postponement of punishment 

 [*201]  consequent upon an appeal, by taking this oath, but requires it to be made in all cases where the accused is the appellant, by his counsel, thus requiring a solemn pledge from the judgment and conscience of one who is a member of a learned and [**21]  honorable profession, that he believes the rulings against his client are erroneous. It is the duty of this Court to see to it, so far as it may have power, that the intention of the Legislature in imposing this wholesome and salutary restriction upon appeals in such cases is not defeated. But we assume this affidavit was made not in view of the exception referred to, but of the judgment overruling the demurrer to the indictment, and was hence very properly made.
The perjury assigned is giving wilfully on affirmation, false testimony material to an inquiry into the legality, cause and propriety of the confinement and detention of a party brought before Judge MOTTER, Associate Judge of the Circuit Court for Washington County, upon a writ of habeas corpus. It is not doubted that false testimony material to the issue, wilfully given under oath on such an inquiry, would be perjury at common law, as being given in a judicial proceeding, or course of justice, and is therefore within the first class of cases which the Code (Art. 30, sec. 155,) declares shall be deemed perjury. The question then is, does this indictment sufficiently charge the offence? There may be in it unnecessary diffuseness [**22]  of statement, and much that must be rejected as surplusage, but this does not vitiate it, provided the Court can see that it sets forth the substance of the offence charged, and that all matters material to constitute the crime, are alleged with such positiveness and directness, as not to need the aid of intendment or implication. It must also be remembered, that the first and second sections of the Statute of 23 Geo. 2, cap. 11, enacted in 1750, entitled "An Act to render prosecutions for perjury, and subornation of perjury, more easy and effectual" are in force in 

 [*202]  this State. Kilty's Report of Statutes, 252; Alexander's British Statutes, 766. That statute after reciting in its preamble that "by reason of difficulties attending prosecutions for perjury and subornation of perjury, those heinous crimes have frequently gone unpunished, whereby wicked and evil disposed persons are daily more and more emboldened to commit the same, to the great dishonor of God and manifest let and hindrance of justice," provides by its first section, "that in every information or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall [**23]  be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court, or before whom the oath was taken, (averring such Court, or person or persons, to have a competent authority to administer the same,) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceeding, either in law or equity, other than as aforesaid; and without setting forth the commission or authority of the Court or person or persons, before whom the perjury was committed; any law, usage or custom to the contrary notwithstanding." With these preliminary remarks we proceed to consider the several objections to this indictment presented by the very able and ingenious argument of the appellant's counsel.
1st. The first objection is that the indictment fails to show that the Judge had jurisdiction of the question concerning which the alleged perjury was committed. It has been decided (Overton's case, 45 Eng. C. L. Rep. 83,) that the Statute of 23, Geo. 2, does not dispense with [**24]  the necessity of showing distinctly in the indictment, that the false oath was taken in a judicial proceeding, and it is argued that the jurisdiction of a Judge in matters of habeas corpus, is, in this State, special and limited under our 

 [*203]  Acts of Assembly, and the familiar doctrine is invoked, that where a special limited jurisdiction, distinct from its general jurisdiction is conferred by statute on any tribunal, its power to act must appear on the face of the proceedings. But in our judgment, this doctrine does not apply to proceedings in cases of habeas corpus. They are not simply proceedings authorized by special statutes which require certain things to be done as conditions precedent, and before authority to act is conferred. The writ of habeas corpus is a common law writ, having for its great object the liberation of persons imprisoned without sufficient cause. The provisions of our Code, like those of the celebrated Statute of 31, Charles 2, were enacted for the purpose of enforcing the common law, and of securing to the citizen the benefits for which the writ was given, by preventing oppression consequent upon its evasion or delay in its issual and [**25]  return. Hence, Courts and Judges are clothed with jurisdiction and power to issue it at all times and in all places throughout the State. An immediate or speedy return with production of the body and cause of detention is secured, punishment is prescribed for officers who refuse or neglect to execute it, the Judge who refuses to issue it is made liable to an action by the party aggrieved, and a person once discharged under it is exempted from being again imprisoned for the same offence unless surrendered by his bail or convicted of the offence for which he gave bail. It is thus that the common law is enforced. The first section of the Article in the Code on habeas corpus as amended by the Act of 1867, ch. 144, provides that "the several Circuit Courts of this State and the Circuit Court of Baltimore City, and the several and respective Judges thereof out of Court, and each of the Judges of the Court of Appeals shall have jurisdiction over the whole State in all matters relative to habeas corpus, except those involving the relation of master and apprentice."

 [*204]  This confers jurisdiction in the broadest and most general terms over a common law writ. The Act of 1862,  [**26]  ch. 36, repeals the original third section of the Article in the Code, and enacts in lieu thereof, that "if any person be committed or detained for any crime, or under any color or pretence whatsoever, he or any one on his behalf may complain by petition to any one of the Courts or Judges mentioned in the first section of this Article, and the said Court or Judge shall forthwith grant a writ of habeas corpus, directed to the officer or other person in whose custody the party detained shall be, returnable immediately before the said Court or Judge granting the same: provided, the person detained be not committed or detained for treason or felony, plainly expressed in the warrant of commitment, or be not convict, or in execution by legal process: and provided, that if the person detained be so detained under color of a warrant of commitment, the petition presented by him or on his behalf accompanied by a copy of the warrant of commitment or detainer or cause of commitment or detainer, or otherwise by an affidavit that a copy thereof was demanded by him of the person in whose custody the prisoner is detained, and the same was neglected or refused to be given: and provided,  [**27]   that if the detainer is on any other color or pretence, there be probable ground shown to the Court or Judge, that the person by or on whose behalf the said application is made, is detained without just cause: but nothing herein shall prevent the issuing of a writ of habeas corpus, at the instance of a person arrested on a charge of any offence, which is bailable by law, in order that he may be discharged on bail in the usual course of law." The provisos in this Act are specially relied on by the appellant's counsel, his contention being that they constitute conditions precedent to the power of the Judge to issue the writ, and must be negatived or conformed with in all cases before jurisdiction attaches. What may 

 [*205]  be their true construction or effect in connection with other sections of the Article still in force, and in view of the universal practice under them, need not now be determined. It is plain however, that the utmost effect that can be attributed to them is, that they except as did the Statute of Charles, from those entitled to the benefit of the writ, parties convicted or in execution, and (save for the purpose of being bailed,) parties committed for felony [**28]  or treason plainly expressed in the warrant, and in other cases prescribe certain formalities in reference to the petition for the writ without the observance of which the application may be refused. But the precise question we are now dealing with, is whether in an indictment for perjury alleged to have been committed at the inquiry arising before a Judge upon return to a writ of habeas corpus actually executed, it is necessary, in order to show that the false testimony was given in a judicial proceeding, or that the Judge had jurisdiction in the matter, to aver that in the particular case the party brought up under the writ was not embraced by the first of these provisos, or that the application was in conformity with either of the other two. In view of the nature of the proceeding in such cases, and the terms in which jurisdiction is conferred, and after a most careful consideration of the subject, we are of opinion no such averment is necessary. It is averred in this indictment in direct and positive terms, that Judge MOTTER, Associate Judge of the Circuit Court for Washington County, by virtue of the authority vested in him by the Constitution and laws of this [**29]  State, did, upon the petition and application of a certain J. Clarence Mobley, order the writ of habeas corpus, to be issued out of the said Circuit Court, directed to the Sheriff of said County, commanding him to produce the body of the said Mobley held in confinement by him, together with the cause of his detention, and that the writ be returnable immediately at a designated 

 [*206]  place before the said Judge: that the writ did issue as directed, and the sheriff in obedience to it did produce the body of the said Mobley, together with the cause of his detention and confinement, at the appointed place and time, before the said Judge. These averments are quite sufficient to show that the inquiry thereupon instituted by the Judge into the legality, cause and propriety of the confinement and detention of the party, was a judicial proceeding before a competent jurisdiction. This jurisdiction is altogether different from the limited and special jurisdiction conferred by our attachment laws, as well as that conferred upon Courts or Commissioners by statutes providing for the opening of roads and other like purposes. It is also equally unlike those upon which were based the decisions [**30]  in Overton's Case, 4 Adol. & Ellis, N. S. 83, and Rawlin's Case, 8 Carr. & Payne 439.
2nd. The next objection of most importance, is, that the materiality of the false testimony to the issue or question depending, is not sufficiently averred. This materiality must appear in one of two ways, either upon the face of the indictment, or by express averment. It may sufficiently appear to be material from the nature of the evidence itself, or from certain facts stated by way of inducement in the commencement of the indictment, or its materiality may be stated by way of averment. But it is sufficient that this appears in one of these two methods; it need not be made so to appear by both. 3 Arch. Cr. Pr. & Pl. 598; 2 Chitty's Cr. Law, 309; 2 Bishop's Cr. Procedure, sec. 854. After averring the issue and return of the writ as before stated, the indictment proceeds to aver, in substance, that Mobley pleaded that he had committed no offence, and that there was no sufficient legal cause for his detention, and the Judge thereupon proceeded to inquire into the legality, cause, and propriety of his confinement and detention; that 

 [*207]   [**31]  while the Judge was conducting this inquiry, the appellant appeared before him as a witness in support of the legality of Mobley's confinement and detention, and having been duly affirmed, did, in order to prevent the Judge from knowing the truth, and to continue the imprisonment and detention of Mobley, wilfully, falsely, corruptly, and knowingly, commit perjury upon his affirmation, by deposing and affirming in answer to questions propounded to him, in the matter depending before the said Judge, among other things in substance, to the effect following, that is to say, that the said Mobley and eight other named persons, "five or six weeks ago, (meaning five or six weeks before the making of said affirmation,) on one night about nine or ten o'clock, did enter together into the saloon of Daniel Ward, kept in the house of James Pickett, and having entered the saloon as aforesaid some one of the above named persons said, let us break down Deckard, let us swear against him, and that the others of the above named persons assented to the same, and that they did then and there, enter into a conspiracy against him, the said John C. Deckard." This is followed by the requisite averments of the [**32]  falsity of the statement and testimony so given. It is matter of much doubt, whether the materiality of this testimony to the pending investigation be not sufficiently apparent from this statement of it, as showing if true, that Mobley was a party with others, to a conspiracy to injure the appellant by swearing against him, and breaking him down, and therefore, rendering his detention and confinement on that charge legal and proper, until he gave bail to appear and answer it. But the materiality of this testimony is expressly averred in these terms: "And the jurors aforesaid, upon their oath aforesaid, do further present, that it then and there became necessary and material that the said Judge of the said Court, should know whether the said" named 

 [*208]  parties, "did enter together the said saloon" at the time testified to by the appellant, "and whether having entered as aforesaid, they did then and there, in the said saloon, agree to break down the appellant, and swear against him, and did then and there enter into a conspiracy against him." This averment immediately follows those already stated, and its sufficiency has been strenuously assailed upon the ground that [**33]  it omits to state in totidem verbis, that it became necessary and material for the Judge to know this in the matter of the inquiry then depending before him. The argument is that for anything that appears in the indictment, it might have been material and necessary for the Judge to know it in some other matter. In support of this position we are referred to the case of Regina vs. Bartholomew, 1 Carr. & Kir. 366. That was an indictment for perjury by a witness in evidence given by him before a magistrate, (Thomas Scott,) upon an information against one Liversuch, for trespassing in search of game. The indictment after stating the information, and that the defendant was sworn, and stated on oath that he did not see Liversuch on the 12th of August, 1843, alleged the materiality thus: "And the jurors, &c., further present, that at the time, &c., the said" defendant "swore as aforesaid, it was material and necessary for the said Thomas Scott, so being such justice as aforesaid, to inquire of and be informed by the said" defendant, whether he did see Liversuch during the said 12th day of August, in the year aforesaid. In deciding this averment to be defective,  [**34]  the Court said to the defendant: "It is not stated that it was a material and necessary question in the inquiry before the said Thomas Scott, to which you gave the false and corrupt answer. It may have been, therefore, consistently with the averments in this indictment, material and important for Thomas Scott in some other matter, and not in the matter stated to be in issue before 

 [*209]  him, to have put this question, and received this answer. Now, as the offence of perjury consists in taking a false oath in a matter stated to be in judgment before a Court or person having competent authority to decide it, and as this indictment does not clearly and distinctly charge that, it does not charge the offence of perjury." That decision though entitled to great respect, is not a binding authority upon this Court, and we are unwilling to adopt it as the law of this State. To accept and apply the reasoning upon which it is founded, to the case before us, would, in our judgment, be pushing the exaction of certainty in indictments beyond all reasonable limits, and require them to be cumbered with constant repetitions. This indictment states what the pending inquiry was, and how [**35]  it arose; that it was entered upon and while being conducted, the appellant appeared as a witness therein, was affirmed to give evidence in the matter then depending, and in answer to questions propounded to him in the matter then and there depending before the said Judge, made statements as to the acts and declarations of certain named parties, as it is then averred, that it then and there became necessary and material for the said Judge to know, whether these acts and declarations were done and made. In the face of these averments, we are asked to say there might have been then and there some other matter in which it became necessary and material, the Judge should know and be informed respecting these same acts and declarations. We cannot do this without disregarding the spirit if not the letter of the Statute of 23rd Geo., 2, as well as the very sensible observations of Sir MATTHEW HALE, which have received the endorsement and approval of our predecessors in the case of State vs. Dent, 3 G. & J. 8, 11. In our opinion, the materiality of the false testimony to the subject of the pending inquiry, is averred with sufficient distinctness [**36]  and clearness.

 [*210]  3rd. Another objection is that the affirmation under which the false testimony was given is, as stated in the indictment, defective. The averment is that the appellant did before the said Judge, (who had competent authority to administer the same,) "in due form of law, solemnly and sincerely declare and affirm that the evidence that he should give in the matter depending before the Court, should be the truth, the whole truth, and nothing but the truth." It is contended he should have been affirmed to give evidence in the matter depending before the Judge. But in our judgment, this is a departure from the exact words of the proper affirmation, in matter not of substance, but of form merely, and does not exempt the appellant who made it from the pains of perjury, if under it he wilfully gave false testimony material in the inquiry then depending before the Judge out of Court. Under this averment, it was admissible to prove that the affirmation actually administered was in the form in which it is insisted it should have been, or in any other form substantially the same, as for instance "in the matter now depending," without stating either "before the [**37]  Court," or "before me" or "before the Judge." In neither case would the variance be material.
What we have said in disposing of the objections above stated, appears to us to cover the entire case. No others have been presented which require any special notice. We have carefully examined the indictment and though we find it in some respects inartificially drawn, we are yet of opinion, looking to the whole body of it, that it contains all the essential requisites of a good and sufficient indictment for the perjury assigned.
Ruling and judgment affirmed, and cause remanded. 

31 of 144 DOCUMENTS 

JOHN WALTER and CATHARINE WALTER vs. CONRAD RIEHL and HENRY RIEHL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 211; 1873 Md. LEXIS 48 

June 25, 1873, Decided 

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

The facts and circumstances of the case are set forth in the following extracts from the opinion of the Court below, (PINKNEY, J.)

"In the first place, as to the conveyance by John Walter to his father, Adam Walter. The proof shows that Adam was possessed of no property within the knowledge of his son, George Walter, in whose house he lived; in answer to the question, if he knew whether his father had any property or not, at the time of the alleged purchase, he replied, that he did not know. 'Did he know whether he was worth as much at $ 500?' he replied, 'I don't know.' Then John Ulrich testified that he knew Adam Walter; that he came to his house to sell bakers' pells, or wooden shovels, (which appears by the evidence of his sons to have been their father's business,) and that he begged him to buy some of his pells, saying that he was very poor, and had nothing but what he got from their sale to buy clothes and shoes. And no attempt was made to show that this was not true--that Adam Walter was possessed of any visible means with which to buy this property from his son, John Walter, as sworn to.

"Then as to the conveyance [**2]  from Adam Walter to the wife of John Walter: The conveyance of the house by the father to his son's wife was made four days after the deed to him by his son. What motives are assigned for these conveyances? John says he sold the house to his father, 'because he had no money to live on or buy flour.' Why did his father sell to John's wife? Hear John Walter: 'My wife, Catharine Walter, did not know that I sold the house, and did not like to leave the house, and she bought it from Adam Walter with the money that she had got from her first husband.' He saw the money paid, &c.

"And the wife swears that she paid the money to Adam--not, however, $ 1625, the consideration mentioned in the deed, but $ 900; she says she got the money from her former husband; she says the whole amount she had was $ 1500; that she had kept it all by her, uninvested, ever since her marriage, with the exception of $ 600, which she had lent to her present husband for a short time, when he paid it back, &c.; the husband swears to the same story. Yet his brother George says, that John told him he only got $ 700 or $ 800, with his wife, and that she told him, about six years ago, that she had about $ 800 or $ 900 [**3]  in bank. John Sturmfelz swears that Catharine Walter told him that her first husband left her $ 600, besides the furniture. And John Lind swears that she told him they were very poor; that her first husband only left her about $ 600. Catharine says there was no administration upon the estate of her first husband in the Orphans' Court, and that no one knew she had this money, except her husband, John Walter. And there is no proof but her's and her husband's, that she got anything from her first husband, or that she was possessed of any means of her own at the time these transfers were made to her. She swears that she got $ 1500, and kept it by her in the house. But is it at all probable, and can it be believed that she kept so large a sum of money by her uninvested for so long a time, as she swears she did, from the year 1864, when her first husband died, to the year 1870, when the house was assigned to her by Adam Walter? **** "Take, then, the evidence of William Dietrich, an unimpeached witness; and, under all the circumstances, can any one doubt that these conveyances were made with the intent to defraud the creditors of the defendant, John Walter?"

The following is the evidence [**4]  of Dietrich, referred to:

"John Walter told me that he had sold his house to his father, and that his father had sold it back to his (John Walter's) wife, Catharine Walter. He said that he owed Mr. Riehl for flour, and that Mr. Riehl had asked him many times for money, but that he had none, and that he would pay Mr. Riehl if he would wait; but that if Mr. Riehl would not wait, he defied him." 

DISPOSITION:
Decree affirmed, and cause remanded.  

HEADNOTES:

Parties to suits in Equity -- Building Association Mortgage -- Fraudulent Deed.

Where a bill is filed for the purpose of selling property, semble that a prior incumbrancer, whose debt is not due, is not a necessary party. The same rule applies to a building association mortgage, conditioned for the payment of weekly dues, where no default has been made in the condition.

The clause in a decree for the sale of property, that the trustee shall convey to the purchaser, free from all claim of the parties to the cause, "and those claiming by, from or under them, or either of them," is operative only upon the title and interest of the parties to the cause, and those claiming under them by conveyances pendente lite.

W., being indebted about $ 700 for goods purchased, made a deed of certain leasehold property to his father for $ 1620. Four days after, the father conveyed the same to W's wife for $ 1625. Some months later W. made a bill of sale of his personal property to his father for $ 500, who after a short time assigned it to W's wife for $ 300. All these instruments were duly recorded. Under a bill filed by W's creditors to vacate these conveyances, it was proved that W's father had no visible means wherewith to make the purchases; the evidence of W. and his wife as to her possession of independent means was contradicted in several particulars, and their evidence as to the consideration varied from the amounts stated in the deeds; one uncontradicted witness proved that W. had spoken defiantly of his debt to the complainants, in connection with the conveyances in question. Upon appeal from a decree vacating the conveyances. HELD:

1st. That these circumstances established the charge of fraud.

2nd. That W's father was not a necessary party to the bill.  

COUNSEL:
John B. Wentz, for the appellants.

Adam Walter is the grantor in a deed alleged to be fraudulent. He should have been made a party. The Building Association is clearly a party in interest, and should have been made a party, and is a necessary party to do substantial justice. For suppose the complainants should prevail, there would be no legal means of ascertaining the amount due under this prior incumbrance, and the condition of the property would be vague and undefined and consequently the sale less productive.

If Catharine made payments to reduce the Building Association mortgage from April 11th, 1870, the date of her deed, to Nov. 23rd, 1871, the date of the filing of the bill, she has a right to a credit in the distribution of the [**5]  proceeds as against the complainants. Besides, if the purchaser under the decree in this case will perform the covenants and conditions in the Building Association mortgage, and merely keep on paying the weekly instalments, he will enjoy the benefit of all the payments made by Catharine without consideration to her and she will not have any remedy either in equity or at law against this injustice. Lucas, et al. vs. McBlair, et al., 12 G. & J., 1; Hall vs. Maccubbin, 6 G. & J., 107; Ward vs. Hollins, 14 Md., 158; Lovejoy vs. Irelan, 17 Md., 525; Worthington vs. Lee, 2 Bland, 678.

Philip C. Friese, for the appellees.

A transaction must not only be for a valuable consideration, but also bona fide. Glenn vs. Grover, 3 Md. Ch. Dec., 35; Worthington vs. Bullitt, 6 Md., 172.

If the conveyances stated in the bill, from John Walter to Adam Walter, and from Adam Walter to Catharine Walter, were made without consideration, they were fraudulent as respects all the parties to this suit; but Adam Walter, as the mere instrument or agent of the other parties to these conveyances, and not being charged in the bill as participating in the fraud, is neither a necessary party to this suit,  [**6]  nor has he the interest necessary to make him even a proper party. Davis vs. Simpson, et al., 5 H. & J., 147; Story's Eq. Pleading, secs. 228, 229, 231, 232.

Fraud is not to be considered as a single fact, but a conclusion to be drawn from all the circumstances of the case. Brogden vs. Walker, 2 H. & J., 292; Watkins vs. Stockett, 6 H. & J., 442; McDowell vs. Goldsmith, 6 Md., 344; Foley, adm'r, vs. Bitter, 34 Md., 646.  

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

OPINIONBY:
MILLER 

OPINION:

 [*215]  MILLER, J., delivered the opinion of the Court.
The decree from which this appeal is taken vacates and annuls two deeds, the one dated April 7th, 1870, from John Walter, conveying to his father, Adam Walter, certain leasehold property for the consideration of $ 1620, and the other dated the 11th of April, 1870, from Adam Walter to Catharine Walter, the wife of John Walter, conveying to her the same property for the consideration of $ 1625, and directs the property to be sold for payment of the debts of John Walter. The bill upon which this decree was passed was filed by the appellees, creditors of John Walter, and charges that these conveyances [**7]  were fraudulent and void as against them. John Walter and Catharine Walter, his wife, are the only defendants to the suit, and it is objected that a Building Association which holds a prior mortgage on the property, and Adam Walter, should have been made parties.
In many cases it is very difficult to determine who are necessary parties to an equity suit. Upon no subject are the decisions of the most eminent Judges and Chancellors more various, and apparently conflicting. There is no doubt it is the constant aim as well as the just boast of Courts of Equity to do complete justice by settling the rights of all persons interested in the subject matter of the suit so that the performance of the decree may be 

 [*216]  perfectly safe to those who are called upon to obey it, and also that future litigation may be prevented; and where the object of the suit is the sale of property, the endeavor is to prevent its being put in market with a cloud upon the title which can be removed, and to have it offered under circumstances that will, as far as possible, invite a fair and free competition so as to realize to the parties interested its full value and secure to the purchaser a clear title.  [**8]  But still the difficulty remains, is constantly arising in particular cases, and it seems to be admitted that no general rule applicable to all cases can be stated. In Crook and wife vs. Brown, et al., 11 Md. 158, this Court has said "the question must depend in a great measure upon the object as well as the subject of the bill, the relief sought, the privity between the parties and the manner in which their several interests may have arisen, and it is impossible to state a general rule applicable to all cases."
The present suit was instituted by creditors, and its object is to vacate two deeds fraudulent as against them, by means of which property had been transferred from a husband to his wife, and to have that property sold for payment of the husband's debts. The first question presented is this, viz., is this Building Association a prior incumbrancer by way of mortgage, a necessary or indispensable party to the proceeding without whose presence as such no valid decree for a sale can be passed? In the case of Wylie vs. McMakin, 2 Md. Ch. 413, where a bill was filed by a mortgagee for sale of the mortgaged property to pay his debt, it was [**9]  objected that the holder of a prior mortgage on part of the property was not made a party, and the Chancellor, in referring to this objection, said, "The general rule certainly is, that all incumbrancers shall be made parties, whether prior or subsequent, and though cases may be found where it has been held that a prior mortgagee need not be made a party 

 [*217]  because his rights are paramount, it would not be safe, in the face of opposing authorities of the highest respectability, to say that such is the established law of this Court. I am not aware of any case decided by the Court of Appeals of this State, in which it has been held that either a subsequent or prior mortgagee, whose debt is due, need not be brought before the Court. If the debt of the absent mortgagee is not due, his presence as a party may perhaps be dispensed with, because you cannot force him to take his money before it is due. He may prefer to leave it out upon the security of the mortgage, and if he does so I do not know there is any authority in this Court to compel him to take it. But if the debt secured by the first mortgage be due then the desire of the Court in all cases to make a final settlement [**10]  of the rights of all persons interested, strongly enforces the necessity of bringing him in." The Chancellor, however, in that case, declined to pronounce a definite opinion upon the question, and by a subsequent agreement in the cause, the personal representative of the prior mortgagee was admitted as a party to the suit. In the prior case of Duvall vs. Speed, 1 Md. Ch. 229, where real estate had been sold under a bill filed by a mortgagee, to which a prior judgment creditor had not been made a party, the Chancellor held that the purchaser, whilst holding on to his purchase, could not insist upon having his title perfected by the application of the proceeds to the extinguishment of such prior judgment. He there points out the difficulty the Court would encounter in attempting to disencumber the title of the liens of those not parties to the suit, and indeed the inability of the Court to do so where such parties have the right to stand out and cling to the property specifically pledged for the payment of their claims. He refers especially to the cases of Ellicott vs Ellicott, 6 G. & J. 35, and Brooke vs. Brooke, 12 G. & J. 306, [**11]  and to the doctrine which has been sanctioned and established 

 [*218]  by repeated decisions of this Court, that the rule caveat emptor applies to purchasers at such sales, and that the trustee sells and the purchaser acquires the title of the parties to the suit, and nothing more. In Ellicott vs. Ellicott, where, upon a creditor's bill, the real estate of a deceased person was sold to pay his debts, and a mortgagee was not made a party thereto either as complainant or defendant, it was held by this Court that he was not bound to come in and seek payment of his claim out of the proceeds of sale, but might cling to his specific pledge and hold on until his debt was fully paid, and the same doctrine was reiterated in Brooke vs. Brooke, in reference to prior incumbrancers not made parties to a bill by a subsequent mortgagee for sale of the mortgaged premises. In Barnum's Case, 31 Md. 425, 450, real estate was devised to be sold for the purpose of partition, which was encumbered by two deeds of trust creating a stock debt. This debt had been long overdue, and by the terms of the deeds the stockholders were bound to receive the amounts due them when [**12]  tendered. It was uncertain how much of this debt remained unextinguished, and it was apparent that some of the parties who might become bidders for the property had means of knowing the precise amount of the unextinguished debt, (which alone was an incumbrance upon the property,) not equally accessible to others. In that case, neither the trustees in the deeds nor the stockholders were made parties, but all those having the right under the deeds to make payment were parties to the suit, and the stockholders, by the terms of their contract, being then bound to receive their money when tendered by these parties, this Court reformed the decree below, which directed the sale to be made subject to these incumbrances, and ordered it to be made free of them, and a sufficient amount of the proceeds to be set apart for the payment of the outstanding stock. This was done in order that none of the parties might stand 

 [*219]  on vantage ground as bidders, and that the property should be so placed in market as to invite a fair and free competition among bidders having equal knowledge or means of knowing precisely what they were buying and what purchase money they would have to pay. The peculiar [**13]  circumstances and obvious justice of that case required the sale to be made free of those incumbrances, and such steps taken respecting the disposition of the proceeds of sale as would produce the same practical result as if the holders of them had been made parties.
From this review of the Maryland decisions on this point it is plain, it is not in all cases like the present, essential to the validity of a decree of sale to make prior incumbrancers parties. Whether in any such case they are necessary and indispensable parties, (though proper to be made so,) is a question still undecided, and the present case does not require us to determine it.
The mortgage is not set out in the record, but it sufficiently appears from the testimony and the reference to it in the deeds to be in the usual form of a Building Association mortgage. By the terms of such instruments no right to sell the mortgaged property exists if the stipulated weekly dues are regularly paid; and it does not appear any such failure had occurred in this case at the time this bill was filed, but the contrary is plainly inferrible from the testimony. The mortgagee was not in a position to enforce a sale, and could only [**14]  claim prompt payment of future weekly dues. In this respect the case resembles that of an ordinary mortgage where the debt is not due, and under all the authorities to which we have referred, a prior mortgagee in that situation need not be made a party. We are therefore of opinion, it was not necessary in this case to make this Building Association a party to the bill. Their interests are in no wise affected by the decree. The clause in it that the trustee shall convey the property to the purchaser free from all claim 

 [*220]  of the parties to the cause, "and those claiming, by, from or under them, or either of them," cannot affect the interests of one not a party to the suit, and is operative only upon the title and interests of the parties to the cause, and those claiming under them by conveyances pendente lite.
In support of the position that Adam Walter is a necessary party, special reference is made to the two cases of Ward vs. Hollins, 14 Md. 158, and Lovejoy vs. Irelan, 17 Md. 525. In the former of these cases it was held that where the object of a proceeding in Equity is to assail a deed, either for the purpose of having [**15]  it rectified or vacated all the parties to the instrument are necessary and proper parties to the cause, without whom no valid decree can be passed, and in the latter, where creditors filed a bill to vacate a deed as fraudulent as against them, it was held that the fraudulent grantor was a necessary party as well on account of the fraud charged as because of the title remaining in him for the benefit of creditors. But the present case is unlike either of these. Here both deeds, the one to and the other from Adam Walter are vacated, and he held title for less than five days. No fraud or confederation with the other parties is charged against him. The bill charges that John Walter conspired with his wife Catharine Walter, to cheat and defraud the creditors of the former and attempted to carry out that fraud by means of these false and fraudulent conveyances. The case is very similar to that of Davis vs. Simpson, 5 H. & J. 147, where an executor with power to sell, proceeded to have the power executed under an order or decree of Court, and as trustee under such decree, sold and conveyed property to one Campbell, who on the same day re-conveyed it to the trustee, and [**16]  upon a bill filed by the legatees under the will, the sale and the deeds to and from Campbell, were vacated as fraudulent and void. To this proceeding neither Campbell, nor his 

 [*221]  representatives were made parties, and it was held that it was not necessary to make them parties, as he was evidently the mere agent of the trustee, and had bid in the estate for him, and the deeds were executed solely for the purpose of vesting title in the trustee. Adam Walter stands in the same position here. He has no interest in the result of the suit, is not charged with participation in the fraud, and was obviously the mere agent or instrument of the husband and wife, and used by them as such in the consummation of their fraud, the sole object being by means of these two deeds to vest title to the property in the wife. It was not therefore necessary to make Adam Walter a party.
The remaining question is one of fact, viz: is the charge of fraud established by the proof? On this, we have, after a careful examination of the testimony in the record, and consideration of the arguments of counsel, reached the same conclusion as that arrived at by the Circuit Court. The decree appealed from must [**17]  therefore be affirmed and the cause remanded for its execution.
Decree affirmed, and cause remanded. 

32 of 144 DOCUMENTS 

J. ALEXANDER PRESTON, Trustee, vs. THOMAS FRYER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 221; 1873 Md. LEXIS 49 

June 25, 1873, Decided 

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

John P. Woollet, of Baltimore, having died in June, 1872, intestate, a bill was filed in July following for the sale of his real estate, for the purpose of making distribution among his heirs; a decree was passed on the 6th of August, 1872, directing the sale to be made, and appointing the appellant trustee for that purpose. In pursuance of this decree, the trustee advertised the property for sale, representing the title as indisputable, and the appellee, Thomas Fryer, became the purchaser of a lot of ground with the improvements, on Fayette Street, part of said property. On the 22nd of October, 1872, the sale was finally ratified and confirmed. The title of John P. Woollet to the property sold by the appellant as trustee, was founded on a deed from Asenath Woollet his wife, dated the 1st of December, 1870. There was nothing in the deed to indicate that the grantor and grantee, were husband and wife. Mrs. Woollet died before her husband. On the 24th of January, 1873, the appellee, Fryer, filed his petition alleging the filing of the bill for the sale of Woollet's real estate, the passing of the decree, and the sale of the property [**2]  thereunder, and that he became the purchaser of the lot aforesaid, and had complied with the terms of sale, by paying one-third of the purchase money in cash, and giving his two notes for the balance, payable in six and twelve months, with security to the satisfaction of the trustee; that having so complied with the terms of sale, he had taken possession of the property so purchased by him, and believing his title thereto to be good, had commenced to make improvements thereon, and in making such, had expended about one hundred and fifty dollars; it was further alleged, that the claim of title to said property by the said John P. Woollet, was under and by virtue of the deed of the 1st of December, 1870; that it was represented to the petitioner, that Asenath Woollet, at the time of the execution of said deed, was the wife of the said John P. Woollet, the grantee; that the petitioner was threatened with an action of ejectment on behalf of the heirs of the said Asenath, to recover said property and that he was advised that by reason of the coverture of said Asenath, at the time of making said deed, she was not legally capable of conveying the title to any real estate held by her in her [**3]  own right, and that a legal title to said property could not be conveyed by the trustee under the decree in this cause. The petitioner therefore prayed that the sale made to him might be rescinded, and the trustee required to refund to him the purchase money, and to pay him the amount expended by him in making improvements, together with the taxes and insurance. The trustee demurred to the petition; the demurrer was overruled, and the Court (PINKNEY, J.,) passed an order rescinding the order of ratification, and annulling the sale, but dismissing that part of the petition which related to the claim for improvements.

From this order, the petitioner appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

When Deed from the Wife to the Husband is invalid -- When Purchaser at a Trustee's Sale will be relieved from the Purchase.

A deed from a married woman of her separate estate, directly to her husband, is a nullity; and upon the death of the husband, he having survived his wife, the property will descend to her heirs at law.

Where a trustee sells property under a decree in equity, representing the title to be indisputable, and the purchaser afterwards discovers that the title is defective, the Court will, even after the final ratification of the sale, on his petition, the purchase money not having been distributed, annul the sale, and require the trustee to refund the purchase money. 

COUNSEL:
J. Alexander Preston and Wm. H. Cowan, for the appellant.

Patrick M'Laughlin, for Thomas Fryer.

Jos. Blythe Alston, for the heirs of Asenath Woollet.  

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

OPINIONBY:
STEWART 

OPINION:

 [*224]  STEWART, J., delivered the opinion of the Court.
From the petition and the demurrer admitting the facts in this case, it appears that the trustee in advertising the property for sale, under the decree, represented the title to be indisputable, [**4]  and under that belief, the purchase was made.
There can be no doubt, the petitioner is entitled to be relieved of the purchase, if he cannot procure such title under the decree, as the trustee undertook to sell.
The trustee under the decree, in making the sale, represents the Court, which will not permit such injustice as to compel a compliance with the terms of sale, under such circumstances.
Although the sale has been ratified, yet as the proceeds have not been distributed, but are under the control of the Court, it is competent to give relief by this interlocutory proceeding. Glenn vs. Clapp, 11 G. & J. 1.
It seems the property in question was conveyed to Asenath Woollet then Asenath O'Connor, from Henry Shute, Jr., by deed of the 1st of May, 1827, and to Asenath Woollet after her intermarriage, with her husband, John P. Woollet, by deed of 17th October, 1831.
That during the coverture of the said John P. Woollet and Asenath, his wife, the said Asenath, on the 1st of December, 1870, executed the deed purporting to convey the property to John P. Woollet. That both husband and wife are dead, and their respective heirs are now the claimants of the property.  [**5]  
The heirs and representatives of the husband are the only parties to this proceeding, the heirs of the wife, not having been made parties, the complainants relying upon the deed of the 1st of December, 1870, from Asenath Woollet, as vesting a perfect title in her husband, John P. Woollet, and his heirs. In this State, prior to the Acts of 1715, ch. 47; 1752, ch. 8, and 1766, ch. 14, no other mode of conveying the real estate of a feme covert, was 

 [*225]  recognized, except the forms known to the common law, by fine or common recovery; and as to any separate interest in personal chattels, belonging to the wife, it was totally unknown to the common law.
The above named statutes were intended to supply a better and less cumbersome method of conveyance of her estate. Lawrence vs. Heister, 3 H. & J. 371.
The statute of 4 William 4, ch. 74, had abolished the common law modes in England. There is no doubt the rights and capacities of the wife have been greatly extended since the passage of these Acts, and by the provisions of the Code, the feme covert has been still further relieved of much of her antecedent disability.
Her powers over her property, not only as to [**6]  its security and protection, but as to her disposal of the same, whether real or personal, are much enlarged, and the form of conveyance thereof simplified.
The wife may convey her property absolutely by a joint deed with her husband, or encumber it by mortgage, and she may execute and acknowledge the deed, mortgage, or bill of sale, as other grantors or bargainors, without private examination, as formerly required of her, and may relinquish her mere dower, by deed, with or without her husband.
Notwithstanding this enlargement of her powers by the provisions of the Code, they still expressly require that her husband shall join in the deed for the conveyance of her property.
These statutory directions cannot be disregarded by the Courts, and the deed of December 1st, 1870, from Asenath Woollet, at that time the wife of John P. Woollet, not having been executed in conformity with the law authorizing the conveyance of her property, cannot vest in the husband her estate in the same.
The order of the Circuit Court of Baltimore City must be affirmed.
Order affirmed. 

33 of 144 DOCUMENTS 

THE POTOMAC COAL COMPANY vs. THE CUMBERLAND AND PENNSYLVANIA RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 226; 1873 Md. LEXIS 50 

June 25, 1873, Decided 

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

This was an action of assumpsit by the appellant against the appellee, to recover freights, alleged to have been exacted by the latter from the former, for the transportation of coal on its railroad, in excess of the rates, charged other parties.

A bill of particulars furnished by the appellant, showed that from the 1st day of July, 1864, to the 10th day of March, 1871, the appellee transported over its road, 321, 427 tons of coal belonging to the appellant, for the aggregate charge of $ 76,494.64. This charge the appellant paid.

This suit was brought to recover the difference between this amount of $ 76,494.64, alleged to have been so improperly charged and collected by the appellee during that period, and the amount which the appellee would have been entitled to charge for the transportation of said coal at the lowest rates of freight charged any company or individual shipping coal over the appellee's road during the same period of time.

This difference amounted to $ 42,378.21.

The case was tried before a jury, upon documentary evidence and an agreed statement of facts, and resulted in a verdict for the appellee [**2]  under an instruction from the Court, that upon the agreed statement of facts, the plaintiff (appellant) was not entitled to recover.

The appellant offered six prayers, all of which were rejected, and the same are omitted, as they do not aid in elucidating the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

When money Voluntarily paid cannot be recovered.

During the period from July, 1864, to March, 1871, the P. Coal Co., paid to the C. and P. R. R. Co., a large sum of money as freight for transporting Coal. Afterwards the Coal Co. sued the R. R. Co., in indebitatus assumpsit to recover back a portion of this freight, on the ground that the rate of freight charged the Coal Co., was illegal, in that it exceeded the rates paid by other shippers. HELD:

That the money having been voluntarily paid under no mistake of facts, and there being no circumstances of duress, fraud or extortion, the plaintiff was not entitled to recover. 

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

Illegal and excessive freights, charged and collected are recoverable back in an action for money had and received, on the ground that the relative positions of company and shipper, constitute its practical duress, and the principle of voluntary payment, decided in Lester vs. Mayor and City Council, 29 Md. 415, and cited in the appellee's brief, has no application to this case. 1 Red. on Railways, 448, sec. 3; The Great Western R. R. Co. vs. Sutton, 12 Law Times Reports, 43, and cases there cited; Centre Turnpike Co. vs. Smith, 12 Ver., 212; Fearnly vs. Morley, 5 B. & C., 25; 2 Adol. & Ellis, 837; 7 Greenl., 134; 2 Esp., 123; 7 Man. & Gran., 253; 1 Wightwicke, 22; 2 Barn. & Ald., 206; 4 Barn. & Cress., 200; 4 Gill, 425.

There is no conflict of authority upon this point, for a careful examination of both English and American [**3]  cases will fail to discover a single decision wherein the right to recover, in this form of action, freights illegally collected, has been denied.

John P. Poe, for the appellee.

Conceding the rates charged and collected were excessive and even illegal, they have been paid voluntarily and cannot be recovered back. Lester vs. Mayor & City Council of Baltimore, 29 Md., 418, and cases there cited; Sutton's Case, 3 Hurl. & Colt, 800; Garton's Case, 1 Best & Smith, 112 and 154.  

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

OPINIONBY:
GRASON 

OPINION:

 [*228]  GRASON, J., delivered the opinion of the Court.
This is an action of indebitatus assumpsit for money had and received to the plaintiff's use, and is brought to recover the sum of forty-two thousand, three hundred and seventy-eight dollars and twenty-one cents, that sum being the difference between the sum charged and received from the plaintiff, for freights on its coal transported over the defendant's road, from July 1st, 1864, to March 10th, 1871, and the amount the plaintiff would have had to pay had it been charged the lowest rate at which the defendant transported coal for any other person [**4]  or company during the same time. The case was tried upon an agreed statement of facts, which is set out in the record, and at the trial the plaintiff offered six prayers, all of which were rejected, and the Court granted an instruction that upon the agreed state of facts, the plaintiff was not entitled to recover, and the judgment being in favor of the defendant the plaintiff appealed.
One of the grounds relied upon by the appellee's counsel for sustaining the rulings of the Court below is, that the payments of the freights charged by the appellee were voluntarily made by the appellant, and therefore cannot be now recovered, even conceding that they were illegally charged.
This question has been clearly and definitively settled in this State by the cases of Mayor and City Council of Baltimore vs. Lefferman, 4 Gill 425; John B. Morris vs. The Mayor and City Council of Baltimore, 5 Gill 244, and 

 [*229]  Lester vs. The Mayor and City Council of Baltimore, 29 Md. 415.
In the first of these cases Lefferman had received a notice from the City authorities to build a stone wall upon his property, binding upon Jones' Falls,  [**5]  and that, if he failed to build it by the time specified in the notice, they would build it and charge the cost to him. Lefferman accordingly built the wall and then brought suit to recover from the City the money he had expended in its erection, on the ground that the Act of 1821, chap. 252, under authority of which the Mayor and City Council had acted, was unconstitutional and void. The case was very fully argued and the Court, in its opinion, says: "It is now established by an unbroken series of adjudications in the English and American Courts, that where money is voluntarily and fairly paid with a full knowledge of the facts and circumstances under which it is demanded, it cannot be recovered back in a Court of law upon the ground that the payment was made under a misapprehension of the legal rights and obligations of the party."
And on page 436 of the same case, the Court further say: "We consider, therefore, the doctrine as established, 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." In the case of Morris vs. The Mayor &c. of Baltimore,  [**6]   it appears that Mr. Morris paid taxes on his bank stock at a time to entitle him to a deduction of a certain per centage on the amount paid under an ordinance of the City, and that afterwards he brought suit to recover the taxes so paid, upon the ground that they had been illegally exacted. Judge MARTIN, in delivering the opinion of the Court of Appeals, says, "After a careful review and examination of the authorities, the Court announced in the case of the Mayor and City Council against Lefferman, what they regarded as 

 [*230]  the true doctrine upon the subject of voluntary and compulsory payments, as far as it was applicable to the case before them; and we certainly have not been able to perceive any reason for departing from the propositions there enunciated."
"On the contrary, we desire to be understood as re-affirming the principles declared in the Mayor and City Council and Lefferman, and as that case cannot be distinguished from the one before us, we should have affirmed the judgment of the Court below, even if we had considered the tax as unconstitutional and void."
In the case of Lester vs. The Mayor, &c. of Baltimore, Lester paid his taxes after his property had [**7]  been advertised for sale by the collector of the taxes, yet 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 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.
In the case now under consideration, it is not claimed by the appellant's counsel, that the money sought to be recovered, was paid under a mistake of the facts, or under circumstances of duress, fraud or extortion. On the contrary, it appears from the agreed statement of facts that the appellee was carrying coal for the appellant for nearly seven years, during the whole of which time the latter was voluntarily paying the freights demanded. The case therefore is clearly within the principle decided by this Court in the cases referred to, and as that principle is conclusive against the right of the appellant to recover, it is unnecessary, to decide the other points [**8]  presented by the record.

 [*231]  We concur in the rulings of the Circuit Court, and its judgment must be affirmed.
Judgment affirmed. 

34 of 144 DOCUMENTS 

KATE P. DUNGAN, Admx. of ELIZABETH W. DUNGAN, vs. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY OF NEW JERSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 242; 1873 Md. LEXIS 53 

June 25, 1873, Decided 

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

At the trial below, after the plaintiff's case had been closed, the Court (DOBBIN, J.,) in the exercise of its discretion under the 33d Rule for the conduct of business, &c., requested the defendant to submit a prayer involving the plaintiff's right to recover, and thereupon the defendant prayed the Court to instruct the jury: "That upon the evidence offered by the plaintiff, if believed by the jury, the plaintiff had not, at the time of the institution of this suit, the legal right to the policy of insurance, or the right to its possession, and therefore cannot recover." This prayer the Court granted. The plaintiff offered five prayers which the Court refused to grant: their insertion is not deemed necessary. The jury rendered a verdict for the defendant and judgment was entered accordingly. The plaintiff appealed.

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

When Trover cannot be maintained -- Distinction between a Pledge and a Mortgage of goods or choses in action.

On the 17th of June, 1861, D. effected an insurance on his life for $ 5000, payable on his death to his wife or her assigns. The annual premium of $ 245, was to be paid on the 17th of June, in each and every year, during the continuance of the policy. And it was stipulated that in case of failure to pay the premiums on or before the several days limited for their payment, the Insurance Company should not be liable for the payment of the sum insured, or any part thereof, and the policy should cease and determine, and in such case, all previous payments made thereon, and all profits should be forfeited to the company; and in case of an assignment of the policy, written notice was to be given to the Insurance Company, and their assent thereto obtained. On the 17th of June, 1862, D. and wife executed under seal, the following assignment of the policy: "For value received, we do hereby assign, &c., to W., his heirs, or assigns, the above named policy of insurance, and all sum or sums of money, interest, benefit and advantage whatsoever, now due, or hereafter to arise, or to be had, or made by virtue thereof, to have and to hold unto the said W., his heirs, or assigns." Upon the execution of this assignment, the policy was delivered to W., and at the same time, he gave to the assignors the following receipt: "Received of D. and wife, an assignment of Policy No. 9,238, &c., as security for the prompt payment at maturity, of their note at four months from date, amounting to $ 220.25; said assignment to be null and void, upon the payment of said note at its maturity -- otherwise, to continue for sole use of W." The note referred to in this receipt, was dated 17th June, 1862, and payable to the order of W., it was signed with the name of the wife, per D. the husband, and his name was signed upon the back of it. This note was not paid at maturity, nor at any time thereafter. Notice in writing of the assignment, though not of the receipt, was given to the Company by W., on the 17th of December, 1862, and on the following day, the Company returned to W., their written assent to it, subject to the conditions of the policy. On the 28th of November, 1865, W. surrendered the policy to the Company, and received therefor $ 1248.51, he having paid the premiums thereon up to that date. On the 28th of June, 1866, D. and wife brought an action of trover against the Insurance Company, to recover damages for the conversion of the policy. HELD:

That the assignment of the policy, together with the receipt therefor, formed one contract, and constituted a sale or mortgage, rather than a pledge as collateral security for the note, and consequently, the plaintiffs had not at the time of the alleged conversion and suit brought, the interest and title of bailors, to enable them to maintain trover.

The general distinction between a pledge and a mortgage of goods, or choses in action is, that in a mortgage, the title is conveyed with a condition of defeasance, that is to say, a condition rendering the conveyance void, on the payment of a certain sum of money, on or before a day agreed upon; while in a pledge, the goods bailed are deposited as a collateral security, and only a special property is transferred to the bailee, the general title in the meanwhile, remaining with the bailor. The intention of the parties, and the real effect of their agreement, are to be considered and respected in its enforcement: the purport and substance of the contract, determines whether it shall be considered a mortgage or a pledge. 

COUNSEL:
Arthur Geo. Brown and Geo. Wm. Brown, for the appellant.

The assignment and receipt constitute a pledge. The assignment of the policy and the receipt constitute one contract, and must be construed together.  [**2]  The assignment is in the ordinary form. It is certainly not a mortgage.

Nor is the receipt a mortgage either in substance or in form. It is simply a pledge, for it states that the assignment of the policy was given as security for the payment of the note at maturity. It was intended to explain the true meaning of the assignment. The expressions, security and collateral security, mean the same thing, and are made use of in pledges, but not in mortgages. The expression shows that the general property in the thing pledged remains in the pledgor, and that the pledgee only holds it as security for the debt, while in a mortgage the title to the thing is absolutely granted with a condition of defeasance. 2 Stephens' Comms., 80; 2 Bell's Comms., 19, 20.

There is no substantial difference between the receipt in this case and the receipts in the cases of Md. Fire Ins. Co. vs. Dalrymple, 25 Md., 258; Balt. Marine Ins. Co. vs. Dalrymple, 25 Md., 300; Bryson vs. Rayner, 25 Md., 424.

In these cases the stock was absolutely assigned on the books of the companies, but the receipts were held to make the transactions pledges and not mortgages. The fact that these receipts contained an [**3]  express power of sale on default of payment, did not make them pledges, rather than mortgages, because such a power of sale is quite as common and legal in a mortgage as in a pledge. Code of Pub. Genl. Laws, p. 140, 143, 144, Act of 1856, ch. 154, sec. 142; Broom's Common Law, (4th Edition,) 815; Bateman on Commer. Law, secs. 673, 674, 681, 688; Edwards on Bailments, 201, 252; Story on Bailments, (5th Ed.,) secs. 7, 345, 346; 2 Kent's Com., 581, et seq.; McAnelly vs. Chapman, 18 Texas, 198; Lucketts vs. Townsend, 3 Texas, 119; Moore vs. Eldred, 42 Vermont, 13; Heyland vs. Badger, 35 Cal., 404; Wright vs. Ross, 36 Cal., 414; Pigot vs. Cubley, 109 E. C. L., 701; Taggart vs. Packard, 39 Vt., 628; Spaulding vs. Barnes, 4Grey, 330; Walker vs. Staples, 5 Allen, 34; President, &c., vs. Minot, 4 Met., 325.

Notice of assignment was not given by Webb to the company, and its assent thereto obtained until six months after the assignment, and the notice was evidently withheld by Webb until he was about to apply to the company for permission to use the policy as a security to the company for a loan to himself. Such a notice was not in reasonable time, and was too late. The policy requires notice [**4]  of assignment to be given and the assent thereto of the company.

Such a rule can be enforced by the company against the insurer, and it ought to be strictly enforced as against the company itself, and its agents. The assignment did not, therefore, pass the legal title to Webb, and he could not pass it to the defendant. N. Y. Life Ins. Co. vs. Flack, 3 Md., 341; Stevens vs. Warren, 101 Mass., 564; Badger vs. Ins. Co., 103 Mass., 244; 2 Pars. on Cont., (5th Ed.,) 481.

The notice of assignment was not sufficient, because it did not disclose the real assignment between the Dungans and Webb. The object of the notice is to give information to the company of the true nature of the assignment, and of the parties interested, but this notice did not give information of either. For this reason also the assignment did not pass the legal title to Webb, and he could not pass it to the defendant.

Thomas W. Hall and I. Nevett Steele, for the appellee.

The assignment of the policy to Webb, June 17th, 1862, was regular and legal in form, and absolute in terms. By the receipt of the same date given by Webb, a condition of defeasance was annexed to the assignment, upon breach of which [**5]  and after default made, the assignment became absolute in fact. The two papers taken together constitute a mortgage, in form and in substance, in language and in legal effect--as distinguishable from a bailment of pledge, or deposit by way of collateral security. The objection that all the details of the transaction were not communicated to the company, for its approval, cannot affect the validity of the assignment. The reasons which require notice of assignment to be given and the assent of the insurers obtained, in the case of fire policies, have no application to life policies. The condition in the policy requiring such notice and assent, is inserted by the company for its own protection, the breach of which it may waive, and which cannot affect the validity of the transaction inter partes. But, in this case, notice was given to the company of the assignment and its assent thereto obtained. No notice of the condition of defeasance was given, because none was necessary or required. N. Y. Life Insurance Co. vs. Flack, 3 Md., 353; Mutual Protection Ins. Co. vs. Hamilton, 5 Sneed, 273, 279; Merrill vs. N. E. Ins. Co., 103 Mass. 252; Bliss on Life Insurance, sec. 330; Cortelyon vs. Lansing,  [**6]  2 Caine's Cases, 200; Parshall vs. Eggart, 52 Barbour, 371.

A policy of life insurance is assignable either absolutely or by way of mortgage to secure a debt. Such policies are choses in action, governed by the same principle which are applicable to other agreements involving pecuniary obligations. In this State, the assignment of a policy of insurance has been held to be within the Act of 1829, ch. 51. N. Y. Life Ins. Co. vs. Flack, 3 Md., 354; Emerick vs. Coakley, 35 Md., 191; Bliss on Life Ins., sec. 325.

A chattel mortgage (and the same is true of a mortgage of a chose in action, such as a policy of insurance) vests the legal title in the mortgagee, subject to be revested in the mortgagor, upon performance of the condition, and in case of default made, or breach of the condition, the title becomes absolute at law in the mortgagee. The action of trover depends upon the legal title, general or special to support it, and the mortgagor as against the mortgagee has no legal title whatever. Story on Bailments, sec. 287; Story's Eq. Jurisp., sec. 1030; Haskins vs. Patterson, 1 Edm. Sel. Ca., 122; Langdon vs. Buel, 9 Wend., 80; Patchin vs. Pierce, 12 Wend., 61; Woodworth vs.  [**7]  Morris, 56 Barb., 103; Burdick vs. McVanner, 2 Denio, 170; Brown vs. Bement, 8 Johns., 75; Wood vs. Dudley, 8 Verm., 434; Winchester vs. Ball, 54 Maine, 558; Holmes vs. Bell, 3 Cush., 322; Heyland vs. Badger, 35 Calif., 404.

That the plaintiff in trover must recover upon the strength of his own legal title, and that to maintain trover, there must be in the plaintiff a concurrence both of the right of property, general or special, and of the right to immediate and actual possession, has been uniformly recognized in Maryland and is common law. Mayor and C. C. of Baltimore vs. Norman, 4 Md., 358; Stewart vs. Spedden, 5 Md., 449; Bryson vs. Raynor, 25 Md., 432; Owen vs. Knight, 4 Bingh. N. C., 56; Gordon vs Harper, 7 Term R., 9; Winner vs. Penniman, 35 Md., 165.

Even if the plain meaning and purport of the assignment and receipt of June 17, 1862, which constitute a mortgage, if any form of apt words can possibly have that effect, could be ignored, and the transaction treated as a bailment of pledge, the appellant's right to maintain trover would not thereby be established. To enable a pledgor, out of possession, to maintain trover, two things are necessary--viz:

1st. Wrongful [**8]  conversion by the defendant. 2nd. Tender of the amount due by the plaintiff. In this case, the appellee's possession having commenced and continued under contract, there could be no wrongful conversion without previous demand and refusal. There could be no lawful demand without tender, and there is no evidence of tender at any time, and so far from refusal, the record shows a proffer by the appellee, to revive the surrendered policy not only upon terms which were strictly equitable but highly advantageous to the appellant, and which the appellant failed to accept. Stewart vs. Spedden, 5 Md., 449; Donald vs. Suckling, 1 Q. B. (L. R.), 610, 619; Halliday vs. Holgate, 3 Exch., 302, (L. R.); Tyler on Pawns, 574; Bryson vs. Rayner, 25 Md., 433; Lucus vs. Latour, 6 H. & J., 100.  

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

OPINIONBY:
MILLER 

OPINION:

 [*248]  MILLER, J., delivered the opinion of the Court.
This is an action of trover to recover damages for the conversion of a life insurance policy for $ 5000, issued by the appellee, (the defendant below) upon the life of Francis D. Dungan, payable on his death to his wife Elizabeth W. Dungan. The suit [**9]  was brought on the 

 [*249]  28th of June, 1866, by Dungan and wife, both of whom died during its pendency, and it was revived on the 15th of January, 1872, in the name of the wife's administratrix. At the trial, after the evidence on the part of the plaintiff was closed, the Court instructed the jury that upon that evidence if believed by them, the plaintiffs had not at the time of the institution of this suit, the legal title to the policy of insurance and therefore cannot recover in trover. Unless there be material error in this instruction the judgment must be affirmed. The law which it embodies is not disputed. To sustain trover, the plaintiff must show a legal title; he must have property, general or special, and actual possession or the right to immediate possession at the time of the conversion. The conceded facts upon which we presume this instruction was based, are substantially as follows:
The policy (No. 9238,) was issued on the 17th of June, 1861, and by its terms it insures the life of Dungan to the amount of $ 5000, in consideration of an annual premium of $ 245 to be paid on the 17th day of June, in every year during its continuance; the amount insured is [**10]  to be paid to his wife, Elizabeth W. Dungan, or assigns, within ninety days after due notice and proof of his death; in case of failure to pay the premiums on or before the several days limited for their payment, the company shall not be liable for the payment of the sum insured or any part thereof and the policy shall cease and determine, and in such case all previous payments made thereon, and all profits shall be forfeited to the Company; and if assigned, written notice shall be given to the Company and their assent thereto obtained. On the 17th of June, 1862, Dungan and wife executed the following assignment of this policy to William P. Webb:
"Assignment of policy No. 9238. In the Mutual Benefit Life Insurance Company--Life of Francis D. Dungan."

 [*250]  "For value received, we do hereby assign, transfer and set over unto Wm. P. Webb, his heirs or assigns the above named policy of insurance, and all sum or sums of money, interest, benefit and advantage whatsoever, now due or hereafter to arise or to be had, or made by virtue thereof, to have and to hold unto the said Wm. P. Webb, his heirs or assigns. In witness whereof, we have hereunto set our hands and seals the seventeenth [**11]  day of June, one thousand eight hundred and sixty-two.  
E. W. DUNGAN, [SEAL.]
FRANCIS D. DUNGAN, [SEAL.]"
"Signed, sealed and delivered in the presence of
JOHN W. MORTIMER."
Upon the execution of this assignment the policy was delivered to Webb, and at the same time he gave to the assignors the following receipt:
"BALTIMORE, June 17th 1862.
"Received of Mrs. E. W. Dungan and Mr. F. D. Dungan, an assignment of policy No. 9238, in the Mutual Benefit Life Insurance Company of N. J., Life of F. D. Dungan--as security for the prompt payment at maturity of their note at four months from date, amounting to two hundred and twenty 25/100 dollars; said assignment to be null and void upon the payment of said note at its maturity; otherwise to continue for sole use of W. P. Webb.
W. P. WEBB."
The note referred to in this receipt is a note dated the 17th of June, 1862 for $ 220.25, payable four months after date, to the order of Webb, and signed E. W. Dungan, per Francis D. Dungan, and also with the name of the latter upon the back of it. This note was not paid at maturity nor has it ever been paid. Notice in writing of this 

 [*251]  assignment,  [**12]  though not of the receipt, was given to the Company by Webb, on the 17th of December, 1862, and on the following day the Company returned to him their written assent to it, subject to the conditions of the policy. On the 28th of November, 1865, Webb surrendered the policy to the Company and received therefor the sum of $ 1248 51, he having paid the premiums thereon up to that date.
On these admitted facts it is insisted on the part of the appellee that this assignment and accompanying receipt constitute either a conditional sale and transfer of the policy, which became absolute and irrevocable, both at law and in equity, upon failure to pay the note at maturity, or a mortgage of it, and in either event there was no legal title in the plaintiffs to support trover. On the other hand the appellant's counsel contend that the transaction was merely a pledge or deposit of the policy as collateral security for the payment of the note, and hence under the law of bailments, title "to maintain trover," remained in the bailors. The legal result in each case cannot be subject of dispute; in the one case the legal title passes to the vendee or mortgagee, and in the other the [**13]  general title remains in the pledgors. The difference between a pledge and a mortgage of goods or choses in action is said to be marked and easily understood, but it is sometimes in practice very difficult to determine whether a particular contract is the one or the other. The general distinction is that in a mortgage the title is conveyed with a condition of defeasance, that is to say, a condition rendering the conveyance void on the payment of a certain sum of money on or before a day agreed upon; while in a pledge the goods bailed are deposited as a collateral security, and only a special property is transferred to the bailee, the general title in the meanwhile, remaining with the bailor. The difference has also been well stated thus: "A mortgage is a pledge and more; for it is an absolute 

 [*252]  pledge to become an absolute interest if not redeemed at a certain time. A pledge is a deposit of personal effects, not to be taken back but on payment of a certain sum, by express stipulation or the course of trade, to be a lien upon them." With respect to goods and chattels it is in most cases very easy to apply this distinction, but with respect to choses in action which [**14]  cannot be otherwise delivered, the fact that title passes does not necessarily create a mortgage. To constitute a mortgage the title must be conveyed, but it is not in all cases a mortgage because the title is conveyed. Thus a transfer of stock may be absolute, but still if its object and character are qualified and explained by a contemporaneous paper which forms a part of the contract, and declares it to be a deposit of the stock as collateral security for the payment of a loan, and there is nothing in the contract to work a forfeiture of the right to redeem or otherwise defeat it, except by a lawful sale under the power expressly conferred in the agreement, the transaction will be regarded as a pledge. It is also well said that here, as in other cases, the intention of the parties and real effect of their agreement are to be considered and respected in its enforcement: the purport and substance of the contract determines whether it shall be considered a mortgage or a pledge. It is thus, in substance, that the distinctions between these two forms of contract are stated by the elementary writers of the highest authority, making their deductions from adjudged cases. 2 Story's  [**15]   Eq., sec. 1030; Story on Bailments, secs. 287, 345, 346; 2 Kent's Com., 581; Edwards on Bailments, 201, 251, 252, 253; 1 Parsons on Contracts, 113, 115. The same result is stated in the more recent work of Bateman on Commercial Law, secs. 674, 681. The still more recent decisions of the Courts, many of which have been cited in argument, throw no new light upon the subject and furnish no better rules 

 [*253]  or guides for determining whether a particular transaction be the one or the other of these contracts.
Applying the tests thus laid down to this case, and reading, as we must, the assignment and receipt together as forming one contract, we are clearly of opinion that if it be possible to effect a conditional sale or mortgage, as contradistinguished from a pledge of a running life insurance policy, it has been here effected. The assignment is under seal, and in the most formal terms conveys to Webb, his heirs and assigns, the policy itself and all interest and advantage existing or hereafter to arise under it. Language affords no more apt words to make it absolute and complete. Then comes a defeasance clause in the most technical form: "said assignment [**16]  to be null and void upon payment of the said note at maturity, otherwise to continue for the sole use of" the assignee. There is no declaration that the policy was deposited as collateral security for payment of the note and there is expressly conferred no power of sale in case of default with or without notice. The purport and substance of the contract and the intention of the parties as disclosed by the language they have made use of to express it, clearly indicates a sale or mortgage rather than a pledge. If the subject matter of the contract be considered, it leads to the same conclusion. Continuing life policies, if they have any, have not the same easily ascertained market value as personal chattels or shares of stock in banks or other corporations. They are not ordinary articles of sale in market-overt or at the stock boards. The power of sale incident to a pledge could not be readily exercised, if at all, in case of default, and hence no one would be inclined to accept them as securities for loans and advances with no more interest or title in, or control over them than that which the law of bailments confers. The assignee of such an instrument must, in [**17]  order to keep it alive as a contract against the company, 

 [*254]  pay the accruing premiums and run the risk of other conditions upon which it may become null and void. The company may stand upon their contract and refuse assent to an assignment or to pay anything for its surrender, relying upon the expectation or contingency in a particular case, of greater profits resulting from the duration of the life insured and annual premiums payable thereon. Nor do we discover any thing in the acts, declarations or conduct of the parties anterior to or at the time this transaction took place, or subsequently, (even if such subsequent acts or conduct could be considered in construing the contract,) which could induce us to determine they considered it as a mere pledge of the policy as collateral security for the note. Notice to the company of the terms of the receipt was not necessary, and notice of the assignment was given and assented to by the company in due time. Even if a failure in that respect could affect the validity of the transaction as between the assignors and assignee.
It follows from what has been said that upon these conceded facts the plaintiffs had not, at the [**18]  time of the alleged conversion and suit brought, the interest and title of bailors so as to enable them to maintain trover. We are also of opinion there is nothing in the fact that Webb, the assignee, was at the time of the assignment and subsequently, the acting agent of the company; nor in any of the other evidence in the record, or inferences legitimately deducible therefrom, that can avail to support this action. What effect they would have if the suit were founded upon the policy itself, or in any other form at law or in equity, is a question upon which we refrain from expressing any opinion. For the purposes of this case it suffices to determine there is no ground upon which trover can be supported.
These views render the ruling upon the admissibility of evidence, to which an exception was taken, entirely 

 [*255]  immaterial; for had the excluded evidence been admitted it would in no wise have affected the determination of the main and vital question in the case.
Judgment affirmed.
STEWART, J., dissented.  

35 of 144 DOCUMENTS 

LEVI WEAVER vs. WILLIAM BOGGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 255; 1873 Md. LEXIS 54 

June 25, 1873, Decided 

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

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

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Suit on Judgment rendered in another State -- Cannot be maintained where the Judgment, after standing twenty years, is revived by Scire facias without Notice to the defendant.

A suit cannot be maintained in the Courts of this State, upon a judgment of a Court of another State, rendered upon returns of nihil to two successive writs of scire facias, issued to revive a judgment in the foreign Court, of more than twenty years standing, where the defendant in the original judgment had, for more than twenty years next before the issuing of the writs, resided in this State, out of the jurisdiction of the Court that rendered the judgment, and had no notice of such writs.  

COUNSEL:
H. E. Johnson and Wm. S. Waters, for the appellant.

No judgment of another State can be enforced in this State against a citizen resident here, unless the Court rendering the judgment has acquired jurisdiction over the defendant by actual service of process upon him. The judgment may be perfectly valid in the jurisdiction where rendered and enforced there, but without this requisition, it cannot be enforced here. The law which substitutes constructive notice for actual notice is binding upon persons domiciled within the State where such a law prevails, but can bind no one beyond its limits. Wharton's Con. of Laws, 792, 812; Story's Con. of Laws, secs. 539, 540, 546, 547; Shaw vs. Gould, Law Reports, 3 Eng. and Irish Appeals, 55, 81; Bischoff vs. Wethered, 9 Wall., 812; Kerr vs. Kerr, 41 N. Y., 275; Webster vs. Reid, 11 How., 460; Boswell's Lessee vs. Otis, 9 How., 350; Kilburn vs. Woodworth, 5 John., 40; Robinson vs. Ward, 8 John., 86; Bissell vs. Briggs, 9 Mass., 464; Fenton vs. Garlick, 8 John., 194.

This rule is based upon international [**2]  law, and upon that natural protection which every country owes to its own citizens. It concedes the jurisdiction of the Court to the extent of the State where the judgment is rendered, but upon the principle that it would be unjust to its own citizens to give effect to the judgment of a foreign tribunal against them when they had no opportunity of being heard, its validity is denied. This is perfectly consistent with the Constitution of the United States, determining the validity of judgments in the several States.

This case comes within the scope of the above proposition.

1st. A writ of sci. fa., although a judicial writ to enforce a record of which the Court who issues it is in possession, is nevertheless considered in law an action and in the nature of a new original. This is so because the defendant may plead thereto; the writ requires the party to be affected by it to have notice and appear and show cause in his defence. Evans' Pr., (Old Ed.,) 171; 5 Com. Dig., T. N. Pl., 3 L., 3; 1 T. R., 267, 388; Pulteney vs. Townson, 2 Black., 1227; 1 How. (Miss.,) 267; Batchelor vs. Ellis, 7 D. & E., 337; Co. Lit., sec. 505, folio 290 b. & 291; 2 Tidd's Pr., 1090; Foster on Sci.  [**3]  Fa., 73 L. L., 5, 6, 13, 252; Sabine vs. Field, 1 Cr. & M., 466.

2nd. It is so far an original suit that it requires a new appearance for defendant, and an authority to appear in the original suit is not sufficient to authorize an appearance to the sci. fa. 2 Tidd's Pr., 1090; 1 Tidd's Pr., 94; 10 Cl. & Fin., 319.

3rd. The fiat is a new judgment and a new record.--Ibid. Mullikin vs. Duvall, 7 Gill & John., 355; Holmes vs. Newland, 5 Q. B., 370.

4th. The original judgment in this case being over twenty years old, by presumption of law was paid, and upon a sci. fa., without any plea in reference to its age, the burden of proof would be upon the plaintiff to show that it was not paid.

In England, in view of the injustice of entering a judgment of any considerable age upon the return of two nihils, there are provided modes of guarding against abuse. McElmoyle vs. Cohen, 13 Pet, 327; Foster on Sci. Fa., 73 L. L., 355; Coke vs. Humphreys, 14 Searg. & Rawle, 15.

5th. The judgment of fiat upon two nihils has always been considered unfair, and Courts will, where it is possible, relieve against it. There was no notice to the appellant.

Writs of sci. fa. form no [**4]  exception to the general rule, and although the return of two nihils is equivalent to notice in the jurisdiction which renders the judgment, yet it is not so considered in another jurisdiction where such judgment is sought to be enforced. See previous cases and Kilburn vs. Woodworth, 5 John, 40; Robinson vs. Ward, 8 John., 86; Fenton vs. Garlick, 8 John., 194; Foster on Sci. Fa., 73 L. L., 365, 14; Jac. Law Dic., Title Sci. Fa.; 2 Wms. Saund., 72 (v) note; 2 Tidd's Prac., 1105; Starr vs. Heckart & Young, 32 Md., 267; M'Cormack vs. Deaver, 22 Md., 193; Wernway vs. Pawling, 5 G. & J., 510.

William A. Fisher, for the appellee.

No difficulty was presented by the lapse of time, and limitations had not intervened, even if the question could now be made after judgment on the scire facias. Lesley vs. Nones, 7 Searg. & Rawle, 409; Chambers vs. Carson, 2 Wharton, 365; Chambers vs. Carson, 2 Wharton, 9; Compher vs. Anawalt, 2 Watts, 490; 1 Tidd's Pr., (16.)

No other notice than two returns of nihil was necessary. This is the law of Pennsylvania, and the common law. Chambers vs. Carson, 2 Wharton, 365.

The scire facias re-invest the judgment with all the attributes of the original [**5]  judgment.--Moore vs. Garretson, 6 Md., 448. The scire facias on a judgment is a judicial writ applicable only to cases in which the Court had once acquired jurisdiction. 2 Tidd's Pr., 1090; Underhill vs. Devneux, 2 Wms. Saunders, 72 F. note.

It is conceded that the Court acquired jurisdiction of the person of the appellee to render the judgment in 1836. Such being the case, it had jurisdiction of the cause until satisfaction of the judgment, and no new personal service was necessary to give the Court power to do any further act in the cause; it had forever jurisdiction over the person and the subject. Certainly if Weaver had remained in Pennsylvania, it could not be denied that the judgment on the scire facias would be sufficient after two returns of nihil--because it was an attribute of the original judgment itself, that it might be perpetuated indefinitely by means of such issue and return, and to deny to such judgment on the scire facias the same validity in Maryland that it had in Pennsylvania is to deny to it that "full faith and credit," which the Constitution of the United States guarantees to it.

The scire facias is in the nature of an action, as the defendant may [**6]  plead to it, but it is still only a judicial writ. Foster on Sci. Fa., 73 Law Lib., (13); 2 Tidd's Prac., (1090.)

It does not partake of the nature of an original writ. 1 Tidd's Prac., (16); Crepps vs. Durden, 1 Smith's L. Cases, (816,) (820-821.) 

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

OPINIONBY:
MILLER 

OPINION:

 [*259]  MILLER, J., delivered the opinion of the Court.
The cause of action stated in the declaration in this case is a judgment rendered against the appellant in favor of the appellee in the Court of Common Pleas, Lancaster County, Pennsylvania, on the 26th of April, 1869. The defendant pleaded, among other pleas, that he was never served with, nor had any notice of any process in the action in which the alleged judgment was recovered. The plaintiff replied and relied upon returns of nihil to two successive writs of scire facias upon a judgment recovered by him against the defendant in the said Court of Common Pleas in 1836, and judgment after such returns of nihil in 1869. The defendant rejoined, first that the judgment alleged in the replication as recovered in 1836, was rendered more than twenty years before the issuing [**7]  of said writs of scire facias, and second, that the defendant was a citizen of Maryland, and had resided therein continuously for more than twenty years next before the alleged writs were issued, and hath since resided in Maryland, and had no actual notice of said writs, or either of them. The plaintiff demurred to these rejoinders, and the Court below sustained the demurrer, and gave judgment thereon in favor of the plaintiff.
The question thus presented by the pleadings is, can a suit be maintained in the Courts of this State upon a judgment of a Court of another State, rendered upon returns of nihil to two successive writs of scire facias issued to revive a judgment in the foreign Court of more 

 [*260]  than twenty years standing, where the defendant in the original judgment had, for more than twenty years next before the issuing of the writs, resided in this State out of the jurisdiction of the Court that rendered the judgment, and had no notice of such writs? The same question is presented by the rejection of the defendant's prayer in the third exception, and substantially also by the ruling in the second exception. In this last mentioned exception there is an [**8]  agreement that the decisions of the State Courts of Pennsylvania shall be read as evidence of the law of that State applicable to the case, and from that agreement we infer that this Court is at liberty to consider the Pennsylvania decisions not simply as authorities, but as evidence, and apply them as such in this case so far as may be necessary in the determination of the question before us.
Upon looking to those decisions we find there is in that State no period of limitations prescribed by statute for the bringing of actions upon judgments, yet it has been distinctly announced as the law there, that if a judgment be suffered to stand for twenty years with no steps in the meantime taken to revive it or keep it alive, in part payment, and no explanation or accounting for the delay, it is presumed to be satisfied, and in such case that presumption is a presumption of law, and the fact of actual payment and satisfaction is not to be submitted as an open question for the belief of a jury. Cope vs. Humphreys, 14 Seargt. & Rawle 15. We have neither seen nor been referred to any decisions of the Courts of that State establishing the law differently.  [**9]  
It is well settled that a judgment obtained in a Court of one State cannot be enforced in the Courts and against a citizen of another, unless the Court rendering the judgment has acquired jurisdiction over the defendant by actual service of process upon him, or by his voluntary appearance to the suit and submission to that jurisdiction. 

 [*261]  Such a judgment may be perfectly valid in the jurisdiction where rendered, and enforced there even against the property, effects, and credits of a non resident defendant there situated, but it cannot be enforced or made the foundation of an action in another State. A law which substitutes constructive for actual notice is binding upon persons domiciled within the State where such law prevails, and as respects the property of others there situated, but can bind neither person nor property beyond its limits. This rule is based upon international law, and upon that natural protection which every country owes to its own citizens. It concedes the jurisdiction of the Court to the extent of the State where the judgment is rendered, but upon the principle that it would be unjust to its own citizens to give effect to the judgments of a foreign [**10]  tribunal against them when they had no opportunity of being heard, its validity is denied. This doctrine is in no wise affected by the provision of the Constitution of the United States and the Acts of Congress passed in pursuance thereof, that "full faith and credit shall be given in each State to the public Acts, records and judicial proceedings of every other State; and the Congress may by general laws, prescribe the manner in which such Acts, records and judicial proceedings shall be proved, and the effect thereof." The State Courts have uniformly so determined, and the Supreme Court of the United States has fully confirmed the correctness of such decisions. D' Arcy vs. Ketchum, et al., 52 U.S. 165, 13 L. Ed. 648, 11 How. 165. This rule has been enforced in numerous instances and against judgments obtained without notice under various laws and in various modes. Its application is to be determined by the circumstances of each case as it arises. No decision has been cited applying the rule to a judgment of revivor or fiat on returns of nihil, without actual service or notice, to writs of scire facias issued and returned while the defendant was [**11]  a citizen and resident of another State, 

 [*262]  where jurisdiction to render the original judgment was duly acquired by service of process upon him. Some analogy to a case of that character, though remote, may, perhaps, be found in Robinson vs. Ward, 8 Johns. 67, and Fenton vs. Garlick, Ibid., 150. But the fact that no decision to that effect has hitherto been made, does not prove that no such case can arise so as to fall within the operation of the rule. In our opinion the present is one that falls within, and demands enforcement of the rule. That the judgment on the scire facias was rendered without actual notice or service of the writ cannot be disputed, and whatever force there may be in the argument that a scire facias is a judicial, and not an original writ, and that when a defendant has once been summoned to attend a Court he is never discharged from the obligation to be there and respond to its orders, until he has been formally discharged without day, or has satisfied the duties imposed upon him by the judgment, when applied to a case where the scire facias is issued before the presumption of satisfaction of the judgment from [**12]  lapse of time has arisen, it has none when applied to a case like this. Here the record of the foreign judgment shows (and in this respect shows nothing more) that the original judgment was rendered in September, 1836, and the first writ of scire facias was issued thereon in December, 1868, more than thirty-two years after its rendition. The defendant for thirty years next before the issuing of this writ and up to the time this suit was instituted, was a resident and citizen of this State. At the time it was revived or attempted to be revived, the judgment was presumed to be satisfied by the law of the State where it was rendered, and the obligation of the defendant to be there and respond to it had presumptively ceased. If he had appeared in the Pennsylvania Court and pleaded to this writ as he could have done if he had received notice of it, he would there have had a complete defence against the judgment 

 [*263]  on the scire facias, which is here made the foundation of the action against him. If this action had been brought (as it might have been) upon the original judgment it would have been met by the flat bar of our statute of limitations which had nearly thrice [**13]  run against it. It is very obvious the plaintiff resorted to this method of reviving the judgment in a foreign jurisdiction by means of returns of nihil, as a substitute for, and without actual notice or service of the writs, for the very purpose of evading or avoiding the provisions of the laws of this State, which justly afford its citizens protection against such stale and antiquated demands. We have no hesitation in applying and enforcing in this case the rule to which we have adverted, and in treating this judgment as one rendered without notice or service of process, and of no validity as the foundation of an action here, whatever may be its effect in the State where it was rendered, or upon the property of the defendant, if any, there situated.
It is also a matter proper perhaps to be noticed, that the judgment on the scire facias appearing in the record is not in the usual form, that the plaintiff have his execution of the original judgment for the debt and damages thereby recovered. It is thus stated, "April 26th, 1869, judgment in open Court for plaintiff against the defendant, for want of an appearance for the defendant, for the sum of one thousand one hundred [**14]  and eight dollars and ninety-nine cents, ($ 1,108.99.") In form it is a judgment by default, and not of revivor, or fiat executio. It is only by calculation that it is made to appear that the sum for which it is rendered, is the amount of the original judgment with interest thereon from the date of its rendition. We do not however lay stress upon this circumstance, but rest our decision upon the grounds already stated, assuming the judgment on the scire facias to be in proper form as one reviving or directing fiat executio of the original judgment.

 [*264]  Nor do we deem it necessary to enter into an extended examination of the nature and office of the writ of scire facias in such cases and of the judgment founded thereon, about which much was said in argument. In this State, it is clearly settled that though it is a judicial process, yet it so far partakes of the nature of an action, that the defendant may appear and plead to it in the same manner as to an action founded upon an original writ, and the judgment thereon is considered a new judgment, having all the attributes of the original, upon which the scire facias was founded. Mullikin vs. Duvall, 7 G. & J. 355; [**15]  Johnson, Garn. of Cowan vs. Lemmon, 37 Md. 336.
From the views expressed, it follows there was error in the judgment on the demurrer, and in the ruling in the third exception, for which the judgment appealed from must be reversed. As this effectually disposes of the case, no opinion need be expressed upon the further question presented by the other exceptions, whether the record was properly admitted in evidence under the plea of nul tiel record.
Judgment reversed. 

36 of 144 DOCUMENTS 

HENRY SITTIG vs. HENRY BIRKESTACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 158; 1873 Md. LEXIS 43 

June 19, 1873, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice -- A party having objected to the Admissibility of Evidence will not be heard to object to its withdrawal from the Jury -- Power of the Court as to its Instructions to the Jury -- One who has excepted to an Instruction as erroneous, will not be heard to complain of its subsequent revocation -- Removal of a Cause -- Pleading -- Insufficient ground for a Reversal -- Right of the Holder of a note to insert his own name as Payee -- Practice -- Conceded Prayer -- Appeal.

In the trial of a cause the defendant objected to the admissibility of certain evidence offered by the plaintiff; the Court overruled the objection, and the plaintiff thereupon waived the testimony and proposed to withdraw it from the consideration of the jury, which the Court allowed him to do. The defendant excepted. HELD:

That the defendant after objecting to the admissibility of the evidence could not be heard to object to its being voluntarily waived, and withdrawn from the consideration of the jury.

The Court has the power at any time during the trial of a cause, to modify its instructions to the jury, or to revoke them entirely, if upon reflection, it is considered that they have been erroneously given.

A party to a cause after excepting to an instruction as erroneous, will not be heard to complain because it was afterwards revoked and withdrawn from the jury.

An application for the removal of a cause, made after the trial has commenced, will not be granted; and the amendment of the declaration by leave of the Court, makes no difference in respect to the right of removal.

Where a party is sued as the maker of a promissory note, the non-joinder of others as joint-makers, can be taken advantage of only by plea in abatement.

The refusal to grant a prayer furnishes no ground for reversal, if the question which it raised was submitted to the jury by another prayer which was conceded.

A note for $ 1,500, payable at twelve months to the order of ----- -----, was signed by H. A. and on the back was written the names of C. A. and H. S. and H. B. Suit was brought against H. S. by H. B. the holder of the note who sought to charge the defendant as maker thereof. At the trial the name of H. B. was inserted by his counsel, in the note as payee. The question whether H. S. signed his name on the note as maker, was submitted to the jury by the instructions granted and conceded. HELD:

That if the defendant signed his name as maker, the plaintiff as holder of the note, acting in good faith had authority to insert his own name as payee.

On the second trial of a case, neither party is bound by the legal propositions which he may have conceded at the first trial.

No appeal lies from the refusal of the Court to grant a new trial. 

COUNSEL:
Edward Otis Hinkley, for the appellant.

John Henry Keene, Jr., for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*159]  BARTOL, C. J., delivered the opinion of the Court.
After the decision of this case on a former appeal, 35 Md. 273, a new trial was had, which resulted in a judgment in favor of the plaintiff below, from which this appeal was taken. There are six bills of exceptions sent up with the record. The defendant also appealed from the judgment of the Court below, in overruling his motions for a new trial, and in arrest of judgment.
The exceptions will be disposed of in their numerical order.
First Exception. The note sued on, expresses a consideration on its face, it was therefore unnecessary for the plaintiff, in the first instance, to offer evidence of the consideration; though it was competent for him to do so, and such evidence was clearly admissible; this was decided on 

 [*160]  the former appeal. It appears that when the plaintiff who was the witness,  [**2]  stated that "he had loaned Austermuhle $ 1500," the defendant "objected to any testimony respecting the loan of $ 1500." This objection was properly overruled by the Court, whereupon the plaintiff's counsel, without proceeding farther, "waived the testimony and proposed to withdraw it from the consideration of the jury," which the Court allowed him to do, and thereupon the defendant excepted. The testimony as we have said, was admissible; but certainly the defendant after objecting to it, cannot be heard to object to its being voluntarily waived and withdrawn from the consideration of the jury.
Second Exception. The evidence being closed, three prayers were offered by the plaintiff, these were rejected, and are not inserted in the record. The defendant offered ten prayers; of these the plaintiff conceded the first, second, fourth, and fifth, the others were rejected; and the Court proceeded to give an instruction to the jury, and the defendant excepted. The questions arising upon the defendant's prayers will be considered in disposing of the sixth bill of exceptions, where they are all set out together with five additional prayers, making fifteen in number. It is unnecessary [**3]  to consider the Court's instruction embodied in this bill of exceptions; because it was afterwards revoked by the Court. Its action in this respect forms the subject of the
Third Exception, which presents the question whether the Court, after having given an instruction, had the power during the trial to revoke the same, and withdraw it from the jury? On this question we entertain no doubt. The Court has the power at any time during the trial to modify its instructions to the jury, or to revoke them entirely, if upon reflection it is considered that they have been erroneously given. Goldsborough vs. Cradie, 28 Md. 477. It would be strange, if such a power did not exist; and 

 [*161]  stranger still, if a party after excepting to an instruction as erroneous, should be heard to complain, because it was afterwards revoked and withdrawn from the jury.
Fourth Exception. After the third bill of exceptions was signed, the plaintiff asked leave to amend the declaration which was granted, and he proceeded to add a tenth count thereto; the defendant's counsel endorsing an agreement thereon, "that the amendment shall be considered to be made without the filing [**4]  of a new declaration." The defendant requested time to plead to the amended narr., and asked for a continuance of the case, which application was refused by the Court, and the defendant was required to plead at once; he then demurred to the declaration, and the demurrer being overruled, he filed three pleas to the amended declaration as follows:
"1st. That he is not indebted as alleged.
"2nd. That he did not promise as alleged.
"3rd. That said promissory note was obtained by the plaintiff by fraud and misrepresentation."
Issue being joined thereon, the defendant filed his suggestion in the usual form, with a prayer for a removal of the cause; which the Court refused, and thereupon the defendant excepted.
The trial of the case having been commenced it was too late to make the application for its removal, this was decided in Price vs. The State, 8 Gill 295.
The amendment of the declaration having been allowed by the Court below, made no difference in respect to the right of removal. This point was expressly decided in Adams' Ex. Co. vs. Trego, 35 Md. 47, 61. It was there said "the pending trial did not terminate by the leave to amend;  [**5]  for as the issue was not materially changed by the amendment, the jury was not required to be re-sworn; but all the evidence previously given remained before them as if no amendment had been made"

 [*162]  In such case, it was held "that the making of the amendment afforded no ground for allowing the application for removal." There the application was for the removal of the case to a Federal Court, under the Act of Congress; but the question so far as it regards the time of making the application was the same as here presented.
Fifth Exception. We do not understand this exception to be seriously insisted on by the appellant's counsel. It is sufficiently answered by what has been said in disposing of the third bill of exceptions. The Court having receded from its action, and revoked the instruction first given, the defendant's counsel clearly had no right to insist that the instruction so revoked, should still be considered as its unreversed rulings.
The Sixth Exception was taken to the action of the Court below, upon the prayers. We shall first direct our attention to those of the defendant, fifteen in number. The first, second, fourth, fifth, eleventh and  [**6]  twelfth, were conceded, the fourteenth was granted by the Court, and the others, viz: the third, sixth, seventh, eighth, ninth, tenth, thirteenth and fifteenth were refused.
The cause of action is described in 35th Md., 276; it is a promissory note signed by H. Austermuhle, for $ 1500; on the back are the names Catharine Austermuhle, (who was the wife of H. Austermuhle,) and Henry Sittig, the appellant. The name of the payee was in blank, and at the former trial, was filled by counsel inserting the name of the appellee, the holder. The declaration contained originally nine counts, the first six were for goods sold, for work done, and the common money counts; the seventh charged the appellant as maker jointly with H. Austermuhle; the eighth, as guarantor, the ninth, as endorser; and a tenth count was added, charging the appellant simply as maker of the note. The appellee by conceding the defendant's second prayer, abandoned the first six counts; the right to recover on the eighth and ninth, 

 [*163]  was virtually abandoned, by conceding the first, fourth, fifth and eleventh prayers. Recovery was sought only under the [**7]  seventh and tenth counts, charging the defendant as maker of the note.
The third and ninth prayers were properly refused; because the objection on account of the non-joinder of H. Austermuhle as joint maker, if the defendant intended to rely upon it, ought to have been made by plea in abatement. Brown vs. Warram, 3 H. & J. 572; Merrick vs. Trustees, &c., 8 Gill 59.
The sixth, seventh, eighth and thirteenth prayers rely upon want or insufficiency of consideration for the note, and were properly refused; the note on its face, states a consideration, and there was evidence to the effect that "the appellant had given Austermuhle, a building association note for $ 1500, which was paid at the German Bank, which was the consideration for the note sued on; and that he refused so to do, until Austermuhle got the defendant to sign the note in question." This if believed by the jury, shows a sufficient consideration for the note.
There was no error in refusing the tenth prayer, it proposed to submit to the jury to determine, whether the insertion of the appellee's name in the note, as payee, changed the contract between the parties. It would [**8]  not have been proper to submit the question to the jury in that form. So far as the prayer seeks to raise the question as to the original intention of the parties, and their agreement that the defendant bound himself only as endorser, and the effect of inserting the name of the appellee as payee to change the contract, this was submitted to the jury by the twelfth prayer, which was conceded, and the refusal to grant the tenth prayer, therefore, even if it was otherwise free from objection, would furnish no ground for reversal. B. & O. R. R. Co. vs. Resley, 14 Md. 424.

 [*164]  The question whether the appellant signed his name on the note as maker, was submitted to the jury by the instructions granted and conceded; and if that was the nature of the contract between the parties, the appellee as holder of the note, acting in good faith, had authority to insert his name as payee; as has been decided in Sullivan vs. Violett & Dempsey, 6 Gill 181; Sumwalt vs. Ridgely, 20 Md. 107, and Dunham vs. Clogg, 30 Md. 284.
The fifteenth prayer was without evidence to support it, there being no testimony to show [**9]  that in receiving the first note, the appellee considered the appellant as liable only as endorser.
The appellee sought to hold the defendant liable as maker of the note, which it was competent for him to do, if such was the nature of the defendant's contract, although his name was endorsed on the back of the note, as was decided in Sullivan vs. Violett & Dempsey, 6 Gill 181, and Ives vs. Bosley, 35 Md. 262. This depended on the facts and circumstances accompanying the signing, endorsement and delivery of the note; these were properly left to the jury, under the instructions contained in the fourth and fifth prayers of the plaintiff, which were granted, and the defendant's fifth, eleventh and twelfth prayers, which were conceded.
The question of fraud was also fairly submitted to the jury by the plaintiff's prayer, and the fourteenth prayer of the defendant, granted by the Court.
On the former appeal, this Court decided that there had been error in granting the prayer of the appellee, designated as first, because it was inconsistent with the third prayer of the appellant, which had been conceded, on the principle that what is conceded [**10]  at the trial as the law of the case, cannot be contravened or disputed. B. & O. R. R. Co. vs. Resley, 14 Md. 424. The appellant's counsel have fallen into the error of supposing, that when the case came on for trial the second time, the 

 [*165]  counsel for the appellee was to be considered as having conceded the same legal propositions as before, that he was bound by his previous concessions; or to use the language of the counsel, "that a prayer conceded, must be taken as the law of the case in any subsequent trial." We do not agree to this proposition. In the trial of a cause, a prayer may be conceded as correct, which in a subsequent trial, under a different state of proof, may well be denied. The third prayer of the defendant conceded on the former trial, asserted that no evidence had been given of the signature of H. Austermuhle, to the note; at the second trial, that evidence was supplied.
We find no error in the ruling of the Court below upon the prayers. Nor have we discovered any ground to support the motion in arrest of judgment. So far as this motion is based on the action of the Court below, in directing the trial to proceed before the same [**11]  jury, after the amendment had been made to the declaration, it is answered by what has been said in disposing of the fourth exception. The objection to the sufficiency of the declaration, is not well taken, the seventh and tenth counts being sufficient to support the judgment.
No appeal lies from the refusal to grant a new trial, that being a matter which in Maryland, rests exclusively in the discretion of the Court below.
Judgment affirmed. 

37 of 144 DOCUMENTS 

JOSHUA NICHOLSON vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 140; 1873 Md. LEXIS 42 

June 6, 1873, Decided 

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

The appellant and Thomas Hollihan were presented and jointly indicted by the grand jury of the city of Baltimore, at the January Term, 1873, of the Criminal Court of Baltimore, for the murder of Mrs. Mary Ann Lampley, on the second day of January, 1873. The indictment was in the usual form of an indictment for murder. The prisoners were arraigned in the said Criminal Court on the 31st of March, 1873, and severally pleaded not guilty; and on the same day, upon their suggestion and affidavit, that they could not have a fair and impartial trial in said Criminal Court, the Court ordered and directed the record and proceedings in said cause to be transmitted to the Circuit Court for Anne Arundel county for trial; which was accordingly done. The case was tried before a jury duly empannelled in the said Circuit Court for Anne Arundel county, on the 7th of May, 1873, at the April Term of said Court. The prisoners were jointly tried, and on the 9th of May, 1873, the jury rendered a verdict of "guilty of murder in the first degree," against each of the prisoners.

Exception.--At the trial of this cause, the State, after having introduced [**2]  other evidence tending to establish the guilt of the accused, called to the stand William Crone, a competent witness, and proved by him that he was Chief of the Detective Department of the Police Force of Baltimore city, and that his assistants had arrested both the prisoners on the 30th of January, 1873; that Nicholson was brought to the Middle District Station-House, and that Hollihan was taken to the station-house of the Eastern District. Witness then stated that he had a conversation with Nicholson on the night of the 30th of January, the day of his arrest, at the Middle District Station-House; that Thomas Nicholson, a brother of the prisoner, came down from his room, and told witness the prisoner wanted to see him, and witness then went to his room, where there were present, besides witness and the prisoner, Thomas Nicholson, the prisoner's brother, and John English; that just after witness entered the room, the prisoner arose from his seat, and said to witness, "I want to tell you all about this case."

At this stage of his examination, and before the witness was allowed to detail the statement or confession then made to him by the prisoner, his counsel interposed, and proposed [**3]  to examine the witness as to whether, before the statement was made by the prisoner, any promise, or threat or inducement to confess was made to him, which would render his confession inadmissible in evidence, and the Court permitted this to be done.

The witness being then examined on this point before the Court and jury, testified, that he never had had any previous interview or conversation with the prisoner, and had never made to him any promise, or threat or inducement to confess whatever; that he had not seen the prisoner to talk with him before this time; that he did not tell his brother, Thomas Nicholson, to deliver any message from witness to the prisoner; that he went from his office to the station-house with Thomas Nicholson and John English, the latter walking with witness, and the former most of the way a little in advance; that when thus walking along, Thomas Nicholson said he was sorry about the case, and he, witness, might have then said I am sorry your brother has got into trouble; that he gave Thomas Nicholson permission to see his brother, the prisoner, and I may have said, if Joshua, the prisoner, wants to see me, I will come to see him; that he never sent for [**4]  Thomas Nicholson, nor did he send English for him, nor does he know that he was sent for; and witness swears emphatically, that up to the period of this interview and before the confession then made, he had made no promises or threats to the prisoner, nor had he held out any inducements to him to make a confession. The Court was thereupon of opinion, that the statement or confession proposed to be proven was admissible, but the counsel for the prisoner, asked leave to introduce other testimony as to the fact, whether any such threats, promises or inducements were made to the prisoner, before the witness should be permitted to detail the confession; and the Court thereupon, and against the objection of the State's Attorney, decided that it would permit further testimony on this subject, both on the part of the accused and on the part of the State, before the latter should be allowed to give in evidence the proposed confession.

The counsel for the prisoner then called to the stand Thomas Nicholson, a competent witness, who testified, that on the 30th of January, John English sent for him, and they went to Crone's office; that English called Crone out, and they, witness, English [**5]  and Crone walked to the station-house side by side, and while so walking along, Crone said to him, witness, this is a hell of a scrape and he was sorry for it, and said he had had Joshua, the prisoner, in his private office, and he had tried to get something out of him, but could not; that Crone then told me I ought to try and get Joshua to say something, that I was the only one that could get anything out of him: that he then told me that promises had been made to him by the State's Attorney of Baltimore city, if they could get him, the prisoner, to squeal; that when they arrived at the station-house, witness was allowed to see his brother, and he afterwards called Crone up to his room; that Crone came in, drew up a chair, and sat down by the prisoner, and said to him, "for Christ's sake, if you know anything about this case, let it out before Hollihan squeals, for if you do not, Hollihan will squeal before you, and you will get the worse of it," and this was said to him by Crone, before any statement or confession was made by the prisoner.

The State then called to the stand John English, a competent witness, who testified that he was present at the interview spoken of by the [**6]  other witnesses, at the station-house; that he accompanied Crone and Thomas Nicholson from Crone's office to the station-house, the three of us walking together, Crone in the middle; that while they were thus on their way to the station-house, no such conversations occurred between Crone and Thomas Nicholson, as the latter had testified to, nor did Crone make any such statements to said Thomas Nicholson while thus on their way, as the said Thomas had testified to; that when they arrived at the station-house, Thomas Nicholson went up in to the prisoner's room, and Crone and witness remained down stairs; that said Thomas Nicholson afterwards came down, and said to Crone, that Joshua wanted to see him, and all three of us then went up stairs, and into the prisoner's room, and prisoner thereupon spoke first to Crone, and said to him, "I want to tell you everything about this case," and Crone then said to him, "then I want you to tell me the truth about this thing and make a clean breast of it," and the prisoner then went on to make his statement; that neither before this statement was made, nor at any other time during the interview, did Crone say to the prisoner the words testified to [**7]  by Thomas Nicholson, or anything whatever to the like import.

The State then recalled Crone, who testified, that while on their way to the station-house, he did not use the words or expressions attributed to him by Thomas Nicholson in his testimony, or anything like them; that after he went into the prisoner's room at the station-house, and after the prisoner had said to him, "I want to tell you all about this case," witness said to him, "Josh, let it be the truth, and let it be of your free will and consent;" and does not think he said, "Make a clean breast of it;" and he positively swears he did not, before the statement was made by the prisoner, or at any other time, make use of, or say to him, the words or expressions testified to by the witness, Thomas Nicholson; that after the prisoner had begun his statement, Thomas Nicholson, his brother, said to him, "That's right, Josh, tell the truth."

The aforegoing being all the testimony offered on this question by either side, the Court thereupon ruled and decided, that nothing in said testimony of the witnesses Crone and English, or either of them, rendered the proposed confession inadmissible in evidence, but instructed the [**8]  jury, that if they believed the words and expressions testified to by Thomas Nicholson, viz: "For Christ's sake, if you know anything about this case, let it out before Hollihan squeals, for if you do not, Hollihan will squeal first, and you will get the worse of it," were used and said to the prisoner before the confession, about to be given in evidence, was made, then the same was inadmissible, and they must not regard it as evidence before them affecting the prisoner; but on the other hand, if they believe that such words or expressions were not spoken or made to him, as testified to by Thomas Nicholson, and that nothing was said to him except what has been testified to by the witnesses, Crone and English, then said confession is admissible in evidence, and they must regard and consider it as evidence before them; and having thus clearly and distinctly instructed the jury, the Court permitted the witness, Crone, to detail to the jury the statement and confession of the prisoner, made to him at the said station-house on the said night of the 30th of January, 1873, and the confession then made was given in evidence to the jury by said witness under and subject to the aforesaid instructions.  [**9]  

The counsel for the prisoner, Nicholson, thereupon, and before the witness detailed to the jury said confession, excepted to so much of the aforegoing ruling of the Court as decided that nothing in the testimony of Crone and English, or either of them, rendered the proposed confession inadmissible in evidence, and the verdict being against the prisoner, he prosecuted this appeal, under the Act of 1872, ch. 316.  

DISPOSITION:
Ruling affirmed, and cause remanded.  

HEADNOTES:

Evidence -- Admissibility of a Confession -- Onus Probandi upon the Prosecutor to show that a Confession was not obtained Improperly -- Province of the Court and Jury upon a Question of Admissibility of Evidence.

On a trial for murder, a witness Mr. Crone, was introduced on the part of the State for the purpose of detailing a confession alleged to have been made to him by the prisoner. Before Crone was allowed to testify, he was at the instance of the prisoner's counsel examined as to the circumstances under which the confession was made, for the purpose of ascertaining whether any promise or threat or inducement to confess, had been made to the prisoner which would render the confession inadmissible, and proved that it had been made voluntarily and without being induced by any promise or threat whatsoever. At the instance of the prisoner's counsel leave was given by the Court for further testimony on the subject to be offered on both sides; and Thomas Nicholson on the part of the prisoner, testified that he was present at the interview between the prisoner and the witness Crone at which the confession was made, and that Crone sat down by the prisoner and said to him: "For Christ's sake if you know any thing about this case, let it out before Hollohan squeals: for if you do not, he will squeal before you, and you will get the worse of it," and that this was said by Crone before any statement or confession was made by the prisoner. John English, who was present at the same interview, testified that "neither before the confession was made by the prisoner, nor at any other time during the interview, did Crone say to the prisoner the words testified to by Thomas Nicholson, or any thing whatever to the like import." Crone was then re-called and contradicted Nicholson, and swore that "he did not before the statement was made by the prisoner, or at any other time make use of, or say to him, the words or expressions testified to by the witness Thomas Nicholson." Both Crone and English testified substantially to the same facts. They both stated that just after they entered the room of the station house, where the prisoner was confined, Thomas Nicholson being with them, the prisoner spoke first to Crone and said "I want to tell you all about this case." Crone then said to him "Josh! let it be the truth; and let it be of your own free will and consent;" or according to the recollection of English, Crone's answer was, "then I want yon to tell me the truth about this thing, and make a clean breast of it;" and the prisoner then went on to make his statement. HELD:

That the statement and confession of the prisoner was admissible and competent evidence to be submitted to the jury.

If the confession of the prisoner had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it would have been inadmissible in evidence.

Where the confession of a prisoner is offered in evidence, the onus is upon the prosecutor to show affirmatively that it was not made in consequence of an improper inducement, or was not obtained from the prisoner by improper means.

When the confession of a prisoner on trial is offered against him, its admissibility in evidence must be determined by the Court and not by the jury.

In civil cases where the preliminary question upon which the admissibility of evidence depends, is one of fact only, and the evidence upon which the preliminary question depends is doubtful, such question may be left to the determination of the jury under hypothetical instructions from the Court.  

COUNSEL:
W. Frank Tucker and Will. H. Tuck, for the appellant.

The onus is on the State to show with certainty that the confession was voluntary. 2 East. C. L., page 657, sec. 94; 1 Taylor's Ev., sec. 796; Regina vs. Baldry, 2 Den. Crown Cases, 448.

The law does not measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration, if any degree of influence was exerted. Russ. on Crimes, 826.

If made under any threat, promise or encouragement of hope, they will be rejected. State vs. Phelps, 11 Vermont, 116.

If what is said to a prisoner is calculated to raise expectations of favor from making a statement, it will not be received; and whether, in [**10]  a given case, such was likely to be the result, must depend on the circumstances of that case. 1 Taylor on Ev., 800.

It appears, that after the accused had said, "I want to tell you everything," &c., and before he commenced his confession, Crone said, (according to English's testimony,) "Then I want you to tell me the truth about this thing, and make a clean breast of it," or (according to his own (Crone's) testimony,) "Josh, let it be the truth, and let it be of your free will and consent;" and after the prisoner had commenced his statement, his brother said, "That's right, Josh, tell the truth."

Whatever the accused may have intended to say when these men entered the room, and before anything fell from Crone, it is impossible for any one to say with certainty what effect the language of Crone may have had on his mind, whether that language was as represented by one or the other of these men, Crone or English, although no case may be produced in which these precise words were used; yet confessions have been excluded under circumstances no stronger than those under consideration, where the words imported neither threats nor promises, but mere persuasions or cautions, "You [**11]  are under suspicions of this, and you had better tell all you know." Rex vs. Kingston, 4 C. & P., 87; Regina vs. Cheverton, 2 Fost. & Fin., 833; Rex vs. Thomas, 6 C. & P., 353; Regina vs. Garner, 2 C. & Kir., 920; 3 Lee's Cases, 329; Rex vs. Partridge, 7 Carr. & P., 551; State vs. Guild, 5 Halsted, 163; Rex vs. Mills, 6 C. & P., 146; R. vs. Fleming, 1 Armstrong, M. & O., 330; Regina vs. Drew, 8 C. & P., 140; Rex vs. Shepherd, 7 C. & P., 579.

When an officer in charge of a person accused of crime says to him, "I want you to tell me the truth about this thing, and make a clean breast of it," the person addressed, will naturally suppose that the officer has a motive for making the request, and that something may be gained by gratifying him; and when we consider the known anxiety and extreme diligence of police officers and detectives to "work up their cases," as well on account of their reputation as the reward in prospect, if successful, it is next to impossible to resist the conclusion that language of this kind will induce confessions which would not otherwise be made.

But the case does not depend merely on what Crone and English said. The question is, whether it was shown [**12]  with certainty, beyond doubt, that no inducement had been offered, and to determine that, all the evidence submitted on this preliminary point ought to have been passed upon by the Court, without leaving to the jury to settle the question as to the admissibility of the confession, according to their estimate of the testimony.

It is the peculiar province of the Court to decide such questions before the proposed evidence can be put in, and there would seem to be no more difficulty in criminal than in civil cases. The Judge must be satisfied, and in case of any doubt, the confession will be rejected. 1 Taylor's Ev., sec. 796, ante sec. 22; Regina vs. Warringham, 2 Den. C. C., 448; 1 Phillips' Ev., 543.

There is the strongest reason against submitting the question to the jury. The very design of requiring the State to show that the confession was voluntary, is to keep it from the jury, unless proved to be free from inducement of any kind. But this purpose is frustrated if the jury is to pass upon the preliminary proof; which is nothing less than to decide whether the confession is admissible or not. 1 Taylor's Ev., sec. 22.

Besides, the question of admissibility of a confession [**13]  is one of law and not of fact. From every decision of this kind the party is entitled to an appeal, but if the Court, without deciding the question, submits it to the jury, the right of appeal is denied.

It cannot be said that the accused is benefitted by leaving the question to the jury, for, besides depriving him of the right of appeal, the necessary effect is to have detailed to the jury, the very matters which it is his interest to have excluded from their hearing, and constituted as juries are, it is difficult for them, in deciding the question of admissibility, not to be influenced by the confession itself.

This view of the case is embraced by the ruling of the Court, as to the testimony of Crone and English, as fully as if there had been a specific exception to the instruction given as to the evidence of Nicholson, because the opinion was confined to the evidence of the two former, not embracing that of the latter; whereas the prisoner was entitled to the judgment of the Court upon all the evidence in this preliminary investigation.

There are cases in which the Court may submit a doubtful matter or point as to evidence to the jury, but this does not apply to cases [**14]  of confession, which are never admitted, unless as a condition precedent, the State shows affirmatively there was no inducement. Trasher vs. Everhart, 3 G. & J., 34; Funk vs. Kincaid, 5 Md., 404.

James Revell, State's Attorney, for the appellee.

To exclude a confession, there must be a threat of harm or a promise of worldly advantage employed by a person in authority. Wharton's Crim. Law, sec. 685; Regina vs. Baldry, 2 Denison's Crown Cases, 430.

Was there any threat or promise in this case? Crone and English both swear, that the first words spoken were uttered by the prisoner, who said to Crone, "I want to tell you all about this case." Crone swears his reply was, "Josh! let it be the truth, and let it be of your free will and consent;" and that after the prisoner had commenced his statement, Tom Nicholson said, "That's right, Josh, tell the truth." English swears that Crone's reply was, "Then 1 want you to tell me the truth about this thing and make a clean breast of it."

There is certainly nothing in these expressions which, by any contortion of language, could be construed with a threat of harm or promise of advantage. Notwitstanding Courts have gone, unreasonably [**15]  far in excluding confessions, no authority can be found to the extent now claimed by the appellant. Moreover, the ruling and tendency of the Courts of late years have been to relax the old rules of exclusion, for, as has well been said, "it has too aften happened that justice and common sense have been sacrificed on the shrine of mercy." 1 Taylor on Evidence, sec. 807; Regina vs. Baldry, 2 Den. C. C., 430.

But putting the case in the strongest manner for the accused, and assuming, not granting, that the language was objectionable, the enquiry would yet arise, was it calculated to make the confession untrue. Wharton's Crim. Law, sec. 687; 2 Russ. on Crimes, 845; Rex vs. Thomas, 7 C. & P., 345; U. S. vs. Nott, 1 McClean, 499; State vs. Kirby, 1 Strobhart, 155; Roscoe's Cr. Ev., 30 to 35, (Edition of 1836;) 1 Taylor's Ev., sec. 800; Rex vs. Court, 7 Carr. & P., 486.

To say the most, the language was but an exhortation to speak the truth, and notwithstanding, in some few instances, exhortations not to tell lies, but to speak the truth, have been deemed likely to induce a false acknowledgment of guilt and admissions after such exhortations have been rejected, yet this paradoxical [**16]  opinion is now happily exploded. 1 Taylor's Ev., sec. 807; Rex vs. Harris, 1 Moo. C. C., 338; Rex vs. Court, 7 C. & P., 486; Regina vs. Baldry, 2 Den. Crown Cases, 430; Rex vs. Wild, 1 Moo. C. C., 452; Regina vs. Holmes, 1 C. & Kir., 248; The Queen vs. Jarvis, 1 Crown Cases Res. (L. Rep.,) 96; Wh. Cr. L., sec. 685; 37 L. J., M. C., 1; Com. vs. Tuckerman, 10 Gray, 173; Hawkins vs. State, 7 Missouri, 190; Fouts vs. State, 8 Ohio State Rep., 107.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*151]  BARTOL, C. J., delivered the opinion of the Court.
It appears by the record that the appellant was indicted for murder, jointly with Thomas Hollihan, and a verdict of "guilty of murder in the first degree" was rendered against each of the prisoners.
In the course of the trial, an exception was taken by the counsel for the appellant, to the ruling of the Circuit Court, which is now before us for review on this appeal. The questions presented for our consideration, arise upon 

 [*152]  the admission in evidence of confessions made by the appellant, after he was arrested, to William Crone, a detective. The bill of exception shows,  [**17]  that before the witness Crone was allowed to detail the confession made to him by the prisoner, he was at the instance of the prisoner's counsel, examined as to the circumstances under which the confession was made; for the purpose of ascertaining whether any promise or threat or inducement to confess, had been made to the prisoner, which would render the confession inadmissible; and proved that the confession had been made voluntarily, and without being induced by any promise or threat whatsoever.
Thereupon, at the instance of the prisoner's counsel, leave was given by the Court for further testimony on this subject to be offered, both on the part of the accused and of the State; and Thomas Nicholson was called on the part of the prisoner, and testified, that he was present at the interview between the prisoner and Crone, at which the confession was made, and stated, that Crone sat down by the prisoner and said to him, "for Christ's sake, if you know anything about this case, let it out before Hollihan squeals, for if you do not, Hollihan will squeal before you, and you will get the worse of it," and that this was said by Crone before any statement or confession was made by the [**18]  prisoner.
John English, who was present at the same interview, testified that "neither before the confession was made by the prisoner, nor at any other time during the interview, did Crone say to the prisoner the words testified to by Thomas Nicholson, or anything whatever to the like import."
Crone was then recalled and contradicted the witness Thomas Nicholson, and swore that "he did not before the statement was made by the prisoner, or at any other time, make use of or say to him, the words or expressions testified to by the witness Thomas Nicholson."

 [*153]  Both Crone and English testified substantially to the same facts. They both stated that just after they entered the room at the station house, where the prisoner was confined, Thomas Nicholson, the witness being with them, the prisoner spoke first to Crone and said, "I want to tell you all about this case." Crone then said to him, "Josh let it be the truth, and let it be of your free will and consent,"--or according to English's recollection, Crone's answer was, "then I want you to tell me the truth about this thing, and make a clean breast of it," and the prisoner then went on to make his statement.  [**19]  Upon a most careful consideration of the whole testimony on this point, after an examination of the authorities cited in the argument; we are all of opinion that the statement and confession of the prisoner was admissible, and competent evidence to be submitted to the jury.
Without undertaking to lay down any general rule on this subject, or attempting to define the nature and character of the inducements held out to a prisoner, which would render his confession inadmissible; for this must necessarily depend very much upon the particular circumstances of each case; it is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded.
The law is also well settled that the onus is upon the prosecutor, to show affirmatively, that the confession proposed to be offered was not made in consequence of an improper inducement. 1 Taylor, sec. 796. In the language of Baron PARKE in Queen vs. Warringham, the Court must be satisfied that the confession sought to be used in evidence against [**20]  the prisoner, "was not obtained from him by improper means." 2 Den. C. C. 448, note.

 [*154]  According to the testimony of Crone and English, there was neither promise nor threat employed in this case; the statement of the prisoner was made by him voluntarily. Thomas Nicholson testifies to the contrary; but it is impossible to give credence to his statement, he is not only positively contradicted by both of the other witnesses; but his whole testimony is improbable in the extreme. Not only does he put in the mouth of Crone, words which Crone himself positively states were not used by him, and which English, a disinterested witness who was present and heard all that occurred, positively contradicts; but his other statements as to what he alleges Crone had previously said to him, while on their way to the station house, are not supported by any other testimony, and are positively disproved by both Crone and English. And when it is remembered that this witness is a brother of the prisoner, naturally moved by the strongest bias in his favor, and testifying under the influence of that bias; we cannot escape the conviction that the true account of what occurred [**21]  at the interview with the prisoner, and of the circumstances under which he made the confession, is to be found in the testimony of Crone and English. There was no error therefore in allowing the confession, to be given in evidence to the jury.
We have thought it our duty in a case of such serious and vital importance, to express our judgment on this question, without stopping to inquire whether it is technically presented by the exception as it is set out in the record.
Without regard to the form of the exception, it is evident that the material and important question in the case, is whether the confession of the prisoner, made under the circumstances shown by the proof, was properly allowed to go to the jury. The determination of this question in the affirmative, is conclusive of the case.

 [*155]  It appears that the Circuit Court, after the preliminary testimony was heard, showing the circumstances under which the confession was made, permitted it to go to the jury, instructing them substantially, that it was admissible and competent evidence, and proper for them to consider, if they believed the facts testified to by Crone and English, or either of them. But if they believed [**22]  the testimony of Thomas Nicholson to be true, "then it was admissible, and they must not regard it as evidence affecting the prisoner."
The point has been made in this Court, and argued by the appellant's counsel, that the preliminary question of the admissibility of the confession was for the Court to determine, and that it ought not to have been left to the jury to decide upon the credibility of the witnesses, bearing on that question.
This point is not material or important in this case; the Court below virtually passed upon the question, by allowing the confession to go to the jury; and as we are all of opinion that the confession was admissible and proper evidence, the ruling of the Circuit Court on that question must be affirmed. The only effect of the instruction given to the jury, was to afford the prisoner's counsel an opportunity of arguing before them, that the testimony of Thomas Nicholson was entitled to their belief, and consequently that the confession of the prisoner ought to be discarded from their consideration. The appellant was not therefore injured by the course pursued by the Court in this respect, and cannot be entitled to a reversal for that cause.
The question [**23]  is however, an interesting and important one in practice; and although its decision cannot for the reasons stated, affect the decision of the present case, we consider it proper to express our judgment upon it.
The general proposition stated by the appellant's counsel, is undoubtedly correct. The question of the admissibility of testimony, is always for the Court; and 

 [*156]  the rule, is where the confession of a prisoner on trial is offered against him, the Court, and not the jury, are to determine whether it is admissible. The rule is thus stated in Taylor on Evidence, sec. 22, "If," says the author, "the question be whether a confession should be excluded on account of some previous threat or promise, the judge must decide first, whether the threat or promise was really made; and secondly, whether if made, it was sufficient in law to warrant the exclusion of the evidence." We refer also to section 796. This rule is conformable to reason, and is supported by the authorities. It was departed from in King vs. Woodcock, decided in 1789, Leach's C. C., 500, where an analogous question arose. EYRE, C. B., being in doubt upon the preliminary testimony, whether [**24]  a statement of a party offered in evidence as a dying declaration, had been made, when the declarant was under the apprehension of death, left that question to the jury, instructing them, that if they so believed, the declarations were admissible; but if they believed the contrary, they were not admissible. This decision was expressly overruled in Thomas Johns' case, decided in 1790, in which all the judges were of opinion, "that it ought not to be left to the jury to decide whether the deceased thought she was dying or not; for that must be decided by the judge before he receives the evidence." This last decision was followed in the case of Henry Welborn, decided 1792, 1 East. C. L. 359, 360. These cases are reported in Leach's C. C., 503, 504, (notes.) We refer also to King vs. Hucks, 1 Starkie's R., 521, (2 Eng. C. L. R. 495) and note, and also to the case cited by PARKE, B., in his opinion in Bartlett vs. Smith, 11 Mees. & W. 485. As very well said in Starkie's note to King vs. Hucks, (2 Eng. C. L. 495,) "it is clearly inconsistent with principle, to leave such evidence to the jury, to be [**25]  acted upon, or rejected, according to their decision upon that which is clearly matter of law:" and we may add that very great injustice might in some cases, be done to 

 [*157]  the prisoner, by allowing a confession made by him, to be given in evidence, before the Court is satisfied that it was voluntarily made; for as suggested in the appellant's brief, it would be difficult for the jury in deciding the question of admissibility, not to be influenced by the confession itself, which they ought not to hear, unless its admissibility is first clearly established to the satisfaction of the Court. Of course, the credibility of the witness who testifies to the confession, is a question for the jury to decide, in the same manner as they pass upon the credibility of other witnesses in the cause.
In civil cases, the rule of practice is different, as evidenced by the cases of Trasher vs. Everhart, 3 G. & J. 234; Dement vs. Stonestreet, 1 Md. 116; Funk vs. Kincaid, 5 Md. 404.
In those cases it was held, that where the preliminary question upon which the admissibility of evidence depends is one of fact only, it may be left [**26]  to the jury to be decided by them, under hypothetical instructions from the Court. That course may properly be pursued, where the evidence upon which the preliminary question depends, is doubtful, in such case, the Court may decline to decide it, and submit it to the jury. That rule cannot apply to a criminal case, for in passing upon the preliminary question of the admissibility of a confession made by a prisoner, if the Court considers it doubtful whether it ought to be admitted, it should be rejected. The law is so stated by Taylor, vol. 1, sec. 796, on the authority of Queen vs. Warringham, 2 Den. C. C. 447.
In this case however, as we have before said, the confession of the appellant offered in evidence, was clearly admissible according to the proof; and there is no ground therefore, upon which the ruling of the Circuit Court ought to be reversed.
Ruling affirmed, and cause remanded. 

38 of 144 DOCUMENTS 

JOHN F. ADAMS and SAMUEL H. ADAMS vs. ALEXANDER D. MICHAEL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 123; 1873 Md. LEXIS 40 

May 30, 1873, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Order affirmed, and bill dismissed.  

HEADNOTES:

Nuisance to Dwelling-houses -- Injunction -- Smoke from a Factory -- Offensive odors -- noxious Vapors -- Insufficiency of the Allegations of a Bill for an Injunction to restrain a Nuisance -- Bill dismissed without prejudice.

A Court of Equity will interpose by injunction to restrain an existing or threatened nuisance to a dwelling-house, if the injury be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it; and if it appear to be a case where substantial damages could be recovered at law.

If a party erect a manufacturing establishment in immediate proximity to the dwellings of his neighbors, and in its operation large volumes of smoke, offensive odors and noxious vapors are emitted, thereby materially interfering with the comfort of the occupants of the dwellings, a Court of Equity will interpose by injunction to restrain the continuance of the nuisance.

The appellants filed their bill for an injunction to restrain the appellee from erecting a factory for the manufacture of felt roofing, in the immediate vicinity of certain valuable dwelling-houses, the property of the complainants, which factory, if allowed to be erected and put into operation, would, it was charged, become a nuisance specially injurious to the complainants. The bill alleged that owing to the dirt, odor, smoke and appurtenances of the factory, together with the inflammable nature of the material used in the manufacture of felt roofing, the property of the complainants would be utterly destroyed as dwellings, and, that one of the complainants would be deprived of the comforts of his home, and the health of his family would be impaired by the nuisance. The bill further alleged that the irreparable and continuing injury to the complainants' property, and the value thereof, and to their just enjoyment of the same, would result from the erection and carrying on of the said manufacturing business HELD:

That the allegations of the bill were not sufficiently specific and definite as to the facts and circumstances from which the Court alone could determine whether the nuisance would be of the nature and character supposed -- the simple allegation that particular consequences would follow the erection of the factory, was not sufficient; facts should have been stated so that the Court could see and determine whether the factory when erected, would or would not constitute a nuisance such as would sensibly and materially diminish the value of the complainants' property and the ordinary comfort and enjoyment of it. That the bill thus failing to disclose all the facts essential to enable the Court to form an opinion as to the propriety of granting an injunction, the application must be refused, but without prejudice to any new application the complainants might think themselves entitled to make.  

COUNSEL:
J. Alex. Preston, for the appellants,

Referred to the following authorities: Mayor, &c., of Frederick vs. Groshon, 30 Md., 436; Hamilton vs. Whitridge, et al., 11 Md., 136, 137, 147; City of Georgetown vs. Alexandria Canal Company, 12 Peters, 91; Dennis vs. Echardt, 2 Am. Law Reg., (N. S.) 169; Corning vs. Lowerre, 6 Johns. Ch., 439; Milhau vs. Sharp, 28 Barb., 228; Hilliard on Injunctions, 302; Kerr on Injunctions, 360, 361; (Ed. of 1871.)

No appearance for the appellee.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., STEWART, BOWIE, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*125]  ALVEY, J., delivered the opinion of the Court.
In this case, an application is made for an injunction to restrain the defendant from erecting a factory for the manufacture of felt-roofing, in the immediate vicinity of certain valuable dwelling-houses, the property of the complainants, and which factory, if allowed to be erected and put into operation, will, it is alleged, become a nuisance, specially injurious to the complainants.
It is [**2]  alleged, that, owing to the dirt, odor, smoke, and appurtenances of such factory, together with the inflammable nature of the material used in the manufacture of felt-roofing, the property of the complainants would be utterly destroyed as dwellings, and that "one of your orators would be deprived of the comforts of his home, and the health of his family would be impaired by the nuisance as aforesaid." The complainants further allege, "that irreparable and continuing injury to their property and the value thereof, and to their just enjoyment of the same, will result from the erection and carrying on of the said manufacturing business as aforesaid." These are the only allegations in reference to the nature and effect of the alleged contemplated nuisance. Nothing more specific is to be found in the bill.
The Court below refused the injunction, and from its order this appeal is taken.
There is no question or difficulty in regard to the principle invoked by the complainants in this case. The power to interfere by injunction to restrain a party from so using his own property as to destroy or materially prejudice the rights of his neighbor, and thus to enforce the maxim, "sic utere tuo  [**3]   ut alienum non laedas," is not only a well established jurisdiction of the Court of Chancery, but is one of great utility, and which is constantly exercised. Indeed, without such jurisdiction, parties would, in many cases, suffer the greatest wrongs, for which actions at law would afford them no adequate redress. It 

 [*126]  is not every inconvenience, however, in the nature of a nuisance to a party's dwelling, especially in a large commercial and manufacturing city, that will call forth the restraining power of a Court of Chancery by injunction. To justify an injunction to restrain an existing or threatened nuisance to a dwelling-house, the injury must be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it. Unless such a case is presented a Court of Chancery does not interfere. It must appear to be a case of real injury, and where a court of law would award substantial damages. Walter vs. Selfe, 4 De G. & Sm. 323; Jackson vs. Duke of Newcastle, 33 L. J., ch. 698; Soltan vs. De Held, 2 Sim. N. S. 159; Kerr on Inj.  [**4]  , 350. Where, however, such is shown to be the case, the power of the Court is clear, and it will interpose by injunction.
Now, it is certainly true that the owners or occupiers of dwelling houses, whether in the city or country, have the right to enjoy pure and wholesome air, that is, as pure and wholesome as their local situation can reasonably supply; and any act which materially corrupts or pollutes the air, done without authority or justification, is strictly a nuisance. Aldred's case, 9 Coke 57, 58. If, therefore, a party should erect a manufacturing establishment in immediate proximity to the dwellings of his neighbors, and in the operation of which, large volumes of smoke, offensive odors, and noxious vapors are emitted, whereby the comfort of the occupiers of the dwellings is materially interfered with, it would certainly present a case requiring the exercise of the restraining or preventive power of a Court of Chancery. This has been decided in numerous cases, and the principle of the decisions as applicable to a case like the present, is very fully and clearly stated by Lord ROMILLY, M. R., in the recent case of Crump vs. Lambert, 15 W. R. 417. [**5]  In that case, the 

 [*127]  plaintiff was the owner of two semi-detached houses in the outskirts of the town of Walsall, together with a garden in front of them, and was the occupier of one of the houses and the garden. The defendant, a manufacturer of iron bedsteads, erected a new factory adjoining the wall of the plaintiff's garden, in which the whole process of the business, including the smelting of pigs of iron, was carried on. This subjecting the plaintiff to annoyance, he applied to have the defendant restrained, and alleged three causes of injury to the enjoyment of his property by reason of the establishment of the new factory; first, the great addition to the smoke of the neighborhood which it caused; secondly, the noxious gases and offensive odors emitted from it; and, thirdly, the noise of hammers and the voices of the workmen. The questions both of law and fact, were much controverted by the defendant; but the Master of the Rolls, in the course of his opinion, said: "With respect to the question of law, I consider it to be established by numerous decisions, that smoke, unaccompanied with noise or with noxious vapors--that noise alone, that offensive odors alone--although [**6]  not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property, and that if they do so, substantial damages may be recovered at law, and that this Court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered at law." Again, he said, "The law on this subject is, I apprehend, the same, whether it be enforced by action at law or by bill in equity. In any case, where a plaintiff would obtain substantial damages at law, he is entitled to an injunction to restrain the nuisance in this Court. There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapors, or water, or any gas or fluid. The owner of one tenement cannot cause or permit to pass over, or flow into his 

 [*128]  neighbor's tenement, any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighboring tenement, or so as to injure his property." And, after some further observations, he said, "The real question in all the cases is the question of fact, viz: whether the annoyance is such as materially [**7]  to interfere with the ordinary comfort of human existence? This is what is established in the St. Helen's Smelting Company vs. Tipping, (4 B. & S. 608; 11 H. L. Cas. 642,) and that is the question which is to be tried in the present case." And, upon review of the facts, he was of opinion that the smoke and noise proceeding from the works of the defendant, constituted a substantial nuisance, and that the plaintiff was entitled to the assistance of the Court.
The principle of the case just referred to, and of the cases upon which it is founded, has been fully recognized and sanctioned by the Court, in the case of Hamilton vs. Whitridge, 11 Md. 128, though applied in that case to the restraint of an offensive nuisance of a different character from that threatened in the present case.
But, though the law invoked be thus well established, the difficulty in the complainants' case consists in the defective manner in which the facts of it are disclosed. As we have seen, the allegations of the bill, while very strong as to what is to be the consequence of the establishment of the factory, they are exceedingly general and indefinite as to the facts [**8]  and circumstances from which the Court alone can determine whether the nuisance will be of the nature and character supposed. It is not enough for the parties complaining simply to allege that particular consequences will follow the erection of the factory; that may be their opinion or apprehension; but facts must be stated so that the Court can see and determine whether the allegation is well founded. There is no allegation in the bill before us as to the precise proximity of 

 [*129]  the intended factory to the buildings of the complainants, nor are there any allegations as to the extent of the factory, what combustible materials are to be used therein, or the quantity of smoke and vapor likely to be emitted therefrom. These are facts that are important to be known, and without full disclosure in regard to them the Court is utterly unable to conclude whether the factory when erected will certainly constitute a nuisance, such as will sensibly and materially diminish the value of the complainants' property, and the ordinary comfort and enjoyment of it or not. The granting of injunctions on applications of this character involves the exercise of a most delicate power, and the Court [**9]  is always reluctant to act except in cases where the right is clear and unquestioned, and the facts show an urgent necessity. The general rule is, that an injunction will only be granted to restrain an actual existing nuisance; but where it can be plainly seen that acts which, when completed, will certainly constitute or result in a grievous nuisance, or where a party threatens, or begins to do, or insists upon his right to do certain acts, the Court will interfere, though no nuisance may have been actually committed, if the circumstances of the case enable the Court to form an opinion as to the illegality of the acts complained of, and the irreparable injury which will ensue. Dawson vs. Paver, 5 Hare 430; Elwell vs. Crowther, 31 Beav. 169; Palmer vs. Paul, 2 L. J., Ch. 154; Kerr on Inj., 339. The Court, however, must in all such cases, at the time the motion is made, be enabled either to form its own opinion, from the circumstances of the case, as to the legality of the meditated purpose of the defendant, or to put that question into a course of immediate trial; and where that cannot be done, the motion for the injunction will not be allowed [**10]  to stand over till the purpose of the defendant has been so far executed as that its character may be judged of, but the application will be at once 

 [*130]  refused, though without prejudice to any future application. Haines vs. Taylor, 2 Ph. 209.
In this case, as the bill fails to disclose all the essential facts to enable the Court to form an opinion as to the propriety of granting the injunction, the order appealed from must be affirmed, and the bill will be dismissed, but without prejudice to any new application that the complainants may think themselves entitled to make.
Order affirmed, and bill dismissed. 

39 of 144 DOCUMENTS 

THOMAS LISTER vs. THE LOG CABIN BUILDING ASSOCIATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 115; 1873 Md. LEXIS 39 

May 23, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Building Associations -- Prepaid and Deferred Shareholders -- Mortgage debts for Prepaid shares, not assets for the liquidation of Deferred shares.

The charter of a building association provided for the payment of weekly dues by its shareholders until each share should attain a fixed value. The members had the option of having their shares prepaid on certain terms, by giving mortgages on real or leasehold estate, conditioned to pay the weekly dues and fines and interest on the money advanced; or of having the payment of their shares deferred until the association should be in condition to pay each deferred shareholder a fixed sum per share; at which time the association was to be dissolved, the mortgages against the prepaid shareholders released, and the deferred shareholders paid the face value of their shares, together with an equal proportion of any surplus profits on hand. A bill having been filed by a deferred shareholder alleging that the association was in condition to be dissolved, and praying that it be restrained from further collecting dues from him, and for the appointment of a receiver, it was HELD:

1st. That the mortgage debts of the prepaid shareholders were not assets to be applied, with the sum arising from the net revenues, to the satisfaction of the claims of the deferred shareholders.

2nd. That all the members of the association, including those who had not accepted loans, were obliged to pay their respective weekly dues until the revenues of the association should be sufficient to pay the deferred shareholders, and that the mortgages, during their existence, were only a source of revenue.  

COUNSEL:
William H. Cowan, for the appellant,

Cited Farmer vs. Smith, 4 H. & N., 202; Sparrow vs. Farmer, 26 Beav., 519; Handley vs. Farmer, 29 Beav., 362; Doncaster Perm't Build. Soc., 3 Eq., 158, (Law Rep.); Robertson vs. Am. Homestead Ass'n, 10 Md., 397.

Howard Edgar Johnson and Edward Otis Hinkley, for the appellees,

Cited Robertson vs. American Homestead Ass'n, 10 Md., 397; Shannon vs. Howard Bldg. Ass'n, 36 Md., 383.  

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

OPINIONBY:
STEWART 

OPINION:

 [*116]  STEWART, J., delivered the opinion of the Court.
The appellant, by his bill, filed in the Circuit Court, amongst other things, alleges that the Log Cabin Building 

 [*117]  Association, of which he is a member, in disregard of its duty, insists upon his continued payment of his weekly dues, and its right to impose fines upon him, in case of his refusal.
He further alleges, that by the terms of the Association he is entitled to his final distributive portion of the assets thereof; and that the company is in a condition to close [**2]  its affairs, in pursuance of the articles regulating its management and providing for its dissolution. The bill seeks to restrain the Association from any further collection of weekly dues from him, or the imposition of fines for their non-payment, and to compel it to pay him, what he alleges is, his rightful share of its assets. For this purpose he prays that a receiver may be appointed by the Court to settle up its affairs.
The Association, by its answer, on the contrary, denies the right of the complainant to final payment of his share, and that it is in such condition as to authorize it to terminate its affairs; and claims the right to exact from the complainant the payment of his weekly dues and to impose the appropriate fines for any default in their non-payment.
The only material questions involved in these issues are, whether the Association has authority to claim weekly dues from a member who has not accepted a loan of money from the company, in exchange for all other rights to which he might otherwise have been entitled? and whether the Association, according to the terms defining its operations, and providing for its duration and dissolution, is in a condition to terminate [**3]  its existence, and to make distribution of its assets?
Proof was taken as to the character and extent of its operations and assets, and upon the hearing the Circuit Court dismissed the bill. From our examination of the proceedings, including the exhibits, and copy of the articles of association, and the testimony taken, we think no error was committed in the dismissal of the complaint.

 [*118]  The articles of the Association are few and general, not detailed and specific; leaving much to construction; but they are quite sufficient to shew their purport and effect, and the duties of the Association, and the relative rights and obligations of the members, to enable us to dispose of the questions involved in this case.
The 1st article and 1st section of the Association is declaratory of its title and objects, and professes to have in view, as its chief purpose, the accumulation of a fund from the savings and deposits of the members, to enable each one to purchase real and leasehold property.
The 2nd and 3rd sections of same article limit the number of shares and fix the value of each share.
The 9th article provides that each shareholder shall be entitled to the sum of $ 112,  [**4]  in full settlement, and authorizes its payment upon the terms prescribed; and when accepted, the shareholder thus drawing his share in advance, is precluded from any distributable portion of the surplus profits upon the dissolution of the company.
By this article provision is also made for the loan of any funds on hand, to a member, preferring prepayment of his share, which it seems the Association considered a valuable privilege. Each shareholder is secured a chance of having his share paid in advance, by becoming a borrower of the funds applicable to such purpose, upon the terms prescribed.
But it is a part of those terms that the shareholder thus settled with, shall, notwithstanding, pay his weekly dues, with the interest on the money thus drawn, until each member shall have received his share; or the money drawn, $ 112 per share, be returned.
He is required to execute a mortgage, not for the repayment of the money drawn, but appropriate to the responsibilities incurred, and adequate to secure the weekly payments, for the time specified; when his payments are to cease, and the mortgage be released.

 [*119]  The mortgage is not for the repayment of the sum advanced, but for [**5]  the payment of the weekly installments and performance of the other covenants. According to its terms, payment can only be coerced to that extent, if there is no default; and it is to be released whenever the funds of the Association enable those who have not borrowed, and thus drawn their shares in advance, to receive their portion, according to the provisions of the 17th article, however much of the principal sum advanced may appear to be due. It is executed in pursuance of the provisions of the 9th article, and is payable and releasable, according to its tenor and effect, that is, it is payable in installments, until the time arrives when the body corporate, the respondent, shall have sufficient funds to pay the holders of every unredeemed share of its stock the sum of $ 112, clear of all losses and liabilities, and until the corporation shall become extinct--it is releaseable then, as provided by the 17th article. The mortgagor may obtain a release sooner by compliance with the 15th article--such is the peculiar character of the mortgage given by the borrowing member, and it is unlike the ordinary mortgage for the payment of a specific sum of money. Robertson vs. Amer. Homestead Ass'n, 10 Md. 397; [**6]  Shannon vs. H. B. A. Ass'n, 36 Md. 383, 394.
All the members, including those who have accepted a loan and those who have not, are obliged to pay their respective weekly dues, and upon the punctual discharge of that duty the success of the Association mainly depends.
By the tenth Article, a fine is authorized to be imposed for the non-payment of the weekly dues, upon the defaulting members, without discrimination.
The shareholders are not described in the Article as the "redeemed" and the "unredeemed;" but the language of the mortgage characterizes the mortgagor as "redeemed,"--as we understand the relative position of the 

 [*120]  two classes of members, they might perhaps be better designated as the "advanced," or prepaid, and the "deferred," or unpaid shareholders. They are all continuing members, however classified, until the Association is determined, unless they cease to be so, in pursuance of the Articles.
The advanced or "prepaid" members are obliged to pay the interest on the money advanced, besides their weekly dues--they have not ceased to be members, by the prepayment, but continue to hold an interest in the management and success of the Association,  [**7]  as upon that depends their earlier relief, not only from the payment of the weekly dues, but their final release from their mortgages.
The unpaid members are not absolved from the punctual payment of their weekly dues. They are entitled to any residuum of profits, the exclusive interest in which has been devolved upon them, by virtue of the contract, with the prepaid members, through the act of the company, furnishing the equivalent consideration.
Both are interested, and under mutual obligation to contribute to the accumulation of the common fund, by the payment of their weekly dues, until the time provided for its final distribution and settlement.
As the result of this arrangement, when the unpaid member gets his acquittance money, the prepaid member is entitled to the release of his mortgage. The payment of the one and the release of the other, are the simultaneous and resulting effects.
But the complainant also alleges that he is entitled to receive his final share of the assets of the Association.
This is denied by the answer of the respondent, and the proof of the complainant, through the secretary of the company, does not sustain the allegation.
The seventeenth Article [**8]  provides for the termination of the Association. When each shareholder shall have received for each share his acquittance money, not to exceed 

 [*121]  $ 112, and the members not having drawn their shares, are then entitled to the balance; and all the mortgagors to be released.
In the fifteenth, sixteenth and seventeenth answers of the secretary, to the interrogatories of the complainant, a statement is given as to the extent of the assets.
In his twenty-first answer, the witness furnishes an approximate estimate of the nett balances, which had accrued up to October 27th, 1872, amounting to $ 10,579.
As we understand it, these are the profits applicable to the liquidation of shares unpaid, under the provisions of the seventeenth Article.
In his first cross-interrogatory, the witness explains, if explanation were necessary, that the amount appearing upon the face of the mortgage affords no definite criterion of the actual amount due thereon. By his answer to the tenth cross-interrogatory he states that there is still due upon the mortgages $ 14,789, and in his answers to the thirty-eighth, fortieth and forty-first interrogatories, he states that if the amount due on all the outstanding [**9]  mortgages, excluding Fay's indebtedness, was paid, and added to his estimate of the profits and balances, referred to in his twenty-first answer, amounting to $ 10,579, and aggregating $ 25,368.62, that there would be sufficient to furnish each unredeemed member with $ 112 for each share he might hold--that is, it only requires $ 17,024 to supply the one hundred and fifty-two unredeemed members with $ 112 for each share, there can be no doubt the sum would be ample, and leave a margin of $ 8,344.62.
The testimony of the secretary could not have been otherwise, unless there was some mistake in the figures, if the assumption as to the character of the indebtedness, under the mortgages were true.
Upon this basis, we understand, the appellant's counsel relies, as furnishing the evidence that the Association hae sufficient assets to pay the complainant, and the other 

 [*122]  unpaid members, and is therefore in a condition to be dissolved, according to the tenor and effect of the seventeenth Article.
The fallacy consists in treating these mortgage debts as appropriate assets, to be calculated and applied, with the sum from the nett revenues, to the satisfaction of the claims of [**10]  the unpaid shareholders.
They cannot be used for that purpose. The Association has no authority to collect and apply the indebtedness under the mortgage, to the liquidation of the claims of the unpaid members.
Whilst they exist, and are of binding efficacy, they are only a source of revenue, and as such constitute an efficient part of the available assets of the Association.
The profits, which enable the company to pay the shareholders, also operate to discharge the mortgages.
When the former are paid the latter are released; but the payment of the one, and the release of the other, depend upon the sufficiency of the general revenues and assets.
The surplus of $ 10,579, referred to, assuming that amount to be correct, is the only available fund applicable to the ultimate payment of the shareholders.
When an adequate amount has been regularly accumulated to satisfy the claims of the deferred shareholders, the complainant and others of like condition will be authorized to have their acquittance money, and to divide the surplus profits--the prepaid members, will then also be released from their mortgages.
When such objects shall have been effected, the Association, having accomplished [**11]  its mission, terminates.
But, as we have stated, it has not been made to appear, from the testimony adduced, that such time has arrived, and that the Association has sufficient available funds to effect the results indicated.

 [*123]  The appellant has not shown himself entitled to relief on this ground, and the decree of the Circuit Court ought to be affirmed.
Decree affirmed. 

40 of 144 DOCUMENTS 

CHARLES D. WARFIELD, Trustee, and ISABELLA his wife, and others vs. CLARA A. ROSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 85; 1873 Md. LEXIS 35 

May 22, 1873, Decided 

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

On the 6th of February, 1869, in consideration of $ 8,000, Timothy A. Carroll conveyed a parcel of land lying in Baltimore County, to the appellant Charles D. Warfield, in trust for his wife for and during her life or widowhood, and after her death or marriage, whichever should first happen, then in trust for their children, with power to the wife, with the consent and approbation of her husband, to grant and convey said property absolutely at any time, and the proceeds to re-invest upon the like trusts. Contemporaneously with this deed, Mrs. Warfield and her husband mortgaged the property to Carroll to secure the unpaid balance of the purchase money amounting to $ 3,119, with power to him or his attorney Samuel D. Schumacher, to sell under the provisions of Article 64 of the Code. On the 21st of July, 1870, the appellee took from Carroll an assignment of his mortgage, and at the same time loaned to Mrs. Warfield $ 900. On the same day Warfield and wife mortgaged the same property to the appellee to secure the sum of $ 4,000, and in case of any default being made in any condition of the mortgage, the appellee, or Luther [**2]  M. Reynolds her attorney, was authorized to sell and convey the mortgaged property in the manner therein provided. On the 3rd of June, 1871, the appellee filed her petition alleging that she was the holder of the two above mentioned mortgages, and praying that the bond of her attorney, Luther M. Reynolds, should be approved in order that he might proceed to sell the mortgaged property. The bond was approved; on the 15th of July, 1871, the property was sold and reported to the Court, and an order nisi passed. On the 10th of August following, the appellants, Mr. and Mrs. Warfield and their five children excepted to the ratification of the sale, and asked that it might be set aside for reasons substantially presented in the opinion of the Court. A commission was issued, and testimony taken directed chiefly to the alleged inadequacy of the price at which the property was sold; the evidence was conflicting. The commission was returned, and on the 7th of August, 1872, the Court (GRASON and YELLOTT, J.,) overruled the exceptions, and finally ratified the sale. On the 10th of the same month, the exceptants filed a petition asking that the final order of ratification might be opened and reheard.  [**3]  The Court on the 19th of October, 1872, passed an order dismissing the petition and this appeal was taken.  

DISPOSITION:
Orders affirmed.  

HEADNOTES:

Who may object to the Ratification of a Sale made under Article 64 of the Code, entitled "Mortgages" -- Estoppel -- Power to Sell under a Mortgage -- Parties to a proceeding to Sell under a Mortgage -- Usury affects the distribution of the Proceeds of a Sale and not the Validity of the Sale -- Inadequacy of Price as an objection to the Ratification of a Sale under a Mortgage.

The special jurisdiction given the Circuit Courts by Article 64 of the Code, entitled "Mortgages," is strictly confined to the parties to the instrument constituting the mortgage, and conferring the power of sale; and although objections may be filed against the sale by "any person interested in the property," yet as the sale when ratified, only passes the title which the mortgagor had in the mortgaged premises at the time of recording the mortgage, no person whose interest will not be affected by the sale, will be allowed to intervene.

C. for a valuable consideration conveyed a parcel of land to W. in trust for his wife during her life, or widowhood, and after her death or marriage, whichever should first happen, then in trust for their children, with power to the wife, with the consent of the husband, to convey, &c. W. and wife, to secure three notes given by them to C., executed to him a mortgage of this property. By the mortgage C. or his attorney, named, was authorized and empowered to sell in case of default; W. and wife subsequently executed a mortgage of the same property to R, reciting the former mortgage, and that by virtue of an assignment from C. to R., she was the holder of the mortgage and the three notes therein mentioned; by this latter mortgage, the mortgagee or her attorney L., in case of any default, was authorized to sell and convey the mortgaged premises in the manner therein specified. The mortgaged property was sold by the attorney L., and upon exceptions to the sale by W. and wife and their children, it was HELD:

1st. That W. and wife were estopped by their deed from denying they had power to mortgage; their interest, whatever it was at the time of recording the mortgage, passed by the sale when ratified, to the purchaser.

2nd. That ample powers were conferred by the second mortgage upon the attorney L. to sell, in case of default of payment of any of the sums secured by the first mortgage.

3rd. That it was unnecessary and improper to make C. or the reversioners in the deed from him to W. and wife, parties to the proceedings under the mortgage.

Usury in the loan of money secured by a mortgage, does not affect the validity of the sale of the mortgaged property; it only affects the distribution of the proceeds. If more than legal interest has been extorted by the mortgagee, the Court, in distributing the proceeds, may direct it to be withheld or refunded.

Inadequacy of price, in combination with circumstances calculated to cast doubt or suspicion upon the fairness of a sale, is a strong auxiliary argument against its ratification; but inadequacy of price alone, unless so gross and inordinate as to indicate some mistake or unfairness for which the purchaser is responsible, or misconduct or fraud in the attorney or trustee to whom the management of the sale has been committed, is not sufficient to induce the Court to set it aside, or refuse its ratification. 

COUNSEL:
John H. Handy, for the appellants.

Luther M. Reynolds, for the appellee.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*88]  BOWIE, J., delivered the opinion of the Court.
The appellants, on the 10th of August, 1872, filed their petition in the Circuit Court for Baltimore County, sitting in Equity, praying that the final order of ratification of sale, passed in the case of Clara A. Ross vs. Isabella Warfield and others, on the 7th of said month, might be opened and reheard; which petition being dismissed, an appeal was thereupon prayed. Although it does not appear from the record, whether the final order of ratification, as well as the order dismissing the petition was included in the appeal, yet as it has been assumed in the briefs and argument of the counsel, that both were subjects of review, we shall so consider them.
The matters of fact assigned in the petition, as reasons for opening and reviewing the final order of ratification, (except one which will be considered in [**4]  connection with the objections to the sale,) are substantially and in effect, that the appellants had no notice of the time when the exceptions to the sale were set down for hearing; that they had not time to examine the testimony taken under the commission, issued and returned in the cause, and that the order was passed in violation of the practice and rules of the Court.

 [*89]  The statement of the Court preceding their order, refusing the appellants' application, is entirely inconsistent with that assigned for rehearing
The Court say "The exceptions to the ratification of the sale, etc., were set for hearing in the presence and with the assent of the counsel of the respective parties to the cause, and upon the day set for the hearing, the solicitor of the exceptants being absent, the exceptions were argued by the solicitors of the mortgagee and assignee."
This statement of facts cannot be contradicted. If it could be, there is nothing in the record to the contrary, and conceding it to be correct, all objections for want of notice, regularity and formal compliance with the rules, were waived by the consent of the appellants' counsel, to set the exceptions down for hearing.  [**5]  
The remaining reason in support of the petition to open the decree was, that an important paper, showing the title of the appellants to the land sold, had been accidentally omitted to be filed with the commissioner. This will be more properly considered with the objections to the ratification of the sale, which are substantially as follows:
1st. That the appellants, Chas. D. Warfield and Isabella Warfield, had no power to mortgage.
2nd. That Luther M. Reynolds, the attorney, had no authority to sell.
3rd. That Timothy A. Carroll, should have been made a party.
4th. That the contract was usurious.
5th. That the price was inadequate.
The first and second exceptions are virtually the same; since it follows legally as well as logically, that if the mortgagors had no power to mortgage, the attorney named in the instrument, could have no authority to sell.

 [*90]  The appellee's petition and proceedings thereon, were instituted in pursuance of Art. 64, of the Code of Public Genl. Laws, entitled "Mortgages." It is not a case, in which the general principle of equity, requiring all persons having claims to the matter in controversy to be made parties, applies.
The special jurisdiction [**6]  given the Circuit Courts by that Article, is strictly confined to the parties to the instrument constituting the mortgage, and conferring the power of sale. Although objections may be filed against the sale by "any person interested in the property," yet it is apparent, as the sale only passes the title which the mortgagor had in the mortgaged premises, at the time of recording the mortgage, no person whose interest would not be affected by the sale, would be allowed to intervene. Vide Code of Public General Laws, Art. 64, secs. 8, 10 and 15. The mortgagors, Charles D. and Isabella Warfield, were estopped by their deed, from denying they had power to mortgage. Their interest, whatever it was at the time of recording the mortgage, passed by the sale when ratified, to the purchaser. All others, not parties to the mortgage, were strangers and wholly uninjured by the sale.
In our view of the case, it was wholly immaterial to inquire at the instance of the exceptants, what title Timothy A. Carroll conveyed to them, and unnecessary and improper to make Mr. Carroll, or the reversioners in the deed from Carroll to the Warfields, parties to the proceedings under the mortgage. [**7]  
The exceptants had no ground of complaint on that score. The purchaser alone was injured by the defect of title, if any.
The record shows a mortgage from Isabella Warfield and Chas. D. Warfield her husband and trustee, to Timothy A. Carroll, to secure certain notes of the mortgagors given to the mortgagee therein mentioned, and a 

 [*91]  mortgage from the same Warfields to the appellee, reciting the former and that by virtue of an assignment from Timothy A. Carroll to her, she was holder of the mortgage, and the three mortgage notes therein mentioned; in consideration of which, and other advances made to them by the appellee, the appellants, Warfield and wife, conveyed by way of mortgage, the premises therein recited, with a proviso, that in case of any default the appellee or Luther M. Reynolds her attorney, is authorized and empowered to sell and convey the mortgaged premises in manner therein specified. An express authority having been conferred by the last mortgage to sell in case of default of payment of any of the sums secured by the first, it is unnecessary to enquire whether the power of sale conferred on the first mortgagee, passed by assignment of the mortgage or the [**8]  notes thereby secured, to the second mortgagee or her attorney.
The powers conferred by the last, were amply sufficient to authorize the attorney to sell. Whether the contract was usurious or not, is immaterial in an inquiry as to the validity of the sale. This Court has recently determined that usury affects only the distribution of the proceeds, not the sale itself. If more than legal interest has been extorted by the mortgagee, the Court in distributing the proceeds, may direct it to be withheld or refunded. Vide Powell & Harrison vs. Hopkins, ante 1.
The Court below in this case, exercising the power of a Court of Equity, have ordered the principal mortgage debt, to be reduced from $ 4000 to $ 3680, the sum actually loaned with legal interest, and directed the auditor to state the account accordingly.
The last exception to the sale taken below, is gross inadequacy of price. The property sold by the attorney for the appellee in this case in July 1871, for $ 4450, was purchased by the mortgagors in 1869, for $ 8,000; about $ 5,000 in cash, the balance in one, two and three years, bearing interest.

 [*92]  Several witnesses testify it was worth $ 200 per acre; one, who [**9]  valued it at $ 8,000, was present at the sale, but declined to bid.
It is proved that there had been a considerable depreciation of price in the real estate in the country, and that there was but little demand for such property at the time of sale.
There is however, nothing in the evidence to show want of diligence or fair dealing in the attorney, or the omission of any act necessary to effect an advantageous sale, or cast suspicion or doubt upon its fairness.
On the contrary, both the attorney and the purchaser of the property, have manifested an anxious and laudable readiness to relinquish the purchase, and restore the property to the mortgagors, upon payment of the debt, interest, taxes and costs.
Under these circumstances, the rule laid down by this Court in the case of Johnson vs. Dorsey, 7 Gill 269, 285; and repeatedly recognized in later cases, as to the effect of inadequacy of price, must be adhered to. The result of these decisions is, that inadequacy of price in combination with circumstances, calculated to cast doubt or suspicion on the correctness of the sale, is a strong auxiliary argument against the sale. But standing alone, it is insufficient [**10]  to authorize an interference with a sale, unless it is so inordinate as to indicate some mistake or unfairness, for which the purchaser is responsible, or misconduct or fraud in the trustee to whom the management of the sale has been committed.
The late learned Chancellor JOHNSON, in the case of House vs. Walker, 4 Md. Ch. 62, says, "It has been over and over decided in this State, that mere inadequacy of price in a chancery sale, unless so gross and inordinate as to furnish evidence of fraud or misconduct on the part of the trustee, is not sufficient to induce the Court to set it aside or refuse its ratification. This principal was 

 [*93]  announced in the case of Cohen vs. Wagner, 6 Gill 97; where property assumed to be worth $ 20,000, sold for but $ 13,000. And in the case of Johnson vs. Dorsey, 7 Gill 269, in which the previous authorities were carefully collected and examined, the principle was carried still further, the disproportion between the assumed value of the property, and the price bid for it being greater."
Perceiving no error in the orders of the Court below, ratifying the sale and dismissing the petition,  [**11]  the same will be affirmed.
Orders affirmed. 

41 of 144 DOCUMENTS 

HANNAH A. REDGRAVE vs. SAMUEL H. REDGRAVE, Administrator of Dr. THOMAS J. REDGRAVE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 93; 1873 Md. LEXIS 36 

May 22, 1873, Decided 

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

The appellant, on the 17th of December, 1872, filed her petition in the Orphans' Court of Baltimore City, alleging that she was married to Dr. Thomas J. Redgrave, on the 10th of August, 1856; that he departed this life on or about the 19th of June, 1871, leaving the petitioner, his widow, and one son, De Witt Clinton Redgrave, aged about fifteen years, surviving him; and that letters of administration on the estate of her deceased husband had been granted to his father, the appellee, on the 21st of June, 1871, without notice to her of the application for such letters. The petitioner claiming to be entitled, as widow of the deceased, to administer upon his estate, prayed that the letters of administration already granted might be revoked, and that letters might be issued to her. The appellee answered on the 2nd of January, 1873, neither admitting nor denying that there was a formal marriage between the appellant and the deceased, but denied that there was a legal marriage between the parties, and affirmed, and offered himself ready to verify, that at the time of said alleged marriage, a true and lawful wife of the deceased Dr. Thomas [**2]  J. Redgrave was living, and was still living. The respondent submitted that in consequence of such prior marriage, the alleged marriage of his son with the petitioner was null and void. Evidence was presented by the respective parties, which will be found sufficiently set forth in the opinion of this Court. The Orphans' Court, on the 8th of March, 1873, passed an order dismissing the petition; and from this order the present appeal was taken.  

DISPOSITION:
Order reversed, and cause remanded, with costs to the appellant.  

HEADNOTES:

Witness not competent under the Acts of 1864, ch. 109, and 1868, ch. 116 -- Legal presumption of Marriage -- When the Validity of a Foreign Marriage is recognized in this State -- Particular Marriage when asserted, to be proved affirmatively, &c.

A woman claiming the right as the widow of a deceased person to administer upon his estate, is not competent under the Act of 1864, ch. 109, as modified by the Act of 1868, ch. 116, to testify as to the factum of her marriage with the intestate.

When parties live together ostensibly as man and wife, demeaning themselves toward each other as such, and are received into society, and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married.

Where proof is offered from which a marriage may be inferred, the presumption is that it was duly and legally contracted according to the law of the place or country in which it occurred; and when contracted in a foreign State or Country, the validity of such marriage is recognized in this State, although it may not have been attended with the same formal ceremonies as are required for the celebration of a valid marriage by the law of Maryland.

Where, upon a question of marriage, a person assumes to prove that a valid marriage was celebrated on a particular occasion as testified to by a party to the transaction, it is incumbent upon the person asserting such marriage, to show affirmatively that it was in all respects in conformity to law; and failing in this, he will not be permitted to rely upon other facts and circumstances of the case as the ground of a presumption, that a marriage may have taken place between the parties on some other and different occasion from that spoken of by the witness.  

COUNSEL:
E. Calvin Williams and John Stewart, for the appellant.

Daniel Radcliffe, for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*95]  ALVEY, J., delivered the opinion of the Court.
This case presents the question of the right of the appellant, claiming to be the widow of the late Doctor Thomas J. Redgrave, to administer on the estate of the deceased, her alleged husband.
The appellee, the father of the deceased, to whom letters of administration had been granted by the Orphans' Court, before the application of the appellant was presented, in his answer to such application, neither admitted nor denied that [**3]  there was a formal marriage between his son and the appellant, as alleged by her, but he affirmed and offered ready to prove, that at the time of the alleged marriage with the appellant, a true and lawful wife of his son was then and is still living; and that, in consequence of such prior marriage, the alleged marriage of the son with the appellant, if it occurred, was null and void.
The appellant, on the trial in the Orphans' Court, supported her claim by the testimony of several witnesses, as to facts of cohabitation, declarations and conduct of the deceased, showing that she had been in the fullest manner treated and regarded as his lawful wife. She also testified 

 [*96]  herself as to the celebration of the marriage, the place where it occurred, by what minister solemnized, and other facts attending their cohabitation as husband and wife, as also under what circumstances they were separated. But although no objection appears to have been taken to the competency of the appellant as a witness in the Court below, such objection is taken in this Court; and, as there is no rule requiring the objection to be taken in the Orphans' Court, it can be taken here for the first time, and,  [**4]  if well founded, must be sustained. And that she is an incompetent witness to prove the facts testified to by her, under the Act of 1864, as modified by the Act of 1868, is unquestionable. It was so expressly decided in the case of Denison vs. Denison, 35 Md. 361, and her incompetency has been conceded by her counsel.
But, putting aside her testimony, other witnesses, of whom there is no impeachment or suspicion of their good faith, give ample evidence of facts from which a lawful marriage may be inferred. They prove that the marriage, as understood from the parties themselves, took place in 1856, at Prairie Du Chien, in the State of Wisconsin; and that, soon after the marriage, the parties went to Keokuk, in the State of Iowa, where they remained together for a period of from two to three years. That during this time, they held themselves out as, and represented themselves to be husband and wife; and that their conduct in all respects consisted with that relation. That they were known to and recognized by the brother and sister of the appellant, in Keokuk, and others in that community, as husband and wife; and that, during the period of their cohabitation, two [**5]  children were born of their union. It also appears that the fact of this marriage was known to the brother and sister of the deceased, and, as we may reasonably infer, to the rest of the father's family; for it is proved by Mrs. Watkins, that, in the summer of 1859, the deceased introduced himself to her 

 [*97]  in his brother's house, and informed her that he had married her sister-in-law, the appellant, and, at the same time, informed her that he had, as well as she could recollect, two children; and that the brother, his wife, and his sister, were present at the conversation. And notwithstanding the family possessed this information, none of them appeared at the trial to disclose their knowledge upon the subject. Why this was can only be matter of conjecture.
Evidence of such facts as those just stated, when clear of suspicion, has always been received as competent and sufficient upon which to found a presumption, as matter of fact, of the existence of legal marriage. Where parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and are received into society and treated by their friends and relations as having and being entitled to [**6]  that status, the law will, in favor of morality and decency, presume that they have been legally married. 1 Taylor's Ev., sec. 140, 517; Hervey vs. Hervey, 2 W. Bl. 877; Goodman vs. Goodman, 28 L. J., ch. 1; Jewell vs. Jewell, 42 U.S. 219, 1 How. 219, 232, 11 L. Ed. 108. Indeed, the most usual way of proving marriage, except in actions for criminal conversation, and in prosecutions for bigamy, is by general reputation, cohabitation and acknowledgment. Sellman vs. Bowen, 8 Gill & John. 50; Boone vs. Purnell, 28 Md. 607.
This case is altogether unlike that of Denison vs. Denison, 35 Md. 361. In that case the question presented was, not upon facts from which legal marriage could be presumed, but whether lawful marriage could be contracted in this State merely per verba de proesenti, or per verba de futuro cum copula. In this case, proof has been offered from which marriage can be inferred; and, in such case, the presumption is, that the marriage was duly and legally contracted according to the law of the place or country in which it occurred; and, when contracted [**7]  in 

 [*98]  a foreign State or Country, the validity of such marriage is recognized here, although it may not have been attended with the same formal ceremonies as are required for the celebration of a valid marriage by the law of this State.
The evidence offered by the appellant was not at all controverted by the appellee; but the appellant's claim to administration was attempted to be answered and refuted by showing a prior marriage of the deceased with a woman by the name of Riall or Riley, residing in the city of Baltimore, and who was living, without having been divorced, at the time of the alleged marriage of the deceased to the appellant. Of course, if this prior marriage, thus set up by the appellee, be established as a valid marriage, it effectually bars and precludes all claim of the appellant.
But has it been shown that this alleged prior marriage in Baltimore was ever in truth celebrated according to the law of this State? The testimony offered to establish the fact of this marriage is not only suspicious, but involves such gross improbabilities as to cast discredit upon the whole pretense of such marriage.
We gather from the evidence that the woman Riall or Riley,  [**8]  was at the time of the alleged marriage, of a lewd and degraded character. She seems to have been known by the name of both Riall and Riley, but better known as "Maggie Riley," than as Margaret Riall. The police officers, who were examined as witnesses, speak of her as a bad character. She was produced as a witness, however, to prove the factum of marriage with the deceased, in 1854. And the appellee having assumed to prove that a valid marriage was celebrated on the particular occasion testified to by this witness, herself being a party to the transaction, it was incumbent upon him to show affirmatively that such marriage was in all respects in conformity to law; and, failing in this, he cannot be permitted to rely upon other facts and circumstances of the case as the 

 [*99]  ground of a presumption that a marriage may have taken place between the parties on some other and different occasion from that spoken of by the witness. Blackburn vs. Crawford, 70 U.S. 175, 3 Wall. 175, 18 L. Ed. 186.
It appears that this woman Riall or Riley, was boarding or staying at the house of a man by the name of Hentz, who kept a drinking and eating house; and according to [**9]  her testimony, she left the house where she was staying and went to the office of the deceased, adjoining the dwelling of his father, and was there married on the 23rd of November, 1854, by the Rev. Doctor Roberts. After the marriage, she and her alleged husband returned to the house of Hentz, where there was a marriage entertainment. When asked who were present at the performance of the marriage ceremony, she could only mention the names of those who have since died. Doctor Roberts is dead, and the other two persons named by her are dead also. Why she should have left the house of a friend, where she was boarding, and where the marriage feast was to be given, and have gone to the office of her intended husband, and that next door to the dwelling of his father who does not appear to have known any thing of the occurrence, there to be married, is wholly unexplained, and it seems remarkably strange, to say the least of it. She is the sole witness to the fact of this alleged marriage. No other witness is produced to speak of the celebration of the marriage; and it follows that if her testimony as to this fact be discredited by the other facts and circumstances of the case, the defence [**10]  relied on to defeat the claim of the appellant must fail.
That the facts of the case do discredit her testimony, is too plain to escape observation. In the first place, by the examination of the record in the proper office, it does not appear that a marriage license was ever obtained; a thing that would not likely have been neglected, if a legal and proper marriage had been intended, and in fact celebrated. 

 [*100]  It is not probable that a minister of character and standing in the city would have officiated without such license, thereby incurring the penalties of the law. The registry of marriages kept by the minister referred to, was produced on the trial, (without objection,) and that is silent as to any such marriage as that now set up. Then again, the witness never assumed the name of the alleged husband, and, out of the house of Hentz, never appeared to have passed for, or been known, even among those with whom she was well acquainted, as the wife of the deceased. She says she lived with the deceased about a year, "off and on." But where she lived, or how she lived, with the exception of the month at Hentz's, does not appear. She retained her name of Riall or Riley up to [**11]  the time of her marriage with Brown, whose name she now bears; and this marriage with Brown took place in the lifetime of the deceased, without a pretense that a divorce was ever obtained.
These facts certainly tend strongly to cast doubt and discredit upon the story of the witness, and when we add to these facts the evidence of several witnesses who speak of her character as having been bad, and that they could not believe her on oath, we can have no hesitation in declining to give credit to her evidence, the belief in which would strongly reflect upon the character of a respectable minister of the gospel, and subject herself to the consequences of the crime of bigamy, to say nothing of the crime thereby imputed to the deceased. We think all the probabilities of the case strongly militate against the truth of her testimony.
The only circumstances that would seem in any degree to corroborate the testimony of this witness, are the notice in the newspaper, and the declarations and conduct of the deceased while he and the witness were at the house of Hentz.

 [*101]  As to the notice, that was certainly attended with suspicion. It would appear as if there was a design in it to mislead [**12]  as to the parties. The minister was mentioned not as Doctor Roberts, but as the Rev. Mr. Roberts. The professional title of the deceased was altogether omitted, and the initials of his christian name wrongly given. The christian name of the female was omitted, and neither the residence of the parties, except as being of Baltimore, nor the place where the marriage occurred was mentioned. These peculiarities in the notice, when taken in connection with what occurred in regard to it between the deceased and his friend Hentz, are calculated to excite suspicion as to the motive of its publication. Hentz swears that the deceased called his attention to the notice, not because of any omissions or peculiarities in it, but simply to acknowledge it as the notice of his marriage, and that he, Hentz, thereupon cut out the notice and carried it in his pocket for several years. Why this calling attention to the notice, and acknowledging it, and having it preserved so carefully, if it were but an ordinary notice of a marriage? There must have been some motive or object connected with this notice more than usually attends notices of the kind; some object intended to be accomplished by it, which, in [**13]  the nature of things, would not likely be disclosed in this case, except by way of inference.
Then, as to the declarations and conduct of the deceased, they appear to have been of a peace and in keeping with the publication of the notice. The motive that induced the one act, certainly prompted the others. But although he may have introduced the witnesses, who have testified to the fact, to the woman as his wife, in Hentz's bar-room; and though he may have said that he was married to her, and, under the circumstances disclosed, called her his wife, yet these facts are quite insufficient to satisfy the mind, in the light of all the evidence in the cause, that there was ever a valid marriage celebrated between the 

 [*102]  parties. That this woman for a time bore the relation of concubine or kept mistress to the deceased, would seem to be quite certain; and all his pretense of marriage with her could only have been made as a blind to screen their illicit conduct, and as means of deception as to their true relations to each other. This, we think, is the most rational conclusion that can be drawn from all the circumstances of the case.
The question of the competency of the female witness [**14]  Brown, although raised by the counsel of the appellant, we have not deemed it necessary to decide; but have assumed her to be competent to testify, and treated her testimony accordingly. She, however, has asserted no right as against the estate of the deceased.
Concluding as we do, that the alleged prior marriage of the deceased never in fact, and in truth occurred, and that he was lawfully married to the appellant, and that she, as his widow, is entitled to administer on his estate, we shall reverse the order appealed from, and remand the cause that the Orphans' Court may revoke the letters heretofore granted to the appellee, and grant letters of administration to the appellant as the party lawfully entitled thereto.
Order reversed, and cause remanded, with costs to the appellant. 

42 of 144 DOCUMENTS 

WILLIAM GENT vs. JACOB COLE, by his next friend, JOHN COLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 110; 1873 Md. LEXIS 38 

May 22, 1873, Decided 

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

This action was brought by the appellee against the appellant. The declaration stated that the plaintiff sued the defendant,

First.--For that the said defendant, by fraud, imposition and false statements, did induce the plaintiff to enlist in the Army of the United States as a private soldier, to the great loss and injury of the said plaintiff.

Second.--For that the said defendant did wrongfully and fraudulently procure the said plaintiff to be enlisted in the army of the United States as a private soldier, to the great loss and injury of the said plaintiff.

Third.--For that said defendant did wrongfully procure the said plaintiff to be enlisted in the United States army as a private soldier, to the great loss and injury of the said plaintiff.

And the plaintiff claimed two thousand dollars damages.

To this declaration the defendant pleaded the general issue and other pleas, and issues were joined thereon. Subsequently, after the jury was sworn, the plaintiff, by leave of the Court, added the following additional count to his declaration:

Fourth.--That the defendant unlawfully delivered the plaintiff to certain [**2]  persons having military power, with the intent that he should be by them deprived of his liberty; and the said persons did thereupon take control and command over the plaintiff, and deprive him of his liberty.

It was agreed that the above count should be filed to have the same effect as if an entirely new declaration had been filed, and that the pleas to the original declaration should be considered as equally applicable to the declaration as amended, and to each of the several counts thereof.

Exception.--At the trial, the plaintiff to maintain the issues on his part, proved that he was born free, being a negro--that in October, 1864, he was about seventeen years of age, and an apprentice to the defendant, and had been living with him in that relation for ten or twelve years; that at that time the defendant told the plaintiff that he had been drafted as a soldier in the United States army, and that he must accompany him, the defendant, to Ellicott City; that in obedience to his orders he went with him and was enlisted in the army of the United States for three years; that he did not wish to go into the army, but that he enlisted because he was under the authority of the defendant,  [**3]  and obeyed his orders; that he served in the army about fourteen months and was then discharged; that in fact he had not been drafted, but was placed in the army by the defendant as a substitute for his son, who had been drafted. The plaintiff further proved by the enrolling officer, that he, the plaintiff, in the presence of the defendant at Ellicott City, entered into the service of the United States, as a substitute for the defendant's son, who had been drafted, and stated at the time that he willingly did so. The plaintiff then offered to prove by William Colton, a substitute broker, that the price usually paid for substitutes for drafted men, ranged from three hundred to nine hundred dollars, according to the demand; that in October, 1864, there was a considerable demand, and substitutes were high; that three hundred dollars at that time was a very low price. To the admissibility of Colton's testimony the defendant objected, but the Court overruled the objection and allowed the evidence to go to the jury; the defendant thereupon excepted.

A verdict was rendered for the plaintiff for $ 300. The defendant then moved the Court in arrest of judgment, because the declaration did [**4]  not present a sufficient cause of action, and moved also for a new trial. The Court overruled both motions, and entered judgment on the verdict.

The defendant appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

Defect or omission in Narr. cured by Verdict -- Evidence inadmissible in an action of Damages.

Where the defendant in an action, instead of demurring to the declaration which was very defectively and inartificially drawn, pleaded over and issue was joined thereon, the issue being such as required at the trial proof of the facts so defectively or imperfectly stated or omitted in the declaration, such defect, imperfection, or omission will be cured by verdict; and a motion in arrest of judgment on the ground that the declaration did not contain a sufficient cause of action, will be overruled.

A negro apprentice, aged about seventeen years, was enlisted in the army of the United States for three years, by his master, as a substitute for his son who had been drafted. The substitute served in the army about fourteen months and was then discharged; sometime afterward he brought a suit against his former master to recover damages for loss and injury alleged to have been sustained by having been wrongfully enlisted. At the trial he gave no evidence to show that he had been injured either in body or mind by his service in the army, or that he had incurred any expense in consequence of his enlistment. The time of his service in the army was embraced within the term of his apprenticeship. But as reflecting upon the quantum of damages which the plaintiff supposed himself entitled to recover, he proved by a substitute broker what was the price usually paid for substitutes at the time he, the plaintiff, was enlisted. HELD:

That such evidence was inadmissible as furnishing no proper criterion for assessing damages for any loss sustained by the plaintiff in respect of either time or property for which he could claim to recover.  

COUNSEL:
J. T. B. Dorsey, for the appellant.

Wm. Shepard Bryan, for the appellee.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., BOWIE, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*113]  ALVEY, J., delivered the opinion of the Court.
The verdict in this case being against the defendant, he moved in arrest of judgment, on the ground that the declaration did not disclose a sufficient cause of action. This motion was overruled by the Court below, and the first question presented on this appeal is, was the motion in arrest properly overruled?
The declaration as originally filed, contained three counts, and, under leave to amend, a fourth was added. The first three counts were in case, and the last in trespass. This joinder of counts, in a case like the present, is allowable, by the law of Maryland, as decided in the case of Williams vs. Bramble, 2 Md. 313.
All the counts in the declaration are certainly very defectively and inartificially [**5]  drawn, and it would be difficult to sustain either of them on general demurrer. For, as observed by Mr. Justice BULLER, (Dougl., 159,) it is one of the first principles of pleading, that facts should be stated, "for the purpose of informing the Court, whose duty it is to declare the law arising upon those facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it." This essential and fundamental principle, which is incorporated into our simplified system of pleading, (Code, Art. 75, sec. 2,) has certainly been ignored in framing the counts in the present declaration. The statements of the tortious acts complained of, and of the manner by which they effected injury to the plaintiff, are altogether too general and indefinite to be good on demurrer.
But the defendant, instead of demurring, pleaded over, and issue was joined thereon; and such being the case, the principle is, that "where there is any defect, imperfection, or omission in any pleading, whether in substance 

 [*114]  or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required [**6]  on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict" 1 Wms. Saund. 228, n. (1;) Jackson vs. Pesked, 1 M. & S. 234; Merrick vs. Bank of the Metropolis, 8 Gill 59. The principle as here stated is also substantially, and almost literally incorporated into our simplified system; (Code, Art. 75, sec. 9;) and as the defects in the several counts appear to be such as are curable by the verdict, it follows that the Court below was right in overruling the motion in arrest of the judgment.
The only other question presented, is that by the defendant's defective bill of exception, which, by the agreement of the parties, we are asked to consider. This question is as to the admissibility of certain evidence offered by the plaintiff to reflect upon the quantum of damages which he supposed himself entitled to recover. The plaintiff was seventeen years of age at the time he entered the army, in 1864, as [**7]  a substitute for the son of the defendant. He was at the time an apprentice to the defendant, and, of course owed him service until twenty-one years of age. He was not at liberty to enlist in the army against the consent of his master, and it is somewhat difficult to perceive upon what principle he can claim to recover of the defendant the price of a substitute for the son, in this action. By entering the army he absolved himself from his apprenticeship, and ceased to owe service to the defendant, and, as a soldier of the United States, he became entitled to receive, and, as we must presume, did receive the regular pay of a soldier for the time of his service. In actions for personal injuries, such as this is supposed to be, the damages assessed are 

 [*115]  for the pain inflicted, whether bodily or mental, and the expenses and loss of time and property, which may have been the natural and proximate consequence of the wrong of the defendant. Here, it does not appear whether the plaintiff was wounded either in body or mind by his service in the army, and, as the time of such service was embraced within the term of his apprenticeship, we are at a loss to understand how the price of [**8]  substitutes, fixed and regulated by substitute brokers, could have furnished the jury with any proper criterion for assessing damages for any loss sustained by the plaintiff in respect of either time or property, for which he could claim to recover in this action. We think, therefore, that the Court below was in error in admitting the evidence of Colton as to the price of substitutes, and shall, consequently reverse the judgment, and award a new trial.
Judgment reversed, and new trial awarded. 

43 of 144 DOCUMENTS 

ELIAS WALKER vs. MARY E. COCKEY and EDWARD D. MCCONKEY, Attorney.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 75; 1873 Md. LEXIS 33 

May 21, 1873, Decided 

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

The mortgage in this case, dated the 26th of August, 1872, was executed by the appellant and his wife, to the appellee, Mary E. Cockey, to secure the payment of certain promissory notes. In case of default in any of the conditions of the mortgage, the mortgagee, her heirs, &c., or the appellee, Edward D. McConkey, her and their duly constituted attorney or agent were authorized and empowered to sell the mortgaged property. The appellant having failed to insure the improvements on the mortgaged ground, according to his covenant in the mortgage, the appellee, McConkey, filed his bond and advertised the property for sale. Thereupon the appellant filed his bill praying that an injunction might issue prohibiting the sale of the mortgaged premises. The allegations of the bill are sufficiently stated in the opinion of the Court. The injunction was issued as prayed. The appellees answered the bill, and proof was taken; and after hearing, the injunction was dissolved. From this action of the Court the present appeal was taken.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

When a Court of Equity will not interfere, upon the ground of Usury, to prevent a Sale under a power contained in a Mortgage -- Construction of the Act of 1870, ch. 450 -- Construction of a Mortgage -- Default in the Condition of a Mortgage justifying the execution of a Power therein to sell.

A Court of Equity will not restrain the execution of a power of sale contained in a mortgage, upon the ground of usury in the transaction, where the mortgagor does not pay, or bring into Court to be paid, the principal sum actually due, with legal interest thereon.

The Act of 1870, ch. 450, in no wise refers to, or affects sales made pursuant to powers contained in mortgages executed under the provisions of Article 64 of the Code. Its sole purpose and effect is to modify certain sections in Article 16, relating to the jurisdiction of Courts of Equity.

A mortgage given to secure the payment of certain promissory notes, conveyed the property to the mortgagee in fee simple, with a defeasance clause, which provided that if the mortgagor, his heirs, &c., "should pay the above mentioned promissory notes when and as they respectively arrived at maturity, and should perform all the covenants therein on his part to be performed, then the mortgage should be void." Then followed the agreement for possession by the mortgagor, "until default should be made in the premises." It was then provided that "in case of any default being made in any condition of the mortgage, then" the sale of the mortgaged property might take place, and the proceeds be applied "to the payment of all moneys owing under the mortgage, whether the same should have then matured or not." The mortgage concluded with a covenant on the part of the mortgagor to insure, and pending the existence of the mortgage, to keep insured, the improvements of the mortgaged ground, to amount of at least one thousand dollars, and to cause the policy to be so framed or indorsed as in case of fire, to inure to the benefit of the mortgagee, &c. The mortgagor effected an insurance, but only for $ 550, the most for which the improvements could be insured. A sale being about to be made under the power of sale contained in the mortgage, because of the failure of the mortgagor to comply with his covenant to insure, he filed a bill for an injunction to restrain such proceeding, contending that as the covenant to insure was in the concluding part of the mortgage, a failure in this respect did not authorize a sale, because in a previous part of the deed it was stipulated that until default in the premises, the mortgagor should remain in possession. HELD:

1st. That possession was made dependent not alone upon payment of the notes as they matured, but upon that, and also upon performance by the mortgagor of all the covenants which the mortgage contained. Performance of all these by the mortgagor are made part of the premises for any default in which his possession might be lost.

2nd. That the failure by the mortgagor to insure according to the terms of his covenant in that respect, constituted such default as rendered execution of the power to sell rightful and proper; his inability to insure for the stipulated sum did not excuse him from the consequences of a breach of his covenant. 

COUNSEL:
John H. Ing, for the appellant.

R. W. Baldwin and A. C. Trippe, for the [**2]  appellees.  

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

OPINIONBY:
MILLER 

OPINION:

 [*77]  MILLER, J. delivered the opinion of the Court.
This appeal is from an order dissolving an injunction granted to restrain execution of a power of sale contained in a mortgage. The motion to dissolve was heard upon bill, answer and proof. We shall dispose of the case by considering the several grounds, as alleged in the bill, upon which the injunction or its continuance may be supposed 

 [*78]  to rest. Most of these may be dealt with in few words.
1st. The averment that the bond given by the party named in the mortgage to execute the power, was not approved as required by the Code, is denied by the answer and is not supported by any proof in the cause.
2d. The averment that there was usury in the transaction is not accompanied by payment, or bringing into Court to be paid, the principal sum actually due, with legal interest thereon, which must be done before the mortgagor can, on that ground and in a case like this, invoke the aid of a Court of Equity to stop the sale by injunction. This Court has decided in Powell and Harrison vs. Hopkins et al.  [**3]  , ante p. 1, that the exaction of usurious or illegal interest does not invalidate the mortgage or affect the power to sell, and that the Court in which the sale is to be satisfied and the proceeds distributed, has full authority and jurisdiction to adjust the question of interest between the parties.
3d. The allegation that there was no decree of a Court authorizing a sale of the mortgaged property, and that a sale without such decree is prohibited by the terms of the Act of 1870, ch. 450, is also unavailing. That law has no application to cases like the present. Its sole purpose and effect is to modify certain sections in Article 16, relating to the jurisdiction of Courts of Equity, and it in no wise refers to or affects sales made pursuant to powers contained in mortgages executed under the provisions of Article 64 of the Code.
4th. The ground chiefly relied on by the appellant is that there has been no default bringing into operation the power to sell. It is conceded the sale was about to be made because of failure by the mortgagor to comply with his covenant to insure, and, pending the existence of the mortgage, to keep insured the improvements on the mortgaged ground,  [**4]  to the amount of at least one thousand 

 [*79]  dollars, and to cause the policy to be so framed or indorsed as, in case of fire, to inure to the benefit of the mortgagee. This is the concluding part of the mortgage, and it is argued that failure in this respect does not authorize a sale because in a previous part of the deed it is stipulated that until default "in the premises" the mortgagor shall remain in possession. A brief examination of the terms of the instrument will enable us to arrive at its true construction. It first states the consideration, the promissory notes, to secure which it was executed. It then conveys the property to the mortgagee in fee simple with a defeasance clause, which provides that if the mortgagor, his heirs, &c., "shall pay the above mentioned promissory notes when and as they respectively arrive at maturity, and shall perform all the covenants herein on his part to be performed, then this mortgage shall be void." Then follows the agreement for possession by the mortgagor, "until default be made in the premises," the plain meaning of which is that possession is made dependent not alone upon payment of the notes as they mature, but [**5]  upon that and also upon performance by the mortgagor of all the covenants which the mortgage contains. Performance of all these on his part, is expressly made part of the premises for any default in which his possession may be lost. That such was the intention of the parties and is the true construction of the instrument, is also made more manifest by the clear terms in which the power of sale is conferred, viz: "but in case of any default being made in any condition of this mortgage, then" the sale may take place and the proceeds be applied "to the payment of all moneys owing hereunder, whether the same shall have then matured or not." We have no doubt failure by the mortgagor to insure according to the terms of his covenant in that respect, constituted such default as rendered execution of the power to sell rightful and proper.

 [*80]  The law will undoubtedly allow him a reasonable time after the mortgage, to effect insurance if none existed at its date; but in this case much more than such reasonable time had elapsed before there was any attempt to execute the power. The mortgage was executed on the 26th of August, 1872, and the preliminary steps for [**6]  a sale were not taken until the 25th of September, following, and the bill to restrain the sale was filed on the 2d of October. Up to this time no insurance such as the covenant required, had been effected, and there was, therefore, a clear breach of it at the time the mortgagee proceeded to have the power of sale executed.
He did effect an insurance on the 2d of September, but only for $ 550, and the proof shows that this was the most for which insurance on the improvements could be made. But his inability to insure for the thousand dollars does not excuse him from the consequences of a breach of his covenant. It was not a covenant void upon its face, as stipulating for the performance of an act which in its nature was not within the range of possibility. There is no proof the mortgagee or any one acting for her, ever saw the improvements or knew their value, but the contrary is clearly established by the testimony. It was also proved that it was part of the agreement and an essential condition upon which the loan was to be made and the mortgage executed, that insurance to this amount should be effected. The mortgagor agreed to and accepted this condition, and in reliance [**7]  upon its being complied with, the mortgagee parted with her money. Under these circumstances a Court of Equity cannot relieve the mortgagor from what, by his own deed, he agreed should be the consequence of a failure to effect insurance for the stipulated sum, no matter whether that failure arose from neglect or inability to procure such insurance. If, when he entered into this covenant he overestimated the value of his property, and supposed insurance to that amount 

 [*81]  could be effected upon it when in fact it could not, the case is very analogous to that put in the books, "if one under the impression that he is seized of land in fee, or possessed of a term of years, aliens and covenants that he is lawfully seized or possessed, or that he hath a good estate, or that he is able to make such alienation, when in truth the estate is in some other at the time, the covenant is broken as soon as it is made." Platt on Covenants, in 3 Law Lib. 136.
We have thus disposed of the case without reference to the Legislative prohibition against injunctions in such cases, contained in section 15 of Article 64 of the Code. The case before us does not require the expression of any [**8]  opinion as to the scope and extent or constitutional validity of that section of the Code or any part of it.
Order affirmed. 

44 of 144 DOCUMENTS 

ISAAC C. W. POWELL and JOSEPH H. HARRISON, Trustees, vs. JOHN L. HOPKINS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

38 Md. 1; 1873 Md. LEXIS 31 

March 14, 1873, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Mortgagee will not be Injoined from selling under a power in the Mortgage on the prayer of Trustee claiming under Deed of Trust subsequent to mortgage -- Sale for Cash by Mortgagee under a power not specifying Terms of sale, not necessarily inequitable -- How objection to such Sale to be made -- Usury in a Mortgage -- Construction of Sec. 15, Art. 64, of the Code, entitled "Mortgages."

S. deeded all of his property real and personal to P. and H. in trust, to sell it and pay his (S's) creditors according to their priorities. J. H., one of these creditors, held a mortgage on a part of the realty. In the mortgage there was a power granted to the mortgagee to sell on default, but the power did not specify whether the sale was to be for cash or on credit. P. and H., the trustees, advertised the property mortgaged to J. H. to be sold in accordance with the deed of trust. J. H. also advertised it to be sold on the same day for cash, under the power in the mortgage. Thereupon P. and H. filed a bill in equity, praying an injunction to prevent J. H. proceeding to sell. The bill alleged that the two sales would throw a cloud on the title to the property, that a sale for cash was not authorized by the power in the mortgage, that a sale on such terms was harsh and inequitable, that in consequence of this cloud and the terms of sale the property would fail to bring its value at the sale, and thus other creditors would suffer loss; that the interest and a part of the principal of the mortgage debt had been paid; and that the interest charged on the mortgage debt was usurious. HELD:

1st. That the injunction should not be granted on either of these grounds.

2nd. That whether or no a sale for cash is inequitable depends on the circumstances of the case; but a party must object to the sale on this ground by filing exceptions to the ratification of the sale, and not by bill for injunction.

3rd. The exaction of usurious interest does not invalidate the mortgage or affect the power to sell given in the mortgage; and a party seeking to injoin a sale under the power must pay, or bring into Court to be paid, the principal and legal interest, before he can claim the intervention of a Court of Equity.

4th. That the part payment of the principal of the debt, if admitted, or proved satisfactorily, would not entitle the trustees to an injunction to stay the sale entirely, but only "pro tanto." 

COUNSEL:
Alexander Randall, for the appellants.

This case is one where a party considerably involved and desiring to apply his property honestly towards the payment of all his debts, conveys all that property to trustees, to sell it upon beneficial terms, and apply the proceeds to their payment according to just priorities.

Such conveyances are encouraged and favored by the Courts; and they have said repeatedly that the only charge of unfairness that could be ascribed to such transactions, is upon the part of the creditor who insists upon securing his own claim, without considering the interests of other creditors who may suffer from his anxiety to collect his money at whatever cost to the estate. State vs. Bank of Md., 6 G. & J., 217.

The bill filed by the trustees, was similar to that filed in the estate of Thomas F. Bowie, which was referred to in several cases in the Court of Appeals, and among others, in the case of Tuck vs. Calvert, 33 Md., 219. The injunction in that cause was granted by the Circuit Court for Prince George's County, to [**2]  restrain sales by the sheriff under divers executions, upon the ground that such sales would prove disastrous to the creditors generally, and Trustees were appointed, who made sale of the property; and the propriety of this course was recognized by the Court of Appeals in several cases. Anderson vs. Tuck, 33 Md., 225; Boyd & Hance vs. Harris, 1 Md. Ch. Dec., 466.

The grounds upon which the injunction was claimed, were these:

1st. That Hopkins, in the absence of express authority in the mortgage, had prescribed cash as the terms of sale, and this, at a time of great financial depression, which would reduce the price of the land, and sacrifice the interests of Skinner and the other creditors.

There can be no more right in Hopkins to interpolate into the mortgage the terms of sale, than to supply an omission of the time of payment, and if the latter omission appeared, it would be necessary to call upon the Court to supply it, and the Court would require the payment in a reasonable time. Farrell vs. Bean, 10 Md., 233; White & Elder vs. Malcolm, 15 Md., 530.

Surely no Court would consider a cash sale as a sale on reasonable terms. And since it would be necessary to resort [**3]  to a Court of Equity to prescribe the reasonable terms of sale in consequence of the omission, this Court, when decreeing according to sec. 132, of Art. 16, that the sale shall take place "on such terms and conditions as the Court may determine," would unquestionably declare that the sale should be partly on credit.

The public Local Law for Baltimore City, sec. 782, provides for the sale under this class of mortgages, "on such terms of sale as to the Court shall seem proper." But sec. 5, of Art. 64, as to the counties of the State, requires the sale to be made upon the terms expressed in the mortgage.

There is only one omission which the party is authorized to supply, or rather, which the law supplies for him, namely, where the time of the notice is omitted, and in that event, the law fixes it at twenty days. Art. 64, sec. 7.

2nd. It is clear that the mortgage loan was made at eight per cent. The charge in the bill is explicitly sustained by Skinner, and fully admitted by Hopkins, who endeavors to excuse it by the most extraordinary statement that he received the $ 100 extra in lieu of taxes on the mortgage debt and insurance, in consequence of Skinner's agreement to [**4]  pay that sum after it was found the two clauses had been erased from the mortgage. But this is disproved.

It is undoubtedly true that Hopkins received more than the legal interest, and that the pretences relied upon to escape from the charge of illegality are unfounded.

The reservation of six per cent. interest in advance is usurious, except for Banks, who are authorized to receive discounts in advance. 1 Code, Art. 12, sec. 15; Act of Congress, 1864, ch. 106, sec. 30.

All overpayments beyond legal interest, whether on the pretext of bonus, or otherwise, are usurious, and can be recovered back in an action at law. Scott vs. Leary, 34 Md., 389. And therefore Hopkins will be held to have received the excess for the use of Skinner, and it will be credited on the principal. Banks vs. McClellan, 24 Md., 82-3.

3d. The respondent also denies the right of the complainants to file this bill for an injunction, upon the ground that they have no such interest in the mortgaged premises as entitles them "to obtain an injunction to stay the sale," as required by sec. 15 of Art. 64.

Admitting that the application here was for an injunction to stay the sale, and that the only [**5]  power in Chancery Courts now to interfere by injunction exists in cases arising under Art. 64, (both of which points are denied,) the trustees have the authority to stay the sale by injunction, under sec. 15. The party having the right, under that section, to obtain the injunction referred to, must either be "a party to the deed," or one who "shall claim under such party a right to interest in such mortgaged premises," accruing after the recording of the mortgage, &c.--that is, "a right or interest." 1826, chap. 192, sec. 8; Salmon, trustee, vs. Pierson, 8 Md., 299; Teackle, trustee, vs. Crosby & Beavan, 14 Md., 23.

There can be no doubt that all the title remaining in Skinner and wife, after the mortgage to Hopkins, was conveyed to Powell & Harrison. The conveyance is as ample a transfer of whatever interest was then in the grantors, as it was possible to make, and if Hopkins and his wife possessed any title or interest whatever in the property conveyed, before they signed the trust deed, all that interest thenceforth vested in the complainants.

If the trustees would have no right to obtain an injunction, if the debt had been wholly paid, no one could obtain it, if the mortgagor [**6]  had died, or declined to interfere. And thus the creditors of the mortgagor might be totally deprived of the right to stay the sale, because of fraud, or payment in part or in whole.

The title of the trustees is no naked, dry trust, without an interest. They are both creditors, and they represent all of the other creditors. As assignees of the mortgagor, they can go into Equity for relief. Banks vs. McClellan, 24 Md., 81; Hill on Trustees, (543); Randall vs. Swann, 10 G. & J., 314.

Ratcliffe vs. Sangston, 18 Md., 390, was decided upon an entirely different point, and has no application here. Section 15 of Art. 64, has no such important restraining effect upon the general equity jurisdiction of the Courts in Maryland, as is contended for; and this jurisdiction is only narrowed in the particulars and cases specified in the section.

That the trustees have the power and interest to interfere is clear, upon general principles, as well as upon the words of the Act. Lucas vs. McBlair, 12 G. & J., 1; Hill on Trustees, (541,) and seq. See (548.)

Philip F. Thomas, for the appellees.

The injunction was improvidently granted and properly dissolved.

1st. Because the [**7]  appellants, as trustees, took no such interest in the mortgaged premises as entitled them to a writ of injunction restraining the appellee, Hopkins, from making sale of that part of the real estate of Skinner, which was mortgaged to him for the payment of his mortgage debt, the same being due and unpaid.

An assignee for the benefit of creditors, is not a purchaser for a valuable consideration, and acquires, under and by virtue of the deed to him, a mere naked trust uncoupled with an interest, and wholly insufficient to authorize the grant of an injunction to stay a sale of mortgaged premises Code of Public General Laws, Art. 64, sec. 15; Gayle & Wife vs. Fattle, 14 Md., 69; Ratcliffe vs. Sangston, 18 Md., 391.

2nd. Because the mortgagee had a right to sell the mortgaged premises for cash, as no other terms were prescribed in the mortgage deed. The covenant in a deed of mortgage, authorizing a sale of the mortgaged property, in case of default in payment of the mortgage debt, is equivalent to a decree. Under a decree of foreclosure, the sale is required to be made for cash, unless the complainant consents to a sale on credit.

In this case, the covenant authorizing a sale [**8]  by the mortgagee, required any surplus of purchase money after payment of the mortgage debt, and interest and costs, to be paid over to the mortgagor, and hence, it was necessary to sell for cash. Code, Art. 64, secs. 5, 6, 7, 8; and Art. 16, sec. 125.

3rd. Because the advertisement of a cash sale, and the failure to give to the mortgagor the notice required to be given to him before a sale of the property mortgaged, if that were the fact, were not sufficient to authorize the grant of an injunction. If the sale, for any cause, had been irregular or unlawful, the mortgagor had full and ample remedy for filing objections to its ratification. Gayle vs Fattle, 14 Md., 69; White and Elder vs. Malcolm, 15 Md., 529; Berry vs. Skinner, 30 Md., 572.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*7]  BOWIE, J., delivered the opinion of the Court.
An injunction having been granted on a bill filed by the appellants, against the appellees, in the Circuit Court for Talbot County, in Equity; at a hearing, upon motion to dissolve, after answer filed, upon bill, answer and depositions taken under a commission, the injunction was dissolved; from [**9]  which decree this appeal is taken.
The appellants, claiming as trustees, charge that being authorized and appointed under a deed, from Gustavus A. Skinner and wife, dated the 22nd of January, 1872, conveying all Skinner's estate, real and personal to the grantees, in trust to sell the same, at public or private sale, upon such terms and notice as to them should seem best, and apply the proceeds after payment of costs, charges, commissions and expenses, in payment of the several creditors of said Skinner, according to their preferences and priorities, &c., after accepting the trust, and giving bond as required by law, they proceeded to advertise the property conveyed to them, in execution of their trust, for sale on the 12th of March, 1872.
That some of the creditors of Gustavus A. Skinner, claim under mortgages executed by him on portions of the realty, and others under judgments, rendered at different times, and they apprehend contests may arise as to their several priorities, which can only be properly adjusted in the Circuit Court.

 [*8]  That one of said creditors, the appellee Hopkins, claiming under a mortgage from said Skinner for the sum of $ 5,000, bearing date the 7th [**10]  of November, 1866, upon a part of said realty called "Asbury," containing 317 acres, with a view of preventing the appellants from performing their trust, and embarrassing them in the execution of their duty, or with the design of procuring the sale of said land upon terms, that will produce an inadequate price, and that he may buy the same at less than its value, has advertised the said land for sale, for cash, under an alleged power contained in his mortgage, and insists he will sell the same, on the 12th of March, 1872, the day fixed by the appellants for their sale--that they verily believe that the said land, which is the most valuable part of the estate, will be sacrificed, because of the doubt thrown upon the title by the conflicting advertisements, and unreasonableness of the terms requiring cash for so large an amount, and the creditors of the said Skinner, will be defrauded of the chances of payment of their claims.
They charge that Hopkins, has no right to sell under his mortgage, since the conveyance in trust to the appellants for the benefit of all his creditors, and the Court will not allow any one of several creditors, to carve and cut the estate to their own exclusive [**11]  advantage, and the injury of the creditors generally.
The appellants further charge, that a sufficient amount may be realized from the sales to be made by them, to discharge the claim of the appellee Hopkins; that he has no right to prescribe cash as the terms of sale under his mortgage, as it is not so expressed therein, and he had not given due notice, etc., and that all the interest due him had been paid and part of the principal, which he has applied toward the discharge of bonus and interest on said mortgage, higher than the rate allowed by law, etc.

 [*9]  The answer of Hopkins admits the execution of the deed of trust to the appellants, but denies that it conveys to them all the property and estate and effects of said Skinner, at the time of his insolvency, and insists the same is void.
He admits that some of the creditors of Skinner claim under mortgages, but denies that any of the judgment creditors are prior to the mortgage to himself, or to the deed of trust to the appellants, and avers that there are but three mortgage creditors, to wit: Margaret A. Arringdale, Joseph H. Harrison, and the respondent, between whom no contests, or difficulties are likely, or can [**12]  possibly arise requiring the intervention of the Court for their adjustment.
He denies all design or purpose to defeat or embarrass the appellants in the execution of their trust, or to sacrifice the property, but avers he offered to make arrangements with responsible persons to effect a sale upon most advantageous terms, and the property would have been sold for its full value, and a larger price than it is likely to command.
He insists his right to sell, is not affected by the deed of trust, but that he has the superior and prior right to sell.
He denies that all the legal interest has been paid; or that any part of the payment of the principal, has been appropriated to other purposes.
It appears from this partial abstract of the bill and answer, that although one of the grounds relied on by the bill, was the cloud likely to be thrown upon the title of part of the property conveyed to the appellants, by the proposed sale of the appellee Hopkins, the main reasons for their prayer for the injunction, are the absence of any express power in the terms of sale, given by the mortgage to sell for cash, and the allegation that such terms were unreasonable, and inequitable, and [**13]  to the prejudice of 

 [*10]  other creditors, and want of due notice of sale as required by the mortgage.
The learned Judge who granted the injunction, relied mainly on the hard and inequitable terms of sale prescribed by the mortgagee, there being no power conferred in express terms to sell the whole mortgage premises for cash, and the averment of want of notice, whilst the Court who dissolved it, held that where no terms of sale are expressed, the mortgagee may under the power, proceed to sell upon reasonable terms, and should he impose terms, that were inequitable and unreasonable, the mortgagee, had ample remedy by making objections to the ratification of the sale, and refer to Gayle vs. Fattle, 14 Md. 69; White & Elder vs. Malcolm, 15 Md. 529; Berry vs. Skinner, 30 Md. 567.
The appellants in their argument in this Court, insist their right to an injunction is established by the case of Tuck vs. Calvert, 33 Md. 209.
The subject of controversy in that case, was the right of certain claimants to the proceeds of land sold by trustees, arising under exceptions to the auditor's report. The right [**14]  to the injunction issued in the original proceedings in the Circuit Court of Prince George's County was not involved. An injunction had been obtained on bill filed by junior judgment creditors against the sheriff, who was proceeding under executions issued by senior judgment creditors.
The defendants answered the bill, and assented to a sale by trustee. This Court in that case passed no opinion on the question now raised.
In the case of Gayle vs. Fattle, the complainant expressly charged, that the execution of the power of sale, pending the suit of one claiming by paramount title, was calculated to cloud the title.
This Court, disposed of the allegation very summarily, declaring it insufficient to arrest the power of sale given 

 [*11]  the vendor, by the vendee, in a mortgage to secure the purchase money; and referring to the other grounds, that the proceedings of the mortgagee, were not in conformity with the Act of 1826, ch. 192, (an Act relating to mortgages in the City and County of Baltimore,) they said: "if the sale be made without a compliance with the requisitions of the Act of 1826, ch. 192, when it shall have been reported, the appellee will then have an opportunity [**15]  to point out the departure, and to claim whatever advantage it will give him," the injunction was accordingly dissolved.
If the claim by title paramount, would not justify the intervention of a Court of Equity, by injunction, because of the liability to collusion between the mortgagor and claimant; the claim of trustees, by deed subsequent to the mortgage, would justly be subject to the same objection, since nothing is easier or more tempting to an embarrassed debtor than the execution of a deed of trust, for the benefit of creditors generally, with discretionary powers in the trustees, which may be postponed indefinitely.
The policy of the law is to prevent all unusual delay, in the execution of the powers expressed or implied in the mortgage, for which reason, Courts of Equity are prohibited from interfering by injunction, except in particular cases. Art. 64, Code of Pub. Gen. L., sec. 15.
The terms of a deed are generally construed most favorably for the grantee, and most strongly against the grantor.
The mortgage to Hopkins empowers him, in case of any default, to sell all the property thereby mortgaged, or so much as may be necessary, and to grant and convey the same [**16]  to the purchaser or purchasers, his, her or their heirs, or assigns, "which sale shall be made in the following manner:" The mode of sale is prescribed, but the terms are omitted; it would be a violent presumption, 

 [*12]  that such a power was nugatory, because, "cash" or "credit," were not prescribed, "omne majus continet in se minus;" if the omission does not leave the power of the mortgagee unlimited in that respect, it certainly invests him with power to sell on reasonable terms, which may be cash or credit, according to the circumstances, and according to the case before cited, be subject to the action of the Court, on the question of ratifying the sale.
The language of the mortgage, giving the power of sale in the present case, is nearly the same as that used in the case of Berry vs. Skinner, 30 Md. 567.
No question was raised in that case, as to the authority to sell for cash, but this Court, recognizing the power "as appendant, or annexed to the estate, coupled with an interest and irrevocable, a part of the mortgage security, vested in the mortgagee, or any person, who by assignment or otherwise, becomes entitled to the money to be secured, decided [**17]  it could not be affected by the mortgagor subsequently becoming non compos, and the institution of proceedings in lunacy, and the application of the committee for an order to sell the mortgaged premises for the benefit of creditors generally, so as to suspend the execution of the power by the mortgagee."
The language of the Court is, "he, the mortgagee, was constituted a trustee by the mortgage itself, to sell the mortgaged property, on default of payment, and the Court has no power to deprive him of the summary means of realizing his debt, that formed a part of the security, upon which he advanced his money." Ibid. 574.
An irrevocable power, cannot be annulled by a subsequent conventional trust, created by the mortgagor, without the privity or consent of the prior mortgagee.
In the words of this Court, in the case last cited, "In the absence of irregularity, fraud, or unfairness in executing the power, the Court has no alternative, however 

 [*13]  harsh and severe the proceeding may appear to be, but to ratify the sale."
The allegation in the bill, of want of notice to the mortgagor, was abandoned by the appellants' counsel in argument before this Court, and is negatived [**18]  by the answer and evidence.
The other points relied on by the appellants in support of the injunction are, the payment of usurious interest, and the application of part of the money paid by the mortgagor, which should have been applied to the extinguishment of the principal, "pro tanto," to the payment of taxes and bonus. The exaction of usurious, or illegal interest, (if proved by the evidence,) does not invalidate the mortgage, or affect the power to sell. The Complainant must pay, or bring into Court to be paid, the principal and legal interest, before he can claim the intervention of a Court of Equity, by injunction. Gwynn vs. Lee, 9 Gill 137; Baugher vs. Nelson, 9 Gill 299.
The Court of Equity, in which the sale is to be ratified, and the proceeds distributed, has full authority and jurisdiction to adjust the question of interest between the parties--so with regard to the other credits claimed; if admitted, or satisfactorily proved, they would not entitle the appellants to an injunction to stay the sale entirely, but only "pro tanto." The mortgagor however, testifies, that he overpaid him (the mortgagee,) one year, one hundred [**19]  dollars, "which he returned."
L. A. Skinner, the son of the mortgagor, says: "I carried a sum of money to him, (the mortgagee,) but do not recollect how much it was. Mr. Hopkins, told me there was one hundred dollars too much, and he wanted me to take it back to my father." "I told him I knew nothing about it, **** he had better keep it, and give it back to my father himself."
The mortgagee both in his answer and evidence taken under the commission, denies that all the interest, or any 

 [*14]  part of the principal has been paid; or that any demand has been made upon him by the mortgagor, or the appellants, to allow credits, which he has refused to allow.
The 15th section of the 64th Article, Code of Public General Laws, declares, "no injunction shall be granted to stay any sale, or any proceedings after any sale, of mortgaged premises under this Article," *** "unless such party shall on oath allege, that the mortgage debt and all interest due thereon, has been fully paid, or that some part of such debt or interest, the amount of which he shall state, has been paid, and that the mortgagee, or person acting under him, refuses to give credit for such amount," etc.  [**20]  
This provision of the Code, is only declaratory of a general principle of Equity, and without inquiring or deciding how far it is competent for the Legislature, to limit the power of Courts of Equity, in the exercise of their jurisdiction, it is sufficient to say, the allegations of the bill in this respect, are not sustained.
Finding no error in the order appealed from, dissolving the injunction, the same will be affirmed.
Order affirmed. 

45 of 144 DOCUMENTS 

CHARLOTTE E. TYSON, FANNY H. TYSON and JESSE TYSON, infant children of ISAAC TYSON the 3d, and FANNY H. TYSON, by their next friend, GEORGE W. NORRIS vs. JAMES W. TYSON and JESSE TYSON, Executors of ISAAC TYSON, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 567; 1873 Md. LEXIS 28 

February 22, 1873, Decided 

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

On the 5th of June, 1871, the appellants filed their petition and caveat in the Orphans' Court of Baltimore city, alleging that the codicils of the 12th of April, 1860, and the 15th of January, 1861, to the will of Isaac Tyson, Jr., dated the 7th of January, 1860, were procured by fraud and undue influence practiced by the appellees upon the testator, when his mental powers were enfeebled from age and ill-health. Issues were prayed to be sent for trial to the Superior Court of Baltimore city. The appellees answered the petition, denying that said codicils were procured of the testator by fraud, imposition or undue influence, and affirming that the testator at the time of executing and acknowledging said codicils, was of sound and disposing mind, and capable of executing a valid deed or contract, and so remained up to the day of his death. The Orphans' Court directed the following issues to be sent to the Superior Court, for trial:

1. Was the codicil dated the 12th of April, 1860, executed by Isaac Tyson, Jr., when he was of sound and disposing mind, and capable of executing a valid deed or contract?

2. Was the said codicil [**2]  of the 12th of April, 1860, executed by the said Isaac Tyson, Jr., under the influence of suggestions, or importunities or misrepresentations, when his mind, from its diseased or enfeebled state, was unable to resist the same?

3. Was the said codicil of 12th April, 1860, procured by undue influence, fraudulent devices, importunities, misrepresentations, and deceits practiced upon the said Isaac Tyson, Jr., which under the circumstances did not leave him free in the disposition of his estate?

4. The same as No. 1, except that it applied to the codicil dated the 15th of January, 1861.

5. The same as No. 2, except that it applied to the codicil of the 15th of January, 1861.

6. The same as No. 3, except that it applied to the codicil of the 15th of January, 1861.

7. Was the said testator, at any time subsequent to the execution of said codicils of the 12th of April, 1860, and the 15th of January, 1861, or either of them, desirous of altering or cancelling the same, and was he prevented therefrom by management, fraud, undue influence or importunities?

Upon the trial of the foregoing issues, the jury found for the defendants, the caveatees, on each and all of [**3]  them. The facts of the case are presented with sufficient fullness in the opinion of the Court, and the dissenting opinion of Judge BOWIE.

Exception.--Upon all the testimony, the plaintiffs, the caveators, offered five prayers, the first, second, third and fifth of which are substantially set out in the opinion of Judge BOWIE, and the fourth is as follows:

4. If the jury believe the facts above set forth, and that said facts continued at the date of the codicil of the 15th of January, 1861, those facts are evidence from which the jury may find that said codicil was obtained by fraud and undue influence.

The defendants, the caveatees, offered the following prayers:

1. That if the jury shall find from all the evidence in the cause, that the said Isaac Tyson, Jr., made and executed the paper-writing which has been offered in evidence in this cause, dated on the twelfth day of April, 1860, purporting to be a codicil to his last will and testament, as testified to by the witness, John H. B. Latrobe, and that he was, at the time of so doing, of sound and disposing mind, and capable of making a valid deed or contract; and shall further find from the evidence in the cause,  [**4]  that the said paper-writing, dated on the 12th day of April, in the year 1860, and purporting to be a codicil to his last will and testament, was signed, sealed, published and declared by the said Isaac Tyson, Jr., in the presence of the subscribing witnesses thereto, as and for a codicil to his last will and testament, who, in his presence, signed the same as witnesses thereto, that then the presumption of law is in favor of the validity of said codicil, and that the burden of proof is on the plaintiffs to satisfy the jury, that at the time of so doing, the said Isaac Tyson, Jr., was not of sound and disposing mind, and was not capable of executing a valid deed or contract.

2. That if the jury shall find from the evidence in the cause the making and execution of the paper-writing dated on the twelfth day of April, 1860, purporting to be a codicil to the last will and testament of the said Isaac Tyson, Jr., in the manner set forth in the preceding prayer, that there is no evidence in this cause that the said Isaac Tyson, Jr., was not of sound and disposing mind, and capable of executing a valid deed or contract when he so made and executed the said codicil; and the jury must find [**5]  for the defendants on the first issue.

3. That there is no evidence in this cause that the said Isaac Tyson, Jr., executed the paper-writing dated on the twelfth day of April, 1860, offered in evidence in this cause, and purporting to be a codicil to his last will and testament, under the influence of suggestions, importunities or misrepresentations, when his mind, from its enfeebled state, was unable to resist the same; and that the jury must find for the defendants on the second issue.

4. That there is no evidence in this cause that the paper-writing dated on the twelfth day of April, 1860, offered in evidence in this cause, and purporting to be a codicil to the last will and testament of Isaac Tyson, Jr., was procured by undue influences, fraudulent devices, importunities, misrepresentations and deceits practised upon the said Isaac Tyson, Jr., which, under the circumstances, did not leave him free in the disposition of his estate; and that the jury must find for the defendants on the third issue.

5. Identical with No. 1, except that it applies to the codicil of the 15th of January, 1861.

6. Same as No. 2, except that it applies to the codicil of the 15th of [**6]  January, 1861, and requires the jury to find for the defendants on the fourth issue.

7. Same as No. 3, except that it applies to the codicil of the 15th of January, 1861, and requires the jury to find for the defendants on the fifth issue.

8. Same as No. 4, except that it applies to the codicil of the 15th of January, 1861, and requires the jury to find for the defendants on the sixth issue.

9. That there is no evidence in this cause that the said Isaac Tyson, Jr., at any time subsequent to the execution of the said paper-writing dated on the twelfth day of April, 1860, purporting to be a codicil to his last will and testament, or at any time subsequent to the execution of the paper-writing, dated on the fifteenth day of January, 1861, purporting to be a codicil to his last will and testament, was desirous of altering or cancelling the said paper-writings, so purporting to be codicils as aforesaid to his last will and testament, or either of them, except so far as he did alter the same by the codicil made on the ninth day of May, 1861, which has been offered in evidence, if the jury shall find the making and execution of the said last named codicil; and that there is [**7]  no evidence in this cause that the said Isaac Tyson, Jr., was prevented from altering or cancelling the said paper-writing dated on the twelfth day of April, 1860, purporting to be a codicil to his last will and testament, or the paper-writing dated on the fifteenth day of January, 1861, purporting to be a codicil to his last will and testament, or either of said paper-writings, by management, fraud, undue influence or importunities; and that the jury must find for the defendants on the seventh issue.

The Court (DOBBIN, J.,) rejected the prayers of the caveators, and granted those of the caveatees. To this action of the Court the caveators excepted, and the verdict being against them on all the issues, they appealed.  

DISPOSITION:
Rulings affirmed.  

HEADNOTES:

When the Jury should be instructed as to the Insufficiency of Evidence -- Testamentary capacity -- Undue influence -- Confidential relations -- Burden of Proof upon a Caveat to a Will.

Whenever the evidence offered, is of such a character, that no rational mind could infer the fact sought to be established by it, it is the duty of the Court, upon application, to instruct the jury, that there is no evidence before them legally sufficient to warrant their finding the fact so attempted to be proved.

A person capable of executing a valid deed or contract, has the legal capacity to execute and acknowledge a will or codicil.

Undue influence to invalidate a will, must be such as to deprive the testator of his free agency, and to subordinate his will to that of another; thus making the testamentary act, not the will of the testator, but that of the person exercising dominion or control over him.

The doctrine of confidential relations, adopted in Courts of Equity in regard to gifts and contracts inter vivos, does not apply to a devise or bequest by a parent to a child.

Upon a caveat to a will or codicil, charging the want of testamentary capacity on the part of the testator, and the exercise of undue influence over him in the making of his will, the burden of proof rests upon the caveators. 

COUNSEL:
Charles Marshall and William S. Waters, for the appellants,

Argued that there was evidence on the part of the caveators, applicable to the issues in the case, which should have been submitted to the jury; and they particularly considered the following issues:

1st. Were the codicils in question the result of fraud upon the testator?

2d. Were they the result of undue influence?

3d. Was the testator of sound mind, capable [**8]  of executing a valid deed or contract when he made them?

The following legal propositions were maintained:

It is the province of the Court to decide questions of law, and of the jury to decide facts. The Court may as matter of law decide that there is no evidence for the jury only when the evidence is of such a character that no rational mind could infer from it the fact sought to be established. Although the testimony be weak, yet if it tend to prove the issue, the jury alone can weigh it, and determine its sufficiency. The duty of the Court in determining that there is no evidence at the trial, differs from its duty in a motion for a new trial. The Court in the first can only determine whether any evidence exists, in the second the evidence must be weighed. Richardson vs. Milburn, 17 Md., 67; Fulton vs. Maccracken, 18 Md., 528; Plank Road Co. vs. Bruce, 6 Md., 464; Cole vs. Hebb, 7 G. & J., 27; Davis vs. Davis, 7 H. & J., 736.

No matter how strong the weight of testimony may be in favor of any party, if there be any competent testimony on behalf of the other upon which the jury could reasonably find for him, it is error for the Court to undertake to take that right [**9]  from them. Charleston Ins. Co. vs. Corner, 2 Gill, 426; Brooke vs. Townshend, 7 Gill, 32.

It has been frequently said with reference to proof of fraud, that such proof is seldom direct. It must be inferred from circumstances, and the only question is, whether a rational mind can infer fraud from circumstances. Fraud, however slight, is sufficient to invalidate a will. It is only necessary that the jury should infer from circumstances that the will was induced by fraud. Davis vs. Calvert, 5 G. & J., 269; 1 Wm's Executors, 42 and 43, No. 1, last Ed.

Persons who occupy fiduciary relations cannot receive benefits from those to whom they bear this relation, unless they show affirmatively that the party was dealt with fairly. That all the knowledge, which the fiduciary had, was given, and the party properly put upon his guard. Rhodes vs. Bates, L. R., 1 Ch. Ap., 257; Brooks vs. Martin, 2 Wal., 85; Hunter vs. Atkins, 3 My. & K., 134; Huguenin vs. Basely, 14 Ves., 275-300; Allen vs. McPherson, 1 H. of L. Cases, 191; Teakle vs. Bailey, 2 Brooke, 53; Todd vs. Grove, 33 Md., 197; Dent vs. Bennett, 4 Myl. & Cr., 277; 1 Story Eq. Ju., secs. 311, 315, and 332, note; Highberger, et al.  [**10]  vs. Stiffler, 21 Md., 349; Brooke, et al. vs. Berry, 2 Gill, 99; Cook vs. Carr and Wife, 20 Md., 411; Greenfield's Estate, 2 Harris, 490, 504, 508; Sears vs. Shaffer, 2 Selden, 272.

In circumstances depending upon these relations, neither the capacity of the persons conferring the benefits nor the nature of the benefit conferred affects the principle, or dispenses with the necessity of this affirmative proof on the part of the beneficiary. Among the fiduciary relatives, to which this principle is applied, that of agent and partner are included. (Same cases.)

The doctrine is applicable to wills, when one or some of the beneficiaries receive a proportion grossly unequal to the other. Hunter vs. Atkins, 3 My. & Keene, 131; Hughes vs. Hughes, 31 Ala., 526; Harrel, &c. vs. Harrel, 1 Duvall, (Ky.) 205; Wilson vs. Mann, 3 N. Y. Sur., 780; Wyatt vs. Ingram, 3 Hagg., 466; Morris & wife vs. Stokes, 21 Georgia, 573; Garvin's admr. vs. Williams, et al., 44 Missouri, 465; Middleton vs. Sherburne, 4 Y. & Coll., 389; St. Leger's appeal from Probate, 34 Conn., 450, 451.

J. S. Tyson, C. J. M. Gwinn, Wm. Henry Norris and Reverdy Johnson, for the appellees.

When a testamentary paper,  [**11]  rational on its face, is produced, and the execution of it is proved, the law presumes that it was made by a person of competent understanding. Sutton vs. Sadler, 91 Eng. Com. L. R., 92; Dyce Sombre vs. Troup, 1 Deane Eccl. Rep., 38, 49; 1 Greenleaf on Evidence, (11th Ed.) sec. 42; Symes vs. Green, 1 Swabey & Tristram, 401, 402, and 5 Jurist, N. S., 742. Under such circumstances the burden of proof rests upon those who assert unsoundness of mind. Higgins vs. Carlton and Scaggs, 28 Md., 142; Baldwin vs. Parker, 99 Mass., 79.

To make a will invalid, because of importunity or undue influence, that degree of importunity, or undue influence, must be shown to have been employed, which amounts to force or fraud. Davis vs. Calvert, 5 G. & J., 302; Wittman and wife vs. Goodhand, 26 Md., 105; Harbeck vs. Hill, Court of Appeals, October Term, 1868; Eckert vs. Flowry, 43 Penn., 46; Lovett vs. Lovett, 1 Fos. & Fin., 581; Earl of Sefton vs. Hopwood, 1 Foster & Finlason, 578; Stulz vs. Schaeffle, 16 Jurist, 909, and 18 E. L. & Eq., 576; Williams vs. Goude, 1 Hagg., 577, 3 Eng. Eccl. Rep., 254.

The influence which the affection, or attachment of a testator, may incline him to be governed [**12]  by, is not improper, and in no wise invalidates a will. Davis vs. Calvert, 5 G. & J., 302; Witman vs. Goodhand, 26 Md., 105; Higgins vs. Carlton & Scaggs, 28 Md., 125, 144; Earl of Sefton vs. Hopwood; 1 Foster & Finlason, 578; Parfitt vs. Lawless, before Probate Court, 21 Weekly Reporter, 200.

There was, in this case, no evidence whatever of any importunity, or undue influence. Richard Tyson, another son, and Mrs. Morris, the married daughter of the testator, were benefitted by the codicils which have been drawn in question to as large an extent as were the two sons, James and Jesse. The reasons which induced the testator to appoint James and Jesse his sole trustees, are clearly expressed in the uncontested codicil of May 9th, 1861.

The evidence, on the contrary, internal and external, suffices, in every material particular, to sustain the validity of the two contested codicils.

When there is an entire absence of evidence, or where it is so light and inconclusive that no rational mind can infer from it the fact sought to be established, it is the duty of the Court to instruct the jury that there is no evidence before them to warrant their finding the fact so attempted [**13]  to be proved. Harbeck vs. Hill, Exr. of Sewell, Court of Appeals, October Term, 1868; Spring Garden Mutual Insurance Co. vs. Evans use of Riley, 9 Md., 15; Cecil vs. Clarke, 17 Md., 524; Clarke's Admr. vs. Marriott's Admr. 9 Gill, 334; Davis vs. Davis, 7 H. & J., 39; Eckert vs. Flowry, 43 Penn. St., 46; Parfitt vs. Lawless, 21 Weekly Reporter, 200.

In construing any will, or codicil, we can apply no extrinsic evidence to alter, detract from, or add to the terms of such testamentary papers, nor to vary the meaning of the words which the testator has employed; but it is proper to consider the circumstances under which such will and several codicils were made, the state of the testator's property, of his family, and the like. Jarman's 8th, 9th, 10th and 12th Rules of Interpretation; Baldwin vs. Karver, Cowper, 312; Jones vs. Morgan, cited in Lytton vs. Lytton, 4 Brown's Ch. Rep., edited by Perkins, pp. 338, 339. And, in so construing them, although a will and codicils are to be construed as one instrument, yet the circumstances, under which the will and several codicils were executed, supply independent means of interpreting the specific provisions made in each.

The circumstances [**14]  upon which a Court may rely in the interpretation of a will, or codicil, in cases where there is room for the admission of such evidence, are always to be considered, and are, as must be conceded, of greatest force, when the question is whether a testator, in making any will or codicil, knew and understood what he was doing. 1 Redfield on Wills, (Ed. 1864,) 124; Boys vs. Williams, 2 Russ. & Myl., 697; Attorney General vs. Grote, 2 Russ. & Myl., 700, 701.

A careful examination of the facts and circumstances as disclosed by the record, shows that there was no evidence whatever in the case which would have justified the Superior Court in granting the instructions asked for by the appellants.

This Court cannot reverse the rulings of the Superior Court in this case, even if the Court should be of opinion that there was evidence that the testator was not of sound and disposing mind, when he executed the codicils of April 12th, 1860, and of January 11th, 1861, and should also be of opinion that there was evidence that these codicils were both executed under the undue influence and improper circumstances, referred to in the second, third, fifth and sixth issues.

No caveat was [**15]  filed, or issue prayed as to the codicil of May 9th, 1861.

There is overwhelmning evidence that the testator was of sound mind, and capable of making a valid will at that particular date. No evidence, whatever, to the contrary was adduced. He made a codicil at that date, which he declared, in terms, to be a codicil to his last will and testament, and that he intended by it to revoke all such parts "of the said will, and the codicils already attached," as were incorporated with it.

The testator had the will and codicils of April 12th, 1860, and January 15th, 1861, therefore, fully in mind when the codicil of May 9th, 1861, was executed. He referred specifically to those papers. He said that he intended to revoke so much of them only as was consistent with the codicil then published. He, therefore, in effect, confirmed every part of those testamentary papers, which he did not alter, as positively as if he had declared, in express terms, that he confirmed the unaltered parts. 1 Wms. on Exrs. 4th Ed., 175, 179, 180, 181, 182; Pigott vs. Waller, 7 Ves., 98; Jones vs. Earle, Exr. of Jones. 1 Gill, 398, 399. In a word, the testator, by the last codicil, brought the will and former [**16]  codicils down to the date of that last codicil, and republished the will and former codicils as of that date. Doe d. York vs. Walker, 12 Mees. & Wel., 599; Boofter vs. Rogers, 9 Gill, 53.

It follows then, that if the testator, at the making of such last codicil, was of sound and disposing mind, the will and codicil so confirmed or adopted, if otherwise formally executed, shall, together with the last codicil, be held to be the will of the testator, whether he was of sound and disposing mind, or under undue influence, when he made the will and prior codicil, or not. 1 Redfield on Wills, (ed. 1864,) 374. For if the last codicil, made when the testator was of sound and disposing mind, and free from undue influence, adopts and republishes a will and codicil, made when he was insane, or under undue influence, then the will and codicil, so adopted, become the voluntary act of a capable testator, and are completely valid by reason of such adoption and republication. 1 Williams on Exrs., (4th Am. Ed.,) 184; 1 Jarman on Wills, (2nd Am. Ed.,) 200, notes.

The codicil of May 9th, 1861, operated, therefore, as an alteration, adoption and republication of the will of January 7th, 1860,  [**17]  and of the codicils of April 12th, 1860, and of January 15th, 1861, and with this will and codicils, thus republished, became and expressed the true will of the testator.

All the prayers of the appellants, therefore, were defective, and were properly rejected, because they were so drawn as to omit all consideration of the existence and legal effect of that codicil of May 9th, 1861, which had the effect of altering and republishing the prior will and codicils. The instructions should have informed the jury what they were to find from the proof in relation to this codicil of May 9th, 1861, since it was a most important element of the proof in the cause. Boofter vs. Rogers, 9 Gill, 54, 55; Burt vs. Gwinn, 4 H. & J., 517; Riggin vs. Patapsco Ins. Co., 7 H. & J., 291; Bosley vs. Chesapeake Ins. Co., 3 G. & J., 450; Beall's Lessee vs. Beall, 7 Gill, 237; Cook vs. Carr and wife, 20 Md., 411, 412; Md. and Del. R. R. Co. vs. Porter, 19 Md., 468.

The case now before this Court is part of the case remaining in the Orphans' Court of Baltimore city. It is founded on the instructions of the Superior Court, and upon the verdicts, found on the issues framed, which are parts of that case.  [**18]  Yingling, et al. vs. Hesson, 16 Md., 120; State vs. Stevenson, use of Reigart, 1 Gill, 29; Warford vs. Colvin, 14 Md., 556. Being parts of that case, the case now pending, in all its parts, is controlled by other parts of that case remaining in the Probate Court, which has the legal effect to control the case now pending here.

The last codicil of 9th of May, 1861, brought the will and former codicils down to its own date, and operated as a publication of the will as of that date. This being so, the legal effect of the probate of the last codicils, refering to the will and codicils already attached, was a probate finally made of the will, and all the prior codicils, so attached thereto. The probate of this final codicil, so operating, was conclusive as to the personalty embraced in the will and former codicils, and was prima facie evidence as to the realty. Warford vs. Colvin, 14 Md., 555.

Therefore, there is in force a conclusive probate as to all the personalty, covered by the will and codicils, and a probate setting up a will and codicils as prima facie good as to the realty. Though prima facie good only as to the realty, the said will and codicils, so probated, operate [**19]  as conclusive, until they are duly called in question in the mode prescribed by law.

The issues made in this case, therefore, were wholly immaterial, and the opinion of the Court, given in relation to questions arising under such issues, could produce no result upon the probate of the codicil of May 9th, 1861, which operated as a probate of the will and prior codicils attached to said last codicil. As the record shows the probate of the last codicil, and as the law informs us as to the effect of that codicil and of its probate, this Court cannot reverse the instructions given by the Superior Court, because the judgment of the Probate Court, admitting the last codicil to probate, has established conclusively the validity of the will and prior codicils, and of the last codicil, as to personal estate, and the prima facie effect of said probate as to realty.

This Court cannot reverse the rulings of the Court in this case without necessitating a re-trial of issues, which are in fact concluded, not by the finding of the jury, but by the judgment of the Orphans' Court admitting the last codicil to probate. It cannot, therefore, reverse in this case, or order a new trial, without,  [**20]  in fact, reversing the judgment of the Probate Court in a case in which that judgment is not really before it. It must affirm the rulings of the Superior Court, because the probate of the last codicil, republishing the will and former codicils, operate as a record estoppel against any other ruling. The jurisdiction of this Court in this case is only ancillary. It could not reverse the rulings of the Court below in this case, without necessitating the re-trial of issues, which are in effect already concluded by the judgment of the Probate Court upon the last codicil, which republished the first will and codicils. For it would, by so doing, trench upon the jurisdiction of the Probate Court, which had in fact disposed of these issues by its judgment upon a codicil wholly uncontested. It cannot reverse--but inasmuch as the probate of the last codicil, which is certainly conclusive upon all the world as to personalty, and prima facie as to realty, is binding upon this Court, until questioned in due form of law, this Court must affirm all parts of the proceedings, taken under the provisions of the statute, which are in harmony with this final, unquestioned and conclusive probate--for it [**21]  is conclusive, as far as this case is concerned.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*580]  ROBINSON, J., delivered the opinion of the Court.
Isaac Tyson, Jr., died on the 23d November, 1861, and on the 29th of the same month, his will, bearing date the 7th of January, 1860, and three codicils attached thereto, dated respectively April 12th, 1860, January 15th, 1861, and May 9th, 1861, were admitted to probate in the Orphans' Court of Baltimore city.
On the 5th of June, 1871, nearly ten years afterwards, the appellants, infant grandchildren of the testator, and children of his son, Isaac Tyson, 3rd, filed a petition in said Orphans' Court, alleging among other things, that the codicils of April 12th, 1860, and January 15th, 1861, 

 [*581]  were procured by fraud and undue influence practised upon the testator by his two sons, James W. and Jesse Tyson, the appellees, and prayed that the following issues be sent to the Superior Court of Baltimore city for trial:
1st. Whether said codicils were executed by said Isaac Tyson, Jr., when he was of sound and diposing mind, and capable of executing a valid [**22]  deed or contract?
2d. Whether they were executed under the influence of suggestions, importunities, or misrepresentations, when his mind from its diseased or enfeebled state was unable to resist the same?
3d. Whether they were procured by undue influence, fraudulent devices, importunities and deceits, practised upon the testator, which under the circumstances did not leave him free in the disposition of his estate?
4th. Whether at any time subsequent to the execution of said codicils, the testator was desirous of altering the same, and was prevented therefrom by management, fraud, and undue influence or importunities?
At the trial below, the Court, upon the request of the defendants, instructed the jury that the plaintiffs had offered no evidence to warrant them in finding any of the issues in their favor, to the granting of which, and to the rejection of the several prayers offered by the plaintiffs, they excepted.
We do not propose to review the many cases in which the question as to the legal sufficiency of evidence has been considered by this Court.
It is sufficient to say, they all hold the rule of law to be, that whenever the evidence offered is of such a character that [**23]  no rational mind could infer the fact sought to be established by it, it is the duty of the Court, upon application, to instruct the jury, there is no evidence before them legally sufficient to warrant their finding the fact so attempted to be proved. Davis vs. Davis, 7 H. & J. 36; Cole vs. Hebb, 7 G. & J. 20; Harbeck vs. Hill, 

 [*582]  Ex'r. of Sewell, October Term, 1868, unreported; Clarke vs. Dederick, 31 Md. 148.
The question then in this case, is whether, assuming all the evidence offered by the plaintiffs to be true, and adding thereto every inference which may be fairly and legitimately drawn therefrom, it was sufficient to warrant the jury, in the exercise of a reasonable intelligence to find any of the issues in favor of the plaintiffs? These issues involved testamentary capacity, fraud and undue influence.
As to the first, "the written law of this State, furnishes the rule, by which the capacity of a testator is to be measured; and the inquiry must always be whether, at the time of executing or acknowledging the will and testament, he was capable of executing a valid deed or contract?" Davis vs. Calvert, 5 G. & J. 269, 300; [**24]  Code, Art. 93, sect. 300.
In regard to undue influence, it is equally well settled, that in order to invalidate a will on this ground, it must be such as deprives the testator of his free agency and subordinates his will to that of another, thus making the testamentary act not the will of the testator, but that of the person exercising the dominion or control over him. Davis vs. Calvert, 5 G. & J. 269, 302; Witman and wife vs. Goodhand, 26 Md. 95; Lovett vs. Lovett, 1 Fos. & Fin. 581; Earl of Sefton vs. Hopwood, 1 Fos. & Fin. 578; Stulz vs. Schaeffle, 18 E. L. and Eq. 576; Williams vs. Goode, 1 Hagg. 577, 3 Eng. Eccl., Rep. 254.
To sustain the issues then on the part of the caveators, it was incumbent upon them to offer reasonable evidence to show, that the testator was not of a sound and disposing mind and capable of executing a valid deed or contract at the time of the execution of the codicils of the 12th of April, 1860, and the 15th of January, 1861; or that they were executed by him against his will, in obedience to a dominion or control exercised over him, and which he was  [**25]   unable to resist.

 [*583]  The doctrine of confidential relations adopted in Courts of Equity in regard to gifts and contracts inter vivos, cannot be applied here. It has been extended, it is true, in some States to wills, where parties stood in the relation of guardian and ward, client and attorney, and in such, the burden of proof has been cast upon the legatee or devisee to show that the testamentary act was free from undue influence or restraint. On the other hand, however, in the late case of Parfitt vs. Lawless, (21 Weekly Reporter 200) in the Probate Court of England before Lord Penzance, Piggott, B., and Brett, J., this doctrine was held not to apply to wills, for two reasons:
1st. Because in cases of gifts or contracts inter vivos, the party benefited takes part in the transaction and whether he unduly urges his influence or not, in calling upon him to explain the part he took, and the circumstances under which the gift or contract was made, the Court is requiring him to make an explanation within his knowledge, but in the case of a will, the legatee or devisee may have no knowledge of the act, and to cast upon him the burden of showing [**26]  how or under what circumstances the will was made, would be in most cases to cast upon him a duty he could not possibly discharge.
Secondly. Because the influence which is undue in cases of gifts "inter vivos," is very different from that which is required to set aside a will. In the former the natural influence which such relations as those in question involve, is considered undue, provided it is exerted to obtain a benefit for themselves, whereas in the case of a will the influence which the law condemns as unlawful, must be such as amounts to force and coercion, destroying the free agency of the testator.
But whether the doctrine of confidential relations applies to wills executed by parties standing in the relation of guardian and ward, client and attorney is a question not necessary to be decided here, for we think it is 

 [*584]  clear both upon principle and authority, it does not apply to a devise or bequest by a parent to a child.
We are of opinion therefore, the burden of proof both in regard to want of testamentary capacity and to the exercise of undue influence was upon the caveators.
If so, let us see whether there is any [**27]  evidence, either upon the face of the codicils themselves, or the circumstances surrounding the execution of the same, the value and extent of the estate of the testator, the relative situation of the devisees and the testator, and the terms upon which he stood to them, from which a jury, in the exercise of a reasonable intelligence, could have found any of the issues in favor of the plaintiffs
We find by the will of January, 1860, the testator bequeaths to each of his three sons, Richard, James and Jesse, the sum of $ 25,000, and a like sum in trust for his son Isaac, the father of the plaintiffs, the income thereof to be paid to him for life, and upon his death, the whole sum to go to his children.
The residuum of his estate, he divides into five equal parts, and directs that Richard, James and Jesse, shall receive absolutely one half part of the equal share thus set apart for each, and the remaining half to be held in trust for them under certain limitations therein prescribed. The whole fifth share to Isaac, he directs to be held in trust, the income thereof to be paid to him during life, and upon his death to go to his children, subject to an annuity of $ 1,200 [**28]  to be paid to his wife during her widowhood. This will is conceded to be in all respects a valid testamentary paper.
By the codicil of April 12th, 1860, he revokes so much of his will as provides for the payment of the whole income arising from the one-fifth equal share devised in trust for Isaac, and in lieu thereof directs the trustees to pay to him only so much thereof, as they may in their judgment "deem proper in view of all the circumstances." 

 [*585]  He also revokes the provision in regard to the payment of an annuity of $ 1,200 to his widow, and directs in lieu thereof, they shall pay to her only so much as they may think proper, the excess of income over and above what shall be paid to Isaac, to be invested for his children.
By the codicil of January 15th, 1861, the provisions both in the will of January 7th, and the codicil of April 12th in favor of Isaac and his family, are revoked, and the testator bequeaths to his executors in trust, the sum of fifty thousand dollars, the income arising therefrom to be applied by them in their discretion to the maintenance of Isaac and his family and the education of his children. He then adds:
"In the bequest here made [**29]  by me, I have had regard to an estimate, according to my best judgment, of what my estate will probably authorize to be paid, having a due regard to the other members of my family. But inasmuch as it may so happen that such a division would not accomplish my wishes in this connection, and whereas my executors are fully informed of my will in this respect, I hereby authorize them to diminish, at their pleasure, the above sum of fifty thousand dollars during the life time of the said Isaac Tyson, 3d, so as not to reduce it below twenty-five thousand dollars," &c.
In addition to the will and codicils thus offered in evidence by the caveators, they proved by G. W. Norris, that for some years before his death, the testator suffered from palsy, was in a feeble state of health, was disposed to take a gloomy view of the value of his estate, and assigned as a reason, that he feared the discovery of chrome in Europe would impair the value of his interest in chrome land, and expressed an apprehension he might not be able to provide sufficiently for his family. About six years before his death, noticed a tendency to fall asleep during conversation on matters of importance to 

 [*586]  him,  [**30]  but thought "at that time his mind was sound, and as shrewd a business man as he ever knew." Talked with witness in 1859 about making his will, and said "that he thought such of his children as knew how to take care of their property, he would leave them their part free, but that the others he should leave in trust, and that nothing could induce him to make any other difference between his children; did not think a parent had any right to make any other distribution than this, between his children."
He was the most affectionate of parents--spoke of his affection for Isaac's children, and seemed to be more interested in them on account of their father's habits which were known to him at that time.
They also proved by Fanny H. Tyson, mother of the plaintiffs that she was married to Isaac in 1854; went to Rosemont, Virginia, to live; left there because her husband was sent to sea; that the testator expressed doubts as to the propriety of Isaac's going to sea, spoke of his feeble health, that it hung on such a thread that he did not know whether he should ever see him again. He referred to the misunderstanding between witness and the appellees, and how much he regretted it; and [**31]  spoke of his devotion to the children of witness; that he felt the same towards us as to his other children and grandchildren.
That in December 1859, she came to Baltimore to live, and soon afterwards all friendly relations between her and her husband's family except the testator were interrupted, growing out of certain reports set afloat by a person boarding at the same house with witness. That she never visited the testator's house after April 1860, and from that time received but one visit from him, during which, he expressed affection for witness, solicitude for Isaac and love for the children. Said he was sorry "he had seen so little of us; that he felt near and dear to us and especially to Isaac." On leaving, told her he 

 [*587]  would prefer her saying nothing about his visit to his sons or his wife.
That after the death of the testator, friendly relations with the appellees were renewed, they were kind, affectionate and generous in their manner. They alluded to the causes which had interrupted their friendly intercourse, and said they did not believe the stories about witness. Made her handsome presents, and allowed them, as she understood from her husband, between $ 7,000 [**32]  and $ 9,000 a year.
They also proved by Doctor Gittings that he was called to attend the testator at his farm Olney, in Harford County, in the summer of 1861, and found him suffering from an attack of cholera morbus. His general health was feeble, seemed to be affected with softening of the posterior part of the brain, which affected his power of control over his muscles to a marked degree; trembled and had great difficulty of articulation. Visited him as many as thirty times, but saw nothing in his conversation with testator which induced witness to suppose that his mind was impaired in such a way as to render him incompetent to make a will. The effect of his disease on the nerves and muscles need not have affected his mental powers, and with his then knowledge of the testator, would have attested his will.
They also proved, the testator died possessed of a large estate, consisting of lands, mines, mining privileges and personal property valued at a million of dollars.
In support of the allegations of fraud and undue influence, they offered in addition to the aforegoing facts, evidence to show the intimate and confidential relations existing between the [**33]  testator and the appellees--that they were engaged with him in business, had opportunities of knowing the value and condition of his estate, and carried on the correspondence in regard to Isaac and his family.

 [*588]  This is the substance of the evidence on the part of the plaintiffs in support of the issues before the jury. We cannot fail to observe, that not a single witness is produced who questions in any manner the testamentary capacity of the testator. On the contrary, notwithstanding the feeble condition of his health, his tendency to fall asleep during conversation on matters of importance, his disposition to take a gloomy view of the value of his property, Mr. Norris thought his mind was sound, and that he was one of the shrewdest business men he ever knew. And Doctor Gittings, who never saw him until the summer of 1861, more than six months after the execution of the codicil of January 15th, was of opinion that he was competent even at that time to make a will, and would have attested the same. Not only this, there is not a single act of the testator during his whole life relied on as showing him to be of unsound mind, except the execution of the two codicils [**34]  in question.
In regard to the allegation of fraud and undue influence, there is not a particle of evidence to show the appellees ever advised, persuaded or even spoke to the testator about his will, or had any hand whatever in the execution of these codicils, much less that they were executed by him against his own will, in pursuance of a dominion exercised over him by these appellees, such as he was unable to resist.
But the argument is, that the evidence thus offered, shows the testator intended to make an equal distribution of his property among his children, and feared lest a bequest of fifty thousand dollars in trust for Isaac, might defeat that purpose; and it is contended that the evidence was sufficient to prove one or the other of the two following propositions:
1st. That the testator did not possess a rational knowledge of the amount and condition of his estate, and was destitute of the first element of capacity to deal with it by contract or will.

 [*589]  2d. That if he possessed capacity to understand and estimate his estate, he was deceived or imposed upon as to its value by some one.
This argument, however, cannot apply to the codicil of April [**35]  12th, for it did not affect the equality of distribution made by the will, but only authorized the trustees to withhold from Isaac during his life so much of the income of his fifth part as they might deem proper, the excess, if any, to be invested for his children, the caveators. There is no doubt the testator at this time intended to make an equal distribution of his property among his children, as he had said to Mr. Norris in the year previous, he should do, the only discrimination being that those who "knew how to take care of it he would leave free, and those who did not he would leave in trust." This intention is declared in express terms, both by the will and codicil of April 12th.
But it is equally clear, that at the time of the execution of the codicil of January 15th, 1861, this purpose no longer existed. We may not be able to state with certainty all the causes which led to this change in regard to Isaac and his family. It is evident, however, from the codicil of April 12th, that some intervening circumstances had increased the testator's distrust of the fitness of Isaac and his wife to use properly the income provided for them by the will of January 7th. The habits [**36]  of Isaac subsequent to this time, tended not only to increase this distrust, but taken in connection with the relations existing between his wife and the family of the testator, furnish, we think, a reasonable explanation of the causes operating upon the mind of the testator at the time of the execution of the codicil of January 15th, and which induced him to make a more limited provision for Isaac and his family.
As far back as 1854 Isaac was intemperate in his habits, although as late as 1859, his father, says Mr. Norris, still 

 [*590]  had hopes of his reformation. After his marriage, for the purpose of removing him from the temptations of a city life, his father purchased a valuable farm in Virginia, and there he went to live. His old habits, however, still clung to him; he soon became involved in debt, and we find him appealing to his father, through the appellees, for money to relieve him from his embarrassments. It finally became necessary to break up the home at Rosemont, and with the hope still of reformation, Isaac in May, 1859, was induced to go to sea. In May, 1860, he returned and took a house in Park street, but he soon fell again into his old habits of dissipation,  [**37]  and in the fall of that year he was obliged to give up that house. All efforts towards reclaiming him had thus proved unavailing. In addition to this, the friendly relations between his wife and his father's family, except the testator himself, had ceased as far back as the spring of 1860; and after that time she never visited the house of the testator. It was under these circumstances he went to Mr. Latrobe, his friend and attorney, for the purpose of having the codicil of January 15th prepared, and stated as reasons for revoking the provisions in the will, and codicil of April 12th, 1860, that Isaac's habits were such as he could not rely upon, and that the income from $ 50,000 was sufficient for the support of himself and family. There is nothing upon the face of the codicil itself, taken in connection with all the facts in the record, to show the testator intended at that time to make an equal distribution of his property, and feared lest the bequest therein might affect that purpose. He nowhere says in this codicil that the sum so bequeathed is an equal share of his estate. If his purpose was to make Isaac equal with the other children, there was no necessity for the execution [**38]  of the codicil because this purpose had been effected by the will and codicil of April 12th. He does say that in making the bequest he has had regard to an estimate of what his estate would probably 

 [*591]  authorize to be paid, having a due regard to the other members of his family. Not, however, that he intended by that estimate to put the bequest thus made on equality with the shares devised in his will to the other members of his family. The causes which led to the execution of this codicil, and to a more limited and unequal provision for Isaac and his family, we have heretofore considered. That the testator had the power to make this discrimination no one will deny, and whether it was just to exercise it against the caveators, was a question for him and not for us to determine.
Having bequeathed fifty thousand dollars in trust for Isaac, upon an estimate of the value of his property at that time, and for fear that this sum might affect the portions intended for the other members of his family, he authorizes his executors upon contingencies not expressed, but known as he says to them, to reduce the said bequest to a sum not less than twenty-five thousand dollars. What [**39]  was the contingency upon the happening of which the executors were authorized to exercise this power, it is impossible for us to say. It was suggested in argument that this codicil was executed on the verge of the late civil war. The letters written by the testator to his European correspondents about the time of its execution, show how fully he shared the fears and anxieties of all thoughtful men in regard to the then impending political troubles. In the event of war, no human sagacity could foresee its effects upon the value of property, and especially upon mines and mining privileges, in this a border State. But whether or not this was the contingency contemplated by the testator, the caveators have entirely failed to show he did not possess a rational knowledge of the amount and condition of his estate, and was therefore incompetent to deal with it by contract or will. On the contrary, they prove he was of sound mind, and a man of uncommon business sagacity.

 [*592]  In regard to fraud and undue influence, practised upon the testator, we have not been able to find any reasonable evidence in support of these allegations. The appellees, it is true, were partners in business [**40]  with the testator, and enjoyed to the fullest extent his confidence, and to which the record shows they were justly entitled. They knew, no doubt also, the value and condition of his estate, but there is no proof to show they ever interfered in any manner, either by advice, persuasion or importunity in the making of his will. Nor does it appear that their relations with the testator had any influence with him in the disposition of his property. His other children, Richard and Hannah, receive an equal share with the appellees under the will, and Isaac is the only one against whom a discrimination is made. In all the letters written by these appellees, in the years of 1858 and 1859, we have not been able to find a single unkind expression towards Isaac; they are full of affection, sympathy, advice, and hope of his reformation. And when the father is gone, and all are stricken with a common grief, the fact that the appellees are anxious to forget the past, and all causes which had interrupted friendly family relations with the mother of the caveators--that instead of $ 3,000, they in a spirit of generous affection allowed their brother Isaac and his family $ 7,000 to $ 9,000, cannot surely [**41]  be construed into an evidence of an unlawful participation in the will of their father, through which Isaac and his family were denied an equal share of the estate.
So, we say, admitting all the evidence offered on the part of the caveators to be true, and adding thereto every legitimate inference, it was not sufficient to warrant the jury, in the exercise of a reasonable intelligence, in finding any of the issues in favor of the plaintiffs. Not only is there an entire failure of evidence on their part, but the proof on the part of the defendants is perfectly conclusive on all the issues.

 [*593]  The codicils were prepared, says Mr. Latrobe, under the direct instructions of the testator, who was alone with him during the preparation of the draft--they were read to him, amendments made at his suggestion until they were satisfactory to him and then executed. The witness had no more doubt of the mental competency of the testator to make the codicils in question, than he had of his own mental competency. The testator had been in the habit of coming to the office of witness for a number of years, and continued as late as May, 1861. He talked about politics, condition of [**42]  the country, the Baltimore and Ohio Railroad Company and other topics of conversation, discussing all subjects with great intelligence. His health was feeble, but his mind clear.
Mr. Galloway Cheston had known him for many years; had repeated interviews with him as late as May, 1861; saw him in his counting room in April, 1861, his mind was perfectly clear, he was as rational as he ever had been, and even in business matters in which his sons were equally interested, his was the master mind. He was eminently a sagacious man, whose opinion he would have taken upon any monetary question.
Mr. Francis T. King says, he was an intimate friend of the testator, and their intercourse was frequent and familiar. So late as the spring of 1861, in conversing about matters of business, investment of money, purchase of property, and about making his will, he never discovered the least impairment of his mind. He was a man of culture, of reading, of determination, of great self-government, and thought and acted on all questions for himself. These characteristics remained with him to the end of his life.
Then they prove by Thomas W. Webster that he was clerk to the testator from early [**43]  in 1861 to the time of his death; that the testator was in the habit of coming to the office regularly until the latter part of June, 1861, when he 

 [*594]  went into the country; that he always looked into what was going on; the correspondence of the firm was carried on under his eye, he dictated to one of his sons or his clerk, it was then read to him and corrected by him, and when approved it was copied and handed to him to sign. His mind was perfectly unimpaired. Other witnesses corroborate this testimony. In such a case as this, whatever ground there may have been for ingenious argument and eloquent comment of counsel, there was no evidence legally sufficient, to warrant the jury in finding any of the issues in favor of the plaintiffs.
Entertaining these views it is unnecessary to consider whether the subsequent codicil of May 9th, 1861, and which was not caveated, operated as an alteration, adoption and republication of the will of January 9th, 1860, and of the codicils of April 12th, 1860, and January 15th, 1861.
Rulings affirmed. 

DISSENTBY:
BOWIE; STEWART 

DISSENT:

BOWIE, J., delivered the following dissenting opinion:
The last will and codicils of Isaac Tyson, Jr., were [**44]  probated in common form, in the Orphans' Court of Baltimore City, on the 29th of November, 1861, by his executors, James and Jesse Tyson, and the petition of the appellants, caveating the codicils of the 12th of April, 1860, and the 15th of January, 1861, was filed the 5th June, 1871.
On the 28th of August, 1871, plenary proceedings having been instituted by the appellants, the Orphans' Court directed several issues to be sent for trial, to the Superior Court of Baltimore.
These issues presented substantially the questions whether the papers dated the 12th of April, 1860, and 15th January, 1861, respectively, purporting to be codicils 

 [*595]  to the last will and testament of the deceased testator, or either of them, was procured by fraud, misrepresentation, undue influence or other devices which he was then too weak to resist, etc.
At the trial in the Superior Court, a verdict was found for the defendants, after a series of prayers submitted respectively by the caveators, and caveatees; those of the former being refused, and those of the latter granted; to which action of the Court below the appellants excepted and prayed an appeal. The instructions granted at the instance [**45]  of the appellees, among other propositions declared, that there was no evidence in the cause, that the testator executed the paper writings of the 12th of April, 1860, and of the 15th of January, 1861, purporting to be codicils to his last will and testament, under the influence of suggestions, importunities, or misrepresentations, when his mind from its enfeebled state, was unable to resist the same, and that the jury must find for the defendants on the second and fifth issues.
That there was no evidence in the cause, that the said paper writings were procured by undue influence, fraudulent devices, importunities, misrepresentations and deceits, practised upon the testator, which under the circumstances, did not leave him free in the disposition of his estate, and that the jury must find for the defendants on the third and sixth issues.
Among the propositions submitted by the appellants and rejected by the Court were the following:
1. If the jury should find from the evidence, that in executing the codicil of the 15th January, 1861, the testator was influenced by an estimate of his estate, such as no rational mind would have made in view of the actual value of his estate, as shown [**46]  by the evidence, the jury might find that he did not at the date of said codicil possess testamentary capacity, and so finding, their verdict should be for the caveators on the fourth issue, notwithstanding 

 [*596]  they might find that the testator, as to all other matters, was sane and rational and capable of making a valid deed or contract. And in ascertaining whether said alleged codicil was executed under the influence of such an estimate, the jury might consider the codicil itself, the original will and first codicil, and the proof offered as to the actual amount and value of the estate of the testator, and all the other facts and circumstances of the case.
2. If the jury believed the alleged codicil of the 15th of January 1861, was executed by the testator under the influence of an estimate of his estate, and at that time, and before, by reason of age and infirmities was unable to manage his property without the assistance of his executors, who in consequence of his debility, had been entrusted with the management of his estate, so as to enable them to know its real amount and value; and the testator so confided in them, that at the time of executing the said codicil, they [**47]  possessed influence over him, and that the estimate of his estate, under the influence of which he executed said codicil, was false and inconsistent with its actual value, and the said executors derived advantage from the execution of the said codicil, and were aware that the testator in making the codicil was influenced by such false estimate, then, unless the jury believed the said executors informed the testator, the said estimate was erroneous, the jury might find the said codicil was obtained by fraud, notwithstanding they might believe the testator was of sound mind and capable of making a valid deed or contract. And in ascertaining whether the testator was influenced to make said codicil by a false estimate of the value of his estate, the jury might consider the original will and the first and second codicils, in connection with the other testimony in the case.
3. If the jury believed that the testator was induced to make the codicil of the 12th of April, 1860, by belief in 

 [*597]  the truth of the reports as to the conduct of the mother of the caveators, and such reports were calculated to prejudice his mind against her, and the defendants by their influence over him induced [**48]  him to believe said reports, and withheld all social intercourse with her, pretending to believe said reports as long as the testator lived, and after his death, renewed their intercourse, declaring they had not believed them, the jury might find the codicil of the 12th of April, 1860, was obtained by fraud and undue influence, etc.
5. That there was evidence on the face of the codicil of January 15th, 1861, from which the jury might find, that the executors at the time of its execution, were aware the testator made the same on the basis of an estimate of his estate, and that the said estimate, and the effect which it would have upon the disposition of the estate of the testator, by the codicil, was also known to the executors at the time of its execution.
The last prayer was rejected "as unnecessary to be passed upon by the Court, seeing that the Court has already determined by the granting of the caveatees' prayers, that there is no sufficient evidence upon which they can find for the plaintiffs--the caveators. A synopsis of the evidence offered by the caveators to support the issues, on their part, is necessary to enable us to judge of the correctness of the propositions submitted [**49]  in their prayers and of the propriety of the action of the Court, in rejecting them and granting the instructions given by it, in favor of the caveatees. The evidence embodied in the bills of exceptions consists of written documents, letters, and oral testimony, too voluminous to be repeated, but its substance will be condensed as far as practicable in illustration of these views. Evidence was offered by the caveators, tending to prove that the testator was a gentleman far advanced in age, as far back as 1856 or 1857, in very bad health, tremulous, and palsied; in consequence 

 [*598]  of which extreme ill health, his sons, Jesse and James, had taken hold of his business.
His estate at the date of his will, 7th January, 1860, was worth nearly $ 800,000.
His family consisted of a wife, a daughter and four sons, Jesse Tyson, Isaac Tyson, called Isaac the 3d, James W. Tyson and Richard W. Tyson.
Isaac Tyson the 3d, was married and had two children living at the death of the testator.
In a conversation in 1859, with a witness, he said that he thought that such of his children as knew how to take care of their property, he would leave them their part free, but that the others he would [**50]  leave in trust, and that nothing could induce him to make any other difference between his children; that he did not think a parent had any right to make any other distribution than this between his children; that testator was the most affectionate of parents.
At this time, the habits of Isaac Tyson, the 3d, were bad. His father seemed to have more affection for him than for any other of his children.
He knew his habits when he stated his views of his duty to his children, and the habits had at that time been for some years as bad as they could be. He spoke of his affection for Isaac's children and seemed to be more interested in them on account of the father's habits.
Isaac Tyson, the 3d, had become deeply embarrassed from improvidence or other causes. His family and himself were supported by his father. His household establishment in Virginia was broken up; he was induced to go to sea, (according to the evidence of the caveators) by the influence of his mother and brothers, against the wishes and advice of his father, and his wife and children boarded in Baltimore.
In this state of affairs, the testator, shortly before the date of his will, (the 7th of January, 1860,) called [**51]  on his 

 [*599]  counsel, and told him he wanted him to draw his will. "He brought to the witness, a will which had been drawn for the testator by Mr. Talbott, of the firm of Dobbin & Talbott.
He said he wanted a shorter and less technical will, and witness accordingly drew a shorter paper in more familiar language. The testator's counsel testified that the testator had frequently talked to him of making a new will, but had done nothing towards carrying that purpose into effect, until he came to the office of the witness, bringing with him a draft of the will made by Mr. Talbott. He objected to the technical language of that will, and witness therefore expressed the same ideas in his own language. There was no alteration in the substance.
The will of the 7th January, 1860, modelled on one previously drawn by Mr. Talbott was then executed.
This will, after making provision for his wife, devised to his three sons, Richard, Jesse and James, as trustees, in trust for his daughter, Mrs. H. A. Morris, twenty-five thousand dollars. To his sons, Richard, Jesse and James, $ 25,000 each.
After reciting that he had been engaged in partnership with his son Jesse in carrying on chrome [**52]  works, and investing his executors with discretionary powers to continue the same, providing compensation to them for such services, he devised to the trustees in fee the residuum of his estate to be divided into five equal parts, and held in trust as follows: one-fifth in trust for Mrs. Hannah A. Morris, for her sole and separate use; one-fifth in trust for Richard W. Tyson; one-fifth in trust for Jesse Tyson; one-fifth in trust for James W. Tyson; one-fifth in trust for his son Isaac Tyson, the 3d, for life, he to take and receipt for the income thereof only, but without power of anticipation or involuntary alienation; should he die without child, children or descendants, the said one-fifth to go to the brothers and sister of Isaac; should he leave 

 [*600]  a child or children, the said fifth to go to said child or children, and should all of the children of said Isaac die without descendants, the said fifth to go to the brothers and sisters of the said Isaac, "per stirpes," and not "per capita;" the said fifth in whosoever hands it might be, to be subject to an annuity of $ 1,200, payable to the widow of said Isaac, during her widowhood. The will further directed that [**53]  all sums charged against his sons and daughter in his books, at his death, and all moneys for which he might be responsible on their account at that time, should be charged against their respective legacies and portions of his estate, by his executors.
About four months after the execution of the will, without any ostensible reason or apparent change in the conduct or condition of the devisees, the codicil of the 12th of April, 1860, was executed.
This codicil revoked so much of the will as relates to the payments therein directed to be made to his son Isaac Tyson the 3d, and his wife, in the event of his dying before her, and directs the trustees to pay Isaac only so much of the income as in their judgment may be proper in view of all the circumstances, and instead of $ 1,200 to his wife, if she survived him, to pay her only such part as they may think proper; the excess of the income to be held in trust for the benefit of Isaac, and the excess of the allowance to his wife to be held in trust for the benefit of the children of said Isaac.
The codicil of the 15th of January, 1861, was next executed.
It declares that its provisions in regard to his son Isaac Tyson the 3d,  [**54]  his wife and children, shall be substituted in lieu of the provisions made for them in his last will and testament, which are thereby revoked and annulled. By this codicil the testator bequeathed $ 50,000 to his executors, etc., in trust, to be invested by them in their discretion, in securities producing income, and held for the following purposes:

 [*601]  1st. In trust during the life of his son Isaac, to expend the income thereof, in their discretion as to time, manner and objects of expenditure, for the maintenance of said Isaac and his family, and the education of his children.
2dly. At the death of said Isaac, the sum of $ 50,000 shall be held by his executors in two sums of $ 40,000 and $ 10,000, respectively. So much of the income of the sum of $ 40,000, as may be allowed for the purpose by the Orphans' Court of Baltimore city, to be paid to the guardian of the children of said Isaac, living at the time of his death, for their education and maintenance; the surplus to be invested for the benefit of the children.
3dly. At the death of his son Isaac the income of the sum $ 10,000 to be paid to his widow, so long as she remains sole, and on her death or marriage, the [**55]  principal to be added to the fund of $ 40,000, for the benefit of the children.
It was further provided, should Isaac survive his children, then on his death and that of his widow, the sums of $ 40,000 and $ 10,000 above devised should become a part of the residuum of his estate, and divided as already provided, except that the residuum should be divided into four parts and not five, the codicil being intended to provide for his son Isaac, as aforesaid, "who under my original will was to receive a fifth part of the residuum."
The codicil concludes with this remarkable clause: "In the bequest here made by me, I have had regard to an estimate, according to my best judgment, of what my estate will probably authorize to be paid, having a due regard to other members of my family. But inasmuch as it may so happen that such a division would not accomplish my wishes in this connection, and whereas my executors are fully informed of my will in this respect, I hereby authorize them to diminish at their pleasure, the above sum of $ 50,000 during the life time of Isaac the 3d, so as not to reduce it below $ 25,000; and the above mentioned sum of $ 40,000, after his death, so as not to reduce [**56]  

 [*602]  it below $ 20,000, and the said sum of $ 10,000, so as not to reduce it below the sum of $ 5,000. It being understood that the sum of $ 50,000 includes as well the sum of $ 40,000, as said sum of $ 10,000."
The third and last codicil, dated the 9th of May, 1861, declares that having by his will appointed certain duties to be performed by trustees, and being satisfied his will would be simplified by making the same persons executors and trustees, he directs that the executors named in his will, shall be also trustees, and invested with all the powers conferred on the trustees, his purpose being to concentrate in his executors the powers and duties in his will and codicil divided between the executors and trustees.
The counsel of the deceased, who drafted the will and codicils, testified that when he prepared the codicil of the 15th January, 1861, the habits of Isaac Tyson, the son, were referred to by the testator as a reason for making that codicil. The consequences to ensue from making it were never a subject of discussion. They never talked about the effect the codicil would have on the children of his son Isaac.
It was further in evidence on the part of the appellants [**57]  that Isaac Tyson, the 3d, was sent to sea in the year 1859, by the conjoint advice and influence of Jesse and James Tyson and their mother, contrary to the wishes of their father, and that the wife and children of Isaac Tyson the 3d, came to Baltimore, and were established at a boarding-house; that James and Jesse wanted the wife to go to the country-seat of their father, and occupy the overseer's house, whilst their father wished her to occupy the farmhouse.
Soon after her arrival in Baltimore a misunderstanding arose between James and Jesse and their families, and the wife of Isaac the third, the mother of the appellants, in consequence of certain defamatory rumors uttered 

 [*603]  against her, and a non-intercourse ensued, but the testator visited her privately, and desired her not to mention his visits to his sons or his wife.
The testator continued affectionate in his manner toward the wife of Isaac, and expressed his solicitude for her husband and her children.
During the residence of the wife of Isaac Tyson the 3d, at this boarding-house, her husband returned from sea, but did not visit her for sometime, and an attempt was made by one of the executors, and her husband,  [**58]  to take her children from her and carry them away.
During this estrangement between the sons and executors of the testator, and the wife of Isaac Tyson the 3d, the codicil of the 12th April, 1860, was executed, whereby the provisions of the will giving annually to Isaac Tyson, the 3d, during his life, the whole amount of the profits accruing to him from his portion of the testator's estate, and also to Fannie Tyson, wife of said Isaac, in the event of his death, twelve hundred dollars, as an annuity to be paid to her during her widowhood, was revoked, and the executors were directed to pay to Isaac Tyson the 3d, so much only of the income of his fifth part of the estate as in their judgment might be proper in view of all the circumstances, and in lieu of $ 1,200 to be paid to his wife, should she survive him, to pay to her, in their discretion only such part, if any thereof, as they might think proper.
An experienced physician, who visited the testator, in the summer of 1861 professionally, as many as thirty times, deposed that the testator's general health was very feeble; he seemed to be affected with softening of the posterior part of the brain, which in his opinion was [**59]  of some years standing. It was the strongest case of the kind the witness had ever seen; he had a history of the case from Dr. Norris, and knew that it had been coming on for several years.

 [*604]  That one of the first symptoms of such a disease as the testator had, is often seen in its effect upon the mind of the patient, in producing or confirming morbid feelings and impressions as to persons and things.
The witness said he saw nothing in his conversations with the testator which would have induced him to suppose his mind was impaired in such a way as to render him incompetent to make a will. The effect of his disease on the nerves and muscles need not have affected his mental powers.
"Being asked the hypothetical question, that if he had known at the time he saw him, that the testator was a very wealthy man, and that his estate was sufficient to pay the sum of $ 50,000, without being seriously impaired, and that the testator's estimate of its value was such as to make him apprehend that such a sum or a less one could not be paid from it to one of his children without endangering a due provision for the other four, would he have attested his will? The witness answered, no;  [**60]  he would have considered him crazy, and that he had not a reasonable knowledge and opinion as to his estate."
The appellants gave in evidence the list of debts returned by the executors 22d October, 1862, showing sperate debts to the amount of $ 459,801.40; doubtful debts, $ 40,182.65.
Among the debts in the schedule of the sperate, due by the children of the testator, were,

________________________________________________________________________________

Jesse Tyson	$ 13,092.84.	
Jas. W. Tyson	132,505.77.	
Jesse Tyson & Co	162,146.12.	
________________________________________________________________________________

Among the debts reported doubtful was

________________________________________________________________________________

Isaac Tyson	$ 28,340.84.	
________________________________________________________________________________

The caveators, assuming they had shown by sufficient evidence that the testator, being of sound mind and memory, and capable of disposing of his estate by last will, 

 [*605]  had made a will in conformity with previous declarations of his intention, and natural love and affection, providing for an improvident son, and his family, then knowing all the infirmities of the prodigal, and anxiously protecting him, and his wife and children, by creating a trust in their behalf; that three months thereafter, whilst the son was at sea, without any provocation on his part, the dispositions of the will providing for the son and his wife, during [**61]  their joint lives, and the widowhood of the wife in case she survived, were revoked, and their allowance reduced to such sum as the caveatees in their discretion should allow; that the caveatees at this time were not on visiting terms with the mother of the caveators; that by the operation of the second codicil, made evidently with the privity of the caveatees, the testator under an apprehension that his estate, "having regard to the other members of his family," would not warrant a more liberal provision, reduced the share of Isaac Tyson the 3d, and his children, from one-fifth of the residuum of his estate to $ 50,000, with an authority to the executors to reduce it to $ 25,000; the residuum of his estate being divided by the same instrument into four parts instead of five; and the portion of the caveatees thereby increased; that this codicil was evidently made under a morbid misapprehension of his own circumstances, with the knowledge of the caveatees. That the estate of the testator was worth nearly a million of dollars; and the caveatees were its principal debtors. That all the changes made in the original will, enured to their benefit and advantage, and the ostensible reasons [**62]  for them were unreal or delusions. That the testator during this time was extremely aged, palsied and dependent in a great measure, physically as well as mentally, on the caveatees for the management of his affairs, contended that from these premises it necessarily resulted that the codicils of the 12th April, 1860, and the 15th of January, 1861, were the productions of a non 

 [*606]  sane mind, or of a weak and morbid intellect, moulded by influences, and controlled by agents, it was too feeble to resist.
The prayers of the caveators presented the affirmative of these propositions, and those of the caveatees the negative, with some particular exceptions; the general effect of the whole being as stated in the record that the Court determined by granting the caveatees' prayers, that there was no sufficient evidence upon which the jury could find for the plaintiffs, the caveators.
The effect of these prayers was to withdraw the facts from the consideration of the jury, and submit to the Court the question, whether, conceding all that had been offered in evidence on the part of the caveators to be true, and all inferences reasonably deducible from them, they were sufficient in law [**63]  to support any of the issues in favor of the caveators. In other words, the prayers were demurrers to the evidence, and subject to the same rules and limitations, and can only be proper where the demurrer to evidence would be. As to the latter, the following principles are established:
"If the plaintiff or defendant give in evidence matter of record or parol evidence on which a doubt in law arises, the other side may demur to the evidence; otherwise if there be a doubt whether the fact be well proved, for the jury may find it on their own knowledge. 2 Stephens N. P. Tit. Evid., 1792; Buller N. P., 312, (a;) Coke Litt., 72, (a.)
"In Wright vs. Pindar, Aleyn. 18, it was resolved, 'that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the Court; and if the matter of fact be uncertainly alleged, or that it be doubtful, whether it be true or no, because offered to be proved only by presumptions and probabilities, and the other party will demur thereupon, he that alleges this matter cannot join in 

 [*607]  demurrer with him, but ought to pray judgment of the Court, that he may not [**64]  be admitted to his demurrer, unless he will confess the matter of fact to be true." 2 Stephens' N. P., 1793.
The books also agree that if parol evidence be offered, and the adverse party demur, he who offers the evidence may join in the demurrer if he will. But the language of the old books is very indistinct upon the question whether the party offering the parol evidence shall be obliged to join in the demurrer. Tidd's Prac., 866; Stephens' N. P. supra.
On demurrer to circumstantial evidence the party offering the evidence is not obliged to join in demurrer, unless the party demurring will distinctly admit upon the record every fact and every conclusion which the evidence offered conduces to prove. Gibson vs. Hunter, 2 H. Black. 187; 6 Bro. P. C. 255, cited by Stephens.
"On the demurrer to evidence, the only question for the consideration of the Court is, whether the evidence given be such as ought to be left to the jury in support of the issues joined; and no objection can be made to the declaration or other pleadings in that stage of the cause; for the party ought to admit the whole effect of the evidence, and not merely the [**65]  facts which compose it; so that, if it be only presumptive, he must distinctly admit every conclusion, which the jury might have drawn from it." 2 Hen. Black. 187, cited in 2 Stephens' N. P., 1793.
The jealous regard for the maxim of the common law, "ad questiones facti respondent juratores," shown by the preceding authorities, upon demurrers to evidence, is indirectly, if not so emphatically expressed, in the decisions of this Court, as to the circumstances under which they feel authorized to withdraw the facts from the consideration of the jury, and the concessions to be made by the party asking the Court to declare the law upon the facts given in evidence.

 [*608]  In Davis vs. Davis, 7 H. & J. 36, this Court declared: "Wherever the testimony adduced by a plaintiff, is so light and inconclusive, that no rational, well-constructed mind can infer from it the fact which it is offered to establish, it is the duty of the Court, when applied to for that purpose, to instruct the jury there is no evidence before them to warrant their finding the fact thus attempted to be proved."
In Cole vs. Hebb, 7 G. & J. 20, this Court referring to the [**66]  same subject, define their duty thus:
"An issue is made up of one or many facts according to circumstances; and where the evidence does not establish all the facts, either directly or by rational deductions, as where there is a failure of evidence in respect of any one material fact involved in the issue, in such case, the evidence is not legally sufficient to warrant the jury in finding the issue which it is offered to sustain, and it is the duty of the Court to instruct them accordingly."
In the earlier case of McElderry vs. Flannagan, the following propositions, were announced: "The jury alone are competent to decide on facts of which contradictory evidence may be offered. Before the Court can legally give an absolute instruction to the jury on the prayer of one of the parties, they must admit the truth of the testimony offered by the other, and that also offered by the first, which may operate in his opponent's favor, and the existence of all material facts which a rational mind can deduce therefrom, even though contradicted in every particular by the testimony of him who seeks the instruction. Upon no other principle can the cause be withdrawn from the consideration [**67]  of the jury." 1 H. & G. 308.
In Ferguson vs. Tucker, 2 H. & G. 182, the Court defines the power to instruct the jury in these very forcible terms: "The prerogative of the Court which authorizes them to withdraw from the jury, the consideration of the facts, is never exercised but in cases where the 

 [*609]  evidence is so indefinite and unsatisfactory, that nothing but wild, irrational conjecture, and licentious speculation, could induce a jury to pronounce the verdict which is sought at their hands." See also Gray vs. Cook, 12 G. & J. 236.
The conditions on which Courts of law in this State, exercise what is called their prerogative, to withdraw the facts from the consideration of the jury are, it would appear from the foregoing decisions, and many others that might be cited, the same that govern the Courts of England upon demurrers to evidence viz: Every fact, and every rational inference from the facts proved by the party offering the evidence, must be conceded to be true, without reference to the opposing testimony, and the evidence must be so light and inconclusive that nothing but licentious speculation could induce [**68]  a jury to pronounce the verdict sought for.
We have seen that in England, where the issue is to be supported by circumstantial evidence or presumptions, the party offering the evidence could not be compelled to join in the demurrer to evidence.
Because the demurrer would only lie where the facts were ascertained, or certain, or there was a fixed standard to be appealed to, to determine their sufficiency to establish the issue to be proved. The Court would not undertake to draw inferences from facts.
From the principles on which demurrers to evidence, or instructions to juries that the evidence is not sufficient, are founded, the fact or issue to be found, must be one of a certain defined character, the constituent elements of the proof of which, are established and defined by law. In the case of the Mayor and City Council of Baltimore vs. Williams, speaking of a prayer asking the Court to instruct the jury that if they believed certain facts, then the deed was void for fraud, this Court said, "This prayer has been resisted, upon the ground that there is 

 [*610]  no evidence to support it. We are not now sitting as a Court of Equity, to decide whether the evidence or circumstances [**69]  relied upon by the appellees can be sufficient to establish the allegation of fraud, and consequently we are not called upon to say whether there is proof enough for that purpose. But the instruction asks a Court of law to submit a question of fraud to the jury; and although we might believe the evidence not strong enough to require the jury to find the fraud, yet if there is any evidence legally tending to prove it, such a prayer could not properly be rejected. 6 Md. 235, 267. In the leading case of Davis vs. Calvert, 5 G. & J. 269, this Court referring to questions then before them, on issues and prayers very similar, held this language: "There is no question before us relating to the construction of the will. Nor is it a question before this Court, whether the evidence offered, if true, would be sufficient to sustain the issues on the part of the appellants. That is not a subject for consideration on this appeal. All that we are called upon to do, and can legitimately do, is to decide upon the competency of that evidence and the correctness of the instructions given to the jury."
Adverting to the issue of fraud, and the testimony necessary [**70]  to support it, they thus announce the law. "Fraud vitiates every thing with which it is connected. A will or testament obtained by fraud is void, and though fraud is never to be presumed, yet it is not necessary to prove it by positive and direct testimony. But being usually wrapt up in mystery, if well concerted, it is generally by circumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue, and not wholly irrelevant, may be admitted. But the circumstances when combined and considered by the jury, should be so strong as to satisfy them of 

 [*611]  the existence of the fact, they are offered to establish." **** "In short no competent means of ascertaining the truth ought to be rejected; and all the surrounding facts of a transaction that can be established by competent evidence may be submitted to a jury who are the judges of their force and effect. Applying these principles of law, and rules of evidence to the present case, the testimony offered at the trial on the part of the appellant and rejected by the [**71]  Court, should have been suffered to go to the jury as evidence of facts relevant to, and tending to prove the issues."
The remarks above cited, as their context implies, were made upon the rejection of certain items of evidence in the progress of the trial, but if the law requires every circumstance tending to prove the issue, however slight to be submitted to the jury, does it authorize the whole evidence, when collected, to be withdrawn from their consideration, by an instruction, in the nature of a demurrer to evidence, declaring there is no evidence to support issues, (involving an infinite variety of facts and inferences) but the jury must find for one or the other of the parties to the cause? What difference in effect, upon the right of trial by jury, is there between rejecting the evidence in mass, after the testimony has been closed, and rejecting it in detail, as the trial progresses? The several items of evidence, could only have been admitted upon the presumption they tended to prove some of the issues joined, and when collected, they could not be of less weight. Their admission presupposes their competency in law; their sufficiency in fact, is a question exclusively [**72]  for the jury.
Conceding that where an issue is made up of one, or many facts, according to circumstances, and the evidence does not establish all the facts, either directly or by rational deductions, as where there is a failure of evidence in respect of any one of the material facts involved in the 

 [*612]  issue; in such case, the evidence is not legally sufficient to warrant the jury in finding the issue which it is offered to sustain, and it is the duty of the Court to instruct them accordingly, yet where the issues are to be sustained by inferences from facts to be found by the jury, by circumstances chiefly, and inductions of particulars, it is clear we think, the facts can no more be withdrawn from the consideration of a jury, by a prayer or instruction, than by a demurrer to evidence, which it is shown by authorities, cannot be had in such circumstances.
The power can only be exercised, without infringing on the province of the jury, where the measure and quantity of proof are established by law.
Fraud and undue influence, are facts to be deduced from an infinite, undefined and undefinable variety of circumstances, which the Courts have refused to limit and prescribe,  [**73]  lest the ingenuity of evil, might assume other shapes to avoid the ban of the law, and escape its vigilance. The legal maxim "Dolus crescit in orbe" denotes its prevalence, and under whatever mask it may appear, its devices, however specious, are defeated.
This Court has recently in a series of much litigated cases on the subject of negligence laid down very clearly the principle which should control the Court, in my judgment, upon application, for instructions to the jury on the legal effect of evidence.
In the case of the Balto. & Ohio R. R. vs. The State use of Dougherty, 36 Md. 366, 377, the defendants endeavored to procure a prayer from the Court, instructing the jury what constituted negligence; the plaintiffs resisted the prayer on the ground that negligence was a fact for the consideration of the jury. Quoting from preceding decisions 21 Md. 275, 24 Md., 53, for the general proposition that what constitutes negligence was properly referred to the jury, they proceed: "Negligence, in a case like this, is not so much a question of law, as it is a question of fact, depending 

 [*613]  for its determination upon a consideration of [**74]  all the attending facts and circumstances in connection with the ordinary habits, conduct and motives of men. For the trial and determination of such a question a jury of experienced and intelligent men are peculiarly adapted."
"It is very true, negligence may in many cases become a question of law, to be determined by the Court, upon a given state of facts, either admitted or to be found by the jury."
"It is not, however, the duty of the Court te draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury, that Courts should ever be careful not to invade." 29 Md. 420.
Fraud is not be considered as a single fact, but a conclusion to be drawn from all the circumstances of the case. Brogden vs. Walker, 2 H. & J. 285, per Hanson Ch.; 6 H. & J. 435, 442; Davis vs. Calvert, 5 G. & J. 269.
A plea of fraud, at law or in equity, never sets out the facts and circumstances which constitute the fraud. A demurrer could not be filed to such a plea, because there is no legal standard of what amounts to fraud. For the same reason a demurrer to the evidence could not be sustained if there [**75]  is a particle of testimony tending to prove it.
It may not be unworthy of consideration that the issues in this case, were sent from the Orphans' Court, under a statutory provision, intended to secure to suitors in that Court, the right of trial by jury in all cases in which issues of fact arise.
The law never designed that the trial of facts should be transferred from the judges of the Orphans' Court to the judges of the Courts of law, but to engraft upon the limited jurisdiction of the former, the trial by jury, that suitors might have the protection and benefit of that mode of ascertaining facts, and the Orphans' Court be aided and assisted by the verdict.

 [*614]  It is true that on the trial of issues from the Orphans' Court, the Circuit Courts are invested with the same powers, as in trials by jury originating in those Courts, yet the policy of the law would seem to dictate that a greater latitude should be allowed in issues involving the investigation of an infinite variety of facts, and incapable of being reduced to any single fact or ascertained state of facts, than in Courts of law.
STEWART, J., delivered the following dissenting opinion:
In addition to the reasons [**76]  urged by my brother BOWIE, in his dissenting opinion, in which I fully concur, there are other considerations, which weigh with me, looking to the relative duties of the Court and jury; and the right of litigants, under our system of jurisprudence, to claim as matter of strict law the benefit of a trial by jury.
Suggestions as to the feelings and prejudices of juries, and the supposed greater freedom from such influences on the part of the Court, have no application to the determination of the question. Its solution is solely dependent upon its constitutional and legal bearing.
It is a maxim of the common law, that it is the province of the Court to determine questions of law in the trial of causes, and of the jury to weigh and consider the import and bearing of facts.
Under our present Constitution, the parties litigant may refer both duties to the Court, but without their mutual consent, neither party can be deprived of his right of trial by jury.
Some question had perplexed the Court as to the proper application of the relative duties of the Court and jury in criminal proceedings; but that was set at rest by the constitutional provision that in criminal cases the jury were to [**77]  be judges of the law as well as of the fact.
Under our testamentary system, issues may be framed, to be sent by the Orphans' Court to a Court of law for trial by jury.

 [*615]  All these provisions show how carefully the rights of parties in regard to the respective position of Court and jury, were intended to be secured.
It is manifest that where issues of fact are involved, and the right of a party to a trial by jury is insisted upon; to justify the Court in the exercise of its prerogative, in withdrawing the consideration of the evidence from the jury, when it is competent and admissible, and tends to establish the issue it seeks; the case should be so barren of proof as to leave no room for doubt or hesitation upon the subject; and if, upon such facts, a jury uninstructed should find a verdict, the Court would instantaneously set it aside.
Without meaning to intimate what effect the testimony on the part of the caveators should have had upon the minds of the jury, it certainly occurs to me that if it had been submitted to the jury, without instruction from the Court, and they had found for the caveators upon certain of the issues; it is not such a case, as would have [**78]  authorized the Court upon that ground to have granted a new trial.
In Davis vs. Barney, 2 G. & J. 382, it is announced as the general rule, that where there is any legal admissible evidence, tending to prove the issue, the effect of that evidence is solely for the consideration of the jury.
The Court say, "there seems to be an impression that this Court has held the measure and quantity of proof to be a question of law, and the case of Davis vs. Davis, 7 H. & J. 36, is relied upon in support of such doctrine."
"We, by no means mean to shake the authority of that case, but think it has been misunderstood."
"When there is no evidence applicable to the issue, or tending to prove any material fact, a total failure of evidence, the Court will direct the jury accordingly; and that we conceive to be the doctrine of Davis vs. Davis."
"The expressions used are intended to be applicable to the facts of that case; and so applied they are not opposed 

 [*616]  to the principle here asserted, that if there be any evidence tending to the proof of the issue, however weak, it ought to be submitted to the consideration of the jury."
In Ferguson vs. Tucker, 2 H. & G. 182, [**79]  the same doctrine is reiterated; and it is emphatically stated that it by no means follows, even if the verdict would not be satisfactory to the minds of the Court, that they would feel themselves authorized to withdraw from the jury the consideration of the facts--this prerogative of the Court is never exercised, but in cases where the evidence is so indefinite and unsatisfactory, that nothing but wild, irrational conjecture, or licentious speculation, could induce a jury to pronounce the verdict, which is sought at their hands?
In the case of Cole vs. Hebb, 7 G. & J. 20, in which the antecedent cases are reviewed, and the doctrine of Davis vs. Barney, explained, the conclusion of the Court appears to have resulted in the announcement that evidence offered to a jury, has a two fold sufficiency--a sufficiency in law and a sufficiency in fact--its sufficiency in law is for the Court--its sufficiency in fact is a question exclusively for the jury--if, upon the ordinary principles of human judgment, a rational mind could draw from the proof the conclusions sought to be proved by it, then is its legal sufficiency established; and it must be submitted to the [**80]  jury, who only are the judges of its sufficiency in point of fact.
"Whether the testimony be weak or strong; conclusive or inconclusive; sufficient or insufficient, to prove the facts or warrant the inferences, for the establishment of which it was offered, are questions for the exclusive cognizance of the jury."
As a fair and legitimate criterion of the relative duties of the Court and jury, in doubtful questions, as to the sufficiency of the proof in point of law; the Court further say, the testimony should never be withdrawn from the jury, whose province it is to decide upon its sufficiency in 

 [*617]  fact, except in such case, where the Court would instantaneously set aside any verdict founded on its assumed sufficiency. The Court, under such circumstances would have to conclude that the jury themselves were totally deficient in a sane comprehension of facts, and the effect of proof.
In the case of Green vs. Ford, 35 Md. 82, recognizing the granting or withholding a new trial, as a fair and sensible test as to the nature of the proof and its sufficiency, the Court re-assert the principle, "that however unsatisfactory it may have appeared to the mind [**81]  of the Court, yet if the jury could reasonably have reached a different conclusion, it should have been considered by them; the Court should not take the case from the consideration of the jury, unless the evidence is so trivial as to admit of no rational conclusion therefrom, applicable to the issue before them--if the Court would have refused a new trial, under such circumstances, it ought not to take the case from the consideration of the jury, upon the ground that no sufficient evidence had been introduced."
Certainly if the question is one of doubt, the Court should not hesitate to refer the facts to the jury.
The danger and difficulty in deciding upon the sufficiency of evidence as a matter of law, is that the province of the jury may be invaded, and the rights of litigants unjustly affected.
The tendency of all bodies now-a-days, it seems to me, is too much in the direction of the extension of their own powers; however conservative their inclinations; and this Court as the high and judicial resort in the State, should be careful, as I am sure it is, to guard against encroachment upon the province and rights of others.
Although the question now involved has been repeatedly [**82]  discussed, and much perplexity in the abstract, has been the result; yet it will be found, by reference to all the cases, that rarely has the prerogative of the Court been exercised; and according to my judgment this case 

 [*618]  cannot and ought not to be distinguished, as one where the evidence for the caveators is so trivial, that no sane mind could for a moment entertain a doubt upon the subject, and therefore withdrawn from the consideration of the jury.  

46 of 144 DOCUMENTS 

JOHN O. PRICE and others vs. ANNE NESBITT and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 618; 1873 Md. LEXIS 29 

February 22, 1873, Decided 

PRIOR HISTORY:
 [**1]  MOTION to quash execution for costs.

An action of ejectment instituted in the Circuit Court for Baltimore County, by the appellees, was, on their motion, by an order of Court passed on the 19th of April, 1863, removed to the Superior Court of Baltimore City. After the transmission of the record to the Superior Court, John O. Price, one of the defendants, on the 14th of September, 1863, filed a suggestion, supported by affidavit, that he could not have a fair and impartial trial in that Court, and asked that the cause might be removed "to any Circuit Court authorized by the Acts of Assembly." The plaintiff's lessors filed an answer resisting the application, and thereupon the Court passed an order overruling the suggestion of the defendant. On an appeal from this order, the same was reversed, and a procedendo awarded on the 25th of June, 1868. By direction of the appellants' attorney the Clerk of the Court of Appeals on the 16th of December, 1871, issued a fieri ficias to Baltimore County, for the costs of the appellants, which embraced the costs of the transcript of the record, the costs in the Court of Appeals, and the costs in the Court below. On the 20th of December, 1871, on [**2]  the petition of the appellees, an order was passed directing the sheriff of Baltimore County to return the aforesaid writ to the Court of Appeals. The writ was accordingly returned, and on the 20th of January, 1872, the appellees moved that the same be quashed, and filed reasons in support of the motion.  

DISPOSITION:
Motion to quash granted, for reasons stated.  

HEADNOTES:

Costs -- A void Fieri Facias -- When the Court of Appeals awards Costs to the Appellant, in both Courts -- When a Fieri Facias for Costs will be quashed.

An action of Ejectment instituted in the Circuit Court for Baltimore County, was at the instance of the plaintiff's lessors, removed to the Superior Court of Baltimore City, where a suggestion was made by one of the defendants, to remove the case to another Court for trial. This suggestion was overruled, and upon an appeal from the order overruling the suggestion, the order was reversed. HELD:

1st. That the only costs to which the appellants were entitled on the reversal, were those that were incident to, and had been occasioned by reason of the appeal, and not those that had previously accrued in the proceedings while pending and were being prosecuted in the inferior Courts.

2nd. That a fieri facias for costs, that embraced those that had been incurred by the appellants, both in the Circuit Court for Baltimore County, and in the Superior Court of Baltimore City, previous to the appeal, was to that extent void.

It is only where the judgment appealed from "upon the merits of the question between the parties, and not upon the form of proceeding" is reversed, that the Court of Appeals awards costs to the appellant, both in the appellate Court and in the Court below

A fieri facias issued for costs after the lapse of more than three years from the date of a judgment of reversal in the Court of Appeals, will on motion of the parties against whom it issued be quashed, the judgment not having been revived by scire facias.

Where a fieri facias for costs is improperly issued, the cost of the fieri facias itself and all costs incurred under it, must be borne by the party who directed the issuing of the writ.  

COUNSEL:
R. J. Gittings, A. W. Machen and Thomas Donaldson, for the motion.

Wm. J. Waterman, against the motion.  

JUDGES:
The motion to quash was submitted to BOWIE, BRENT, ALVEY and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*620]  ALVEY J., delivered the opinion of the Court.
The fi. fa. issued in this case for costs, at the instance of the appellants, must be quashed for two reasons:
1st. Because it embraces costs that were not recoverable, and were not awarded by this Court to the appellants, by the reversal of the order or judgment appealed from; and,
2nd. Because more than three years had elapsed from the date of the judgment, before the fi. fa. issued thereon.
1. As to the first of these reasons for quashing the writ, the appeal was taken from an order of the Superior Court of the City of Baltimore, overruling a suggestion made in [**3]  that Court by the appellants for a removal of the cause; (29 Md. 263,) and as none of the merits of the controversy were involved in the appeal, and were not decided by this Court, the only costs to which the appellants were entitled on the reversal were those that were incident to and had been occasioned by reason of the appeal, and not those that had previously accrued in the proceedings while pending and were being prosecuted in the Circiut Court for Baltimore County, and the Superior Court of Baltimore City. It is only where the judgment appealed from, "upon the merits of the question between the parties, and not upon the form of proceeding" is reversed, that this Court awards costs to the appellant, both in this Court and in the Court below. Act of 1785, chapter 80, sec. 6, codified in sec. 41 of Article 29 of the Code. As the fi. fa. that issued here embraces the costs that had been incurred by the appellants both in the Circuit Court for Baltimore County and the Superior Court of Baltimore 

 [*621]  City, previous to the appeal, to that extent the writ was without authority, and therefore void.
2. As to the second reason for quashing, it is plain that [**4]  the fi. fa. issued after the lapse of more than three years from the date of the judgment of reversal; and as it is for that reason voidable, the Court cannot do otherwise than quash it, on the motion of the parties against whom it issued. Miles vs. Knott, 12 Gill & John. 442.
As to the cost of the fi. fa. itself, and all costs incurred under it, as the appellants directed its issue, they must bear all such costs. This is the well settled rule upon the subject. Gurley vs. Lee, 11 Gill & John. 395; Gilmor vs. Brien, 1 Md. Ch. 40.
Motion to quash granted, for reasons stated. 

47 of 144 DOCUMENTS 

HENRIETTA BUMP and SAMUEL C. BUMP vs. JAMES B. SANNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 621; 1873 Md. LEXIS 30 

February 22, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Easement -- Way -- Alley -- Grant of use of an Alley enures to benefit of Grantee as Proprietor of contiguous ground -- Irrelevant Evidence.

B., a feme covert, was the leasehold owner for ninety-nine years, renewable forever, of a lot in Baltimore, extending back to a four foot alley, "with the use thereof in common;" the said alley having been laid off by an original lessor for the common use of four lots of which B's was the southernmost. S. the owner of the northernmost of the four lots, built a fence across the alley a few inches south of his northernmost line, whereupon B. and her husband brought suit against S., to recover damages for the obstruction. At the trial, S. offered evidence, which was excluded, to show that the husband of B. was the owner, under another lessor, of ground adjoining the four lots and the alley on the north. HELD:

1st. That the alley being a way appendant or easement appurtenant to the estate of B., its use, as such appurtenance, was to be enjoyed in a manner consistent with the use of S. and others claiming under the same lessor, and could be restricted only thereby.

2nd. That the grant of the use of the alley extended to the extreme northern line of the four lots, and therefore that the obstruction placed upon it by S. was an invasion of the legal rights of B. for which an action could be maintained.

3rd. That in such case the question of damages is exclusively for the jury.

4th. That the circumstance that the husband of B. was the owner of the contiguous property at the north-end of the alley, did not affect the rights of the parties in this suit, and evidence thereof was properly excluded.

5th. That the grant of the use of the alley included the right of entrance to or exit from the north as well as the south-end, if not obstructed by the adjoining proprietor. 

COUNSEL:
O. F. Bump, for the appellants.

The grant is not of a part of an alley, but of the whole alley. The use which is to be enjoyed under the grant is shown by the term "alley."

A way imports a passage across a field, and may be closed with gates. An alley imports an open passage. An alley may be used by the owners for all the purposes for which a public street is used by the public. In the character of use, an alley does not differ from a public street. The only difference between a private alley and a street is in the number of persons who are entitled to use them. Alleys are recognized as having a character of publicity, and are subject to municipal regulations. Code Public Local Laws, Art. 4, sec. 798.

This alley is appendant to an estate, and the lease does not designate or limit the purposes for which the estate may be used. The lease being for ninety-nine years renewable forever, it follows that the grantor intended to part with his possessory interest forever, and to let the grantee use the property, and change the [**2]  use from time to time at will.

The grant is general, and a general grant imports a use for all purposes. Washburn on Easements, 160; Warner vs. Green, Comyn., 114; Henning vs. Burnet, 8 Exch., 187; Cemetery Co. vs. Eden, 81 E. C. L., 42.

The construction of a grant is a question for the Court. Gale on Easements, 503; Williams vs. James, L. R., 2 C. P., 577.

There is a distinction between a grant and a prescription. Prescription is limited by the use, and a use to go to Whiteacre will not confer a right to continue on to Blackacre. It is different however with a grant. Gale on Easements, 501, (330;) Saunders vs. Mose, Rolle's Abr. Chemin, Private pl. 2; Ibid pl. 1

After the grant of a way, the fee remains in the grantor. The only rights of the grantee are those derived from his grant. Nearly all the English cases arose in contests between the grantor and grantee. Could the lessors in this case maintain an action of trespass against the lessee for passing along the alley to the land at the upper end? This is the test of the appellants' rights.

A wall cannot be erected across the terminus. Goddard on Easements, 4; Phillips vs. Treeby, 3 Giff., 632; 8 Jur. N. S.  [**3]  , 711, 999.

The right of the plaintiff, and the erection of the obstructions are the only points in controversy. The evidence excepted to had no bearing on those points.

The question in regard to the infringement of the plaintiff's rights should at all events have been left to the jury. Hawkins vs. Carbines, 3 H. & N., 914; Skull vs. Glenister, 111 E. C. L., 81; Cowling vs. Hugginson, 4 M. & W., 245.

Michael A. Mullin, for the appellee.

The evidence excepted to was admissible to show the animus of the parties and affect the measure of damages. Zimmerman vs. Hesler, 32 Md., 277.

It was admissible to show the real object of the action, to prove that the alleged disturbance was no more than a justifiable stoppage on the part of Sanner to an improper use of the alley for the purposes of Samuel C. Bump's lot under cover of his wife's title. Goddard on Easements, 229, 230.

The plaintiff to maintain her action must show, first, that she had a right of way at the point of obstruction, and secondly, that she was obstructed in such right by the act of the defendant. She does not claim a way in gross. From the averments in the declaration and the proof, she claimed [**4]  the use of the four foot alley in common.

The plaintiff's case rests on the theory that Mrs. Bump was entitled to the use of said alley to the last inch; the defendant contends that he is not responsible in damages to her unless he has obstructed her in the convenient enjoyment of the alley for any useful or proper purpose for which it might be used, as appurtenant to her lot. There was no evidence whatever to show for what useful or proper purpose incident to the occupation or ownership of her lot, the alley could be used at the place where the fence was erected. It was as near as practicable to the end of the alley where there was no exit whatever.

The only use of the alley in which the plaintiff was obstructed by the action of the defendant was going to and from the lot leased by her husband, and to such use she was not entitled under her lease. Howell vs. King, 1 Mod., 190; Lawton vs. Ward, 1 Ld. Raym., 75; Skull vs. Glenister, 16 C. B., N. S. (111 E. C. L.,) 100; French vs. Marstin, 32 N. H., 316, (4 Fost., 440;) Colchester vs. Roberts, 4 M. & W, 769; Lewis vs. Carstairs, 6 Wharton, 193; Goddard on Easements, 209; Davenport vs. Lamson, 21 Pick., 72.

The alley is [**5]  simply the space within which the plaintiff is entitled to a right of way. She has no action against every trespasser whom the owner of the soil may sue. If there be no interference with her convenient way for the useful and proper purposes of her lot she cannot recover. Johnson vs. Kennicutt, 2 Cush., 153; Jackson vs. Allen, 3 Cowen, 220; Goddard on Easements, 213; Hutton vs. Hamboro, 2 Foster & Fin., 218.

As the rights of the parties appear from the deeds it was within the province of the Court below to give the instruction excepted to. Williams vs. James, Law. Rep., (2 C. P.) 581; Gale on Easements, (m., 331,) 503; Goddard on Easements, 204.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*625]  BARTOL, C. J., delivered the opinion of the Court.
It appears from the bills of exceptions in this case that in 1867 Thomas F. Johnson and others, being the owners in fee of a parcel of ground in the city of Baltimore, lying on the north side of West Pratt street, and extending to Chester street on the east, and Castle street on the west, proceeded to lay it off in building lots, with alleys contiguous thereto, as designated [**6]  on the plat referred to in the evidence. There are ten lots on Pratt street, extending north to the depth of one hundred feet--at the rear of which is an alley ten feet wide, extending from Chester to Castle street. At the north of the ten foot alley are four lots fronting on the west side of Chester street extending westwardly one hundred feet, and at the rear of these is an alley four feet wide, extending from the ten foot alley northwardly to the limits of Johnson's ground.

 [*626]  Henrietta Bump, the appellant, is the owner or lessee for ninety-nine years, renewable forever, of the lot lying next to the ten foot alley, fronting on Chester street, and running back to and bounding on the four foot alley. The lease under which she holds, made by Johnson in 1868, conveys to her in terms "the use of the four foot alley in common."
The appellee, who was defendant below, holds as lessee of Johnson, the northernmost lot fronting on Chester street, running back to the four foot alley, with the like use thereof in common.
It appears that the defendant placed an obstruction upon the four foot alley at the rear of his lot, by erecting a fence across it a few inches from the northernmost [**7]  line or limits of the original Johnson lot. It is to recover damages for this obstruction this suit was instituted.
At the trial two bills of exceptions were taken.
1st. The defendant offered to prove that Samuel C. Bump owned the piece of ground next adjoining the ground described in the plat, on the north thereof, extending from Chester to Castle street, under a lease from Jos. Williams, (which was produced;) and that said piece of ground had at the time of the erection of the fence mentioned, been recently improved by Samuel C. Bump, by the erection of three houses, fronting on Castle street, and two on Chester street. This evidence was objected to by the plaintiffs as inadmissible, but the objection was overruled and the evidence admitted, and to this ruling the first bill of exceptions was taken.
The second exception was taken to the rejection of the plaintiffs' prayer, and to the instruction given to the jury, "that there was no evidence in the case of any obstruction to any right of way, which the plaintiffs are entitled to claim under the deeds offered in evidence."
It thus appears that the question presented by the appeal is the nature and extent of the plaintiffs' right [**8]  to 

 [*627]  the use of the four foot alley; and this depends upon the construction of the lease, which seems to us to be quite free from doubt or difficulty.
The words of the grant are "to a four foot alley with the use thereof in common." There is no question as to the alley referred to in the lease, or its dimensions and extent; it was in existence at the time of the lease, and extended as designated on the plat from the ten foot alley on the south, to the northern line or limits of the "Johnson lot."
It is a way appendant; or easement appurtenant to the property described in the lease, and therefore to be used in connection with and for the benefit of that property. The use granted is one to be enjoyed "in common," that is to say, in such manner as is consistent with the use thereof, granted to the defendant and others, lessees of Johnson of the adjoining lots abutting upon the alley. Subject to this common right, to be enjoyed by others, the plaintiffs are not restricted in the use of the alley, otherwise than that its use must be, as we have before said, annexed to and connected with the occupation of the estate to which it is appendant; and reasonable and proper [**9]  for the enjoyment of the estate granted.
On these propositions we understand the counsel to agree.
The question is what are the limits and extent of the alley itself, to the use of which the plaintiffs are entitled? This appears to us to be a very plain question, easy of solution. The grant is of the use of the alley to its whole extent as it then existed, that is the extreme limits or northern line of the "Johnson lot." This includes as it is correctly said in the appellants' brief, "the last inch as well as the first inch," and therefore it is clear that the fence or obstruction placed upon it by the defendant is an invasion of the plaintiffs' legal rights, for which an action 

 [*628]  may be maintained. The question of damages is of course exclusively for the jury.
The contention on the part of the defendant is that "if the alley were left open at its northern extremity, not only could the tenants of the five houses on the Williams' lot, pass out and repass over the alley at pleasure, but the slope of the ground being southerly, (as was shown by the evidence,) the waste water and offal from said houses would incommode the defendant in the enjoyment of his house, and of [**10]  this four foot alley appurtenant thereto." And to prevent this, the defendant it is supposed had the right to place across the alley the obstruction complained of.
We cannot sanction this proposition; supposing the facts to be as alleged, the defendant has mistaken his remedy, that he might assert by action against the parties who cause him the injury and damage; but it cannot give him the right to close the alley; and deprive the plaintiffs of the use of it or any part of it.
It is suggested that the object of the plaintiffs in bringing this suit is to enable them to use the alley in question for the benefit of the contiguous property, on the north of which Samuel C. Bump is now the owner; and for this purpose the testimony in the first bill of exceptions was offered. And to show that the plaintiffs could not lawfully use the alley for such purposes, we have been referred to a number of cases, among them are Howell vs. King, 1 Mod. 190; Lawton vs. Ward, 1 Ld. Raym. 75; Skull vs. Glenister, 111 E.C.L. 81; French vs. Marstin, 32 N.H. 316; Colchester vs. Roberts, 4 M. & W. 769. [**11]  
If this were a suit instituted by the appellee against Bump for an interruption of the appellee's right to the use of the alley, caused by the unauthorized use of it by Bump for the purposes of the property held under his lease from Williams, these authorities would be applicable; but 

 [*629]  they have no application to the question involved in this case, which relates exclusively to the legal right of the plaintiffs to the use of the alley, as appurtenant to the property leased by Johnson, and to the invasion of that right by the defendant.
In Lawton vs. Ward, and Howell vs. King, the ways claimed were by prescription, the right to which and their extent were limited and fixed by their customary use. Here the right is fixed by the words of the grant, which as we have said includes the use of the alley to the whole extent, and necessarily the free right of entrance to or exit from the north end as well as the south end; provided such entrance or exit is not obstructed by the adjoining proprietor.
The circumstance that Samuel C. Bump, one of the plaintiffs, happens to be the owner of the contiguous property at the north end of the alley, in no manner affects the rights [**12]  of the parties in this suit; and the testimony in the first bill of exceptions was therefore irrelevant and ought to have been excluded.
The case of Johnson vs. Kennicut, 2 Cush. 153, cited and much relied on by the appellee's counsel, is not applicable to this case. There the limits of the way were not defined, and the Court held that the party could not complain of partial obstructions at the side; provided he was left in the enjoyment of a reasonable way for the purposes contemplated by the grant, because by the terms of the grant that was all he was entitled to claim. Other cases to the same effect were cited by the appellee's counsel in the argument, but they need not be referred to here.
We have been referred to the case of Phillips vs. Treeby, decided first by V. C. STEWART, and afterwards affirmed on appeal--reported in 8 Jur. N. S., (p. 1, 1862,) 711 and 999--which we think fully supports the views we have expressed as to the construction of the lease, and the 

 [*630]  extent of the plaintiffs' rights to the use of the alley, if any authority were needed for that purpose.
Being of opinion that there was error in the instruction given [**13]  to the jury in this case, and in rejecting the appellants' prayer, the judgment will be reversed, and a new trial ordered.
Judgment reversed and new trial ordered. 

48 of 144 DOCUMENTS 

GEORGE J. APPOLD, SAMUEL APPOLD, SAMUEL KIRK, and JANE E. WILCOX, Guardian vs. THE PROSPECT BUILDING ASSOCIATION and JOHN SPEAR NICHOLAS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 457; 1873 Md. LEXIS 21 

February 21, 1873, Decided 

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

On the 5th of November, 1869, The Prospect Building Association filed a bill in Equity for the sale of the estate and interest of Andrew J. Wilcox, in certain property situate in Baltimore county, which he had mortgaged to the complainant. On the 4th of March, 1870, Wilcox, who was made the sole defendant, answered, "neither admitting nor denying the matters and things alleged" in the bill of complaint, "but challenging the proof thereof." The Court passed a decree for the sale of the property, and it was sold. Prior to the sale, the trustees discovering that there was a suit pending in the Circuit Court for Baltimore county, instituted by John Spear Nicholas, for the sale of the same property, to enforce his vendor's lien, to the amount of more than $ 4,000, entered into an agreement with him, to allow them to sell the property, disincumbered of his lien, provided he was paid out of the proceeds of sale. Before the sale Andrew J. Wilcox died. On the 30th of May, 1871, the sale was finally ratified and confirmed, no exceptions having been filed. At the time of sale, the auctioneer acting at the instance, and under the [**2]  direction of the trustees, announced that the property would be sold free and clear of all incumbrances. After the ratification of the sale, Jane Ellen Wilcox on the 31st of May, 1871, filed a petition alleging the death of Andrew J Wilcox, intestate, leaving two infant children, then living, and her appointment as their guardian; and praying that after payment of the mortgage claim and expenses, the surplus of the proceeds of sale might be paid over to her as guardian as aforesaid. On the 3rd of June, 1871, Samuel and George J. Appold filed their claim on a judgment recovered against the deceased Andrew, in his life-time; and Samuel Kirk filed a like claim. On the 8th of July, 1871, the auditor filed an account, allowing the mortgage claim of the complainant, and the two judgment claims, and awarding the residue of the purchase money to the guardian of the children of the deceased; the account was ratified nisi, on the same day. On the 14th July, 1871, the trustees filed their answer under oath, to the petition of Jane Ellen Wilcox; in this answer they set forth the agreement made by them with John Spear Nicholas, the reasons which induced them to enter into it, and what was done [**3]  under it, viz: that the property was sold to the purchaser free from incumbrances, and with the purpose of paying off the lien claim of the said Nicholas, out of the proceeds of sale. The answer prayed that the petition might be dismissed, and that the trustees might be allowed to comply with their agreement, and pay the claim of Nicholas out of the purchase money.

The Prospect Building Association on the 18th of July, 1871, filed exceptions to the ratification of the auditor's report. The cause was submitted to the Court by agreement of counsel, and the report was finally ratified. Afterwards, on the 28th of November, 1871, the order of ratification was rescinded on the ground that it had been inadvertently passed. On the 2d of December, 1871, Jane Ellen Wilcox, the Appolds and Kirk filed a petition setting forth that they had no notice of any application made to the Court, to rescind the order finally ratifying the auditor's report, that the said order of rescision was a surprise upon them, and prayed the Court to annul the said order and allow the original order ratifying the auditor's report, to stand. On the 24th February 1872, the Court passed an order remanding the cause [**4]  to the auditor to take proof, and state another account in accordance with the proof so taken, and the views expressed in the opinion filed with the order. By this opinion the auditor was directed to take testimony as to the agreement between the trustees and Nicholas, and if such agreement should be proved, then, to state an account allowing Nicholas' claim.

On the 20th April 1872, the auditor filed his report, together with the testimony which he had taken; after stating that it had been proven that the trustees and Nicholas did agree that the former should sell the property clear and disincumbered of the latter's lien claim, and that the said claim should be satisfied out of the proceeds of sale, he stated an account in which said claim was allowed.

This report was ratified nisi, and thereupon the Appolds, Kirk and Jane Ellen Wilcox filed their exceptions to its ratification. On the 20th of June, 1872, the Court overruled the exceptions, and finally ratified the report. The exceptants appealed.  

DISPOSITION:
Orders of ratification of sale and auditor's report reversed, and cause remanded for further proceedings.  

HEADNOTES:

Practice in Equity -- Death of a Party pending a Suit in Equity -- Effect of a failure to Suggest the Death of a party, upon Subsequent proceedings.

Upon the death of a party to a suit in Equity, the Court should be informed of the fact, so that new parties should be made, or other appropriate proceedings had, if deemed necessary; and if upon such suggestion no action is taken, it will be presumed that none was considered necessary.

Where after a decree to foreclose the mortgage of the complainant, the defendant dies, and there is no suggestion of his death, and no action of the Court in regard thereto, and no order directing the execution of the decree, the sale of the property and the ratification thereof is irregular and improvident, and will be set aside on appeal.  

COUNSEL:
Wm. Shepard Bryan, for Jane E. Wilcox.

The decree did not authorize,  [**5]  and could not authorize, the trustees to sell any thing more than the interest of the parties to the suit. They did not advertise any interest of Mr. Nicholas, nor did they report any sale of it to the Court. The sale which was ratified was the sale decreed to be made and the one reported by the trustees.

As no interest of Mr. Nicholas was affected by the decree or the sale, he is an entire stranger to these proceedings, and has no interest whatever in the proceeds of sale. The sale was made subject to the rights of Mr. Nicholas, which are not at all affected by these proceedings. Tome vs. Merchants and Mechanics' Building and Loan Co., 34 Md., 12.

Mr. Nicholas could not have sold the property to satisfy the vendor's lien, without a decree of the Court to that effect, and clearly he could not authorize the trustees to do what he could not do himself.

If he had obtained a decree, he would have sold the property free from all subsequent incumbrances, and even from the claim of dower. These incumbrancers and the doweress, therefore necessarily would have had a right to contest his claim or to redeem it if it had been established.

But this proceeding extra-judicially [**6]  decrees and enforces a sale upon a mere agreement between those who desired a sale, without the consent of those whose rights were thereby extinguished. There is a great difference between an assignment by a vendor of his lien and a sale of the property to satisfy it, which cuts off all subsequent incumbrancers. The latter proceeding is the peculiar prerogative of a Court of Equity.

In this case it has been attempted to prove both the vendor's lien and the agreement by parol testimony. The agreement between Nicholas and the trustees was ineffective in any point of view.

Thomas R. Clendinen, for the Appolds.

Neither the trustees--the purchaser, nor any one else impeach the report of sale, and if they did it would be too late, as several terms have passed since its ratification; therefore it is the basis by which the Court must be governed in considering the matter--consequently it is too late for the trustees to attempt to set up a different state of facts, if they existed, from those solemnly sworn to by them in their report--which state of facts would make the report a nullity and an absurdity; having shown that the report must stand and be the evidence of the contract [**7]  by which the Court is to be governed, it is equally clear, the opposite statements made by the trustees, which would contradict it, must fall.

If there had been any such statements or agreements between the trustees and the purchaser, they, the trustees and the purchaser should have obtained the approbation of the Circuit Court, to the plan they wished to pursue; for Courts of Equity will not look with favor upon the appropriation by its trustees of the proceeds of sale made under its decree, without its previous authority, and such conduct will be viewed with especial jealousy where married women, children or creditors are concerned. Sewall vs. Costigan, 1 Md. Ch. Dec., 208.

The trustees were the agents of the Court, acting under specially delegated authority; their instructions are contained in the decree open to the inspection of all, and if they do not follow them, no one dealing with them has a right to complain if the Court should refuse to ratify their acts. Latrobe vs. Herbert, 3 Md. Ch. Dec., 375; Glenn vs. Wootten, 3 Md. Ch. Dec., 514.

There are no exceptions by anybody to the claim of the Appolds, it apparently meets with the approbation of all--no one objects [**8]  to it--it was properly allowed. The first audit is correct in principle and figures, and should stand.

J. T. McGlone and C. Bohn Slingluff, for the appellees.

No appeal lies from the order of Court of the 28th November 1871, rescinding the order of the 22d November preceding, by which the auditor's report filed in the cause had been finally ratified and confirmed. The order was passed during the term in which the order rescinded had been passed. The Court below, on motion or petition or sua sponte, may revoke before enrolment any of its orders or decrees; and such action is not the subject of an appeal. Hunting vs. Walter, 33 Md., 60; Burch vs. Scott, 1 Bl., 112.

The order of 28th November was properly passed inasmuch as the order of the 22d November had been inadvertently signed upon a mistaken view of the facts, by the Court.

The trustees had a right to sell the property disincumbered of the lien of Nicholas. Such right on the part of trustees has been repeatedly recognized in this State. Brooks vs. Brooke, et al., 12 Gill & Johns., 306. Lee vs. admrs. of Boteler, &c., 12 G. & J., 326; Speed vs. Smith, 4 Md. Ch. Dec., 299; Andrews vs. Scotton, 2 Bl., 629.

The [**9]  advertisement is not the contract between the parties, and it is the constant practice of trustees to introduce other terms of sale, and make known to bidders at the time of sale, facts and circumstances affecting the title or value of the property not mentioned in the advertisement, and parol proof of such facts is always admitted when it becomes necessary to resort to it to uphold or vacate a sale. Farmers' & Planters' Bank vs. Martin and Travers 3 Md. Ch. Dec., 224; Mackubin vs. Brown, 1 Bl., 410; Andrews vs. Scotton, 2 Bl., 629.

If the trustees had applied to the Court for permission to sell the property disincumbered, the Court would undoubtedly have granted such permission. Hence where a trustee exercises a power which if previously applied for would have been granted as a matter of course, a Court of Equity will in the absence of proof showing the inexpediency and injustice of so doing, ratify the act done in the same manner, as if the requisite authority had been applied for and granted. Gray, &c. vs. Lynch &c., 8 Gill, 403.

It cannot be urged that the action of the trustees operated as a surprise upon any of the parties interested, when it is admitted in the case [**10]  that the trustees, through the auctioneer, did announce that the property was to be sold free and clear of all incumbrances. The petitioners then, by their own admission, had knowledge of the contract between the trustees and the purchaser that the title was to be disincumbered.

The case comes within the principle mentioned in Glenn vs. Clapp, 11 G. & J., 1, that the trustees ought to have used "reasonable efforts to disembarrass the title of difficulty."

A sale by a trustee is a contract between the Court and the purchaser, and the Court will see that the contract made with the purchaser is carried out, and that he is in no wise prejudiced or injured thereby. The objection is made that the arrangement with Nicholas was not reported by the trustees to the Court, in making their report of sale, but if the Court would have ratified the report, if the fact had been so reported, the Court will afterwards ratify the action of the trustees when such action is brought to its knowledge. Gray, &c. vs. Lynch &c., 8 Gill, 403.

Admitting that they had full knowledge of the contract between the trustees and the purchaser, that the property was sold free from incumbrances, the appellants [**11]  allowed the sale to be finally ratified before they appeared in the case, and they then asked not that the sale should be set aside on the ground of surprise, or mistake, or injustice to the parties interested, which they could have done (if the facts complained of had been sufficient to justify such allegations,) at any time during the term, but that the sale should stand ratified, and a large balance of the purchase money paid to them to the exclusion of the lien claim of Nicholas, in violation of the contract of the trustees, and to the great injury of the purchaser, who would thus take the property subject to the heavy claim of Nicholas, although paying the price of unincumbered property. The appellants should have asked that the sale be set aside; and they are not entitled to the payment of their claims as the case now stands, until after the incumbrances on the property are paid.

There was sufficient proof of Nicholas' claim. He had filed a bill for the sale of the property to enforce the payment of his vendor's lien; and the auditor had a right to resort to the papers in that cause to ascertain the amount of the claim. Barroll's Ch. Prac., 333; Winn & Ross vs. Albert, 2 [**12]  Md. Ch. Dec., 169; Albert and Wife vs. Winn & Ross, et al., 5 Md., 66.

The Court had referred the whole matter to the auditor to take proof, and before the auditor the statement of the claim had been filed, and Nicholas himself had testified in the presence of the counsel for the appellants, that no part of his claim had been paid or satisfied.  

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

OPINIONBY:
STEWART 

OPINION:

 [*465]  STEWART, J., delivered the opinion of the Court.
From a review of the record of the proceedings in this cause, it is manifest that there has been such irregularity, and the case is so involved, that the reversal of particular orders only would not meet the substantial ends of justice, between the parties interested. The Building Association, the mortagee that instituted the proceeding--John Spear Nicholas, the vendor of the property to the defendant--certain creditors who have intervened--the widow and children of the defendant--the purchaser, who is interested in procuring an available title, under a valid sale, have all to some extent been shown to be affected by the proceedings; and their interests have been disclosed,  [**13]  although all of them are not strictly parties to the cause. Without going into a useless detail of the proceedings, it is very clear the purposes of justice require that the property should be re-sold, with a full understanding that the sale is made, disencumbered, not only of the mortgage, but the vendor's lien of Nicholas, and any claim the widow of the defendant, and his children, may have to the property. With this view the case will be remanded for further proceedings.

 [*466]  It appears that after the decree passed on the 10th of August, 1870, to foreclose the mortgage of the Building Association, and before the sale of the property on the 19th April, 1871, the defendant, Andrew J. Wilcox, departed this life, to wit, on the 15th November, 1870-- that he died intestate, leaving his widow, Jane Ellen Wilcox, and two children, Julia C. and Elizabeth B. Wilcox, who were minors, his only heirs.
There is no suggestion of his death on the record, to enable the Court to take such action, if any was deemed necessary by the Court, in this exigency.
The 7th and 8th secs. of the 16th Art. of the Code, make provision against the abatement of the decree by the death of any of the parties.  [**14]  
It was proper that the Court should be informed of the fact of the death of any of the parties, so that if deemed necessary from the nature of the case, that new parties, or any other appropriate proceeding should be had, the Court could determine upon suggestion of the death.
If upon such suggestion no action was taken, the intendment could be made that none was deemed necessary.
Finding no suggestion of the death of the defendant, or action of the Court in regard thereto, and no order of the Court directing the execution of the decree, the sale and ratification thereof, was irregular and improvident, and ought and will be reversed on this appeal.
It further appears that at the time of the decree aforesaid, John Spear Nicholas had filed a bill in the same Court, for the sale of the same property, to enforce a lien held by him, as vendor, not having parted with the legal title, and that the defendant held but the equitable interest in the same. These cases both pending in the same Court for the sale of the same property, might have been consolidated, so that by the action of the Court, in the exercise of its immediate authority, without the intervention 

 [*467]  of the trustees,  [**15]  the property might have been sent into the market, for public sale, disencumbered of both the legal and equitable claims of Nicholas and the defendant respectively, and thus command a fair price, and the purchaser be enabled to acquire a valid title to the property, disencumbered of such liens.
The widow of the defendant, in such case, being entitled to her dower out of the proceeds, as the property will be sold freed from any claim she may have.
The orders ratifying the sale, and the auditor's report will be reversed, and the cause remanded for further proceedings.
Orders of ratification of sale and auditor's report reversed, and cause remanded for further proceedings. 

49 of 144 DOCUMENTS 

MARY J. PAIRO, by JOHN P. POE, her next friend vs. HAZELTINE G. VICKERY, et al., Administrators of THOMAS J. CARSON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 467; 1873 Md. LEXIS 22 

February 21, 1873, Decided 

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

The bill in this case was filed by the appellant to set aside a mortgage executed by her, of certain trust property, to the appellees' intestate, her trustee. The facts are fully stated in the opinion of the Court. The Court below dismissed the appellant's bill on the ground of "the death of Mr. Carson four years after the mortgage was executed, and the filing of the bill five years after its execution." 

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Equity -- Transactions between Trustees and Cestuis que trust: how far affected by Lapse of time and Death of Trustee: Burden of proof in such Cases -- Ratification of invalid instrument.

A testator who died in January, 1865, devised to C., whom he also made his executor, all his estate, in trust during the life of the testator's mother to keep the same together and collect the income thereof, and out of said income to pay to testator's mother the sum of $ 2,000 per annum. All the residue of his property he then devised to his brother, his sister P., and another sister, in equal proportions, their heirs and personal representatives, "to vest in them discharged from the trust created" above. C. took out letters testamentary under the will on the 26th of January, 1865. P. returned to the State, after an absence of two years, in April, 1865; and on the 27th of the same month, she and her husband made to C., a mortgage of all their estate and interest under said will. The consideration of this mortgage was a debt declared to be due by the husband of P. to C.; the condition made the debt and interest payable on demand; and the mortgage contained the usual assent to the passing of a decree for sale. The husband of P., was at the time insolvent, and his debt to C., was greater than the value of the property conveyed by the mortgage. On the 1st of September, 1866, P. and her husband united with the life annuitant and the other remainderman in a deed to C., of all their estate under the will in trust, to dispose of the same, and hold the proceeds subject to the claims of the grantors, excepting in so far as to pay to himself whatever might be due to him by P. and her husband by virtue of the foregoing mortgage. C. died in May, 1869, and in July, 1870, P., being then first informed of her rights, filed her bill, praying a decree annulling the mortgage and also the deed of trust so far as related thereto. HELD:

1st. That when the mortgage was executed, C. held the property as Trustee, and the transaction between P. and C., was within the established rules of equity, which govern dealings between trustees and cestuis que trust, the effect of the mortgage being to divest P. of her whole interest in the trust estate as completely as if it had been an absolute conveyance.

2d. That being such, it could not be supported as valid in a court of equity without satisfactory proof on the part of the mortgagee, that it was freely made by P., with full information as to her rights, and that no unfair advantage was taken of her circumstances.

3d. That the deed of trust could not operate as a ratification of the mortgage.

4th. That the lapse of time before the filing of the bill, and the death of C., did not bar the claim.

Upon principles of public policy, trustees are not allowed to purchase the trust property from the cestius que trust, or acquire rights therein which may bring their personal interests in conflict with their official duties.

While transactions between trustees and cestuis que trust are not void, they are discountenanced by Courts of Equity; the presumption is against their validity; and they are never upheld unless it clearly appear that they are free from all taint of unfairness. The onus of showing their perfect bona fides is upon the trustee.

Lapse of time, where it has been long and is unexplained, and death of parties, are sometimes ground for refusing relief, especially where in the mean time other parties have acquired rights, or there are other circumstances from which the Court can see that injustice might be done by interference; but in questions of this kind each case must depend upon its own circumstances.  

COUNSEL:
Charles E. Phelps, for the appellant.

The vesting of the remainders at the death of Mrs. Edes, "discharged from the trusts," presumes a faithful performance of the trusts. The clause was for the benefit of the remaindermen, not for the protection or impunity of the trustee. At the time of the transactions in question in this suit, and during the life-time of Mrs. Edes, who is still living, the remainders were not and are not discharged from the trusts, but subject to them. Executors are in equity, trustees for creditors, distributees and legatees. 1 Story's Eq. Jur., 593, 1067; Hill on Trustees, top page 238, note; Hurtt vs. Fisher, 1 H. & G., 88; Michoud vs. Girod, 4 How., 554.

And [**2]  where executors have devolved upon them powers, duties or functions respecting the realty, the fiduciary relation extends over the realty, and executors are trustees also for devisees. Cases cited in Perry on Trusts, sec. 205; Am. Note, Fox vs. Macreth, 1 Lead. Ca. Eq, 162; 3 Red. Wills, 135, note 27.

Holding these relations as executor and trustee, one of the first acts of his administration, which embraced both personalty and realty, was the obtaining from the appellant a mortgage of all her interest in the estate, which was all the property she owned, to secure an antecedent debt of her insolvent husband, the latter of course uniting.

Independent of the question of fairness or undue advantage in the particular case, this transaction, thus begun and consummated, cannot upon general principles of public policy be permitted to stand, but is voidable as of course upon the reasonable application of the party interested, whether the transaction be regarded as a purchase, as a security, as a bounty, or generally as an acquisition.

The principal instrument is in form and in name a mortgage, but in substance and effect, in the view of a Court of Equity, an absolute conveyance.  [**3]  

The appellant's husband, who united in the mortgage, was insolvent. Outside of the property mortgaged, the appellant herself was penniless. The debt secured exceeded in amount the value of the property. The debt was payable "on demand," and the covenants were to pay "on demand." 1 Pars. N. & B., 375. There was the usual consent to a decree, or a sale on default, and an omission of the usual proviso, giving the mortgagors possession until default, the mortgagee being already in possession as executor and trustee.

It results from these conditions that the equity of redemption professedly given, was in reality a fiction, or rather in the view of a Court of Equity, a cloak thrown over the genuine character of the transaction, which was in fact a transfer to Carson of Mrs. Pairo's interest in part payment of Mr. Pairo's debt. Bromley vs. Smith, 26 Beav, 644, 662.

This mortgage should therefore be treated as a purchase, and as such disposed of under the general rule.

The rule as to executors is peremptory. Perry on Trusts, sec. 205; 1 Lea. Ca. Eq., 139 and ca. ci.; Michoud vs. Girod, 4 How., 554; Scott vs. Burch, 6 H. & J., 67; Conway vs. Green, 1 H. & J. 151.

The [**4]  rule as to trustees, has in Maryland never been confined to the case of purchases by trustees of themselves, but has been applied to the case of purchases of the trust property from the c. q. t. or from anybody authorized to sell it. Callis vs. Ridout, 7 G. & J., 1; Bell vs. Webb, 2 Gill, 163; Highbergher vs. Stiffler, 21 Md., 338; Smith vs. Townshend, 27 Md., 368; Hoffman Co. vs. Cumberland Co., 16 Md., 506; Md. F. 1. Co. vs. Dalrymple, 25 Md., 255-6.

It does not help the transaction to call it one of suretyship, or of bounty. The principal debtor is not released nor his time extended. Emerick vs. Coakley, 35 Md., 188. And even if forbearance had been stipulated, it would have made no difference in this case, since he was insolvent. Neither as executor nor as trustee could he lawfully convert his administration into an agency for the collection of his bad debts, by saddling them on the trust property. The statutory incidents of his character as mortgagee, in case of default and sale, were incompatible with his fiduciary status. Code, Art. 64, sec. 13; Tennant vs. Trenchard, Law Rep., 4 Ch. App., 537; Hamilton vs. Wright, 9 Cl. & F., 111.

And generally, he will not be allowed [**5]  to retain a benefit obtained at the expense of his c. q. t Bromley vs. Smith, 26 Beav., 644, 622; Greenlaw vs. King, 3 Beav., 49; Savery vs. King, 35 E. L. & E., 100, and 5 Ho. Lds., 628; Archer vs. Hudson, 7 Beav., 551; Pennell vs. Miller, 23 Beav., 172; Maitland vs. Irving, 15 Sim., 437; Callis vs. Ridout, 7 G. & J., 1; Bell vs. Webb, 2 Gill, 164; 1 Story Eq., 322; Huguenin vs. Baseley, 3 Lea. Ca., 463, (Am. Ed., 24.)

It results from the above cases, that if Carson had, with perfect good faith, actually loaned his money to Mrs. Pairo for her own use upon the security, the mortgage would be set aside as of course, at her instance, on reasonable terms.

Apart from the fiduciary relations of the parties, there is an independent and cumulative equity merging in the same relief. The case comes under the well established chancery rule which avoids all transactions with remaindermen or reversioners, unless upon proof of fairness and entire adequacy of consideration. Smith's Man Eq., 87; 1 Story Eq., 337, 338, &c.; 2 Kent's Com., 475, note a; 1 Sug. Vend., Ch. 6, sec. 23, &c.

This doctrine applies to mortgages, and even where the party was of mature age, and fully understood [**6]  the situation. Bromley vs. Smith, 26 Beav., 644, 662; Tynte vs. Hodges, 2 Hem. & M., 287; Salter vs. Bradshaw, 26 Beav., 161; St. Albyn vs. Harding, 27 Beav., 11; Talbot vs. Stainforth, 1 Johns. & H., 484; Foster vs. Roberts, 29 Beav., 467; Jones vs. Ricketts, 31 Beav., 130; Sharp vs. Leach, 31 Beav., 491; Nesbitt vs. Berridge, 32 Beav., 282; Dally vs. Wonham, 33 Beav., 154, 162; Perfect vs. Lane, 3 D. F. & J., 369; Boynton vs. Hubbard, 7 Mass., 112; Butler vs. Haskell, 4 Des., 651; Osgood vs. Franklin, 2 John., Ch. 25; Jenkins vs. Pye, 12 Pet., 257.

Actual fraud, never to be presumed; almost incapable of direct proof; may be inferred from the situation, conduct and relations of the parties, the character of the transaction, both as to its form and effect, and from all the surrounding circumstances. Brogden vs. Walker, 2 H. & J., 285; Curtis vs. Moore, 20 Md., 93.

But whether with or without actual fraud, the Court below manifestly erred in placing its determination upon the death of Carson, before the bill was filed. Even in the lowest view that can be taken, as a case of onus on the trustee, no proof could sustain this transaction, if the trustee were alive and in Court.  [**7]  Prees vs. Coke, Law Rep., 6, Ch. App., 645; Todd vs. Grove, 33 Md., 195; Ellinger vs. Crowl, 17 Md., 361, 374, 375; Betts vs. Union Bank, 1 H. & G., 175.

As to LACHES; there is no lapse of time against a remainderman before death of life-tenant. Hill on Trustees, 266, 414, 528; F. & M. Bank vs. Wayman, 5 Gill, 358; Salter vs. Bradshaw, 26 Beav., 161; Life Association of Scotland vs. Siddall, 3 D. F. & J., 72.

There was disability of coverture. 5 Gill, 355; Oehler vs. Walker, 2 H. & G., 323, 326-7; Hill on Trustees, 527; Bowie vs. Stonestreet, 6 Md., 431, 432.

There is no laches without acquiescence. Kerr on Frauds, (Am. Ed.,) 305, and no acquiescence without knowledge of rights. Kerr, 300, 301; Hill, 168-527; Hoffman Co. vs. Cumberland Co., 16 Md., 508-9; Life Association vs. Siddall, 3 D. F. & J., 74.

The Court erred in ignoring the circumstances which led to the filing of the bill. It is the only proof ever available in cases of this nature, if indeed it be required that the party should prove a negative at all. It is settled that the onus is upon the other side.

Poverty alone is no answer to laches, but sufficiently accounts in this case for her not seeking [**8]  legal advice, in connection with the fact that she was lulled by Carson himself. A year and a half after the mortgage, she quit-claimed her equity of redemption in manifest ignorance of her rights, by executing presumably at his instance, the deed of trust. Prees vs. Coke, L. R., 6, Ch. App., 645, 649-50; Savery vs. King, 5 Ho. Ld., 628, 666.

Since there was in this case no "lying by," the death of the trustee is without significance, in connection with the question of time, and the law has equalized the parties by sealing the lips of the appellant. Act of 1868, ch. 116.

As to the time elapsed, the decision below is without precedent.

In Highberger vs. Stiffler, 21 Md., 338, (reaffirmed in Todd vs. Grove, 33 Md., 195,) the deed was set aside on a bill filed after a lapse of eight years, and two years after death of trustee. Smith, ex'or of Hoye vs. Townsend, 27 Md., 368; Oehler vs. Walker, 2 H. & G., 323; Baxter vs. Sewell, 2 Md. Ch. Dec., 447, 3 Md., 334; Hanson vs. Worthington, 12 Md., 437; Bell vs. Webb, 2 Gill, 163; Bank vs. Wayman, 5 Gill, 336; Bowie vs. Stonestreet, 6 Md., 418; McDowell vs. Goldsmith, 2 Md. Ch. Dec., 370, affirmed in 6 Md., 317; Michoud vs. Girod,  [**9]  4 How., 503; Prees vs. Coke, Law Rep., 6, Ch. App., 645; Savory vs. King, 35 Eng. L. & Eq., 100, same case, 5 Ho. of Ld., 628; Greenlaw vs. King, 3 Beav., 49; Hatch vs. Hatch, 9 Ves., 292; Pennell vs. Miller, 23 Beav., 172; Salter vs. Bradshaw, 26 Beav., 161; St. Albyn vs. Harding, 27 Beav., 11; Sharp vs. Leach, 31 Beav., 491; Charter vs. Travelyan, 11 Cl. & F., 714; Deloraine vs. Browne, 3 Bro. C. R., 633; Gartside vs. Isherwood, 1 Bro. Ch. R., App., 558; Walmesley vs. Booth, 2 Atk., 25; Randall vs. Errington, 10 Ves., 423; Purcell vs. Macnamara, 14 Ves., 91; Pickett vs. Loggen, 14 Ves., 214; Murray vs. Palmer, 2 Sch. & L., 474; Maloney vs. L'Estrange, Beat., 406; Roche vs. O'Brien, 1 Ball & B., 330; Oliver vs. Court, 8 Price, 127; Att'y Gen'l vs. Lord Dudley, Coop. 146; Aylward vs. Kearney, 2 Ball & Beat., 463; Gowland vs DeFaria, 17 Ves., 20; Stilwell vs. Wilkens, Jac., 280; Earl of Portmore vs. Taylor, 4 Sim., 182; Life Association of Scotland vs. Siddall, 3 De Gex F. & J., 58.

In Chalmer vs. Bradley, 1 Jac. & W., 51, 60, "there were three successive wills by three successive generations, from 1770 to 1814, during which period the estate is enjoyed by the trustee, and those [**10]  claiming under him, and no demand made upon them." Notwithstanding this delay, and the improved value of the estate, the Court did not dismiss the bill, but directed an inquiry to ascertain whether or not the delay had been with knowledge. See Brown vs. Carter, 5 Ves., 862; Morse vs. Royal, 12 Ves., 353; Jenkins vs. Pye, 12 Pet., 241.

Each case, as to laches, depends on its own circumstances. Hanson vs. Worthington, 12 Md., 441.

Even admitting that a feme covert remainderman, c. q. t., whose husband is a necessary party defendant, can be charged with laches at all, the case comes down to the simple question: Did Mrs. Pairo, during the interval between 1st September, 1866, (date of the deed of trust,) and 13th May, 1869, (date of Carson's death,) and from that to the 14th July, 1870, (date of suit,) lie by, with knowledge of her rights? And on this issue the onus is upon the affirmative. Cumberland Co. vs. Sherman, 20 Md., 134-5, 151.

Samuel Snowden and I. Nevett Steele, for the appellees.

Under the will of Edes, Carson as trustee, was only the tenant during the life of Mrs. Edes, and never occupied the position of trustee for Mrs. Pairo. Selby vs. Williss, 4 H.  [**11]  & J., 242; Park vs Cheek, 4 Cole., 20; Curtiss vs. Price, 12 Ves., 89, 98; Doe vs. Hicks, 7 Term, 433; Goodtitle vs. Whitby, 5 Burr., 228; Right vs. Cuber, 5 B. & C., 866; Player vs. Nichols, 1 B. & C., 336; White vs. Simpson, 5 East, 162; Robinson vs. Grey, 9 East, 1; Woodcock vs. Barthrop, 5 Taun., 385.

The evident intention of the testator was, that Carson should as trustee keep the property together during the life of Mrs. Edes for the purpose of collecting and paying to her an annuity of $ 2,000, and retaining the surplus. The whole trust has relation to her. The testator kept her steadily in view, and it was a natural sequence in his mind that he should direct the trust to terminate at her death. Fitzpatrick's Appeal, 49 Pa. S. R., 244.

As, therefore, Carson only took the estate for the life of Mrs. Edes, and the legal estate in the limitation over was executed by the statute in the parties in remainder, no trust in their favor was vested in him, and the relation of trustee and cestui que trust between them and Carson was never created. So soon as Mrs. Edes died, the trust ceases, and the title vests in the parties in remainder without the performance of any act by [**12]  Carson. Parker vs Converse, 5 Gray, 336; Greenwood vs. Coleman, 34 Ala., 150; Churchill vs. Corker, 25 Geo., 479.

But supposing that Carson was by the terms of the will a trustee for the parties in remainder, then it is admitted that purchases of the trust property by trustees at their own sales may be set aside as of course at the election of the cestui que trust. But this right does not exist to the same extent in cases of purchases by trustees from the cestui que trust, or by the consent of the cestui que trust, when made by the trustee at his own sale. 1 Leading Cases in Equity, 125.

In the last cases he is not under an absolute disability to purchase, and it is not a general rule that a Court of Equity will set such purchases aside, but each case depends upon its own facts and circumstances. Ayliffe vs. Murray, 2 Atk., 58; Farnam vs. Brooks, 9 Pick., 212; Spindler vs. Atkinson, 3 Md., 409; Ex parte Lacey, 6 Ves., 626.

And when it appears that the cestui que trust intended the trustee to buy, and there is no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee, the transaction will be supported. Coles [**13]  vs. Trecothick, 9 Ves., 234; Buell vs. Buckingham, 16 Iowa, 286; Perry on Trusts, sec. 195, and authorities cited.

If the transaction in this case is to be treated as a purchase, the circumstances attending it as they appear upon the face of the papers, are such as to gratify the foregoing rules. Mr. Pairo becomes indebted to Mr. Carson in a very large amount of money, and being desirous of securing the payment thereof, his wife, with the view of aiding her husband, and with his consent, executes a conveyance by way of mortgage to Carson of all her interest in the estate of Edes. There was here no fraud, no concealment, and no advantage taken by him of knowledge acquired as trustee. She had the advice and assistance of her husband in the transaction, and cannot be said to have confided in Carson. But the transaction was not in itself a purchase, but a mortgage of her interest, which was only accessory to the principal thing--the debt. Pratt vs. Van Wyck, 6 Gill & J., 495; Dougherty vs. McColgan, 6 G. & J., 275; 1 Hilliard on Mortgages, 215.

Upon the payment of the debt the whole interest in the estate immediately revested in her. The rules in reference to purchases by trustees [**14]  from cestuis que trust do not apply, because Carson could get nothing more than his debt, and all the interest in the property after the payment of the debt still remained in Mrs. Pairo, and she must derive all the advantage from its increase in value. Carson could have concealed nothing from her that would have affected the transaction, for all that was necessary to be known by her was the amount of the debt, and the fact that she desired to secure it upon her interest in the estate of Edes. She was not deceived by Carson, for she intended he should have the mortgage, and dealt with her eyes open. Hylton vs. Hylton, 2 Ves. Sr., 549; Sping vs. Pride, 10 Jur., (N. S.,) 648.

The rule of public policy which prevents a trustee from buying at his own sale, or even from a cestui que trust, is not violated when the trustee takes a mortgage. For, supposing the property to be neither more nor less than his debt, he does not buy it, and therefore gains nothing by the knowledge that he possesses of its value, nor could the cestui que trust be injured. Nor does the trustee by taking a mortgage place himself in a position antagonistic to the interests of the cestuis que trust, but on the contrary [**15]  it becomes his interest to obtain the best price he can, especially where there is but a small margin for his security, as in this case. There is no proof that the husband of the complainant was insolvent at the time of the execution of the mortgage, but even if he was, and even though it encumbered all the property the appellant had, or that the mortgage contained an assent for a decree or an omission of the clause for possession, or that the debt was payable on demand, would not alter the nature of the transaction, or turn an absolute deed into a mortgage. Nor is it so recognized in the deed of trust; on the contrary it is there referred to as a mortgage, and there are no extrinsic facts from which the Court could infer that Carson intended to possess himself of the estate; certainly the mere facts of the execution of the deed and mortgage are not sufficient. The mortgage in this case was not intended as a bounty to Carson, but to aid the husband of the appellant, and the consideration in law is equal, whether she pledged her property to secure her own debt or the debt of her husband. 1 Buck's B. Cases, 165, Ex parte Hearn.

Such a conveyance is not voluntary, but for a valuable [**16]  consideration. Marden vs. Babcock, 3 Met., 104.

She could by means of her separate property, become a surety for the payment of her husband's debts. Johns vs. Reardon, 11 Md., 465. The mortgage having been executed with all the formalities required by law is binding upon the appellant. Morris vs. Harris, 9 Gill, 28; Cooke vs. Husbands, 11 Md., 492; Galway vs. Fullerton, 2 C. E. Green, 391; Emerick vs. Coakley, 35 Md., 188.

And a sale by a husband and wife to the trustee of the trust property to pay the debt of the husband will be sustained. Bryan vs. Duncan, 11 Geo., 71, (77.)

The contract by which she became surety being under seal, the debt of her husband is a sufficient consideration to support it, and because she has since altered her intention, it does not furnish a sufficient reason to induce a Court of Equity to interpose and cancel the mortgage which bears upon its face the evidence of having been deliberately executed by her. Toker vs. Toker, 31 Beav., 644.

Even if the appellant by filing her bill in the life-time of Carson, without having acquiesced in the execution of the mortgage, could have thrown upon him the burden of showing the fairness and honesty [**17]  of the transaction, she has lost the right to do so by waiting until after the death of Carson, and by allowing so much time to elapse, before instituting proceedings to set aside the mortgage. Morse vs. Royal, 12 Ves., 355; Prevost vs. Gratz, 6 Wheat, 498; Potts vs. Surr., 34 Beav., 554; Hatch vs. Hatch, 9 Ves., 292; Johnson vs. Jones, 13 S. & M., 583; Jones vs. Smith, 33 Miss., 264; Champion vs. Rigby, 5 Eng. Ch. Rep., 539.

If there were any threats or duress used by Carson to the appellant, she was aware of them at the time of the execution of the mortgage, and could have instituted proceedings immediately to vacate the mortgage, but instead of doing that, she has waited until his lips are sealed in death before she exhibited any bill--and it is the very case put in Morse vs. Royal, (378.) "She has, without design, put it out of the power of the Court to see the wrong with the distinctness that is necessary in order to enable her to act," and, therefore, cannot claim the application by the Court of the rule which throws upon the fiduciary the onus of proving the fairness of the transaction. On the contrary, on account of the lapse of time and the death of the trustee, the Court [**18]  will presume that if the trustee was living he would bring forward the witnesses who would establish its perfect fairness, and that it was the voluntary act of the appellant in order to aid and assist her husband. It would be most unjust by the application of a technical rule, to take from the creditors of Carson, some of whose debts were contracted after the date of said mortgage, and who are represented by the administrators, such a large sum of money, for their equity is stronger than hers.

About eighteen months after the execution of the mortgage, Mrs. Pairo united with her husband and the other devisees in the execution of a deed of trust to Carson, in which she recognizes the existence of the mortgage as a subsisting lien upon the property. There were no confidential relations existing at the time, but they dealt at arms length, and yet she authorized him to retain so much of the proceeds as might be necessary to pay the mortgage debt, thus clearly acquiescing in the existing mortgage, and showing that she understood the transaction at the time not to be fraudulent.

The deed of trust was executed by all the parties, and was more for the benefit of the grantors than [**19]  of Carson-- and it would be a new presumption of law to presume it was done at his instance. The question of laches is one for the exercise of the Court's discretion. And as this is the separate property and estate of the appellant, she must be regarded as a feme sole, and therefore chargeable with laches. Lewin on Trusts, pages 540 and 541.

In all the cases cited by the appellant in regard to the length of time, it will be found that the complainant assumed the burthen of proof, and put all the facts before the Court so as to make out a prima facie case, but in this case the complainant has proved nothing, and has failed entirely to meet the ordinary responsibility imposed upon a complainant. Her bill should, therefore, be dismissed for want of proof.

The doctrine of Courts of Equity which avoids all transactions with expectant heirs, unless upon proof of fairness and entire adequacy of consideration, was said by Lord Eldon, in Cole vs. Trecothick, "to depend upon a very different set of principles from those applicable to purchases by trustee from cestuis que trust." It never has been adopted in this State, and its soundness has been doubted in a recent case in England.  [**20]  1 Taylor's Ev., sec. 129a; Webster vs. Cook, 2 Law Rep. Ch. Ap., 542.

And it has been finally abolished by Act of Parliament. 31 Vict. ch. 4, sec. 1.

It cannot now be considered as law. But even if it is, it does not apply to the sale or mortgage of a reversion or remainder. Perry on Trusts, sec. 188.

That actual fraud cannot be presumed, but must be proved, though it may be inferred from facts and circumstances, is a well settled principle. 3 Gr. Ev., secs. 254 and 254a.

In this case there has been no attempt to prove it. Nor are there such facts or circumstances shown as to authorize a Court of Equity to infer it.

The appellant acted in the making of the mortgage as a high-minded lady who was desirous of assisting her husband in his troubles, and she could not have made a disposition of her property, which would have been more approved of by a Court of Equity than to apply it to the payment of her husband's debt. Ryder vs. Session, 7 R. J., 344.

The Court will only set aside dealings between parties occupying fiduciary relations, in the absence of actual fraud, upon the condition that the money secured by the instrument, or the consideration money paid,  [**21]  be repaid. Callis vs. Ridout, 7 G. & J., 1; Bell vs. Webb, 2 Gill, 163; Mason vs. Marsh, 4 Md., 124; Lewin on Trusts, 365.

There is no actual fraud proved in this case, and therefore, in the event of the setting aside of the mortgage, the Court will order the money secured thereby to be repaid.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*481]  BARTOL, C. J., delivered the opinion of the Court.
The facts of this case as disclosed by the record, so far as it appears material to state them, are as follows:
On the 20th day of January, 1865, Samuel C. Edes made his last will; by the tenth clause of which he devised "to Thomas J. Carson, his heirs and personal representatives, all his estate, effects and property real, 

 [*482]  personal and mixed, wheresoever situate, in trust and confidence, for the objects and purposes in this clause of his will declared concerning the same; that is to say: that during the natural life of his mother, his estate and property of every kind, (excepting the money and property devised and bequeathed by the preceding provisions of his will,) shall be preserved and kept together [**22]  by his executor, hereinafter appointed; who was thereby fully authorized to collect and receive all the income, rents and profits of the same; and he thereby directed that his executor, out of said income, rents and profits, should pay to his (testator's) mother, the sum of two thousand dollars per annum, so long as she shall live, in quarterly instalments, &c., accounting from the day of his decease."
The eleventh clause of his will was as follows:
"Immediately after the decease of my said mother, I will and devise all the rest and residue of my property, real, personal, and mixed, not hereinbefore devised and bequeathed, to my brother Richard Andrew Edes, my sister Mary Jane Pairo, and my sister Elizabeth W. Long, in equal proportions, share and share alike, to them and each of them, their heirs and personal representatives; excepting only, and provided, that if my said brother shall marry within three years after our mother's death, then and in that case, I bequeath to him the sum of three thousand dollars, to be allowed to him out of the principal amount and interest due me on certain promissory notes of my said brother, now held by me, (and which are not to be collected [**23]  until a general division is made of my estate,) over and above what, by this section, is devised to my two sisters aforesaid. The property and money devised and bequeathed by this section to my said brother and sisters, are to vest in them, discharged from the trust created in item ten of this will."
He appointed Thomas J. Carson executor, who took out letters testamentary on the 26th day of January, 1865.

 [*483]  At that time Mrs. Pairo, the appellant, who was one of the devisees in remainder, was absent from the State, having been sent South by the military authorities in 1863. She returned to her home in Baltimore in April, 1865; and on the 27th day of the same month executed and delivered to Thomas J. Carson the mortgage which she now, by her bill of complaint, prays to have annulled and set aside.
The mortgage, in which her husband, Charles W. Pairo, united, conveyed to Thomas J. Carson, his heirs, executors, &c., "all the estate and interest, right, title, property, claim and demand, whatsoever, of Pairo and wife, and each of them, of, in, into and out of all the estate, real, personal and mixed, whereof the late Samuel C. Edes, died seized, or possessed, or was in [**24]  any manner entitled to, interested in, or could claim."
The consideration stated in the mortgage was a debt of $ 16,864.86, recited therein, to be due and owing by Chas. W. Pairo to Thomas J. Carson; and its purpose was to secure the payment thereof with interest from the 24th day of April, 1865.
By the condition in the mortgage the debt and interest were payable on demand; and the instrument contained an assent to the passing of a decree for the sale of the property.
The appellant charges in her bill of complaint that the mortgage was extorted from her by Carson, by cruelty, and by means of threats that, unless his demands were complied with, he would dismiss her husband from his place in his (Carson's) banking house; and destroy his business position and prospects. These grave charges have not been supported by legal proof; the testimony of Mrs. Long on that subject, being merely a repetition of the statements made to her by the appellant herself, are of course, inadmissible.
We do not consider it necessary to advert to the state of mental excitement under which Mrs. Pairo was suffering 

 [*484]  at the time the mortgage was executed, as described in the testimony of Mrs. Long;  [**25]  and which has been referred to by her counsel as furnishing ground for impeaching the mortgage. In our opinion, there is a fatal objection to its validity, growing out of the fiduciary relation of Carson, with respect to the mortgagor, and to the property conveyed, which existed at the time of the mortgage, and which, under the circumstances of this case, entitles the appellant to equitable relief.
Under the will of Samuel C. Edes, Carson was charged with the two-fold duty of trustee and executor. The will vested in him the legal estate for the purposes of the trusts; it required him to keep the property together during the life of testator's mother, to collect the income, rents and profits, and out of them to pay Mrs. Edes her annuity of $ 2,000 per annum; and at her death, to turn over the whole estate, real and personal, to the legatees and devisees in remainder, with the accumulations unimpaired, except by the payment of the annuity.
The appellant, as one of the devisees in remainder, had a vested interest or equitable estate under the will, which could not come into possession until after the death of Mrs. Edes, the life annuitant. During her life the legal estate was held by [**26]  Carson, as trustee both for the life annuitant and the devisees in remainder, who were interested in the faithful performance of his duties, both as trustee and executor.
When the mortgage was executed Mrs. Edes was living, and Carson held the property as trustee. The transaction, therefore, falls within the established rules of equity, which govern dealings between trustees and cestuis que trust, with respect to the trust property, and conveyances of the same to the trustee.
Upon principles of public policy, for the prevention of fraud, and to remove from trustees all temptation to violate their duties, by securing to themselves profit and 

 [*485]  advantage at the expense of those whose property and interests are confided to their charge, they are not allowed to purchase the property from the cestuis que trust, or acquire rights therein which may bring their personal interests in conflict with the discharge of their official duties. It has been held in numerous cases, and is well settled, that while such transactions are not absolutely void, they are discountenanced by Courts of Equity; the presumption is against their validity, and they are never upheld unless it clearly [**27]  appear that they are free from all taint or suspicion of unfairness. The onus of showing their perfect bona fides is cast upon the party who sets them up, and not upon the cestuis que trust who assails them. In support of this proposition many authorities might be cited; but it is sufficient to refer to Smith vs. Townshend, 27 Md. 368, and the authorities there cited, and those collected in Hill on Trustees, 247, note 2, (4th Ed.,) and in 1 Story's Eq. J., secs. 321, 322, and notes.
In view of this well settled rule, it seems to us that the mortgage in this case cannot be supported. It has been argued by the appellees' counsel, that being a mere charge or security, and not an absolute conveyance of the property, it does not fall within the rule above stated. But we think, when we look at the facts and circumstances as disclosed by the record, and apparent on the face of the mortgage, that there is no ground for such a distinction. The effect of the instrument was to divest Mrs. Pairo of her whole interest in the trust estate as completely as if it had been an absolute conveyance. It is stated in the answer that the whole property [**28]  conveyed is insufficient to pay the debt it was intended to secure; the equity of redemption therefore was of no substantial value. Pairo, the debtor, was insolvent; the debt was by the terms of the mortgage payable on demand, and was liable to be foreclosed immediately. Certainly no more effectual instrument could have been devised to divest the appellant 

 [*486]  of her whole trust estate. It is, therefore, obnoxious to the same objection, as if it had been an absolute conveyance; and under the rule we have stated will not be supported as valid in a Court of Equity, in the absence of complete and satisfactory proof on the part of the mortgagee, or those claiming under him, that it was freely and voluntarily made by the appellant, with full information as to her rights, and that no unfair advantage was taken of her condition and circumstances.
We consider it perfectly clear upon the authorities and for the reasons stated, that if this bill had been filed during the life-time of Carson, a Court of Equity could not hesitate, upon the state of facts disclosed by the record, to set aside the mortgage, without any imputation of actual fraud, or fraudulent intent on the part of the [**29]  trustee in procuring it. It would be declared invalid upon the high ground of public policy, which we have before stated is the foundation of the rule.
It remains to be considered whether anything has occurred since the mortgage was executed, to deprive the appellant of equitable relief.
It has been contended that the deed of trust, executed by the appellant and others on the first day of September, 1866, operated as a confirmation of the mortgage. This point was not much pressed by the appellees in the argument, and we think it very clear that the deed can have no such operation or effect. It was not intended as a confirmation, it simply refers to the mortgage as existing, and recognizes the right of Carson to pay to himself the mortgage debt out of Mrs. Pairo's share of the money arising from the sale of the trust property.
"In order to constitute a valid confirmation, a person must be aware that the act he is doing will have the effect of confirming an impeachable transaction." 1 Lead. Ca., in Equity, 117 m, and cases there cited.
In 16 Md. 456, and 20 Md. 117, 151, it was said, "to make an act of ratification effective the cestui  [**30]   que trust must not 

 [*487]  only have been acquainted with the facts, but apprised of the law, how those facts would be dealt with if brought before a Court of Equity." The deed of trust has none of the essential qualities, to give it the force and effect of a ratification of the mortgage. The main ground of defence relied on by the appellees, is the lapse of time since the mortgage was executed, and the death of Carson before the bill was filed. It was upon this ground that the Judge of the Circuit Court refused to grant relief, at the same time expressing his want of entire satisfaction with the conclusion to which he came.
We have had the benefit of a most full and elaborate argument, and have been referred to a great number of authorities bearing upon this, as well as the other questions in the case; all of which we have examined; and have found none which we think would justify us in refusing to the appellant relief in this case, on account of supposed laches on her part, or lapse of time in filing her bill, or by reason of the death of Carson.
This we think will be manifest by reference to the cases cited and relied upon by the appellees' counsel in support of the [**31]  fourth point of their brief. In some of them, lapse of time, and the death of parties have been considered as circumstances affecting the equitable rights of the complainant to relief; and when the delay has been for a long period of time, without excuse or explanation; it has been sometimes regarded as sufficient ground for refusing relief, especially where, in the meantime, other parties have acquired rights; or there have been other facts and circumstances from which the Court could see that injustice might be done by annulling a transaction, which had been long acquiesced in by the complainant.
On the other hand, a great many cases have been cited in which relief has been granted after the lapse of a much longer time, than has occurred in this; and where too the party, upon whom the law casts the onus of explaining the transaction, had died before the bill was filed.

 [*488]  To refer to the cases particularly, and to point out the special circumstances in each, which controlled the judgment of the Court, would require this opinion to be extended to too great length.
While we recognize it as a salutary rule, that Courts of Equity will refuse their aid to parties who have [**32]  "slept upon their rights, and acquiesced for a great length of time," before seeking relief, yet in dealing with a question of this kind, each case must necessarily depend very much on its own circumstances, and looking at this case in the light of the authorities, we do not find that there has been any such laches and delay on the part of the appellant as ought, in equity, to deprive her of relief.
The bill was filed in 1870, five years after the execution of the mortgage. Carson died in 1869. We lay less stress upon the circumstance of his death, because the invalidity of the transaction impeached, depends mainly on the relations of the parties to each other, and the intrinsic nature of the transaction itself, as disclosed on the face of the mortgage, rather than upon any extrinsic circumstances; and besides, the law has in some measure equalized the parties, by making the appellant an incompetent witness; because Carson is not living to testify. (Act of 1868, ch. 116).
The delay in filing the bill is explained by the fact appearing from the testimony of Mrs. Long, in her answer to the 13th interrogatory, (to which no exception was taken,) that the appellant was not informed [**33]  of her legal right to impeach the mortgage until in May, 1870; when for the first time she had the benefit of legal advice.
Her delay therefore could not he construed into acquiescence.
The principles upon which Courts of Equity proceed in determining the effect of length of time upon the rights of a party in a suit of this kind, are laid down in Hatch vs. Hatch, 9 Ves. 292; Morse vs. Royal, 12 Ves. 355; 

 [*489]  and Wright vs. Vanderplank, 8 DeG., McN. & G. 133; cited by appellees' counsel.
In Hatch vs. Hatch, where the bill was filed in 1800 to impeach a transaction which took place in 1780, Lord ELDON said: "I do not deny, that length of time is of great consequence in all these cases of fraud, breach of the policy of the law, &c. But in all cases it is some evidence, that the transaction was understood at the time not to be fraudulent; and that there might have been some circumstances of the possibility of which the party ought to have the advantage."
He then adds: "But the evidence in this case is the answer," &c. In that case the transaction was set aside.
In Morse vs. Royal, Ld. Ch. ERSKINE said, "As to the effect [**34]  of length of time, where there is no bar by the Statute of Limitations, a Court of Equity will never lay down as a general proposition, that though the fact, that imposition has been practiced, is established, the party is too late; and by the accident of the death of the person who might have contradicted him, shall be deprived of his right to relief. The true operation of length of time is by way of evidence." **** And in the same case he says: "The point upon the length of time is put thus: that I must shift the proof from the one to the other. I do not know, that I am to go to that length. I am to see that the transaction was fair; that no advantage was taken; that there was no concealment."
These decisions were followed in Wright vs. Vanderplank, where the Ld. J. TURNER after quoting the language of Ld. ELDON in Hatch vs. Hatch, says of the case before him, which was a bill to set aside a deed of gift from a daughter to her father: "The parties knew of their right to impeach the gift, and left the defendant to live on the income, and after ten years come to make him account. Looking at the lapse of time, and to the fixed, unbiased and deliberate intention of not impeaching [**35]  the deed, which 

 [*490]  in my opinion must be attributed to the daughter, I think the bill was rightly dismissed."
We do not find any thing in the principles established by these decisions, or cited in the argument, which, in our judgment, ought to deprive the appellant of relief.
There are no facts or circumstances disclosed by the record, from which it can be inferred, that she ratified the mortgage, or acquiesced in it with a knowledge of her rights to impeach it. The mere lapse of time, and the death of Carson, are not of themselves sufficient to bar her claim; and having instituted her suit without delay after being informed of her rights, we are of opinion, that she is entitled to relief. The decree of the Circuit Court will therefore be reversed, and the cause remanded, in order that a decree may be passed annulling and setting aside the deed of mortgage of the 27th day of April, 1865, and so much of the deed of trust of the first day of September, 1866, as relates to the said mortgage, in so far as the rights of the appellant are concerned; reserving, however, the rights of the appellees, under said mortgage and deed of trust, in so far as they may operate to convey any [**36]  interest or estate in the property therein mentioned of Charles W. Pairo, the husband of the appellant. And under the prayer for general relief, the appellant is entitled to a decree requiring an account of the trust property.
Decree reversed and cause remanded. 

50 of 144 DOCUMENTS 

WASHINGTON BOOTH vs. ROBERT CAMPBELL, JR., and N. A. RAMSBURG, trading as CAMPBELL & RAMSBURG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 522; 1873 Md. LEXIS 25 

February 21, 1873, Decided 

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

The facts are stated in the opinion of the Court, which also sufficiently sets forth the exceptions taken at the trial below.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Individual Liability of a Stockholder of an Incorporated Company, under Act of 1868, ch. 471, (General Corporation Act.) Effect of failure to pay in the Capital Stock within the prescribed time.

Under section 59 of the Act of 1868, ch., 471, (General Corporation Act) the several stockholders of a corporation are individually liable until the whole amount of its capital stock shall have been paid in, for any debts of the corporation contracted before that time.

The failure to pay in the capital stock of a corporation within the time prescribed by law, subjects the corporation to proceedings for a dissolution, but has no application to the defence of an individual stockholder sued for the recovery of a debt of the corporation.

The provisions of section 59 of the Act of 1868, ch. 471, are applicable as well to the increased capital stock of a corporation, under section 69, as to the capital fixed in its original charter. 

COUNSEL:
Geo. C. Maund and Geo. Wm. Brown, for the appellant.

In this case all of the capital stock was paid in, after suit, but before trial. Was not that fact a bar to the further continuance of the action? The case of Norris vs. Johnson, 34 Md., 489, pointedly abstains from deciding this question, and leaves it open.

By the plain intent and policy of the Act of 1868, the individual liability of the stockholder is terminated by payment of the entire capital stock at any time before the trial of the suit against him.

The debts sued upon in this case were contracted after the payment of the capital stock fixed by the original charter. Such payment forever terminated the liability of the stockholder, and such liability cannot arise as to debts subsequently contracted by the Company, even though the capital stock be increased, and such increase of stock be unpaid, because the individual liability of the stockholder rests entirely upon statutory enactment, and there is no clause [**2]  of the statute providing for such liability after the stock fixed by the original charter has all been paid. Smith's Com. on Statutory Construction, secs. 714, 715, 716.

John P. Poe, for the appellees.

The ruling of the Court, excluding the certificate, dated 14th August, 1872, was correct.

The claim of the appellees had arisen in the summer and fall of 1871. At this time the appellant was a stockholder to the amount of $ 5,000, and the capital stock had not been paid up. By the provisions of the law, the right of action of the appellees against the appellant as such stockholder became then complete and perfect. This much is not denied, and if the suit had been tried at the January term or May term, 1872, instead of being continued to the September term, 1872, when it was tried, it will not be disputed that the appellees would have been entitled to recover. But the proposition contended for by the appellant is, that this perfect complete and absolute right of action in November, 1871, and which so continued until the 14th of August, 1872, was on that day destroyed by the recording of the certificate dated on that day, or in other words, that the recording of such certificate [**3]  operated as a release of the valid, pre-existing legal right of action of the appellees.

The appellees, on the other hand, maintain that the liability of the appellant became "determined and irrevocable" by the contracting of the debt in question by the corporation, "while the appellant was a stockholder and before the capital stock was fully paid up;" and that the subsequent payment of the whole of the capital stock, which still leaves the company largely insolvent, will not have the effect of putting an end to a previously valid claim against the appellant, and of remitting the appellees to an action against the company.

This question is res adjudicata in this Court. Norris vs. Wrenschall, 34 Md., 498, 500; Hager vs. Cleveland & Bassett, 36 Md., 476; Code, 1868, Art. 26, sec. 59; Norris vs. Johnson, 34 Md., 489, 491; Abbott vs. Aspinwall, 26 Barb., 207; Moss vs. Oakley, 2 Hill, 265; Aspinwall vs. Torrance, 1 Lansing, 383.

Even if such antecedent liability could in some cases be released by the subsequent payment of the whole of the capital stock, yet the case of the appellant is not brought within such construction of the Code, because the capital stock was not paid [**4]  in as required by law. One half of the increase of $ 23,000, viz., $ 11,500, was not paid in within one year from the 28th April, 1871. This is fatal of itself to the defence of the appellant.

The statutory liability could at most only be discharged by compliance with the statutory requirements, which was not done. Art. 26, (1868) sec. 59.

By the terms of section 69 of Article 26, stockholders in corporations, whose capital is increased as therein provided, continue subject to the liability declared in section 59.  

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

OPINIONBY:
BRENT 

OPINION:

 [*525]  BRENT, J., delivered the opinion of the Court.
This case involves the individual liability of the appellant, as a stockholder in the Chesapeake Steamboat Company, a corporation formed under the general corporation law of this State, (1868, ch. 471) for a debt contracted by the company before the whole amount of its capital stock was paid in (sec. 59). All errors in pleading have been waived by an agreement between the parties, and the case is to be tried, upon the facts offered in evidence, without regard to the state of pleadings.
This company [**5]  was incorporated on the 12th of May, 1868, with a capital of $ 22,000, and the appellant on the 28th of April, 1870, became a stockholder to the extent of $ 1,000. On the 24th of May, 1870, a certificate was filed in the office of the Clerk of the Superior Court of Baltimore City, by which it appears that the whole amount of this capital stock had been subscribed and paid for. On the 11th of April, 1871, the stockholders determined to increase the capital stock, and it was accordingly increased to $ 45,000, and on the 27th of May following a certificate to that effect was duly recorded. Of the increased stock the appellant took $ 4,000, making the 

 [*526]  whole amount of stock held by him $ 5,000, for which he has paid in full. The three promissory notes, which are the causes of action, are dated, one on the 14th of July, and the other two on the 14th of September, 1871, and the suit was brought on the 10th of November of the same year.
After these facts had been offered at the trial, the appellant offered to give in evidence a certificate, duly executed and recorded, showing that the whole amount of the increased capital stock of the company had also been subscribed, and paid [**6]  in as follows: $ 8,500 on the 28th of April 1871, $ 1,800 within one year from that date, and the balance, $ 12,700, within thirty days before the 14th of August 1872, the date of the certificate. This certificate was duly filed for record in the office of the Clerk of the Superior Court of Baltimore City on the day after its date.
Upon objection made by the plaintiffs the Court refused to allow this certificate to go in evidence to the jury, and this refusal forms the subject matter of the first bill of exceptions.
As no objection is taken to the certificate upon any ground of informality or other defect, the sole question presented by the exception is, whether the liability of a stockholder under the 59th section of the Act of 1868, (supplement to the Code 1868, Art. 26,) for a debt of the company, contracted before the capital stock has been paid in, is terminated by the payment in of such capital stock, or continues after that event. The section provides that "all the stockholders of any such corporation shall be severally and individually liable to the creditors of the corporation of which they are stockholders, to an amount equal to the amount of stock held by them [**7]  respectively, for all debts and contracts made by the corporation, until the whole amount of the capital stock fixed and limited by the corporation shall have been paid in, and a certificate 

 [*527]  thereof made and filed as prescribed in the following section of this article; and the capital stock so fixed and limited shall all be paid in, one half thereof in one year, and the other half thereof in two years from and after the incorporation of said company, or such corporation shall be dissolved." It is insisted by the appellees that the provision "until the whole amount, &c., shall have been paid in" refers to debts that may have been contracted, while on the part of the appellant it is claimed, that it has reference to the individual liability of the stockholder, and fixes a period when such liability is to cease. We think the construction contended for by the appellant is the proper one. In construing a statute the usual and ordinary meaning of words is to be adopted and followed, unless there exists a strong and controlling reason for giving them an unusual signification. The law before us was drafted and reported to the Legislature by a commission composed of very able gentlemen,  [**8]  and we must infer that in knowing the ordinary meaning of terms, they used such as were best calculated to indicate the purpose of the law. The word until is not synonymous with the word before, and if the contingency mentioned in this section was intended to apply to debts, the expression used would have been, "for all debts and contracts made before the whole amount, &c.," and not "until the whole amount of the capital stock, &c." This view is strengthened by reference to the language used in section 64, where it is intended to make the liability of a stockholder fixed and determinate upon the happening of a contingency. There the language used is not until, but "before the making, &c." If the punctuation is to be any guide, this also indicates that the word until is not designed to apply exclusively to the debts made by the corporation, as it is separated by appropriate punctuation from that expression, and is thereby made to refer to a provision antecedent to that one. 

 [*528]  Manifestly to our minds the construction of this section is to refer the words "until the whole amount of capital stock, &c.," to the expression "shall be severally and individually [**9]  liable." By doing so the word until is accepted in its ordinary signification, and is the appropriate one to be used in that connection. We therefore read the section to mean, that the several stockholders of a corporation are individually liable until the whole amount of its capital stock shall have been paid in, for any debts of the corporation contracted before that time. This construction fixes a period of time, at which the individual liability of the stockholder ceases; and the creditor is to look for payment to the corporation, the payment in of whose capital stock has now been secured as a fund out of which its liabilities are to be met. If therefore the whole capital stock of this company was paid in before the trial of this suit, the antecedent liability of the appellant had terminated, and the appellees were not entitled to prosecute their claim to a judgment against him.
The argument, that the right to an action against a party, upon his liability for a debt, once given cannot be divested, may be true where it is given unconditionally. But if given to depend upon a contingency it is otherwise. The same law which confers it may direct it to cease upon the happening [**10]  of a certain event. Nor do we agree with the appellees' counsel that the appellant cannot avail himself of the defence that the whole amount of capital stock has been paid in, because it was not paid, one-half in one year, and the other half in two years, as required by the section which we have been considering. The failure to make the payment in the time mentioned subjects the corporation to proceedings for a dissolution, but has no reference or application to the defence of an individual stockholder sued, as in the present case, for the recovery of a debt of the corporation.

 [*529]  It was intimated at the argument, that the Court below would have given the same construction to this section which we have placed upon it, but for an expression used in the opinion delivered in the case of Norris vs. Wrenschall, 34 Md. 492. The point we have been considering did not arise in that case, and was not involved in its decision. The language used in the opinion must be confined, as it was intended, to a case where the debt was contracted by the corporation, "whilst the defendant was a stockholder, and before the capital stock is paid up." If these two conditions [**11]  concur at the time of trial, there can be no doubt of the liability. In another case, ( Norris vs. Johnson, 34 Md. 485,) argued and decided at the same time, the point was distinctly adverted to and left undecided--and it was so intended by the Court.
The second exception is taken to the rejection of the prayer of the defendant, in which the Court is asked to instruct the jury, that the defendant is not liable if the whole amount of capital stock, fixed and limited by the original charter of the company, was paid in before the debt to the plaintiff was contracted, although they may find the increased stock of the company was not so paid in. The language of the section authorizing an increase of the capital stock of a corporation is too clear in its language to admit of any question upon this point. It provides (sec. 69,) "And every corporation incorporated under the general laws of this State or under this Article which shall so diminish or increase its stock, shall remain subject in other particulars to the provisions of this Article" This clearly embraces the 59th section, and makes its provisions applicable as well to the increased capital stock of a corporation [**12]  as to the capital fixed in its original charter. This prayer was therefore properly refused.
But for the error in refusing to allow the certificate, mentioned in the first bill of exceptions, to be given in evidence to the jury, the judgment below will be reversed. 

 [*530]  As this certificate appears from the record before us to be conclusive against the right of the appellees to recover, a new trial will not be ordered.
Judgment reversed.
STEWART, J., dissented.  

51 of 144 DOCUMENTS 

DAVID A. MARTIN vs. WILLIAM R. JEWELL, and A. H. LARRIMORE, Constable.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 530; 1873 Md. LEXIS 26 

February 21, 1873, Decided 

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

The facts of the case are sufficiently stated in the opinion of the Court. The grounds of the defendants' demurrer to the bill of complaint were, that the complainant had not stated a proper case for the relief sought, and that he had an adequate remedy at law.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

What Estate may not be sold under a Fieri Facias -- When Equity will interfere by Injunction to prevent a Sale.

A debtor's equitable estate in personal property, cannot at law be seized and sold under a fieri facias.

On the 31st of January, 1867, J. obtained before a Justice of the Peace, two judgments against S., upon which executions were issued on the 12th of December of the same year. These executions were returned, and writs of vendi issued on the 19th of June, 1868. Under these writs certain personal property, included in a mortgage from S. to M., dated the 29th of November, 1867, and recorded the same day, and a crop of wheat growing on the farm of M., of which S. was the tenant, were advertised to be sold on the 6th of July, 1868. By an agreement between S. and M., dated the 2nd of December, 1867, M. was entitled to one-half of this crop by way of rent, and the interest of S. in the other half was mortgaged to him on the 20th of March, 1868. The agreement of rent was modified on the 7th of April, of the same year by another agreement between the parties, which provided that the proceeds of the entire produce of the farm should be paid to M., and the crops of every sort should be shipped and sent to market in his name, to the end that he might be first paid as well his rents therefrom, as also all moneys advanced by him, and all accounts for provisions, machinery, teams, labor, property and matters of every sort, furnished by him to S. Upon a bill filed by M. against J., and the constable who advertised the property for sale, praying that the defendants might be restrained from selling the property, and that the judgments and executions might be set aside as null and void, it was HELD:

That the complainant had no such interest in the judgments as to justify him in asking a Court of Equity to set them aside, but that he was entitled to an injunction to restrain the sale of the property.  

COUNSEL:
Alexander Randall, for the appellant.

This is an application by a mortgagee of personalty, to restrain an officer from selling at a most ruinous season the equitable interest of the mortgagor in an undivided and ungathered crop, and in farming implements and cattle indispensable to the saving of the crop, under executions issued upon void judgments, rendered illegally and without consideration, against the mortgagor. Equity will interfere in such a case to prevent the certain and irreparable damages which would result to the complainant under such a forced sale. It is not necessary to allege in words that the damage would be irreparable. Davis, et al. vs. Reed, 14 Md., 156.

The defendant in the execution was the complainant's tenant, to whom he had leased his estate for the year, and the forced sale of the equitable [**2]  interest would have destroyed the complainant's chance for any crop for the year. It would have vested in a multitude of purchasers a claim to seize property already conveyed to the complainant, and must inevitably have involved him in contentions and losses. Shipley vs. Ritter, et al., 7 Md., 413; McCreery vs. Sutherland, 23 Md., 471.

The defendants were attempting to sell an equitable estate in personalty, under an execution at law, which was illegal. Rose and Gauss vs. Bevan, et al., 10 Md., 470; Harris and Chauncey vs. Alcock, 10 G. & J., 251. The judgments upon which the executions were issued were void, as admitted by the demurrer. Code of Pub. Genl. Laws, Art. 51, sec. 13; Clark & Jackson vs. Bryan & Lunt, 16 Md., 171; Glenn vs. Rogers, 3 Md., 321; 1 Rob. Prac., 383. And in such cases equity will interfere by injunction. Dilley vs. Shipley, et al., 4 Gill, 48; Brumbaugh vs. Schnebly, 2 Md., 321; Clark & Jackson vs. Bryan & Lunt, 16 Md., 171.

The judgments were rendered before any debt was due by the defendant therein to the plaintiff, and the complainant, being neither a party nor privy to the judgments, can interpose this defence.

An injunction will be granted [**3]  where peculiar circumstances of hardship seem to require it. White vs. Flannigain, 1 Md., 543; Little vs. Price, 1 Md. Ch. Dec., 185; Brown vs. Stewart, 1 Md. Ch. Dec., 87; Kent vs. Ricards, 3 Md. Ch. Dec., 393; Iglehart vs. Mayer, 4 Md. Ch. Dec., 514; Parsons vs. Hughes, 12 Md., 5.

The complainant had no adequate remedy at law.

1st.--He could not have appealed from the judgments, not being a party thereto, and had no notice of their existence until the advertisement.

2nd.--He had no right to maintain replevin, since his mortgages had not become due. And he would have been obliged to resort to a multiplicity of suits against the numerous purchasers.

3rd.--A suit on the officer's bond would have afforded no remedy. The property would have been scattered, and a recovery would only be to the extent of the sales, while the injury to the complainant would have been infinitely greater than the price the property would have brought.

Philip F. Thomas, for the appellees.

The Court were right in passing the order for the dissolution of the injunction:

First.--Because the appellant, if entitled to relief at all, had a full, complete and adequate remedy at law [**4]  by an action of trespass against the officer making the levy and sale, or of replevin after a sale of the property; and such being the case, a Court of Equity will not interfere to arrest or set aside the proceedings of a Court of Law or other judicial tribunal, upon the ground of legal error therein, unless prompted by conscience, to prevent wrong and injustice; but leaves the party to his remedy at law. Williams vs. West's Admrs., 2 Md., 174; Fowler vs. Lee, 10 Gill & JohCs., 363, 364; Little vs. Price, 1 Md. Ch. Dec., 185; Methodist Protestant Church vs. Mayor, &c., of Baltimore, 6 Gill, 402; Richardson, et al., vs. Mayor and City Council of Baltimore, 8 Gill, 439; Brumbaugh vs. Schnebly, 2 Md., 320.

Second.--Because the appellant has not set out in his bill such a case as entitles him to the relief prayed for. A Court of Equity has no jurisdiction, and will not intervene by injunction to restrain a mere trespass to real estate, and much less to personal property; to justify the allowance of an injunction, it must be auxiliary to the general relief sought by the bill; or to prevent fraud; or in a case where full and adequate relief cannot be granted at law; or where the trespass [**5]  goes to the destruction of the property as it has been held and enjoyed; or where it is necessary to prevent multiplicity of suits in cases where the right is controverted by numerous persons, each standing on his own pretensions. The bill in this case alleges none of these grounds of relief, but prays for the writ of injunction solely for the reason that the judgments are void for want of jurisdiction by the justice of the peace who rendered them, because they were between the same parties, entered on the same day, and for an amount above one hundred dollars. Amelung vs. Seekamp, 9 G. & J., 472, 473, 474; White vs. Flannigain, 1 Md., 543, 544, 548; Ches. and Ohio Canal Co. vs. Young, 3 Md., 489; Lewis vs. Levy, 16 Md., 85; Freeland, Hall & Co. vs Reynolds, 16 Md., 416; Hyde, et al. vs. Ellery, et al., 18 Md., 497; McCreery vs. Sutherland, 23 Md., 470.  

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

OPINIONBY:
BRENT 

OPINION:

 [*534]  BRENT, J., delivered the opinion of the Court.
The object of the bill filed in this case by the appellant, is to obtain an injunction prohibiting a sale of certain personal property by a constable. Upon demurrer to the bill the Court [**6]  passed an order dissolving the injunction which had been previously granted, and from that order the present appeal is taken.
The material facts and averments, to which it is necessary to refer, are as follows: The appellee, Jewell, on the 31st of January 1867, obtained before a justice of the peace two judgments against a certain David S. Smith, upon which executions were issued on the 12th of December of the same year. These executions were returned, and writs of venditioni exponas issued on the 19th of June 1868. Under these writs certain personal property, included in a mortgage from Smith to the appellant, dated the 29th of November, 1867, and recorded on the same day, and a crop of wheat growing on the farm of the appellant, which was tenanted to Smith, were advertised to be sold on the 6th of July, 1868. By an agreement between Smith and the appellant, dated the 2nd of December, 1867, the appellant was entitled to one-half of this crop of wheat by way of rent, and the interest of Smith in the other half was mortgaged to him on the 

 [*535]  20th of March, 1868. The agreement of rent was modified on the 7th of April of the same year by another agreement between the same [**7]  parties providing "that the proceeds of the entire produce of the farm shall be paid to Martin, and the crops of every sort shall be shipped and sent to market in his (Martin's) name, to the end that the said Martin may be first paid as well his rents therefrom, as also all moneys advanced by him, and all accounts for provisions, machinery, teams, labor, property and matters of every sort furnished by him to the said David S. Smith." It is also alleged that the judgments under which these executions were issued are illegal and void.
We do not think the judgments referred to can be called in question by this appellant. He has no such interest in them as can justify him in coming into a Court of Equity, and asking that they may be set aside. They are entirely between Smith and Jewell, and he, the appellant, is not in any manner liable under them.
He is however interested in the property which was advertised under the writs issued upon them, and over this question as presented by his bill a Court of Equity has ample jurisdiction to grant relief. All the property advertised to be sold, except the crop of wheat, is included in the mortgage of November, 1867. In this property Smith, the [**8]  defendant in the judgments, had only an equitable interest when the executions of December, 1867, were issued, and it is well settled that a debtor's equitable estate in personal property cannot at law be seized and sold under a fieri facias. Rose & Gauss vs. Bevan, 10 Md. 466; Harris and others vs. Alcock, 10 G. & J. 226, 251. In the latter case the mode by which a creditor may pursue such interest of his debtor is very clearly and distinctly pointed out. The entire growing crop of wheat was also advertised for sale. The appellant by the terms of the tenancy was equally interested in it with Smith, 

 [*536]  who by the agreement of December was to gather and secure it in proper time, put it in good condition and order for market, and ship it at such times as the appellant Martin might direct.
If the property levied upon had been sold as advertised, we do not think the appellant could have been compensated at law. It would have broken up his tenant Smith, and destroyed his means of making a crop, in which this appellant had an interest of one half. It would have involved him in numerous law suits and long delays, and effectually prevented [**9]  his tenant from carrying out the terms of his tenancy. Although the bill does not aver "irreparable injury," the facts, gathered from it and the accompanying exhibits, are sufficient to show, that such would be the result, if the relief asked for is refused. The stock and farming utensils would have been sold at a season when most needed, and without authority of law. The interest of the tenant in the growing crop of wheat would have passed into other hands, and he could not, even if willing, have so controlled and managed its preparation for market as to have carried out and complied with the obligations into which he had entered. These would have entailed losses upon the appellant, which would have been so speculative and uncertain, that they could not have been estimated in a Court of law with any sufficient degree of accuracy.
In our opinion the averments of the bill entitle the appellant to an injunction. The order dissolving it will therefore be reversed, and the case remanded for further proceedings.
Order reversed and cause remanded. 

52 of 144 DOCUMENTS 

THE NEW CENTRAL COAL COMPANY and ALEXANDER SHAW vs. THE GEORGE'S CREEK COAL and IRON COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 537; 1873 Md. LEXIS 27 

February 21, 1873, Decided 

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

The opinion of the Court contains a sufficient statement of the case.  

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

HEADNOTES:

Constitutional Law -- Constitution of 1867, Art. 3, sec. 48 -- Constitutional interpretation -- Eminent Domain -- How Forfeiture against a Corporation enforced -- Condemnation of Land for a Railroad -- Jurisdiction in matters arising upon Proceedings for the Condemnation of Land for a Railroad -- When a Court of Equity will Enjoin a party seeking the Condemnation of land, from Entry thereon.

By the Act of 1865, ch. 206, three persons therein named, and such others as might be associated with them in the manner therein provided, were incorporated by the name of the Lincoln Coal, Iron, Fire Brick and Oil Company, and were declared to "have all the privileges and rights necessary for carrying on the mining of coal and iron ores, and the manufacture of iron and fire brick, and for transporting to market the produce of their mines, land and manufactories, and should also have power to lease or purchase lands, mines and furnaces, with their appurtenances, and to hold all such property, personal, real and mixed, as they might require for the purposes aforesaid," &c.; and by the second section of the Act, for the purpose of enabling the company to transport the produce of their mines and manufactories to market, they were invested "with all and singular the rights, profits, powers, authorities, immunities and advantages for the surveying, locating and constructing a rail road, with the necessary appurtenances, from their mines or works to connect at any convenient point or points with other existing rail roads in Allegany County, or with the Chesapeake and Ohio Canal at Cumberland," in the same manner as had been given and delegated to the Baltimore and Ohio Rail Road Company, which included the full and ample power of condemnation for right of way. By the same section it was made the duty of the company to carry "all persons and property at the same rates of tolls and prices of transportation as the Baltimore & Ohio R. R. Company was, or should be by law, allowed to charge and receive." It was further provided by the fourth section of the Act, that until the first election of directors should be held, as therein provided, the three persons named in the first section as corporators, or a majority of them, should have full power and authority to exercise all the corporate power of the company. There was no time limited for accepting the charter, or for organizing the corporation under it. The books for subscription to the capital stock were first opened on the 1st of September, 1871, and, upon subscriptions being taken, the stockholders on the same day, held a general meeting, and elected a president and directors of the company. By the Act of 1872, ch. 50, the name of the company was changed from their first corporate name, to that of the New Central Coal Company. Upon a bill filed against this company to have it restrained by injunction from prosecuting proceedings of condemnation of a right of way for a rail road through the lands of the complainant, the complainant contended that before the charter of the defendant was accepted by the corporators therein named, and before any rights had been acquired thereunder, the charter itself had become abrogated and annulled by force and effect of the 48th section of the 3rd Article of the Constitution of 1867. HELD:

That the Act of 1865, ch. 206, was a competent exercise of legislative power and discretion at the time of its passage; and conceding that it had not been accepted before the adoption of the Constitution of 1867, it was not repealed by the 48th section of the 3rd Article of said Constitution, which declares that corporations shall not be created by special Act, except in particular cases; and that any Act of incorporation passed in violation of such section shall be void; such provision being merely intended to prohibit future legislation of the character described, and not to repeal previous legislative Acts. And the Act of 1872, ch. 50, passed as an amendment to the Act of 1865, ch. 206, was a valid Act of the Legislature.

The rule of construction which requires that a statute shall be taken to have a prospective operation, and never a retrospective effect unless there is something on the face of the enactment putting it beyond doubt that the Legislature meant it to operate retrospectively, applies to the interpretation of the State Constitution.

By section 40, of Article 3, of the Constitution of the State, which declares that, "The General Assembly shall enact no 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 Legislature is absolutely prohibited by implication from taking private property for any private use whatever, without the consent of the owner.

The Legislature in virtue of the right of eminent domain, may authorize the condemnation of private property by a mining company for the construction of a rail road to be used for the transportation of coal from its mines -- such use being of a public nature.

The fact of the selling of the franchises of a mining company by the corporators, for a consideration, before any of the stock was subscribed for, by means of which alone corporate rights could be transferred, forms no ground for an injunction against the corporation to stay it in the exercise of its franchises. If there be a misuser or abuser of the franchises granted to a corporation, the State alone can take advantage of such acts, and that by a direct proceeding for the purpose. No cause of forfeiture can be taken advantage of, or enforced against a corporation, collaterally or incidentally, or in any other mode, than by direct proceeding, instituted by the State for that purpose.

Where there are two parties having adjoining lands, and one desires a right of way to a particular point, or to connect with a certain other way, he is not entitled by compulsory means to take the land of his neighbor for the construction of such road, if it can be made on his own land with anything like reasonable convenience for the accomplishment of the objects sought to be attained.

Where a party claims the right to condemn the land of his neighbor for the construction of a railroad, he must show at least a reasonable degree of necessity for the exercise of such right; and whether such necessity exists or not, is a question to be determined exclusively by the Court specially clothed with jurisdiction and power to pass on the propriety of the inquisition of condemnation.

Irregularities in taking the inquisition of condemnation, inadequacy of the damages assessed, and all such questions, can only arise and be decided by the tribunal to which the inquisition is required to be returned for ratification or rejection. A Court of Equity can properly exercise no jurisdiction over such questions.

When upon proceedings instituted to condemn land for a railroad, the inquisition is returned to the Circuit Court, and before any action is had thereon, the parties seeking the condemnation, enter upon the premises described in the inquisition, and commence to construct their road, such conduct is clearly unauthorized, and a Court of Equity will enjoin such unlawful entry until the final action of the Circuit Court on the inquisition, and the actual payment of the damages in the event of the ratification of the inquisition. 

COUNSEL:
William Walsh, for the appellant.

If the appellee's land was exempt from appropriation to public use--if the applicant had no power to condemn because its charter was void, or did not want the land for public use, or if for any other cause, the proceedings to condemn were erroneous or unfair, if the jury did not consider, value and allow all proper items of damage--all these matters were open before the Court of Law on the question of ratifying or rejecting the inquisition.

A Court of Equity has no power to interfere with the execution of the provisions of the appellant's charter. The proceedings to condemn were in fieri, and all objections were available before the Court of Law. Under the charter the Court of Law is a special jurisdiction having exclusive authority to set aside, confirm or order a new inquisition. Equity could only interfere after confirmation for some want or abuse of power. Wilm. & Susq. R. R. Co. vs. Condon, 8 Gill & J., 443; Balto. & Havre de Grace Turnpike [**2]  Co. vs. North Central R. R. Co., 15 Md., 193; Hamilton vs. Annapolis and Elk Ridge R. R. Co., 1 Md., 553, 569; Balto. and Havre de Grace Turnpike Co. vs. Union Railway Co., 35 Md., 221; Stevens vs. Middlesex Canal, 12 Mass., 466; Stowell vs. Flagg, 11 Mass., 364; Calking vs. Baldwin, 4 Wend., 667; Kerr on Injunctions, sec. 342; Western Maryland R. R. Co. vs. Patterson, ante, 125.

If the appellant's charter was a valid law of the State they had a right to exercise the franchise granted by it, and the Court could not rightfully restrain them. The Constitution of 1867 did not purpose to repeal private Acts of Assembly. Its object was to prescribe the boundaries of future legislation, and not to annul private grants of past Legislatures. The 48th section of the 3d Article expressly confirms such previous grants by reserving to the Legislature the power to alter and amend them, where such power was reserved in the original Acts. The charter of the appellants passed in 1865, cannot be "an Act of incorporation passed in violation of this (the 48th) section."

All Constitutions and laws speak to the future and not to the past. General legislation does not repeal or alter prior special [**3]  legislation. Cooley on Const. Limitations, 62, 370; Trustees of the Birkenhead Dock vs. Laird, &c., 4 De G. M. & G., 732; Fitzgerald vs. Champneys, 2 John. & Hem., 31.

The appellant's charter was accepted by the corporators as soon as it was granted. The grant was solicited by the corporators, and needed no special acceptance to be shown by proof, because acceptance is presumed. But acceptance is proved also. Ellis vs. Marshall, 2 Mass., 269; Middlesex Husbandmen and Manufacturers vs. Davis, 3 Metcalf, 133; Newton vs. Carberry, 5 Cranch C. Ct., 632; Angell and Ames on Corp., sec. 83.

The terms of the appellant's charter are the same as the Frostburg Coal Company's, (Act of 1844, ch. 135,) which was held to create the corporators, a body corporate at once, and to authorize them to exercise all the franchises of the company without any previous acts done on their part. Lessee of Frost, et al. vs. The Frostburg Coal Co., 24 How., 278; Penobscot Boom Corpo. vs. Lamson, 16 Maine, 224.

The Act of 1872, ch. 50, amending the appellant's charter and enlarging its powers, is a legislative declaration of the non-repeal of the charter, and would be sufficient to cure all defects [**4]  of organization, if any existed. Franklin Fire Insurance Co. vs. Hart., 31 Md., 59; Basshor vs. Dressel, 34 Md., 503.

The appellant's charter gives it all the rights and powers for surveying, locating and making its proposed railroad, which the charter of the Baltimore and Ohio Railroad Company gave it for the same purposes, in regard to its railroad. The appellant had a right, therefore, to enter upon the land, after the view, and pending the confirmation of the inquisition, for all purposes preliminary to the acquisition of the title to the land required. The bill on its face shows the entry was after view, and shows the pendency of the confirmation. All that is charged was of that preliminary character allowed by the charter and by general law applicable to this class of cases. It was not an entry under claim of consummated title in the appellant under its charter. If not lawful as an incipient step to the acquisition of the title, it was a mere trespass, not remediable by injunction. There is a broad and clear distinction between such preliminary acts, and that kind of "taking" of the land, which is prohibited by the Constitution, and in some cases restrained by injunction,  [**5]  until compensation is paid or tendered. There is no right to compensation until confirmation--no right to compensation while the party to receive it is resisting confirmation. Therefore, the injunction cannot rest on the ground of the "taking" of the land without compensation paid. The "taking" of the land prohibited by the Constitution, without previous compensation, is the permanent, physical occupation and appropriation of the land after confirmation; and not entries, surveys, examinations or acts with a view to test fitness of location, or, originate or continue proceedings to acquire the permanent use and title of the land.

As regards such preliminary acts, they are either lawful under the 17th section of B. & O. R. R. charter, (which section is part of the appellant's charter,) or they are lawful as incident to the exercise of the right of ultimately taking the land, or mere naked trespasses, not remediable by injunction, but are in no sense the very "taking" of the land meant and prohibited by the Constitution. Winslow vs. Gifford, 6 Cush., 327; Cushman vs. Smith, 34 Maine, 247; Steuart vs. Mayor, &c., of Baltimore, et al., 7 Md., 501.

The appellee's lands are subject [**6]  to the right of eminent domain to the same extent as if they belonged to a private citizen. Even the franchises of a corporation may be taken for public use, and a fortiori may its lands be so taken. The Bellona Co.'s Case, 3 Bland, 442; The West River Bridge Company vs. Dix, et al., 6 How., 507; Perrine vs. Chesapeake and Delaware Canal Company, 9 How., 72; Richmond, &c., R. R. Co. vs. Louisa R. R. Co., 13 How., 71; The Binghampton Bridge, 3 Wallace, 51.

The use for which the appellant requires the land is a public use in the Constitutional sense. The railroads of the appellee, the Cumberland Coal and Iron Company and Mt. Savage Company, were all made by private mining corporations to carry the produce of their mines to market under legislative grants similar to the appellant's. Condemnations were made for them and confirmed by the Courts, and acquiesced in by the profession and the people. It is too late for the appellee to raise the question now. It is certainly a matter of great and general public interest to obtain access to the coal fields of the State, and to furnish the markets with coal for forges, ships, railroads and domestic purposes, though such coal may be owned [**7]  by a single person or corporation. Domestic comfort, travel, commerce, and almost every branch of industry, requires coal. The law does not look to whether one person or a thousand owns the coal, but to the universal public necessity of obtaining it. The law regards the question, not from the side of the owner or producer, but from the side of the great body of the public, who are the consumers. It is entirely overlooking the broad reasons that underlie the right of eminent domain to limit its exercise from the standpoint of the appellee's contention. The Legislature has always taken a different view of it, and the Court will not go behind the Legislative judgment of what public needs require. Gwynn vs. Jones' Lessee, 2 G. & J., 173, Reddall vs. Bryan, 14 Md., 444; Spring vs. Russell, 7 Green, 273; Harvey vs. Thomas, 10 Watts, 65; Hazen vs. Essex Co., 12 Cush., 477; The People vs. Smith, 21 N. Y., 597; Beekman vs. Saratoga, &c., R. R. Co., 3 Paige, 73; Hartwell vs. Armstrong, 19 Barb., 166.

The appellant's railroad is located to connect with the railroad built by the appellee. The latter's charter granted to all citizens and corporations the right of connecting with its railroad [**8]  by railroads to be made by them. What equity has the appellee to deny the appellant this right? It might be reasonably contended that the appellant would have a right to lay a road free over the appellee's land to make this connection. The appellee accepted its charter and made its road cum onere. Outside of the appellant's charter, there must be some mode of enforcing the right of access to the appellee's railroad. Bell vs. The Midland Railway Co., 10 C. B. N. S., 287, (100 E. C. L. R.;) The Midland Railway Co. vs. The Ambergate, &c., Railway Co., 10 Hare, 359; Bishop vs. North, 11 Mees. & Wels., 418.

But even if it were right to grant the injunction, the answer having denied all the substantial grounds of the bill, the Court should have dissolved it. At least the injunction should have been so modified as to permit the appellant to obtain an order from the Court of Law for a new inquisition, and to take all necessary proceedings to obtain the right of way. As the injunction now stands, the appellant can take no steps whatever to obtain this right of way and make the proposed railroad. The injunction, if allowable on any ground alleged in the bill, should have been granted, or [**9]  continued in a much narrower extent, and only until the appellant had agreed with the appellee, or consummated its title to the right of way according to the provisions of its charter. But the injunction is unlimited in duration, and so comprehensive in character as to prevent the appellant from taking any steps under its charter to secure the right of way.

Julian I. Alexander, for the appellee.

The act of incorporation of the appellant is null and void under the Constitutions of 1864 and 1867.

The Constitution of 1864, in its 3d Article, sec. 32, provides that "the General Assembly shall pass no special law for any case for which provision has been made by an existing general law. The General Assembly, at its first session after the adoption of this Constitution shall pass general laws providing for the cases enumerated in this section, and for all other cases where a general law can be made applicable." And by section 51 of the same Article it is provided that "corporations may be formed under general laws, but shall not be created by special Act except for municipal purposes, and in cases where, in the judgment of the General Assembly, the object of the corporation [**10]  cannot be attained under general laws."

The prohibition of section 32 is express that no special law shall be passed for any case for which provision has been made by an existing general law, and general laws are to be passed providing for the cases enumerated in the section, and all other cases where a general law can be made applicable. It is true that section 51 provides for the special case of corporations, but it is not the less true that the two sections are to be read together; reading "may" in the 51st section as "must," and this ought to be done where public interests or rights are concerned, and public or third persons have a right that the power shall be exercised; (Blake's Case, 39 N. H., 435;) the section then has direct reference to the 32d section. If, then, the object of the corporation can be attained under general laws, and it is to be noted that the word is in the plural, and a corporation may legitimately avail itself of several general laws, a special Act is void, and it is rather to be presumed that the Legislature is deceived in its grant where it is not affirmatively shown that its judgment was exercised, and it is manifest that the object of the corporation [**11]  could be attained under general laws, than to presume that the Legislature deliberately set at nought, for a private purpose, this imperative constitutional restriction. At the time this charter was passed there was both an existing law, and all the objects of the corporation could have been attained under it. The Code, Article 26, sections 68 to 87, incorporating sections 40 to 67, was the existing law.

The act of incorporation of the appellant is also void under the Constitution of 1867. The argument is briefly this: A charter, to be valid, must be accepted; until acceptance, it is a mere offer on the part of the Legislature, and the offer may be withdrawn at any time by the Legislature, and especially here, where the power of repeal or alteration was reserved. A fortiori it may be withdrawn by the sovereign people. The Constitution of 1867 did operate to withdraw the offer; consequently, any subsequent action under the charter was a nullity.

What is acceptance? In Rex vs. Hughes, 7 B. & C., 708, it was agreed that any unequivocal act, showing a desire and intention to accept the charter, is enough, provided it is done by a majority of the grantees. The language of the [**12]  Court of Appeals in the Canal Co. vs. Railroad Co., 4 G. & J., 145, clearly looks to some act done or right acquired as necessary to acceptance. Acceptance may be proved by showing the exercise of corporate powers; that is to say, formal proof of express acceptance by the only manner in which a corporation can regularly act may be dispensed with, and acceptance may be implied, as in the case of other contracts, not from the secret intentions or privy communications of the corporators inter sese, but from the open corporate acts of the parties. Shortz vs. Unangst, 3 Watts & S., 45; Pingrey vs. Washburn, Treasurer, &c., 1 Aiken, 264; Newton vs. Carberry, 5 Cranch C. C., 632; Bank of U. S. vs. Dandridge, 12 Wheat., 71.

It is admitted that in this case there was and is no written instrument or vote of acceptance on the corporation books. Where are the facts, which, in the language of the Supreme Court, demonstrate that the charter must have been accepted? or, in the language of our Court of Appeals, what act was done or right acquired under the charter? The answer, indeed, does not say that the charter was accepted; but to show conclusively that it was not accepted, the answer goes [**13]  on to say that the corporators were watchful to organize whenever an opportunity should present itself, &c. They accepted, upon their own showing, only on a contingent. But the appellee is not bound by the answer; and the evidence clearly shows that there was no acceptance.

The corporators, although the charter was passed in 1865, did nothing with it at all until about the first of September, 1871, when they sold it, with all its abundant powers and privileges, to George A. Pearre, for $ 300. A witness of the appellant testified that nothing was done prior to the sale of the franchises to George A. Pearre. It is true, the Company was shortly thereafter organized under the direction of their vendee. But nothing was done by the corporators under the charter for more than five years after its passage. It is clear that before acceptance a charter may be withdrawn. This charter reserves the right to the Legislature to alter and repeal it at pleasure. But this Court has said of "the common case of an act of incorporation passed by an individual State," that "ordinarily the State may repeal or modify" it "at pleasure at any time before it is accepted, and when no rights are acquired [**14]  under it. *** Because, until accepted it is not a grant, and there is no contract between the State and the corporation--no pledge of public faith to be violated by any alteration of the charter." Canal Co. vs. Railroad Co., 4 G. & J., 145, 198.

Then is an alteration in the Constitution of the State prohibiting such incorporations before acceptance of such an offer, a withdrawal of it? To show that it is, reference may be had to Gillespie vs. Fort Wayne & S. R. R., 17 Ind., 243; State vs. Dawson, 16 Ind., 40; Harriman vs. Southam, 16 Ind., 190; Aspinwall vs. Commrs. of the County of Daviess, 22 How., 364; Ex parte Pritz, 9 Iowa, 30; Davis vs. Woolnough, 9 Iowa, 104; Oliver Lee & Co's Bank, 21 N. Y., (7 Smith) 9.

The 48th section of Article 3 of the Constitution of 1867, provides that "Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes, and except in cases where no general laws exist providing for the creation of corporations of the same general character as the corporation proposed to be created; and any Act of incorporation passed in violation of this section shall be void." The 5th Article of the Bill [**15]  of Rights continues all Acts of Assembly in force on the 1st day of June, 1867, except such as may since have expired, or may be inconsistent with the provisions of this Constitution.

The grant of the charter to the appellant was but an offer; it required acceptance; and till acceptance could be withdrawn by the State. And not having been accepted in the meanwhile, it was withdrawn by the adoption of the Constitution of 1867, which provided that corporations should not be created by special Act, except for municipal purposes, &c.

Further, the charter is void because it is not constituted of any particular place. Sutton's Hospital, 10 Rep., 29b, 32b; Rolle's Abr. Corp., (D.;) London Tobacco Pipe Co. vs. Woodroffe, 7 B. & C., 838.

The corporators had no power to sell their franchise. But if they did validly part with their interests in it, their continuance as corporators was a mere sham, and the organization of the Company a part of the corrupt bargain. The Bill of Rights denounces monopolies and the grant of exclusive privileges, but what is the grant by the Legislature of the power of eminent domain for sale by the grantee, but a grant of an exclusive privilege tending [**16]  to a monopoly? Commonwealth vs. McKean Co. Bank, 32 Penna., 185; The Regent's Case, 9 G. & J., 365, 399.

The transfer of franchises by a company was expressly decided to be void in Susquehanna Canal Co. vs. Bonham, 9 Watts & S., 27; Arthur vs. Commercial, &c., Bank, 9 Sm. & M., 394; Clark vs. Corporation of Washington, 12 Wheat., 40.

The proposed rail way is not such a public use as justifies the exercise of the power of eminent domain.

From 2 Kent's Comm., 340, it appears that the constitutional limitations which are found in our Constitution, Article 3, section 40, prevent, 1st, the taking of private property for any private use whatever; and, 2d, for any other than a public use, on compensation being made; 3d, that whether the power is to be exercised is a question for the Legislature; but, 4th, what is such a public use as will justify the exercise of the power of eminent domain, is a question for the Courts.

One of the earlier cases is Bonaparte vs. Camden & Amboy R. R., 1 Baldw. C. C., 205. There, after citing a number of cases, to show that an injunction would issue to prevent trespasses by a party acting under color of law, the Court observed that it was [**17]  conceded that the law was void if it was to effect a private object, and that the true criterion was whether the objects, uses and purposes are for public convenience or private emolument. After holding that the C. & A Co. was a private corporation, the learned Judge went into the inquiry whether the use was public, and though it seemed to him like a monopoly, yet in a case of doubt he would not hold the charter unconstitutional, and he decided that the law compels the owner, in such a case, to alienate for a reasonable compensation, but does not allow the Company to take the land for any sum it can get a jury to say it is worth. See The West River Bridge Co. vs. Dix, et al., 6 How, 507, 539, 545, 546, 547; Cooley on Constl. Lim., 531; Gilmer vs. Lime Point, 18 Cal., 229; Dawson vs. Paver, 5 Hare, 415; Nesbitt vs. Trumbo, 39 Ill., 110; Crean vs. Crossly, 40 Ill., 175; Bankhead vs. Brown, 25 Iowa, 540; Lance's Appeal, 55 Penn., 25; Stewart's Appeal, 56 Penn., 413; Warren & Franklin R. R. Co vs. Clarion Land Co., 54 Penn., 28; The King vs. Ward, 4 A. & El., 384; Dunham vs. Williams, 36 Barb., 136; Memphis Freight Co. vs. Memphis, 4 Coldwell, 419; Binney's Case, 2 Bland, 129, 135; Hepburn's [**18]  Case, 3 Bland, 98; The Bellona Company's Case, 3 Bland, 450; State, &c., vs. Graves, et al., 19 Md., 351.

Looking at the Act, it will be seen that the Legislature does not declare the use under the charter a public use. On the contrary, the Act declares that for the purpose of enabling said Company to transport the produce of their mines and manufactories to market, "the said corporation is invested with the power to condemn," &c. In what plainer words could a private use be declared? One of the obvious tests of a public use is that the object of the use, when secured, cannot help in the nature of things being enjoyed by the public. But here is a private enterprise, to whose complete enjoyment, according to the very terms of the Act authorizing it, the intervention of the public is by no means necessary, for how can the public share in the transportation of the Company's produce? The assistance of the grant of eminent domain is invoked to show that the use is public, and then the assumption that the use is public is employed to justify the grant of eminent domain. But a public use must be public per se. The main purpose here is declared to be private. And if it be true, as it [**19]  certainly is, that the power of eminent domain cannot be granted to further a private use under color of a public use, what more apt instance of the abuse of public power could be given than this very case? The Company would, irrespective of its charter, certainly have a right if it could purchase it to come out with its produce by a tramroad over the appellee's land to the C. and P. R. R. If the road was built it would certainly have the right for the convenience of those dealing with it to act as a common carrier, and, if it declared itself such, it would be bound as a common carrier to carry for a reasonable price. All the objects of the Act could, therefore, be obtained without a grant of the power of eminent domain. But if this be not so, still the Legislature might have granted the liberty of becoming common carriers without the power of eminent domain, and so the charter ought to be construed. Every object of the appellant can be attained, if it will only pay for it, without the exercise of the power of eminent domain; and, what is directly to the purpose, without constituting its road a public use. Upon the very language of the Act, it appears that the Legislature were not [**20]  contemplating, or might not have been contemplating, a public use at all, and that the power of eminent domain has been granted to subserve a plainly private use.

The powers of condemnation have not been exercised in time. The Act incorporates the charter of the B. and O. R. R. Co. By the 22d section of that Act, the road was required to be commenced within two years. And where is the unreasonableness of holding that this was a substantial condition to be complied with by the appellant? In England it is most usual to limit the term within which compulsory powers to take land may be exercised. Now, it has been frequently held that the power to take the lands of private persons is determined by the expiration of the time limited for its exercise. Morris and Essex R. R. vs. Central R. R., 2 Vroom (N. J.) 205; Reg. vs. London and N. W. Railway Co., 6 Eng. L. & Eq., 220; Peavey vs. Calais Co., 1 Am. Railway Cases, 147; Plank Road Co. vs. Davidson, 39 Penn., 435; Pratt vs. Atl. and St. Lawrence R. R. Co., 42 Maine, 579; Thicknesse vs. Lancaster Canal Co., 4 Mees. & W., 472.

The appellant has no right to interfere with the appellee's reasonable working of its mines by occupying [**21]  its only means of outlet. It is not necessary for the Lincoln Company to come over this part of the appellee's property, and therefore, one of the elements requisite to the exercise of the power of eminent domain does not exist, to wit: its public necessity. The inconvenience to the appellee from the proposed road would be most excessive, and the appellant can get out at the other end of its property on Squirrel Neck Run. A witness who is an expert, proves that that would be the best course for the appellant, for though the expense would be heavy at first it would be paid back in the saving of freight. It was open to the appellant to contradict this, but it never attempted to do so.

The charter of the appellee gives it the right of mining its coal as economically and conveniently as it can, and gives it the right of being carriers of its own coal on its own land. And the appellant stands, as to powers and rights, on no higher grade than the appellee. Hence, in the absence of a clear and express grant of such a right as claimed by the appellant, it will not be implied that the Legislature intended to interfere with the previously granted franchises or vested rights of the appellee.  [**22]  Canal Co. vs. Railroad Co., 4 G. & J., 1; Mayor of Jersey City vs. Morris Canal and Banking Co., 1 Beasley, 547; McRoberts vs. Washburne, 10 Minn., 23; Morris & Essex R. R. Co. vs. Central R. R. Co., 3 Vroom, 214; Manchester, &c., Railway Co. vs. Great Northern Railway Co., 9 Hare, 284; Jenkin's 5th Century, Case XI.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*553]  ALVEY, J., delivered the opinion of the Court.
The bill in this case was filed by the appellees to have the appellants restrained by injunction, from prosecuting proceedings of condemnation of a right of way for a railroad, through the lands of the appellees. The inquisition had been taken and returned into Court for ratification, before the bill was filed; and by the injunction that was granted, the appellants were restrained "from doing or causing or permitting to be done, any act, matter or thing, in or towards, or for the purpose of obtaining possession of any part of the lands of said company, and from, in any way, entering thereon, or on any part thereof, or in any way interfering with said company's possession of said lands, and the said company's free [**23]  and uninterrupted use thereof," until the further order of the Court.
After the granting of this injunction the inquisition that had been returned to the Circuit Court for Allegany County was set aside for cause shewn; and, upon motion to dissolve the injunction, the Judges in the Court below being divided in opinion, the motion was overruled; and it is from the order overruling the motion to dissolve, in consequence of the division in opinion of the Judges, that this appeal is taken.
There are several questions presented by the record, some of which are of considerable interest and importance; and, without unnecessary detail of fact, we shall take them up and consider them in their order.
1. The first among the questions seriously urged is, whether the appellants ever acquired corporate franchises from the State to enable them to do what they attempted to do, and which was restrained by the injunction?
The appellants were chartered by the Act of 1865, chapter 206, by the name of the Lincoln Coal, Iron, Fire-Brick, 

 [*554]  and Oil Company, of Allegany County. By the Act, it was declared that the three persons therein named, and such other persons as might be associated with [**24]  them in the manner therein provided, should be and were thereby incorporated and made a body politic by the name and style of, &c., "and the said company shall have all the privileges and rights necessary for carrying on the mining of coal and ores, and the manufacture of iron and fire-brick, and for transporting to market the produce of their mines, land, and manufactories, and shall also have power to lease or purchase lands, mines, and furnaces, with their appurtenances, and to hold all such property, personal, real and mixed, as they may require for the purposes aforesaid," &c., and by the second section of the Act for the purpose of enabling the Company to transport the produce of their mines and manufactories to market, they are invested "with all and singular the rights, profits, powers, authorities, immunities and advantages for the surveying, locating and constructing a railroad, with the necessary appurtenances, from their mines or works to connect at any convenient point or points with other existing railroads in Allegany County, or with the Chesapeake and Ohio Canal, at Cumberland," in the same manner as have been given and delegated to the Baltimore and Ohio Railroad Company,  [**25]  which includes the full and ample power of condemnation for right of way. By the same section, it is made the duty of the appellants to carry "all persons and property at the same rates of tolls and prices of transportation as the Baltimore and Ohio Railroad Company are, or shall be by law, allowed to charge and receive." It is further provided, by the fourth section of the Act, that until the first election of directors should be held, as therein provided, the three persons named in the first section as corporators, or a majority of them, should have full power and authority to exercise all the corporate power of the Company. 

 [*555]  There is no time limited for accepting the charter, or for organizing the corporation under it.
The books for subscription to the capital stock were first opened on the 1st of September, 1871, and, upon subscriptions being taken, the stockholders, on the same day, held a general meeting, and elected president and directors of the Company.
Afterwards, by the Act of 1872, chapter 50, the name of the appellants was changed from their first corporate name to that of the "New Central Coal Company," and it is by the latter name that the appellants have [**26]  answered the bill in this case. The Act authorizing the change of name also authorized an increase of capital stock from two and a half millions to five millions of dollars, and also provided for an additional number of directors to manage the affairs of the corporation.
The Act of incorporation in this case is almost identical in its provisions with that of the Frostburg Coal Company, also a Maryland Act of Incorporation, which came under consideration of the Supreme Court of the United States, in the case of Frost's Lessee vs. Frostburg Coal Co., 65 U.S. 278, 24 How. 278, 16 L. Ed. 637. In that case, in reference to the question of the corporate existence, the Court held that the persons named in the Act of incorporation constituted the corporate body, and were clothed with all the powers and privileges conferred by the charter, and that the latter took effect immediately on its acceptance by the persons named in the Act; and the subsequent steps, such as the subscription of the stock, procurement of the coal lands, election of the directors, of the president and secretary, passing by-laws, &c., were steps taken in perfecting the organization, and to enable [**27]  it to use its powers and privileges for the purpose for which they were granted. The principle of this case in 24 Howard is unquestionably correct, and, as such, has been recognised by this Court, in the case of the Franklin Fire Ins. Co. vs. Hart, 31 Md. 59.

 [*556]  In this case, however, it is alleged and contended, that before the charter was accepted by the corporators therein named, and before any rights had been acquired thereunder, the charter itself had become abrogated and annulled by force and effect of the 48th section of the 3rd Article of the Constitution, adopted in 1867.
What is sufficient evidence of acceptance of the charter by the corporators, is often a question depending upon the circumstances under which the charter itself was procured. It is not necessary that the Act of acceptance be evidenced by writing, nor even by the vote of the corporators. Acceptance of the charter may generally be inferred from the exercise of the corporate powers granted. "If a peculiar charter is applied for, and it is given, there can be no reasonable ground to doubt of its immediate acceptance. It has, indeed, been held that grants beneficial to corporations,  [**28]  may be presumed to have been accepted, and an express acceptance is not necessary." Ang. & Am. on Corp., sec. 83; Charles River Bridge vs. Warren Bridge, 24 Mass. 344, 7 Pick. 344. Here, there is express proof by one of the corporators, that the Act of incorporation was immediately accepted, though nothing appears to have been done under it until September, 1871.
But, apart from the question whether the charter had been accepted before the adoption of the Constitution of 1867, and conceding that it had not been, does the provision of the Constitution relied on by the appellees, apply to or affect this charter in the manner supposed?
The Constitution, by the 48th section of the 3rd Article, provides, that "corporations may be formed under general laws; but shall not be created by special Act, except for municipal purposes, and except in cases, where no general laws exist, providing for the creation of corporations of the same general character, as the corporation proposed to be created; and any Act of incorporation, passed in violation of this section shall be void;" and, by 

 [*557]  the last clause of the same section, it is provided, that "all charters [**29]  heretofore granted, subject to repeal or modification, may be altered, from time to time, or be repealed." The Act of incorporation now before us was, as we have before stated, passed before the adoption of this constitutional provision, and at the time of its passage there was in existence a general law, which still exists, with some modifications, providing for the creation of corporations of the same general character, as that created by the special Act. This special Act was a competent exercise of legislative power and discretion at the time of its passage, and unless the present Constitution was intended to have a retrospective operation and to embrace prior acts of legislation as well as the future, there can be no question as to the validity of the appellants' charter.
The general rule for the construction of statutes is plain and well settled, and is founded in the most obvious principles of justice, and that is, that the law shall be taken to have a prospective operation, and never a retrospective effect, unless there is something on the face of the enactment putting it beyond doubt that the Legislature meant it to operate retrospectively. Moon vs. Durden, 2 Exch. 22. [**30]  There can be no good reason suggested why this same general principle, so wise and just, should not also apply as a rule of interpretation of the Constitution. It is stated as the rule upon the subject, by Judge COOLEY, (Const. Lim., 62,) and he is not only supported by the reason and justice of the thing, but by authority. In the case of Cass vs. Dillon, 2 Ohio St. 607, a question arose as to the effect of a clause in the State Constitution, which declared that the Legislature "shall never authorize any county, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association," and it was held that a law enacted before the adoption of the Constitution, authorizing such subscription, was not repealed by 

 [*558]  implication, as the clause in the Constitution referred only to future laws. Other cases might be cited, if it were necessary, illustrative of the same general proposition. The principle, however, is too well founded in reason and justice to require the support of authority.
With this rule of construction in view, the terms of the constitutional provision relied on here, would [**31]  seem to admit of no doubt. When it is declared that corporations shall not be created by special Act, except in particular cases, it is manifestly intended to create prohibition to future legislation of the character described, and not to repeal previous legislative Acts. And so, when it is declared that any Act of incorporation, passed in violation of the particular section of the Constitution, shall be void, it would seem to be plain, from the ordinary grammatical sense of the terms, that they refer to future Acts of the Legislature; as it is not easy to conceive how a previous Act could have been passed in violation of this particular constitutional provision, which at the time had no existence. And it is not less clear, we think, that the Act of 1872, chapter 50, passed as an amendment of the appellants' charter, is also a valid Act of the Legislature. The power is expressly reserved to the Legislature, by the section of the Constitution already referred to, to alter or repeal all previous charters; and as the amendment here obtained was but an alteration, it was clearly competent to the Legislature to make it.
In the course of the argument for the appellees several cases [**32]  were referred to as authorities for the position that the Constitution operated a repeal of the previous Act of incorporation; but, in reference to those cases, it is sufficient to say that in none of them, except those in 16 Ind. 40, and 17 Ind. 243, were the questions decided at all analogous to that presented here; and as to the cases in the Indiana Reports, they would seem to be based upon a course of reasoning that we could not apply 

 [*559]  to this case. Besides, the language employed in the clause of the Indiana Constitution, with reference to which those cases were decided, is not the same as that in our Constitution.
2. The next question presented is, whether the use for which the appellees' land is attempted to be condemned and appropriated by the appellants, is such a public use as is authorized by the 40th section of the 3d Article of the Constitution?
The section of the Constitution just referred to declares that "The General Assembly shall enact no 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 [**33]  the party entitled to such compensation."
By the plain and well acknowledged construction of this constitutional provision, which is found in nearly if not all American Constitutions, the Legislature is absolutely prohibited by implication from taking private property for any private use whatever, without the consent of the owner. This is but declaratory of the previously existing universal law, which forbids the arbitrary and compulsory appropriation of one man's property to the mere private use of another, even though compensation be tendered. For, as was very justly said by the Supreme Court of the United States, that government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no Court of Justice in this country would be warranted in assuming that the power to violate and disregard them--a power so repugnant to the common principles of justice and civil liberty--lurked under any general grant of legislative authority, or ought to be implied [**34]  from any general 

 [*560]  expression of the will of the people. Wilkinson vs. Leland, 2 Pet. 657.
With this restriction, however, the Legislature has, by virtue of the right or power of eminent domain, the right to authorize, by compulsory process, the taking of private property for public uses, but for public uses only; and it is for the regulation of the exercise of this high and delicate power, and to secure full and ample compensation to the party aggrieved, that the constitutional provision has been adopted. "It undoubtedly must rest as a general rule," says Chancellor KENT, (2 Com., 340,) in the wisdom of the Legislature, to determine when public uses require the assumption of private property; but if they should take it for a purpose not of a public nature, as if the Legislature should take the property of A, and give it to B, or if they should vacate a grant of property, or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would clearly be unconstitutional and void." Whenever, therefore, the use is in fact public, or has for [**35]  its object the public benefit or utility, though coupled with private objects of gain and emolument, the question of the exercise of the power of eminent domain over private property, is exclusively one of discretion in the Legislature; but whether the use, in any particular case, be public or private, is a judicial question; for otherwise, the constitutional restraint would be utterly nugatory, and the Legislature could make any use public by simply declaring it so, and hence its will and discretion become supreme, however arbitrarily and tyranically exercised.
These general propositions we do not understand to be controverted; but the question remains, whether the use to which the right of way through the appellees' land is sought to be applied, is public, as contended by the appellants, or merely private, and therefore not authorized, as insisted by the appellees?

 [*561]  The primary object of the charter in this case, as in a great many others granted by the Legislature, was to enable the corporators to work the mineral lands of the State, and to transport the produce of the mines to market. It has certainly been the settled policy of the State, for many years past, to stimulate [**36]  enterprise and to encourage the combination of capital, for the purpose of developing the large mineral resources in the western portion of the State; as upon their full and successful development depend, in a great measure, the success of the works of internal improvement upon which the State has expended many millions of money. As means of wealth and revenue, therefore, the State has a material interest in the operation of the coal and other mineral lands in that section; and the statute book, within the period of the last thirty or forty years, will abundantly attest the policy of the State upon the subject, by the great number of liberal charters granted, all having for their object the same general purpose as the charter before us. Indeed, among the first of these charters, (Act of 1835, chapter 328,) was one to the appellees, containing provisions and powers in nearly all respects similar to that granted to the appellants. It was under that charter that the railroad was made with which the appellants propose to connect their road; and it is by an express condition in that charter that the right is reserved to the citizens, or other incorporated companies, to make such connection.  [**37]  In all the mining charters granted, as also in the general law providing for the formation of mining corporations, power is given to construct railroads, coupled with the power to obtain the right of way by condemnation. Indeed, without such right, and a general ramification of railroads through the coal fields, many of the most valuable mines could be but very partially and imperfectly worked, and much of the coal could never be got to market. Without the facility of transportation from the mines by railroads, 

 [*562]  there would be little or no inducement to the investment of capital, and but small progress could be made in developing the vast mineral wealth of the State, in which the public at large are interested. To furnish the requisite facilities for the construction of railroads for the successful operation of the mines is therefore, in some sense, a public necessity, and that being so, the use of the ways for such roads may well be said to be public, and therefore the right of condemnation exists. That the right should be placed in the hands and under the control of a private corporation, detracts nothing from the public nature of the use. For, as was very correctly said [**38]  by the Supreme Court of Pennsylvania, in Hays vs. Risher, 32 Pa. 169, that an individual expects to gain by the use of the way, and has private motives for risking the whole of the necessary investment, and acquires peculiar rights in the work, detracts nothing from the public aspect of it. The same can be said of every railway corporation, and of almost every public enterprise.
Nor is there any want of authority for the proposition that such use as here proposed is of a public nature, and therefore within the right of the eminent domain, as authorized to be exercised by the Constitution. In Pennsylvania, where the constitutional provision on the subject is very similar to our own, the right to take by compulsory process, land for the construction of lateral railways to coal mines, has been very fully sustained, as being for public use, and therefore within the power of the eminent domain; and the case in 32 Pa.169, just referred to, is direct and full to this proposition.
And in the case of Bankhead vs Brown, 25 Iowa 540, cited and relied on by the appellees' counsel, the power of the Legislature to authorize the taking [**39]  by compulsory process, the right of way to coal or other mines, as being for public use, is fully conceded by the Court.

 [*563]  Our conclusion is, therefore, that the use in question is of a public nature, and that it is competent to the appellants, under the authority of their charter, if there be a reasonable necessity for it, to condemn the right of way for their railroad; and that there was no proper ground for the injunction in this respect.
3. The next question raised by the appellees is, as to the effect of the alleged selling of the franchises by the corporators, for a consideration, before any of the stock was subscribed for, by means of which alone corporate rights could be transferred. In other words, the fraudulent organization of the corporation: it being contended that, by reason thereof, the present holders of the franchises, are not entitled and should not be allowed to exercise the powers granted by the charter, in taking the land of the appellees, to promote the objects of the corporation so organized.
In regard to this proposition, however, it is enough to say, that, though the fact be as alleged, it forms no ground for an injunction against the corporation [**40]  to stay it in the exercise of its franchises. If there has been a misuser or abuser of the franchises granted to the corporators, the State alone can take advantage of such acts, and that by a direct proceeding for the purpose. No cause of forfeiture can be taken advantage of, or enforced against a corporation, collaterally or incidentally, or in any other mode, than by a direct proceeding, instituted by the State, for that purpose. In this proposition, all the authorities concur. Ang. & Am. on Corp., secs. 776, 777.
4. We come next to the question, whether the appellants have a reasonably convenient way for their railroad over their own premises, and whether there exists any necessity in fact for the condemnation of the appellees' land, for such way?
The general rule doubtless is, as applicable to a railroad to be located between given termini, the Act of 

 [*564]  incorporation not defining the precise location, that the managers or directors of the corporation are made the sole judges of what is proper or convenient, as well with reference to location, as to the execution of all other powers granted, as means of attaining the objects of the charter. Attorney General vs.  [**41]   The Eastern Counties, & N. & E. Railway Cos., 2 Railw. Cas. 823; Hill vs. West. Ver't. Railw. Co., 32 Vt. 68; Brainard vs. Clapp, 10 Cush. 6; Boston Gaslight Co. vs. Old Colony & Newport Railw. Co., 14 Allen 444; Ham vs. Salem, 100 Mass. 350. But this rule can hardly be applicable to a case circumstanced like the present. Here, as alleged, there are two parties having adjoining lands, and one, desiring a right of way to a particular point, or to connect with a certain other way, attempts by compulsory means, to take the way of his neighbor, instead of constructing the road on his own premises. Now, if such be the case, and the road can be made on the land of the party desiring its construction, with anything like reasonable convenience for the accomplishment of the objects authorized to be attained, there certainly exists no public necessity for resorting to the extreme power of compulsory appropriation of private property for the purposes of the way; and the exercise of such power, under the circumstances, would be arbitrary, and a fraud upon the great fundamental guarantee of private rights.  [**42]  To justify the exercise of this extreme power, where the Legislature has left it to depend upon the necessity that may be found to exist, in order to accomplish the purposes of the incorporation, as in this case, the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression, and the sacrifice of private right to corporate power. Indeed, in the delegation of the 

 [*565]  power is implied the condition that it shall only be exercised when, and to the extent, actually found necessary.
This rule, however, may, and generally does involve questions of engineering, and other questions, that a Court of Equity cannot undertake to determine. It is proper, therefore, that they be referred exclusively to the Court specially clothed with jurisdiction and power to pass on the propriety of the inquisition of condemnation. That tribunal can hear testimony of competent persons upon the subject, and have the whole matter explained and illustrated before them, in a manner [**43]  that would be difficult to accomplish in a proceeding in equity. Besides, the proceedings on the return of the inquisition are intended to be summary and expeditious, and are never attended with the delays that are necessarily incident to suits in chancery. If such questions were allowed to be drawn to a Court of Equity, great inconvenience, and frequently ruinous delays, would likely be the consequence. No ground, therefore, in this respect, was or could be shewn for the injunction.
5. As the inquisition taken in the proceedings of condemnation has been set aside, the allegations of the bill in this case in reference to the misconduct of the sheriff, the irregularities of the proceeding in taking the inquisition, the inadequacy of the damages assessed, and all such like grounds of objection to the inquisition, are no longer subject matters of complaint here. It is proper to say, however, that they formed no ground for the injunction, even if the allegations in regard to them were all true. They were matters exclusively for the Circuit Court in passing upon the question of the ratification or rejection of the inquisition. This Court has, at the present term, in the case of the  [**44]  West. Md. Railroad Co. vs. Patterson, ante 125, expressly decided that all such questions can only arise before and be decided by the tribunal to which the inquisition is required to be 

 [*566]  returned for ratification or rejection. That a Court of Equity can properly exercise no jurisdiction over such questions.
6. The remaining question has reference to the acts and conduct of the appellants after the taking of the inquisition and before it was acted on by the Circuit Court. The allegation is, that during the pendency of the inquisition before the Circuit Court for ratification or rejection, and before any action was had thereon, the appellants entered upon the premises described in the inquisition, and commenced the work of construction of their road. This was clearly unauthorized, as no rights could be acquired under the inquisition until it was finally ratified, and, in addition to that, the actual payment or tender of the damages assessed. These are conditions precedent to the vesting of the right condemned, under the express terms of the Constitution; the section before referred to providing that property shall not be taken without just compensation being first [**45]  paid, or tendered, to the party entitled. And if these conditions are disregarded, and the party taking the inquisition enters upon the premises without authority, a Court of Equity will enjoin such unlawful entry until the conditions are fully complied with. This is well settled. West. Md. R. Co. vs. Owings, 15 Md. 199; Balto. & Susq. R. Co. vs. Nesbit, 51 U.S. 395, 10 How. 395, 13 L. Ed. 469; Stacey vs. Vert. Central R. Co, 27 Vt. 39. But the injunction in this case was too broad. It should have simply restrained the appellants from entering on the premises attempted to be condemned, until the final action of the Circuit Court on the inquisition, and until actual payment of the damages, in the event of the inquisition being ratified. As, however, the inquisition was set aside before the motion to dissolve the injunction in this case was heard, and the appellants no longer claiming a right to enter the premises under the inquisition, the injunction should have been dissolved. There was no 

 [*567]  longer any ground upon which the injunction could be sustained, and, consequently, it should have been dissolved, and the [**46]  bill dismissed.
Order reversed, injunction dissolved, and bill dismissed. 

53 of 144 DOCUMENTS 

JOHN WALZ vs. CATHARINE ALBACK, Executrix of JOHN ALBACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 404; 1873 Md. LEXIS 15 

February 20, 1873, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Irrelevant question -- Liability of an Endorser of a Promissory note as a Maker.

In an action on a promissory note, the plaintiff having proved by the maker that he signed it, and that before its maturity it was delivered to the testator of the plaintiff, to whose order it was made payable, and that at the time of such delivery, the name of the defendant was endorsed thereon, it was not competent for the defendant to ask the witness on cross-examination "for whose benefit was the note in question given?" The question was irrelevant.

If a promissory note made payable to the order of a particular person, be endorsed by a third person at the time, or before it is signed by the maker, and before it is delivered to the payee, such endorser in the absence of any evidence to qualify his liability, is to be regarded as an original promisor, and liable as such.  

COUNSEL:
John Johnson, W. E. Gleeson and John J. Snyder, for the appellant.

The defendant had the right to enquire into all the circumstances relating to the transactions between the parties, and especially into the consideration which passed between them; and further, the maker of the note, and the one primarily liable being produced on the part of the plaintiff, the defendant on cross examination should have had the liberty to thoroughly sift the witness, so as to show the relations of the paper and parties to the matter in dispute. Ringgold vs. Tyson, 3 H. & J., 172; Hunt vs. Edwards, 4 H. & J., 283; Byles on Bills, 61 (margin) 16 Law. Lib.; 2 Starkie's Ev. 169 & 170, (top paging.)

The prayer of the plaintiff is obnoxious to the objections, that it shuts out from the jury the entire enquiry into the consideration and circumstances attending the making and delivery of the paper and how the signature of the defendant was placed there: and also asserts affirmatively the right to recover on what is at best only a joint note, without leaving the whole circumstances surrounding [**2]  the matter, to the jury. Cline & Francis vs. Miller, 8 Md., 274; Beall vs. Pearre, Admr. of Brown, 12 Md., 550.

The instructions asked for in the third bill of exceptions were intended as mere counterparts to the proposition contained in the first and second bills.

Patrick M'Laughlin for the appellee.

It is immaterial on what part of a promissory note a party signs his name, he will be held as maker if he signed it anywhere before it went into the hands of the payee. Ives vs. Bosley, 35 Md., 262, 268; Draper vs. Weld and others, 13 Gray, 580, 584, 585; Lyman vs. Sherwood, 20 Vermont, 42, 45, 47; Robinson vs. Bartlett, et al., 11 Minnesota, 410, 413; Perkins vs. Barstow, 3 Rhode Is., 503.

The party cannot explain his purpose in signing the note, unless the holder was aware at the time he took the note of the limits to the liability assumed by the defendant. Ives vs. Bosley, 35 Md., 262, 268; Hunt vs. Adams, 5 Mass., 358, 361; Draper vs. Weld, 13 Gray, 580, 585; Lyman vs. Sherwood, 20 Vermont, 42, 47; Wood vs. Repold, 3 H. & J., 125, 132; Yates vs. Donaldson, 5 Md., 389, 399, 401.

The record does not raise the question of consideration or no consideration. It [**3]  does raise the question as to which of the two makers received the benefit. This is merely raising the question as to whether the paper was for the accommodation of one or the other of the makers. This is immaterial to the holder, even if he knew of it when he took the note; and will not be sufficient to put the plaintiff on proof of consideration. But, there is no evidence in this case to show, that the plaintiff had any knowledge for whose accommodation the said note was made. Ellicott vs. Martin, Love & Co., 6 Md., 509; 5 Parsons on Bills and Notes, 437, 438, n. q.; Phelan vs. Moss, 67 Penn., 59.

A consideration is presumed in favor of a payee of a promissory note. 1 Parsons on Bills and Notes, 175; Wood vs. Repold, 3 Harr. & John., 125, 132.

The possession of a promissory note is prima facie evidence of the right of the holder, and also of the fact that the holder gave value for it. 1 Parsons on Bills and Notes, 184; King vs. Milsom, 2 Camp. 5.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*406]  BOWIE, J., delivered the opinion of the Court.
The appellee instituted suit on the 8th of July, 1872, in the Court [**4]  of Common Pleas of Baltimore City, against the appellant, and filed her narr in the form of an action 

 [*407]  of assumpsit, containing the usual common counts, and a special count, on a promissory note of the appellant, dated the tenth of May, 1870, for five hundred dollars, (then over due,) payable two months after date to the appellee's testator.
The appellant pleaded that he never promised as alleged, and secondly, that he never was indebted as alleged.
At the trial, the plaintiff, to support the issue joined on her part, produced Peter Hermann, a competent witness, to prove the signature of the appellant, to the note, and also offered evidence tending to prove that the note, which was as follows:

"$ 500.00.   BALTIMORE, MAY 10th, 1870.
"Two months after date I promise to pay to the order of John Alback five hundred dollars, at -----; value received.
PETER HERMANN."
"Endorsed: John Wolf.
"(U. S. Stamp, duly cancelled, 25 cts.) was delivered to the testator of the plaintiff, before its maturity, and that at the time it was so delivered the name of the defendant, was written across the back of it; and also proved by the said witness that he, "Peter Hermann,  [**5]  " had before the delivery of the note, signed his name thereto. On cross-examination of the witness, the appellant asked him "for whose benefit was the note in question given?" which question being objected to by the appellee, the Court below excluded the same, to which ruling the appellant excepted.
The appellee then prayed the Court to instruct the jury "that if they believed from the evidence in the case, that the name of John Walz, the defendant, was written by him on the back of the note offered in evidence at the time or before said note was signed by Peter Hermann, and before it was delivered by the said Peter Hermann to the said John Alback, deceased, then they are to find for the 

 [*408]  plaintiff; provided they believe that the plaintiff is the executrix of said John Alback, deceased, and provided they believe that said note was delivered by said Peter Hermann to said John Alback, deceased, in the life-time of said John Alback," which being granted, the appellant excepted.
The appellant then submitted three prayers, being the converse of the propositions embraced in the appellee's, and which are substantially as follows:
1st. That there is no sufficient evidence in [**6]  the case to entitle the plaintiff to recover.
2d. "That the note itself is not prima facie evidence that the defendant placed his name on the back of the note as an individual maker thereof."
3d. "That the defendant is not liable in this action, upon the promissory note sued on in the case, unless they (the jury) find from the evidence in the cause that a demand has been made upon Peter Hermann, maker, and notice of non-payment to the endorser, John Walz, upon said note."
The appellant in his brief and argument contends that the rulings of the Court below in excluding the question propounded by the appellant, in the first bill of exceptions, deprived the defendant of the right of enquiry into the consideration of the note, and asserts that the maker of the note, and the one primarily liable being produced on the part of the appellee, the defendant on cross-examination should have had the liberty to thoroughly sift the witness, so as to show the relations of the paper, and the parties to the matter in dispute.
We do not perceive in the question any such scope or object as that ascribed to it by the appellant, or in its rejection, any such consequence as that imputed.  [**7]  The question as propounded made no reference whatever to the absence of a consideration, or the existence of an illegal consideration, but implying that a consideration had 

 [*409]  passed, enquired for whose benefit the note in question was given. That was wholly immaterial. If the defendant executed the note under circumstances which in law made him a principal, as maker of the note, the fact that it was made for his accommodation, or that of his co-maker, constituted no defence to the action, and the circumstance that the joint-maker or co-promisor was a witness, and being cross-examined, did not in any manner change the rule of evidence, so as to authorize greater latitude of interrogation. The question was simply irrelevant, and properly excluded.
The second and third exceptions presenting the affirmative and negative of the same propositions, may be considered and disposed of together.
The evidence offered by the appellee tended to prove such facts, as if found by the jury, warranted the Court, in instructing them as prayed by the appellee, that if found, they should find for the appellee. The authorities on this subject are collected, and have been recently reviewed by [**8]  this Court in the very analagous case of Ives vs. Bosley, 35 Md. 262, 269.
Quoting from the Supreme Court of the United States in the case of Rey, et al. vs. Simpson, 22 How'd, 341, it is said, "When a promissory note made payable to a particular person or order, *** is first endorsed by a third person, such third person is held to be an original promisor, guarantor or endorser according to the nature of the transaction, and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made as surety for the maker, and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered as a joint-maker of the note. On the other hand, if his endorsement was subsequent to the making of the note, and he put his name there at the request of 

 [*410]  the maker, pursuant to a contract with the payee, for further indulgence or forbearance, he can only be held as guarantor."
It was held in that case in pursuance of the principles cited, that the appellant Ives could not escape his liability as joint-promisor, [**9]  which the law attached to his blank endorsement, unless he proved a different understanding of all the parties.
In the case before us, there was no evidence offered to qualify the liability of the appellant as joint-promisor, and all the testimony tended to fix his liability, as announced by the appellee's prayer.
It results from what we have said, that the appellant's prayers were properly rejected, there being no evidence or authority to support them.
There being no error in the rulings of the Court below, on the several exceptions, the judgment will be affirmed.
Judgment affirmed. 

54 of 144 DOCUMENTS 

WILLIAM A. ALLEN vs. MARY A. SOWERBY, Administratrix of JOSEPH A. SOWERBY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 410; 1873 Md. LEXIS 16 

February 20, 1873, Decided 

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

This was an action of assumpsit by the appellee's intestate, against the appellant to recover the sum of $ 201.92, claimed to be due upon a contract alleged to have been made between them. The alleged contract was a letter from the defendant to the plaintiff, dated New York, July 13th, 1868.

First Exception.--The plaintiff to sustain the issue on his part, proved that prior to the 13th July, 1868, he had been employed by the defendant as solicitor of policies for the Union Mutual Life Insurance Company of Maine, of which the defendant was the resident principal agent in and for the city of Baltimore and State of Maryland, at a flat commission of 20 per cent. on the first premiums thereon; that some time previous to the 13th July, 1868, plaintiff notified the defendant that he must have a higher rate of compensation if he continued to work for the company, and that the parties had a conversation on the subject without coming to any definite conclusion, in which the plaintiff stated to the defendant that he should require 25 per cent. on the first year's premiums on all policies he might procure in future, and 5 per cent. on all renewals [**2]  the second and third years--the same that he was already getting in other companies; that defendant informed plaintiff that he was going to New York on the 3rd July, 1868, and would write to him thence on the subject; that in July, 1868, while the defendant was in New York, plaintiff received by mail from the defendant the following letter, addressed to the plaintiff at Baltimore, in the defendant's handwriting, viz:

NEW YORK, July 13th, 1868.

J. A. SOWERBY, Esq.,

Dear Sir:--Mr. Crocker, our President, has arrived in Boston; he did not stop here as expected; he returned by the way of Albany, New York. I shall go to Boston on Wednesday night, with a view to get my new weekly plan in working shape.

In the meantime, with a view that there may be no time lost, I will here say, that I will accept your proposition in reference to coms., viz: 25 per cent. on all original prems. procured by or through you, and 5 per cent. renewals for two years. I will enter into a contract in writing on my return. I shall expect a large number of applications from you, and trust the arrangement may result to our mutual advantage. You can have the application that you have procured sent [**3]  to Boston for policies. I shall be home at the earliest moment.

The above has no reference to coms. for my new weekly plan--that I am not prepared to speak definitely of to-day. Give my kind regards to all.

I am yours truly,

W. A. ALLEN,

Agent.

(U. S. Stamp, 5 cents--14 July, 1868.)

That shortly after the receipt of the said letter, the plaintiff caused the 5 cent internal revenue stamp to be affixed to it, which now appears upon it, and with the marks of cancellation thereon appearing, and proceeded to act under the terms of the said letter; that not long after the defendant's return to Baltimore from New York, some time, he thought, in the month of July, the said defendant offered to enter into a written contract with the plaintiff, specifying the terms of their agreement, but the plaintiff declined to do so, saying to the defendant, "Your letter is as good a contract as I want, or good enough for me; I rely on your letter and your honor as to the terms of our agreement;" that defendant still urged on plaintiff to enter into the written contract, and offered to read to him a contract, which he produced and said he had entered into with another man, and [**4]  offered to read the same to him, but the plaintiff declined and refused to hear it, on the ground of the sufficiency of the letter from the defendant, and his unwillingness to vary its terms; that he did not enter into any other or new contract, but proceeded to act, and did act entirely under the terms contained in said letter; and that the plaintiff solicited and procured for the company represented by the defendant the applications for the several policies of insurance--seven in number--the gross amount of annual premiums amounting to $ 2,700, which are set out in the account filed with the declaration in the case.

On the part of the defendant it was admitted that the plaintiff as stated by him, had been previously employed as canvasser by the defendant; that the prior conversation, as stated by the plaintiff, had occurred between them, and that the letter of the 13th July, 1868, was his genuine letter, but the same was objected to as evidence by the defendant. The Court overruled the objection and admitted the letter.

The defendant offered to prove by his own testimony, that after his return to Baltimore from New York, he had an interview with the plaintiff; that he had [**5]  then prepared and read to the plaintiff a contract in writing, which embodied the agreement between them, in accordance with their previous understanding on the proposition of the plaintiff referred to in the letter, and this contract so offered and read, was proffered in evidence; that the plaintiff, on hearing such contract read, assented to it as correct and as embodying their understanding, but refused to sign it because he said he would not make a written bargain and bind himself to anybody, but then proceeded to render some service under that agreement, and that all the services alleged to have been rendered, and for which he seeks to recover, so far as they were rendered at all, were rendered under such oral agreement, and not under the agreement of the letter produced in this cause; to the admissibility of which evidence, as tending to vary the written contract between the parties already offered in evidence by the plaintiff, the plaintiff objected, and the said paper-writing so prepared by the defendant not having been submitted to the Court for its inspection before the same was offered to the jury, the Court (SCOTT, J.,) sustained the objection, and the defendant excepted.  [**6]  

Second Exception.--Substantially the same as the first.

Third Exception.--The defendant testified, that when he first saw the letter of July 13th, 1868, there was no internal revenue stamp attached to it, and further offered to prove, by his own testimony, that on the refusal of the plaintiff to sign a written contract similar to one he had prepared for another man, he offered to make a parol contract with the plaintiff variant from that contained in the letter, but under which the 25 per cent. commission on first premiums was allowed by him to the plaintiff; but the plaintiff failed to perform certain conditions on his part to be performed, as set forth in said contract, and upon such failure defendant refused to allow the 5 per cent. on renewals. To this evidence the plaintiff objected, and the Court sustained the objection, and the defendant excepted.

The defendant thereupon prayed the Court to instruct the jury, that the letter produced in evidence by the plaintiff is not a contract in the law which could not be changed by a subsequent parol agreement; and if they are satisfied from the evidence that the letter written by the defendant, and offered in evidence by [**7]  the plaintiff, contained a provision, that "in the meantime" (that is, until a written agreement should be made and entered into between the parties) the arrangement contemplated by that letter was to continue, and might then be superseded by such subsequent agreement, then it was competent for the plaintiff and defendant to make such subsequent agreement, and the same, if made, would be binding upon the parties in place of that contained in the letter. This instruction the Court refused to give, because there was no evidence in the case to sustain it, and the defendant excepted.

Fourth Exception --This was taken to the rejection of a prayer offered by the defendant, identical with that contained in the previous exception.

The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

When a motion to Dismiss an Appeal will be overruled. -- Admissibility of Parol testimony to Vary or modify a simple Contract in writing.

A motion to dismiss an appeal upon the ground that the bills of exception were not prepared and submitted to the Court below in conformity with one of its rules, during the term at which they were taken, will be overruled, there being nothing in the record to show that they were not submitted at the same term at which the cause was tried.

In case of a simple contract in writing, it is competent to prove by parol, a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or an additional, suppletory agreement, supplying something which is not in the written contract.

Where in an action of assumpsit to recover for services rendered, the plaintiff offers in evidence, as constituting the contract between himself and the defendant, a letter written by the latter, which per se does not purport to be a full and final contract between them in regard to the matter referred to therein, but a partial agreement as to certain commissions to be allowed the plaintiff, it is competent for the defendant to show by parol testimony that after the writing of the letter, he prepared and read to the plaintiff a contract in writing, which embodied the agreement between them in accordance with their previous understanding, and that he assented to it as correctly embodying the bargain between them, but refused to sign it, because, as he said, he would not bind himself in writing to any body. And such unsigned written agreement may properly be submitted to the jury with the other evidence.  

COUNSEL:
S. L. Stockbridge and Henry Stockbridge, for the appellant.

The motion to dismiss the appeal should be overruled: Because there is nothing in the record which shows that the bills of exception were not "prepared and submitted to the Court" in accordance with the 36th Rule of Baltimore City Court, but on the contrary, the record [**8]  shows that three bills of exception were prepared, submitted to, and signed and sealed by the presiding Judge, before the case was given to the jury, to wit, on the 6th of November, 1871. And further in so far as it appears, there is no such rule as that upon which the motion to dismiss this appeal is based, and in case there was such a rule, it nowhere appears in the record, and therefore the well established principle of law applies that an Appellate Court cannot take judicial notice of the rules regulating the course of proceedings in the inferior Court. Cherry vs. Baker, 17 Md., 75; Morrison vs. Welty, 18 Md., 169; Matthews, &c., vs. Dare & McClure, 20 Md., 248.

The letter of July 13th, 1868, is not such a contract as could not be changed by a subsequent suppletory agreement. It is apparent upon the face of it that it was a temporary arrangement, and contemplated being superseded by the subsequent agreement, that was offered to be proved by the defendant, for it contains within itself a reservation as to time and terms, which precludes the possibility of supposing, that there was that mutuality, that "assent to the same thing in the same sense," which is essential to a final [**9]  and binding contract, and which lies at the foundation of the right to recover upon any supposed contract. 1 Par. on Con., 475 and 476; Honeyman vs. Marryatt, 6 H. L. Cas., 112.

Even though it be admitted that the letter sufficiently sets forth the nature of the service to be rendered and the compensation for the same, yet it was competent for the parties at any time before breach of it, to add to, subtract from, or vary, or qualify the terms of it, and thus to make a new contract to be proved partly by the letter itself, and partly by the subsequent verbal terms engrafted on what would then be left of it. Stockham vs. Stockham, 32 Md., 196; Chitty on Con., 111 (9th Eng. Ed.;) Goss vs. Nugent, 5 B. & Adol., 58; Cummings vs. Arnold, 3 Met., 486; Richardson vs. Cooper, 25 Maine, 450; Blood vs. Hardy, 15 Maine, 61; Jeffrey vs. Walton, 1 Starkie, 267; White vs. Parkin, 12 East. 578; Franklin vs. Long, 7 G. & J., 407; 1 Green. on Ev., secs. 304, 409.

It was competent for the plaintiff and defendant to make the subsequent parol agreement offered to be proved by the latter, and when made it took the place of the letter.

It should have been left to the jury to determine the [**10]  question whether such subsequent agreement was made, and the questions of fact set forth in the defendant's first and second prayers should also have been submitted to the jury for its determination. 2 Par. on Con., 493; Edwards vs. Goldsmith, 16 Penn. St., 43; Goss vs. Ld. Nugent, 5 B. & Adol., 58.

Thomas Hughes and Allan B. Magruder, for the appellee.

The motion to dismiss the appeal is based on the appellant's non-conformity to the 36th Rule of Baltimore City Court, which provides that "in every case unless otherwise expressly 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." The record shows that the bill of exceptions was not filed until January Term, 1872, viz: January 12th,--whilst the trial took place November 6th, during the previous November Term, 1871. Buffington vs. Davis, 33 Md., 512.

The defendant's offer of evidence was in conflict with the general rule of law that a written contract cannot be varied by a verbal agreement. Chitty on Contracts, (Ed. 1860,) 103; 5 Robinson's Practice, 721; 1 Greenleaf on Ev., sec. 275; McElderry vs. Shipley, et al,  [**11]  2 Md., 35; Criss, et al. vs. Withers' Ex'r, 26 Md., 569; Boyce vs. Wilson, 32 Md., 122; Stockham vs. Stockham, 32 Md., 196.

Although it is conceded there are some exceptions to the general rule, the appellant did not, by his offer of evidence, bring himself within any of them.

The several instructions asked by the appellant were properly rejected, for the reasons stated in the bill of exceptions, and

1st. Because there was no evidence to sustain the claim of any other contract between the parties than the letter of 13th July, 1868, which being unambiguous in its terms needed no explanation.

2d. Because the alleged subsequent agreement or new bargain as defined by his offer and his testimony, was not such an one as the law would sanction as admissible in evidence, not being "in writing."

3d. Because any verbal agreement to set aside the contract by letter, was void of any consideration and without mutuality, and was as the evidence showed, never accepted, but on the contrary repelled by the appellee.

4th. Because the instructions (so offered) were without evidence to support them, and involved abstract propositions of law, were certainly in conflict with [**12]  the elementary principles of evidence, and were properly overruled. Criss, et al. vs. Wither's Ex'r, 26 Md., 570.  

JUDGES:
The cause was submitted to STEWART, BRENT, MILLER, ALVEY, and ROBINSON, J.  

OPINIONBY:
STEWART 

OPINION:

 [*418]  STEWART, J., delivered the opinion of the Court.
There is no reference in the record to the 36th Rule of Baltimore City Court, according to which the appellee insists the exceptions were not prepared, and submitted to the Court during the term at which the case was tried, and therefore has made the motion to dismiss this appeal.
The record shows that the trial took place on the 6th November, 1871, and the bills of exception are signed and sealed by the Judge of that Court, on the same day-- why they were not filed until the 12th January, 1872, does not appear. There is nothing to show they were not submitted at the same term at which the case was tried, and the motion to dismiss the appeal must be overruled. The appellee's intestate instituted the action, 

 [*419]  to recover, for certain services, alleged to have been rendered by him to the appellant, and the chief ground of dispute between the parties seemed to be, under what contract they were rendered.  [**13]  
The letter introduced in evidence by the appellee, and conceded to have been written by the appellant, was relied upon by the appellee as constituting the contract between the parties. On the contrary, the unsigned written memorandum of a contract, together with the oral testimony connected therewith, was offered, by the appellant, to prove that the letter was merely intended as a provisional and temporary arrangement, to be consummated by a written contract, and that the provisions of the letter had, in fact, been superseded by a subsequent parol agreement between the parties.
The refusal of the Court to admit this testimony, propounded in somewhat different forms, but substantially the same, constitutes the first and second exceptions, which may be disposed of together.
There is no doubt, that according to the fixed and well established rule of evidence, parol contemporaneous testimony is inadmissible to contradict, or vary the terms of a valid written instrument. For wise purposes, in the administration of justice, this rule has been recognized, and in adjudged cases, where there seems to have been a departure, it has only been modified to explain, or supplement the [**14]  written terms, but in no instance, that we have seen, to contradict the provisions of the written instrument.
Where the contract is not required by the Statute of Frauds, to be in writing, there is no difference between the parol contract in writing, or one that is in fact verbal, except in the protection afforded by the above rule of evidence, which regards it as furnishing greater facility and certainty of proof.
Either of them, not being a contract of record, or under seal, is treated as a contract by parol, and as such 

 [*420]  distinguished from the contract under seal. The written contract, although not under seal, is considered, under this sound rule, as the best exponent of the intentions of the parties, and therefore it is not allowed to be contradicted by the inferior and less certain parol testimony.
Without doing violence to this long established and useful rule of evidence, it has been held competent to prove by parol a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or to prove an additional suppletory agreement, by parol, by which something is supplied, that is not in the written contract. See Coates & Glenn vs. Sangston, 5 Md. 121; [**15]  Atwell & Appleton vs. Miller, 11 Md. 348, 361.
The evidence offered in these exceptions was not for the purpose of contradicting the terms of the letter, which per se, did not purport to be a full and final contract between the parties, in regard to the matter referred to therein, but a partial agreement as to certain commissions. This did not exclude any additional or suppletory provisions which the parties might subsequently agree to, in order to render the agreement between them full and complete.
Testimony to such effect was admissible, to be submitted to the jury with the other evidence to be considered by them, and its admission is not in violation of the rule to which we have adverted.
We think the Court erred in the exclusion of the offered testimony in these exceptions.
There was, of course, no error in the refusal of the appellant's prayers, as the case then stood, with the testimony excluded under the previous rulings; but with its admission, although they were somewhat abstract from their phraseology, yet considered, with the offered testimony admitted, they should have been granted.
Judgment reversed and new trial ordered [**16]  

55 of 144 DOCUMENTS 

HENRIETTA M. MONTGOMERY and JULIANNA J. J. SPENCER, Executrices of MARIA WILLIAMSON, deceased vs. LUKE T. WILLIAMSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 421; 1873 Md. LEXIS 17 

February 20, 1873, Decided 

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

The appellants, as executrices of the last will and testament of Maria Williamson, deceased, filed a petition under oath in the Orphans' Court of Baltimore City, on the 20th of March, 1872, alleging that under authority conferred by the said will, they sold by public auction, on or about the 9th of June, 1866, to the appellee, a portion of a tract of land called "Lexington," belonging to their testatrix at the time of her death, at the price of one hundred and seventy-five dollars an acre; and that the sale was duly ratified by the Orphans' Court, in August of the same year; that in the advertisement of the property, it was described in a loose and inexact manner; that after the sale the land was surveyed and a plat of it made under the direction of the purchaser, and in the report of the sale, the petitioners adopted the plat and description and the estimate of the number of acres contained in said tract, which were furnished to them by the purchaser. The petition further stated, that within a few weeks past the petitioners had caused a survey to be made of the tract of land sold by them, and that they had thereby discovered that [**2]  the estimate of the number of acres in said tract, furnished to them by the purchaser, as the basis of their report of the sale, was erroneous; that by their survey it was ascertained that the tract contained one hundred and twenty-three acres and twenty-six square perches, instead of one hundred and twelve and a half acres, as stated in the report. The petitioners averred that they were misled in the matter by trusting to the representations of the purchaser, under whose direction and by whose procurement the former survey and estimate were made, and that they did not discover that his representations were erroneous until the survey was made, at their instance, a few weeks before the filing of the petition; and that said erroneous estimate was greatly to the injury of the petitioners, and would operate as a fraud upon them, unless corrected by the Court. The petitioners, therefore, prayed that the order of ratification of sale might be set aside, that they might be allowed to amend their report so as to make it correspond with the truth of the matter, and that the sale might be ratified according to the amended report.

The purchaser answered under oath, denying that the survey [**3]  of the land, or the plat thereof, was made under his direction, or that he furnished the petitioners with any plat or description of the land, or any estimate of the number of acres contained therein; he also denied all fraud and misrepresentation, or that he misled the petitioners in any way, or that he had anything more to do with the survey made shortly after the sale, than the petitioners had, other than the being present thereat. The respondent further set forth the fact of the sale, years before, of all his interest in the property, and denied the power or jurisdiction of the Orphans' Court to grant the relief prayed.

The Court, on the 16th July, 1872, passed an order dismissing the petition for want of jurisdiction. From this order the petitioners appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Jurisdiction of the Orphans' Court -- Article 93, sec. 280, of the Code -- Act of 1865, ch. 51.

The appellants, under authority conferred by the will of their testator, sold certain real estate, advertised as containing about one hundred acres, at a specified sum per acre. After the sale, a survey of the land was made, and it was found to contain one hundred and twelve and a half acres. The sale was reported to the Orphans' Court of Baltimore City, the report stating that the survey had been made in the presence and under the direction of the purchaser; the executrices adopted the estimate of the number of acres furnished by this survey. The sale was ratified by the Court, but no deed was made to the purchaser. Some years afterward the executrices having ascertained by another survey, that the tract contained one hundred and twenty-three acres and twenty-six square perches, filed a petition in the Orphans' Court, alleging that they had recently discovered that the estimate of the number of acres in the tract as reported by them was erroneous, and that they were misled by the representations of the purchaser; they prayed that the order of ratification of sale might be set aside, that they might be allowed to amend their report so as to make it correspond with the truth of the matter, and that the sale might be ratified according to the amended report. The purchaser answered the petition, admitting some of the allegations and denying others. The Orphans' Court dismissed the petition for want of jurisdiction. On appeal it was HELD:

That under Art. 93, sec. 280, of the Code, as modified and extended by the Act of 1865, ch. 51, the Orphans' Court had the power to decree relief; but whether the order of ratification should be disturbed would depend upon the evidence that might be produced by the petitioners, as they would have to establish the facts stated, to entitle them to the relief asked.

Where the order of ratification of a sale made and reported by executrices to the Orphans' Court, has been obtained by deceit and imposition, or procured by honest mistake, the Court has the power of revocation and correction, provided the application be made within a reasonable time and under proper circumstances.  

COUNSEL:
Wm. Shepard Bryan and Jervis Spencer, for the appellants.

The question of jurisdiction must be decided by what is stated in the petition. The petition states, that Williamson has about eleven acres of the petitioners' land, which he has not paid for, and that the error in the reported measurement was produced by representations made by him incorrect in point of fact. The [**4]  justice and equity of requiring him to pay for the land are apparent enough. In a case where the vendor misrepresents the acreage, the purchaser is entitled to a compensation for the deficiency. Hill vs. Buckley, 17 Vesey, 394. And no one can doubt that the seller is entitled to the same justice.

By Article 93, section 280, of the Code, the jurisdiction of the Orphans' Court in these matters is the same as that of a Court of Equity. Their power to set aside a ratification of a sale is a necessary consequence of the power to ratify. Raborg vs. Hammond, 2 H. & Gill, 51.

The lapse of time cannot avail Williamson as a defence against a mistake produced by his own representations. Scott vs. Fox, 14 Md, 388, is an instance where an error by the Orphans' Court was corrected after the lapse of seven years. Ringgold vs. Brown, 4 H. & McH., 498; and Hutchins vs. Brown, 4 H. & McH., 498, are instances where proceedings at law were corrected after many years. In this case the petitioners proceeded within a few weeks after the discovery of the fraud. Certainly no laches could be imputed before such discovery. Even a statute of limitations would not begin to run in case of fraud or mistake,  [**5]  before the discovery. Story's Eq. Juris, sec. 1521a. Brooksbank vs. Smith, 2 Y. & Coll., 58.

The legal title to the property has never vested in Williamson, as he has never obtained a deed. Neely vs. Hughes, 10 G. & J., 7. If any person has dealt with him since the sale, such person has necessarily had notice of the inchoate character of his title. But the object of this proceeding is to deal with Williamson, and the rights of other persons can be considered when their claims arise and are sustained by proof.

Benjamin F. Horwitz, for the appellee.

The Orphans' Court has no power or jurisdiction to grant the relief prayed. "They are tribunals confessedly special and limited in their jurisdiction, without any constructive or incidental power." Art. 93, sec. 252, of the Code; Townsend vs. Brooke, 9 Gill, 90; Scott vs. Burch, 6 H. & J., 79; Taylor vs. Bruscup, 27 Md., 219; Broders vs. Thompson, 2 H. & G., 126; Bowie vs. Ghiselin, 30 Md., 556; State vs. Warren, et al., 28 Md., 355; Eichelberger, Ex'r., vs. Hawthorne, 33 Md., 596.

None of the above cases relate to the powers of the Orphans' Courts over the real estate of the testator; in reference to which their powers [**6]  and jurisdiction are even more limited and circumscribed. In the language of this Court in Hayden vs. Burch, 9 Gill, 79: "Orphans' Courts have nothing to do with real estate." They cannot order the sale of realty. In this case, as in all such cases, the power to sell is derived from the will of the testatrix. Prior to the Act of 1831, ch. 31, secs. 10 and 11, (codified in Act 93, sec. 280, of the Code, which was repealed and reenacted by Act of 1865, ch. 51,) the Orphans' Court had no power to ratify sales of real estate made by executors under powers contained in wills, and by the Act of 1865, ch. 162, power was for the first time given to Orphans' Courts to order a re-sale of realty when the purchaser failed to comply with the terms of sale. It is, therefore, seen how slow and guarded the Legislature has been in giving these mere probate Courts any jurisdiction, however small, over real estate. We look in vain for any such extensive and unlimited power as that claimed for them by the appellants in this case. Powers much more extended than those possessed by a Court of Equity--a Court of general and not limited and special jurisdiction.

The prayer of the petition is, to set aside [**7]  a decree of final ratification passed six years and a half ago. If such relief were sought in a Court of Equity, it could only be by bill of review, for after the lapse of the term, the order or decree is enrolled as part of the records of the Court and is final. A bill of review can be brought but in two cases--

1st. For error of law appearing on the face of the proceedings. 2d. For new matter discovered since the decree.

There is no pretence of the former ground in this case, and in order to maintain the latter, two things are necessary:

1st. To obtain the leave of the Court to file such a bill before filing it; as its allowance is a discretionary matter in the Court, and not a matter of absolute right in the complainant.

2d. That the new matter must be "such as the party, by the use of reasonable diligence, could not have known; for, if there be any laches or negligence in this respect, that destroys the title to relief." Burch, et al., vs. Scott, 1 G. & J., 425, 426; Hollingsworth vs. McDonald, 2 H. & J., 237, 238; Pfeltz vs. Pfeltz, 1 Md. Ch. Dec., 455; Story's Eq. Pleadings, secs. 404 and 414.

Treating this petition then as a bill of review filed in a [**8]  Court of Equity.--First, no leave was obtained to file it; and secondly, there was certainly very great laches or negligence in permitting six years to elapse before having a survey made of a tract of land which was advertised "to be surveyed," and was sold by the acre.

Again, such a bill cannot in this State be filed more than nine months after the date of the decree or order; the lapse of that time has been decided to be an insuperable objection to the granting of any such relief. Berrett vs. Oliver, 7 G. & J., 207; Pfeltz vs. Pfeltz, 1 Md. Ch. Dec., 455. A Court of Equity even, would, therefore, have no power to grant the relief prayed in this case.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., STEWART, BOWIE, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*426]  ALVEY, J., delivered the opinion of the Court.
The petition in this case was dismissed by the Orphans' Court, as stated in the order, for want of jurisdiction in the premises. No testimony was heard, in reference to the controverted facts; and the only question presented on this appeal is, whether the Orphans' Court had jurisdiction to hear and determine the subject-matter of the petition, assuming the facts [**9]  to be true, as therein stated.

 [*427]  The contract of sale and purchase, as evidenced by the report of the executrices, required the purchaser to pay one hundred and seventy-five dollars per acre, "for every acre the said tract of land contained." The report further states, that, since the sale, the land had been surveyed, "in the presence and under the direction of the purchaser," and was found to contain one hundred and twelve and a half acres, as by the report of the surveyor was shown. It is now alleged by the petitioners that they have recently discovered that there was an error in the survey, and that instead of one hundred and twelve and a half acres, as was formerly supposed, the tract in truth contains one hundred and twenty-three acres and twenty-six square perches; and that this fact they can and are ready to prove and demonstrate. They, therefore, ask that the order of ratification be opened, and that they be allowed to amend their report of sale, so as to make the same conform to the truth in the particulars mentioned.
The power of the Orphans' Court over the subject-matter is derived from section 280 of Article 93 of the Code, as slightly modified and extended [**10]  by the Act of 1865, chapter 51. By the statute, the executor, in the cases contemplated, is bound to account to the Orphans' Court for the proceeds of the sale of the real estate sold by him, in the same manner as for the proceeds of sale of the personal estate, and his bond is declared to be answerable for such proceeds of the real estate "to the same extent as if it were personal estate in his hands;" and it is also provided that such sale of real estate "shall not be valid or effectual, unless ratified and confirmed by the Orphans' Court," after notice given in the manner practised in cases of sales of land, under decrees in equity. In this case, though the sale as reported was finally ratified, no deed has yet been made to the purchaser.
The great object in conferring this power of ratification upon the Orphans' Court, was, doubtless, the protection 

 [*428]  of the estate, the prevention of fraud and collusion, and to secure entire fairness in the sale; and seeing that the entire proceeds of sale are to be accounted for to the Orphans' Court for distribution under their direction, it is difficult to perceive why that tribunal has not jurisdiction to aid and enforce that duty.  [**11]  If it be true that the proceeds of eleven acres of the land sold remain to be accounted for, why may not the Orphans' Court compel the executrices to account, and if the previous order of ratification, founded upon an erroneous report, as now alleged, forms an impediment to the performance of such duty by the executrices, why should the Court not remove it, by rescinding the order, and thus protect the estate, and the rights of those interested in its distribution? The purchaser certainly acquired no right under the order to be relieved from the obligation of his contract to pay a certain sum "for every acre the said tract of land contained;" and if this be so, in deference to whose right has the order become wholly irrevocable, no matter upon what error founded, nor by whose conduct the error was produced? Under the terms of the contract, the order of ratification did not operate to preclude the right to inquire into the quantity of the land sold, and if the Court and the executrices acted upon an erroneous supposition as to the number of acres contained in the tract, it is not too late to have the error corrected, by rescinding the order of ratification, and allowing the report of [**12]  sale to be amended. If this were a proceeding in a Court of Equity, the remedy would be plain, and there is no good reason why it should be less so in the Orphans' Court, where the mode of proceeding is less formal and technical than in a Court of Equity.
It seems to have been supposed that as there is no express authority to be found in the statute, the rescinding of the order of ratification would be the exercise of constructive authority which the Court is forbidden to exercise. 

 [*429]  But this objection is fully answered by the Court of Appeals, in the case of Raborg vs. Hammond, 2 H. & G. 42, 51, in considering the power of the Orphans' Court to revoke letters of administration, when improvidently granted, and where to the exercise of the power, the same objection was urged as to the jurisdiction in this case. The Court said: "But to this it may be answered that we deem the power of revocation, under such circumstances, as necessarily inherent in the Orphans' Courts, and a part and of the essence of the power delegated to them, of granting administration. In confirmation of which, see 3 Bac. Ab., 50, where speaking of the ecclesiastical tribunals [**13]  of England, in reference to this power, it is stated that "it would be absurd to allow a Court jurisdiction herein, and at the same time deprive them of the liberty of vacating and setting aside an act of their own, which was obtained from them by deceit and imposition." Whether the order of ratification was obtained by deceit and imposition is quite immaterial; if by honest mistake, the power of revocation and correction equally exists, provided the application for its exercise be made within a reasonable time, and under proper circumstances.
Whether the order of ratification should be disturbed, will, of course, depend upon the evidence that may be produced by the petitioners, as it will be incumbent upon them to establish the facts stated, in order to entitle them to have the order vacated or opened for an amendment of their report.
Order reversed and cause remanded. 

56 of 144 DOCUMENTS 

JOHN DOE, ex dem., GEORGE L. CAMPBELL, and others vs. PRISCILLA FLETCHER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 430; 1873 Md. LEXIS 18 

February 20, 1873, 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:

What constitutes a sufficient prima facie Title to maintain Ejectment -- Possession of the Ancestor enures to the benefit of the Heir at law.

In an action of ejectment instituted in December, 1871, it was shown on the part of the plaintiffs, that their maternal grandfather, under whom they claimed, was in 1808, in actual, adverse and notorious possession, by enclosure, of a parcel of ground in the City of Baltimore, of which the lot in controversy was a part; that in 1818 he died in possession, leaving a paper writing, purporting to be his last will and testament, signed by two witnesses; that by this paper he devised the parcel of ground aforesaid to his four sons, and his daughter, the mother of the plaintiffs: that the four sons moved away from the city, returning at intervals, and the daughter continued to live in the house and to possess the premises from the death of her father till 1840, when the house was burned down, and she and her children removed to a house in the neighborhood, off the property, where she resided till her death, in 1855; that during that period she continued to claim the property and exercise acts of ownership so far as asserting to her children that she was owner, constituted such acts, together with statements made by her to them, in reference to an application made to her by a person to rebuild her house, and the reasons for not rebuilding; that from the time the house was burned, in 1840, till after the death of the daughter, in 1855, the property was unoccupied; and no one was in the actual possession until within a period less than twenty years before the institution of the ejectment suit; that the four sons and their descendants were all dead, and the plaintiffs were the only heirs at law of their grandfather. The plaintiffs claimed the lot in controversy by possession, and not by a paper title. HELD:

1st. That the facts in the case showed a prima facie title in the plaintiffs, sufficient to support the action of ejectment.

2nd. That the grandfather having held the actual, adverse and notorious possession of the property, by enclosure, from 1808 till his death, in 1818, his possession enured to the benefit of his daughter, who came into possession as his heir at law; and she, having acquired a title by such possession as gives right, continuing for more than twenty years, her legal seizin continued after she removed from the property, and her title descended on her death to the plaintiffs, her heirs at law.

3d. That in order to maintain the action it was not necessary that either the mother of the plaintiffs, or they themselves, should have been in the actual occupancy or possession of the property, within twenty years before the institution of the suit.  

COUNSEL:
Wm. H. S. Burgwyn, for the appellants.

The mother of the appellants obtained an indefeasible fee-simple title to the property by its adverse, hostile, notorious and consecutive possession by enclosure by her father and self, from the year 1808 to the year 1840, when the house was burned. 2 Washburn on Real Prop., 501.

The mother of the plaintiffs being once legally seised and possessed of the property, her seisin continues till some actual, notorious and hostile dispossession takes place, and has continued for twenty years. 2 Washburn on Real Prop., 493; Brown vs. King, 5 Met., 173.

If a freehold title descends to one as heir, the law invests him with the seisin without entry upon the land. Brown vs. Wood, 17 Mass., 68; Green vs. Chelsea, 24 Pick., 78.

It was ruled in the case of Ford vs. Grey, 1 Salkeld, 285, "that a claim or entry to prevent the statute of limitations must be upon the land, unless there be some special reason to the contrary."

It is contended that the appellants not having resided upon the property [**2]  since 1840, when the house was burned, have made no entry upon the land sufficient to prevent the statute running against them. Runnington on Ejectment, 58.

In reply it may be stated, that it was the burning of the house that necessitated the removal from the property of the appellants' mother. That no one having possession of the property there was no tenant to the praecipe to enter upon. But, that the appellants' mother once having the legal title, the seisin remained in her, that she continued to be possessed of the property till the adverse possession took place, which was within less than twenty years prior to the institution of the suit.

The seisin therefore, must have continued in the mother of the plaintiffs from 1840 till the entry of the appellee. If the seisin continued in her, the possession must have continued in her, for seisin and possession are legally the same thing--Co. Lit., 153 a. Therefore, there could not have been an entry by the appellants till the disseisin by the appellee; for one cannot enter upon himself; and the disseisin by the appellee, not being for twenty years prior to the institution of this suit, the appellants' right of entry was not tolled,  [**3]  and they are entitled to recover. Hawk vs. Senseman, 6 Sear. & Rawle, 21; Clay vs. White, 1 Munford, 162; Shearman vs. Irvine's Lessee, 4 Cranch, 369; Smith, ex dem., Teller vs. Lorillard, 10 John. 338. (mar.)

No counsel appeared for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*432]  BARTOL C. J. delivered the opinion of the Court.
This appeal is from the Superior Court of Baltimore City, in an action of ejectment instituted by the appellants against the appellee, to recover possession of a lot of ground situated in Baltimore City.
It appears by the bill of exceptions that when the plaintiffs' Counsel had made his opening statement to the jury, the Superior Court upon the prayer of the defendant, instructed the jury "that even if they should find all the facts which the plaintiffs have stated and offered to prove, the plaintiffs have not laid the foundation for a recovery in this action, and their verdict ought to be for the defendant."

 [*433]  In disposing of this appeal therefore, we must consider the facts contained in the statement, as proved or admitted. They are as follows: Jacob Sleeper,  [**4]  the maternal grandfather of the plaintiffs, under whom they claim, was in 1808 in actual, adverse and notorious possession, by enclosure, of a parcel of ground, of which the lot in controversy is a part; and in 1818 died in possession as aforesaid, leaving a paper writing purporting to be his last will, signed by two witnesses. By which paper he devised the parcel of ground aforesaid to his four sons, Isaac, Abraham, John and Joshua, and his daughter, "Philipina," the mother of the plaintiffs. That the four sons moved away from the city, returning at intervals, and the daughter, "Philipina," continued to live in the house, and to possess the premises aforesaid, from the death of her father in 1818 till 1840, when the house was burned down, and she and her children moved to a house in the neighborhood, off the property, where she resided till her death in 1855. During that period she continued to claim the property, and exercised acts of ownership, (so far as asserting to her children that she was owner, constituted such acts, together with statements, made by her to them, in reference to an application made to her by a person, to rebuild her house, and her reasons for not rebuilding). [**5]  
"Isaac, Abraham, John and Joshua Sleeper, and their descendants are all dead; and the plaintiffs are the only heirs at law of Jacob Sleeper."
"The plaintiffs claimed the lot in controversy by a possessive and not by a paper title."
In answer to a question from the Court, the counsel stated, that "he did not expect to prove actual, adversary possession by the plaintiffs or their mother, within twenty years prior to the institution of the suit; if (as he understood the Court to rule,) that residing upon the property was necessary to constitute such actual adversary possession." From the time the house was burned, 

 [*434]  in 1840, till after the death of "Philipina," in 1855, the property was unoccupied; and no one was in the actual possession until within a period, less than 20 years before the institution of this suit. No brief or argument has been submitted on the part of the appellee.
We think the facts stated show a prima facie title in the plaintiff, sufficient to support the action. It is settled by Armstrong vs. Risteau, 5 Md. 256, that "twenty years adverse possession will enable a plaintiff to maintain ejectment." Such a possession, it appears,  [**6]  Philipina Sleeper had from the year 1818 till 1840, during all which period she had the actual possession and occupancy, openly claiming title, and exercising rights as owner. Her father, Jacob Sleeper, had held the "actual, adverse and notorious possession by inclosure," from 1808 till his death, in 1818; his possession enured to the benefit of Philipina, who came into possession as his heir at law. 2 Washburn on R. Prop., 493.
It appears further that when in 1840, by reason of the destruction of the dwelling, which rendered it impossible for her to reside upon the property, she ceased to occupy it, that she by no means abandoned her title and claim to it as owner; but continued to assert the same till her death in 1855.
Having acquired a title by such possession as gives right, continuing for more than twenty years, her legal seisin continued after she had removed from the property, and her title descended, on her death, to the plaintiffs, her heirs at law.
In order to maintain ejectment it is not necessary that either she or the plaintiffs should have been in the actual occupancy or possession of the property, within twenty years before the institution of this suit. An [**7]  adverse possession by another for twenty years, would of course defeat or bar their claim. But according to the facts as stated by the counsel, the property remained unoccupied, 

 [*435]  after the dwelling was burned, until within less than twenty years before this suit was commenced.
Considering that it was error to grant the defendant's prayer, the judgment will be reversed, and a new trial ordered.
Judgment reversed and new trial ordered. 

57 of 144 DOCUMENTS 

ANDREW B. MCCREERY vs. HORACE B. CLAFFLIN, and others, trading as H. B. CLAFFLIN & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 435; 1873 Md. LEXIS 19 

February 20, 1873, Decided 

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

This was an action of replevin brought on the 9th of February, 1871, by the appellees against the appellant, to recover certain bales of flannel, which he had distrained for rent due him by Thomas Goodwin and James Oliver, trading as Goodwin, Oliver & Co., tenants of the premises where the goods were found.

The defendant avowed the taking of the goods mentioned in the declaration, for rent in arrear, due him by the said Goodwin, Oliver & Co., for three-fourths of a year, for the premises where said goods were found. The plaintiffs pleaded to the avowry, that the said Goodwin, and Oliver were at the time of the said taking, and for a long time prior thereto, had been factors and commission merchants; that the said goods in the declaration mentioned, were the property of the plaintiffs, and at the time of the taking of the same by the said defendant, were in the possession of said Goodwin, Oliver & Co., as factors or commission merchants of the said plaintiffs, by whom the same had been consigned to the said Goodwin and Oliver, to be sold by them on account of the plaintiffs. Issue was joined.

All errors in pleading were [**2]  waived.

Exception.--At the trial of the case in the Superior Court, the plaintiffs who were dry-goods merchants, doing business in the city of New York, to support the issue on their part, proved that the goods taken by the sheriff under the writ of replevin, had been taken by the defendant under a writ of distraint, and that they were the property of the plaintiffs, and were consigned by them to Thomas Goodwin and James Oliver, trading as Goodwin, Oliver & Co., and doing business at the time as dry-goods commission merchants, in the city of Baltimore, to be sold by them on account of the plaintiffs, for a commission of one per cent. on amount of sales, and that said Goodwin & Oliver had no interest, property, right or title in, or to said goods, for advances made by them, or otherwise. It was further proved, that A. B. McCreery, the defendant, and James McCreery, his agent, a dry-goods merchant in New York, had been in the store of Goodwin, Oliver & Co., several times during the latter's tenancy.

The defendant offered evidence tending to prove, that he rented a certain house on Sharp street, in the city of Baltimore, to a mercantile firm, known as Goodwin, Oliver & Co.,  [**3]  and that on the first day of January, 1871, there was due from them to the defendant, for rent which had accrued before the day aforesaid, the sum of $ 3,750, which had accrued from the first day of April, 1870, until the first day of January, 1871, and that the defendant distrained for the same, and among others, distrained on the goods mentioned in the declaration, which were found in the house so rented. That the said Goodwin and Oliver kept in said house a dry-goods store, and occasionally sold dry-goods on their own account, but generally when they did so, had orders for goods which they could not get from their regular consignors, and therefore bought. And that the only sign said Goodwin & Oliver had over the said store, was the name of the firm and the number of the store. That the said defendant had not resided in the city of Baltimore for about eighteen or twenty years. That James McCreery was the agent for the defendant at the time of the renting of said house to Goodwin & Oliver, and it was by him the house was rented; and at the time of the renting of said house, James McCreery resided in New York, and that the renting had been negotiated in New York, and had been concluded [**4]  by a letter from him to Goodwin & Oliver.

The plaintiffs offered the following prayer:

If the jury find from the evidence that Goodwin, Oliver & Co., were dry-goods commission merchants at the time of the levy of the distress, and prior to the rental of the premises, and that the goods taken under the writ of replevin were consigned to them by H. B. Clafflin & Company, of New York, for sale on commission; and that said Goodwin, Oliver & Co., had no title to said goods, and that said goods were on the premises mentioned in the proceedings, and were there distrained upon by the defendant for rent due by Goodwin, Oliver & Co., then the avowant cannot justify under the distress, and the verdict must be for the plaintiffs, with such damages as the jury may find the plaintiffs have sustained.

The defendant asked the following instruction:

If the jury believe from the evidence in the case, that the defendant rented the store on Sharp street to Messrs. Goodwin & Oliver, trading as Goodwin, Oliver & Co., and that on the first of January, 1871, there was due to the defendant from the said Goodwin & Oliver, $ 3,750, for rent due on the store in which the goods were distrained,  [**5]  and which accrued from the first of April, 1870, until the first of January, 1871, and that the defendant distrained for the same, and levied, among others, on the goods mentioned in the declaration in this case in the said store; and that the said Goodwin & Oliver kept in said house a dry-goods store, and purchased and sold dry-goods in said store on their own account, and that the only sign that the said Goodwin & Oliver had over the said store was the name of their firm, and the number of their store; and that the said defendant has not resided in Baltimore city for about eighteen or twenty years; and that James McCreery was the agent who rented the said house to said Goodwin & Oliver, and that at the time of the renting thereof, the said James McCreery resided in New York, and that the said renting had been negotiated for in New York, and had been concluded by a letter from said James, written in New York to said Goodwin & Oliver in Baltimore, then the plaintiffs are not entitled to recover; although they may believe that the plaintiffs shipped the goods mentioned in the declaration, to the said Goodwin & Oliver on commission, to be sold by the said Goodwin & Oliver on commission [**6]  for the plaintiffs; and although they may believe that said Goodwin & Oliver were commission merchants in Baltimore for several years; and although they may further believe that the said defendant and the said agent had visited Baltimore on several occasions since the said renting.

The Court (DOBBIN, J.,) granted the prayer of the plaintiffs and rejected the prayer of the defendant. The defendant excepted. The judgment was for the plaintiffs, for the property replevied, and one cent damages, and costs. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Goods Exempt from Distress.

The goods of a principal in the store of his commission merchant for sale, are not liable to distress for rent due by the latter to the landlord of the premises.  

COUNSEL:
Patrick M'Laughlin, for the appellant,

Argued that the goods distrained were not entitled to exemption from distress, and in support thereof relied upon the following authorities: Gisbourn vs. Hurst, 1 Salk., 250; Francis vs. Wyatt, 3 Burrows, 1500, 1503; Muspratt vs. Gregory, 1 Mees. & Wels., 633, and 3 Mees. & Wels., 677; Joule vs. Jackson, 7 Mees. & Wels., 450; Gorton vs. Falkner, 4 Term Rep., 568; Trieber vs. Knabe & Betts, 12 Md., 494.

A. C. Trippe and J. Morrison Harris, for the appellees.

The sole point in this case is, can the goods of a principal in the hands of his commission merchant be distrained upon for [**7]  rent due by the commission merchant? By the common law "things delivered to a person exercising a public trade, to be wrought, worked up or managed in the way of his trade or employment are absolutely free from distress." This exception includes goods of a principal in the store of his commission merchant, and even extends to the case where the tenant has a qualified property in the goods distrained. Simpson vs. Hartopp, 1 Smith's Leading Cases, 2d part 665; 6 Robinson's Practice, 526; Brown vs. Arundell, 1 Eng. Law, and Eq., 373; Williams vs. Holmes, et al., 20 Eng. Law and Eq., 370; Findon vs. McLaren, 51 Eng. Com. Law, 891; Connah vs. Hale, 23 Wendell, 462; Brown vs. Sims, 17 Serg. & R., 138; Walker vs. Johnson, et al., 4 McCord, 552; Swire vs. Leach, 114 Eng. Com. Law, 479; Gilman vs. Elton, 3 Brod. & Bing., 75; Matthias vs. Mesnard, 2 Car. & Payne, 353; Trieber vs. Knabe & Betts, 12 Md., 494.  

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

OPINIONBY:
STEWART 

OPINION:

 [*440]  STEWART, J., delivered the opinion of the Court.
The only question here, is, as to the extent of the landlord's right to distrain upon the goods found upon the demised premises. [**8]  Whether in fact the merchandise sent to Goodwin, Oliver & Co., as factors, for sale, on account of the owners, the appellees, is exempt by law from the distress for rent due by the tenants, the factors, when they also sold goods at the same place, on their own account, and had no public sign that they were factors, and the landlord was a non-resident?
It was urged by the counsel for the appellees, that goods found upon the premises under such circumstances, were excepted; and that the summary process for the recovery of rent, was a vestige of the Feudal system, and that the Court should adopt the most liberal construction to release property from its grasp.
Chief Justice GIBSON, in Brown vs. Simms, 17 S. & R., 139, speaks of it as a feudal prerogative handed down from a period when chattels were of little account, and that the most plausible argument in support of it, is, that as the landlord is supposed to have given credit to a visible stock on the premises, he ought to be allowed recourse to every thing he finds there. Chancellor KENT on the other hand, 3 Kent's Com., 625, thinks it a necessary and useful provision, dictated by sound policy, and that the prosperity [**9]  and growth of our cities, would be seriously checked if the law did not afford landlords a speedy and effectual security for their rents.
Chief Justice DENMAN, in the case of Muspratt vs. Gregory, 3 Meeson & Welsby 678, remarks, in regard to the argument, urging the policy of a relaxation of the rule for the promotion of trade, that all laws profess to be founded on the principle that they are for the public good, but what is or not for the public good, is a matter of speculation, upon which the wisest men may differ, and as to which the Judges are not at liberty to promulgate 

 [*441]  new rules of law. Such was the view of C. J. LE GRAND, in Trieber vs. Knabe & Betts 12 Md. 491, referring the correction of any abuse to the legislative department, as the proper authority for that purpose. We find no reason to dissent from this view, and such has been the legislative interpretation, and laws have been enacted by the State modifying in some respect the rigor of the common law; and we must leave to that branch of the government to determine what public policy may dictate. Under the exceptions in favor of trade, reference of course must be had to the description [**10]  of articles pertaining to that subject. Whilst the general rule holds all chattels found upon the demised premises, prima facie liable for the rent, it is subject to the exceptions recognized on grounds of public policy, for the benefit of trade, or the preservation of the peace, of certain classes of articles; and embrace all property of like character or ejusdem generis.
Whilst there have been differing adjudications as to what are the exceptions, and as to the extent of the exemption under the privilege of trade, so far as our researches have extended, all the adjudged cases concur that goods delivered to tradesmen, artificers, carriers, factors, wharfingers, auctioneers, and the like, without qualification are exempted. See Muspratt vs. Gregory, 3 Mees. & Welsby 678; Gilman vs. Elton, 3 Brod. & Bingham 75; Findon vs. McLaren, 6 Adol. & Ellis, (51 E. C. L.,) 890; Matthias vs. Mesnard, 2 Car. & Payne 353; Walker vs. Johnson, 4 McCord 552; Brown vs. Sims, 17 Serg. & Rawle 138; Connah vs. Hale, 23 Wendell 462. In 3 Kent's Com., on the subject of the remedy for [**11]  the collection of rent, beginning at page 607; also in Smith's Leading Cases, 661, and in 6 Robinson's Prac., 526, the various authorities both in England and this country are referred to, and it would be an unprofitable consumption of time to undertake to review them here.

 [*442]  In Trieber vs. Knabe & Betts, 12 Md. 491, they were examined, and the judgment in Simpson vs. Hartopp, Willes, R., 512, was recognized as a clear statement of the law upon the subject.
Five general exceptions to the rule are stated--some of them, absolutely--others sub-modo--amongst those excepted, without qualification, are "things delivered to a person exercising a public trade, to be carried, wrought, worked up or managed, in the way of his trade or employ;" but as the exceptions, are merely given, by way of example, any goods excepted, must be shewn, to be ejusdem generis--and in determining which are of that character, some diversity of opinion has been expressed. The counsel for the appellant, conceded the law, to be as stated, generally, but contended, for the distinction, sought to be made in his prayer; that as the tenants in this case, besides receiving [**12]  goods for sale, as factors or commission merchants, (if there be any legal distinction between them,) also sold goods on their own individual account; that such fact made a difference--that to enable them to have the protection afforded, under the exception, in favor of trade, their vocation ought to be exclusive and notorious, by having their sign at their place of business to that effect--and further, that as the landlord was a non-resident, and ignorant of the vocation of his tenants as factors, the goods and merchandise upon the premises were not entitled to be exempted. We find no authority to sustain such a proposition.
The goods not belonging to the tenant, are exempt from distress for rent, whilst they are in the hands of the commission merchant or factor, not so much on account of a special privilege to the tenant, but for the benefit of trade and commerce, and for the purpose of protecting the owner of the goods, who has confided them to the tenant for sale.
It is not material whether the landlord is aware of the true owner of the goods or not. Such we take to be 

 [*443]  the reason of the decision in the case of Gisbourn vs. Hurst, 1 Salkeld 249, where [**13]  the party was not a common carrier, but occasionally brought from the country cheese to London, and on his return carried back in his wagon, such goods as he could get, for a reasonable price, and it was determined by the Court, that he was, as to this privilege a common carrier, and the goods in his custody were protected from distress for rent; not from special regard to him, but in respect of the trader; and such we apprehend to be the doctrine of all the cases.
We find no error in the rulings of the Superior Court.
Judgment affirmed. 

58 of 144 DOCUMENTS 

THE BALTIMORE CITY PASSENGER RAILWAY COMPANY vs. THOMAS SEWELL, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 443; 1873 Md. LEXIS 20 

February 20, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed in part, and cause remanded.  

HEADNOTES:

Interest not allowed on Verdict before judgment -- Construction of section 15 of Article 29 of the Code.

Where, after a verdict for the plaintiff for a sum certain, the defendant moves for a new trial and in arrest of judgment, and these motions are overruled and judgment entered on the verdict, interest will not be allowed on the sum ascertained by the verdict, for the time between the date of the verdict and the entry of the judgment.

A verdict does not legally possess the quality of finality.

Section 15 of Article 29 of the Code of Public General Laws, providing that "all judgments by confession, on verdict, or by default, shall be so entered as to carry interest from the time they were rendered," means that the interest accrues from the time the judgments were rendered.  

COUNSEL:
Arthur W. Machen and I. Nevett Steele, for the appellant.

The provision of the code is express, that all judgments shall be so entered as to carry interest from the time they were rendered. Code, Art. 29, sec. 15.

A like provision is made in regard to judgments of Justices of the Peace, which are directed to be so entered as to carry interest thereon from the date thereof. Art. 51, sec. 27.

The Act of 1861, c. 70, in extending the lien of judgments to leaseholds, enacts that every judgment (thereafter to be rendered) shall constitute a lien to the amount and from the date thereof. And see Davidson vs. Meyers, 24 Md., 538.

It would seem clear, therefore, that, inasmuch as the judge is incompetent to assess damages, he can only enter up judgment for the sum found by the jury, and that such judgment must carry interest from its date. This conclusion, resulting from the plain words of the statute, becomes more certain, when it is considered that at common law a judgment did not bear interest at all. Perkins vs.  [**2]  Fourniquet, 14 How., 331; Boehme vs. Aisquith, 4 H. & J., 207.

All interest accruing before judgment is damages; and the verdict is the exclusive and final assessment of the damages. The Court has no power to award interest even upon an interlocutory judgment under the Act of 1858, ch. 323. Mailhouse vs. Inloes, 18 Md., 328; Pawling vs. Sartain, 4 J. J. Marshall, 238; Byinton vs. Lemmons, Hemstead C. C. R., 12.

If interest in the opinion of the jury is to run down to the time of the entry of judgment, the jury, it must be presumed, assessed interest down to that time; as, in an inquiry of damages where land is to be taken for a public use, all the damages are presumed to have been taken into consideration, however improbable it may be in the particular case that certain special damages were considered. C. & O. Canal Co. vs. Grove, 11 G. & J., 398.

Where the Court, acting within the scope of its constitutional and legal jurisdiction, discharges the duty of assessing the damages, the ascertainment of damages and the judgment necessarily go together, and thus any omission on the part of the Court fully to calculate the interest, is such an error as that of a jury impannelled [**3]  for the same duty, and making the same omission would be. Such was the case in the contemplation of the Court in Anders vs. Devries, 26 Md., 227. The question in the present case could not have arisen under the circumstances of that case; where, however, the construction we are now contending for was recognized by the Court.

The learned judge of the Court below, according to the opinion filed in the case, seems to have regarded himself as controlled by a supposed course of precedents. These, however, will be seen to lose their force, if attention be directed to the statutory enactments by which the practice has been from time to time affected. Originally, in Maryland, no judgment upon verdict carried interest. The old dockets of Baltimore County Court show this, and it also distinctly appears from the second volume of Harris' Entries, published in 1801. See the form of a judgment for the plaintiff, in assumpsit, on page 89, and in trespass, on page 149.

A practice obtained at the same time of entering judgments upon confession for the amount of the damages claimed in the declaration, with a memorandum of an agreement by the plaintiff that the said damages should be released [**4]  upon the payment of a specified sum with interest thereon from a named day. This had its beginning perhaps in the form of a warrant of attorney, cognovit, judgment bond, or other security, in use at the time, and under which such confessions were at first ordinarily made. It is observable, however, that even in judgments by confession, or upon agreement, it was not deemed regular to enter judgment for interest directly, but judgment was entered for the penal sum, with the qualification of the agreement that it should be released on receipt of the lesser amount. A judgment rendered by non sum informatus before 1800, for the debt due on a single bill, with accruing interest, was held to be erroneous. Preston's Admx. vs. West, 4 H. & McH., 70.

This form of judgment was first authorized in suits proceeding in invitum, by the Act of 1802, ch. 101; this enactment is retained in the Code, Art. 29, sec. 21.

By the Act of 1809, ch. 153, sec. 4, the Courts were authorized in all cases, "to enter such judgment upon the verdict as will carry an interest on the same until the payment of the damages assessed by the jury giving such verdict." An ambiguity arising from the position of the [**5]  words "on the same" is remarked upon in the opinion of the learned judge below. Perhaps, however, it is more apparent than real. In the contemplation of the statute, the verdict is one thing, and the damages assessed another; the verdict is the finding upon the issue, and may be either for plaintiff or defendant; if it be for the plaintiff, the jury also proceed to assess the damages. The judgment, strictly, is rendered on the verdict, that is to say as a consequence of the finding on the issue joined, and not on the assessment of damages; and therefore the draughtsman of the law did not imagine that a verdict, properly so-called, could be supposed capable of carrying any interest, nor doubted that "same" would be understood as necessarily referring to judgment. Accordingly, he does not say "until the payment of the verdict," or of "the amount of the verdict," but of "the damages assessed by the jury giving the verdict." The succeeding 5th section of the same Act puts judgments of justices of the peace on the same footing, and makes them carry interest from their date. The Act of 1802, being in pari materia may also be looked to for light as to the meaning of the expressions used in [**6]  this Act. And the Act of 1811, ch. 161, sec. 5 makes it still more clear. Taking all the statutes together, there is no reasonable ground for doubting that the interest authorized in all was to run from the date of the judgment.

The Act of 1856, ch 126, modified the operation of the Act of 1809. The Code has repealed the Acts of 1809 and 1811 altogether, and substituted an uniform and explicit rule for all judgments. What parties may still do by consent, or may preclude themselves from objecting to by acquiescence, is not necessary to be considered here. Anders vs. Devries, 26 Md., 222. It is enough, that, without consent, only the interest allowed by the statute can be given. Even if the Court were otherwise authorized to allow interest in the nature of damages, it would be totally contrary to principle, and all authority or precedent, to exercise such power in an action of tort, or where interest does not necessarily result from the cause of action under a rule of law. Jennings vs. The Perseverance, 3 Dall., 338; Youqua vs. Nixon, Pet. C. C., 224; Butler vs. Stoveld, 8 Moore, 412; Henning vs. Van Tyne, 19 Wend, 101; Messin vs. Massareene, 4 T. R., 493; Creuze vs. Hunter, 2 Ves.  [**7]  Jr., 157, 168.

The Court has no power to assess damages. Rolle Ab., 573; Comyn's Dig., tit. Damages, (E. 7.) It is a principle that damages are not recoverable for the delay of the Court. Rolle Ab., 573. Judgment cannot be entered for interest accruing after the verdict. Pawling vs. Sartain, 4 J. J. Marsh., 268.

Interest is never recoverable upon costs, no matter how considerable the amount may be; and this is because no statute has been passed authorizing it. Hammond vs. Hammond, 2 Bland., 376.

It has not been attempted in this case to cause a judgment to be entered as of the date of the verdict, nunc pro tunc; and it is plain that any such endeavor to evade the force of the rules and principles of law which have been adverted to, must have been unsuccessful. Anderson vs. Tuck, 33 Md., 232; Jarrold vs. Rowe, 8 Price, 582.

Daniel M. Thomas, for the appellee.

The propriety of allowing interest to the time of signing the judgment on debts carrying interest, has been expressly maintained in England, and does not seem to have been questioned in this State. Frith vs. Leroux, 2 T. R., 58; Robinson vs. Bland, 2 Burr., 1,077; Bodily vs. Bellamy, 2 Burr. 1,094.

In [**8]  Maryland this practice seems to have prevailed from a very early period, and before any legislation on the subject. Hook vs. Boteler, 3 H. & McH., 348; Contee vs. Findley, 1 H. & J., 331; Johnson vs. Goldsborough, 1 H. & J., 499; Gwinn vs. Whitaker, 1 H. & J., 754; Hammond vs. Hammond, 2 Bland, 368.

The English cases show a manifest disposition on the part even of the Common Law Courts to make all judgments on claims bearing interest include interest to the day on which the judgment was signed, and whenever that day could be ascertained in advance, the jury were directed to include such interest in their verdict; and where this was not done by the jury, the Court (as in the case of Robinson vs. Bland,) would itself "carry down" such interest.

The cases cited from our own Courts show a disposition here to allow interest even more liberally than was done in England. This Court when this case was previously before it, declared (35 Md., 257,) that the plaintiff in this action was "entitled to complete satisfaction equivalent to specific relief in Equity," and that in Equity he would have recovered the dividends accrued on the stock with interest thereon, and that the plaintiff [**9]  was entitled here in addition to the accrued dividends and interest thereon, to the value of the stock at the time of the demand, with interest to the day of trial "in lieu of dividends accruing subsequent to the demand." Now, in Equity (according to the Maryland practice,) the decree is so framed as to provide for the payment of interest on the claim, whatever it be, from the time it first commences to run until it is paid. The plaintiff is, therefore, entitled to a judgment which will secure him interest on his claim until paid.

The appellee's claim to this interest being thus shown to be founded in justice and equity, and allowable by the practice and common law of this State, it must be recognized by the Courts unless the statute law of the State expressly forbids it.

The Act of 1809, chapter 153, section 4, provides, that the Court shall "enter such judgment on the verdict as will carry an interest on the same, until the payment of the damages assessed by the jury giving such verdict in the same manner as is now used and practiced in the cases of a confession of judgment in said Court." The Code, Article 29, section 15, provides, that "all judgments by confession, on [**10]  verdict or by default, shall be so entered as to carry interest from the time they were rendered."

That this section of the Code has not been considered or treated as changing the previous practice of allowing interest on the verdict from its date, is shown by the fact, that since the passage of the Code judgments have continued to be entered up as they were before. It thus appears, that prior to the Act of 1809, interest was allowed from the date of the verdict; that since that Act, the same practice has continued down to the passage of the Code, and has still prevailed since the Code down to the present time. Johnson vs. Atlantic and St. Louis R. R., 43 N. H., 410; Compiled statutes of New Hamp., p. 496, sec. 6; Irvin vs. Hazleton, 37 Penn., 465; Evans vs. Reese, 12 Ad. & Ellis, 175.

The Code is to be interpreted in the light of the Act of 1809. Rice vs. Hoffman, 35 Md., 350-1. And the presumption is against its intention to change any previous legislation. The long continuance of the present practice of itself gives it the force of law. Shafer vs. Stonebraker, 4 G. & J., 353.

As far as judgments by confession are concerned, the Court has declared that the entry of [**11]  a judgment so as to carry interest, not merely from the time of the judgment, but from a period anterior thereto, if an error at all was an error in favor of, and not against the defendant, and one of which he has no right to complain. Anders vs. Devries, 26 Md., 222, 227. And if, therefore, the language of this section has been so interpreted as to judgments by confession, it must receive a similar interpretation when applied to judgments on verdict. Rayner vs. Bryson, 29 Md., 482.

This being one of those cases in which interest is peculiarly allowable in order to a "complete satisfaction," it is difficult to assign a reason for its being withheld for the interval between the verdict and judgment, although it is given down to the date of the verdict, and is also given from the date of the judgment.

The appellant's claim is purely technical, and not founded in justice or equity; and its allowance would afford to defendants the temptation--in the language of Lord Mansfield, "to make use of all the unjust dilatories of chicane," in order to create as long an interval as possible between the verdict and judgment, and during the interval to get the use of the money due on the [**12]  verdict, free of interest.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*450]  BOWIE, J., delivered the opinion of the Court.
At the trial of an action, at the suit of Thomas Sewell, Jr., (the appellee,) against the Baltimore City Passenger Railway Company, (the appellant,) in the Superior Court 

 [*451]  of Baltimore City, a verdict was rendered in favor of the appellee, against the appellant, for $ 13,261.77, on the seventh day of February, 1870. Immediately thereupon the appellant simultaneously moved for a new trial, and in arrest of judgment; which motions were under the then existing organization of the judiciary of Baltimore, to be heard and determined by the Supreme Bench.
Both motions were overruled by the Supreme Bench on the third of July, 1871, about sixteen months after they were made.
An appeal was taken from the decisions of the Supreme Bench to this Court, where the same were affirmed at October Term, 1871. By an order of the Supreme Bench passed on the 29th of April, 1872, the cause was remanded to the Superior Court, where the appellee on the 21st of September, 1872, moved for judgment for the amount [**13]  of the verdict and interest thereon from the date of the verdict. The defendant objected, and insisted that if judgment be rendered it could be only for the amount of the verdict and interest from the date of the judgment.
The Superior Court, on the 25th of September, 1872, rendered judgment for the appellee for $ 13,261.77, the amount of the verdict, with interest from the 7th of February, 1870, (the date of the verdict,) and costs, from which judgment this appeal is taken. The question presented by the appeal is, whether Courts of Law in this State have power either by virtue of the common law, or the Code, to include in the judgment the interest which accrued on the verdict, (assuming that the verdict bears interest,) between its date and the rendition of the judgment.
The learned judge, who rendered the judgment below, in an opinion assigning the reasons of his action, after reviewing the legislation and practice of this State, adopts the conclusion that all verdicts without distinction as to the form of the action, whether ex contractu or ex delicto, 

 [*452]  having liquidated the claim, and given it certainty as to amount and time of payment, should bear [**14]  interest "ex debito justitioe."
Regarding the language of the Code, Art. 29, sec. 15, to be ambiguous, he thinks the terms employed should be so construed as to be most consonant with previous legislation, and the construction adopted by learned Courts, acting under the exposition of a learned bar, and pursued with an unbroken tenor for many years.
The question presented by this appeal, in our opinion, is not one of equitable or legal right between the parties, but of jurisdiction, involving the line of distinction between the province of the Court and the jury. A verdict implies that there has been an issue of fact between the parties to the cause, which required a jury to find for the plaintiff or defendant.
Issues of law are decided by the Court; issues of fact by the jury.
It would be technically as grave a departure from the functions of a Court for a judge to decide a question of fact, as it would be incongruous for the jury to settle a question of law.
The enquiry then is, to which of these tribunals does the ascertainment or allowance of interest belong?
It must be conceded that interest is not an inseparable and invariable incident of claims for money, or unliquidated [**15]  accounts. "It is recoverable as of right, upon contracts in writing to pay money upon a day certain; as upon bills of exchange and promissory notes, or on contracts for the payment of interest, or where the money claimed has been actually used, and upon bonds, etc., but in other cases, it is a question entirely for the jury to be decided according to the equities of the transaction." Newson vs. Douglass, 7 H. & J. 417; Karthaus vs. Owings, 2 G. & J. 430.
But it is said whenever the claim is liquidated by verdict, however the claim may have arisen, whether ex contractu 

 [*453]  or ex delicto, the amount of the verdict should bear interest. This argument attributes to a verdict the quality of finality, which it does not legally possess. The verdict does not finally establish the claim. It is liable to be set aside for error in law or in fact, and is wholly inoperative, until sanctioned by final judgment.
The leading case cited by the appellee in support of the power of the Court to add interest from the date of the verdict, was an action upon the case upon a bill of exchange, with counts for money lent, and money had and received. The verdict [**16]  was found for the plaintiffs, subject to a case stated for the opinion of the Court, in the language of Lord Mansfield, "leaving it quite open to the Court to determine whether anything, and what, is recoverable."
There was no question as to the respective powers of the judge and the jury, but it was in the nature of a special verdict.
After disposing of the question on the first count adversely to the plaintiff, his lordship subsequently delivered the opinion of the Court as follows in effect: "The bill of exchange given for the £  300 lent by the plaintiff to Sir John Bland, was void in point of law as a security; but the giving of the bill of exchange upon such consideration, is stated in the case as a fact admitted, and showed that, upon the loan, the intention and agreement of the parties was, "that the money should carry interest if not repaid within the time limited."
"The contract remains good, though he gave a void security to perform it. So that it is a liquidated sum which carries interest from the time at which it was agreed to be paid."
"But the question is, whether it is to stop at the commencement of the action; or to be carried on to the time [**17]  of liquidating the debt by the verdict or by the judgment."

 [*454]  After congratulating himself upon the opportunity of discussing and settling the point, because the general practice of his associates in taking damages in these cases, as he was informed, was to stop at the commencement of the action, and to allow interest no further down; which, he conceived, was not founded in law, but in mistake and misapprehension; he argues upon principles of natural justice, that the interest should be carried down quite to the actual payment of the money; but as that cannot be done until the demand is completely liquidated, he asks:
"Why may not juries compute interest to the time of the verdict, or even till the end of four days within the next term; (before which time the plaintiff cannot sign his judgment?)
"I think I can see how this mistake has happened. I dare say that associates have not distinguished between this species of action, (it being called an action of trespass on the case,) and common actions of trespass; such as actions for assaults, batteries and false imprisonment."
Having reiterated his opinion, that carrying down the interest does a plaintiff complete [**18]  justice, he concludes thus emphatically:
"Here, the jury having left the matter quite open to us, we can bring the interest down to the time of the liquidation and ascertainment of the sum really due from the defendant to the plaintiff, which is the time of giving the judgment." 2 Burr 1085 to 1088.
It is too clear for argument, from the preceding citations, that there was no question before the Court as to its power to add interest to a verdict already rendered, but the question was as to what should be done in the case of a verdict subject to a case stated, in which all was left open to the Court.
It is said, in Rolle's Abridgment, that the Court has no power to assess damages, and that damages are not recoverable for the delays of the Court. Rolle's Abrid., 573.

 [*455]  Comyn qualifies the position laid down by Rolle, confining the power of the Court to assess damages by way of interest, to those cases where the claim is certain and ascertained.
It is established by the authorities cited by the appellants that judgments in this State did not carry interest at common law, but were made to do so by comparatively recent Acts of Assembly. [**19]  Chief Justice TANEY, in the case of Perkins vs. Fourniquet, 14 How'd, 331, says: "Upon common law principles a judgment does not carry interest." Vide also Preston's Adm'rs vs. West, 4 H. & McHy. 70; Harris' Entrs., 89, 149; Acts of 1802, ch. 101, 1809, ch. 153.
In the case of Mailhouse vs. Inloes, 18 Md. 328, which was an action on an account for goods sold and delivered, verified by affidavit, under the Act of 1858, ch. 323, relating to suits in Baltimore city, the defendant having failed to appear, a judgment by default was entered; and on a subsequent day the judge ordered judgment to be entered for the amount of the account, with interest from the 20th of April, 1858, and costs. It was urged by the appellant that the Act being in derogation of the common law must be construed strictly, it must appear affirmatively on the face of the Act that the Court had power to enter the judgment.
This Court said: "The judgment must be restricted to the amount of the account thus authenticated, and the Court had no power, of its own mere motion, to allow interest on the account. The interest was a subject of inquiry by a jury, as provided [**20]  by the 6th section of the Act.
If the final act of the Court the judgment did not carry interest at common law, why should the intermediate, interlocutory act of the verdict have that effect?
It is conceded by Lord Mansfield, in the case in Bur row, that interest was only carried down in cases of tort, 

 [*456]  to the time of the action, and it was only in cases of contract that he insisted the principles of natural justice demanded it should be carried down to the latest possible moment. It was reserved for the commercial spirit of modern times to convert the judgments of Courts into interest bearing liens.
The verdict, being an intermediate step in the progress of litigation, liable to be suspended or annulled by the subsequent action of the Court, it does not seem to us consistent with judicial deliberation that the delay occasioned by motions for a new trial, or in arrest of judgment, (although such motions should be ultimately overruled,) should be made the occasion of an increase of damages, by way of interest, on the presumption that such motions were groundless, and without cause. The motion for a new trial, or in arrest, is a valuable and necessary incident to the right [**21]  of trial by jury, and no restraint should be placed upon it inconsistent with its freest exercise. The Court cannot assume that in the exercise of a legal right, any party to a cause is actuated by sinister motives.
We are not at liberty, however, to deal with this question upon principles of common law or natural justice.
It is regulated by statute, or the Code which we are required to interpret according to its true intent and meaning.
The Acts of 1802, ch. 101, 1809, ch. 153, and 1811, ch. 161, have been condensed substantially in Art. 29, sec. 15, of the Code of Public General Laws, in language which it seems to us is susceptible of but one construction, viz: "All judgments by confession, on verdict, or by default, shall be so entered as to carry interest from the time they were rendered." The pronoun "they" in the section above quoted, has for its antecedent the word "judgments," hence the interest accrues from the time the judgments were rendered, and not the verdicts.

 [*457]  Without collating the several Acts of Assembly passed prior to the Code, on the subject of entering judgments, with the text of Article 29, sec. 15, we think it is quite clear from the principles [**22]  of the common law, and the previous decisions, that the Court has no power to calculate interest on the amount ascertained by the verdict, but that the true construction of the Code requires that judgments shall be entered so as to bear interest only from the time the judgment was rendered.
If it is deemed proper that the law should be changed, so as to make verdicts bear interest, rather than judgments, it is a subject for legislative, not judicial action.
For these reasons, the judgment in this case will be reversed, as to the interest accruing between the date of the verdict and the entry of the judgment, and the case remanded, that the judgment may be modified accordingly.
Judgment reversed in part, and cause remanded. 

59 of 144 DOCUMENTS 

MARY E. SCHLEY, Executrix of JAMES HIGGINS vs. WILLIAM K. MERRITT and GEORGE A. MERRITT, trading as WILLIAM K. MERRITT & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 352; 1873 Md. LEXIS 10 

February 18, 1873, Decided 

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

This was an action brought by the appellees against the appellant, on a promissory note drawn by George W. P. Smith, for $ 229.39, dated Baltimore, the 4th of October, 1869, and payable six months after date, to the order of James Higgins, the appellant's testator, and by him endorsed.

First Exception. The plaintiffs to sustain the issues on their part, offered in evidence the note sued on, and the protest, and proved the making and endorsement of the note, the death of Higgins at Barnum's Hotel, in the City of Baltimore, in the latter part of March, 1870, and that the defendant qualified as executrix in September of the same year, in the Orphans' Court of Anne Arundel County. The plaintiffs offered evidence tending to show that the deceased was at the time of his death a resident of the City of Baltimore, and had been for many years previous to his death; and then offered to prove by Smith, the maker of the note, that Higgins at the time he endorsed the note, was indebted to him, Smith, in the sum of two hundred and fifty dollars, and that he, Smith, owed the plaintiffs the sum mentioned in the note, and it not being convenient for Higgins [**2]  to pay the money he owed him, it was agreed between said Smith and Higgins, that he, Higgins, should endorse this note to be given to the plaintiffs, and Higgins promised him, Smith, that he would pay the said note at maturity, and that he, Smith, need give himself no trouble about it. The defendant objected, and insisted that Smith was not a competent witness to prove said facts, but the Court, (GAREY, J.,) overruled the objection, and permitted the witness to give the evidence to the jury. The defendant excepted.

Second Exception. The plaintiffs further proved by George W. P. Smith, that a short time before the note sued on became due, he called upon Higgins and informed him that said note would soon be due, and he, Smith, expected him, Higgins, to pay it, and Higgins replied that he need give himself no further trouble about it, that he would pay it before it was due; and offered in evidence by George E. Sangston, that he was the Notary who protested the note, and that he gave the notice of protest and non-payment as stated in the protest; that at the time he knew that Higgins was dead--that he had heard that he died at Barnum's Hotel; that he believed that Higgins was a resident [**3]  of Baltimore City at the time of his death; that he had seen his name on a sign at No. 5 St. Paul Street; that Higgins had an office at that place for business; that he was a chemist and mineralogist; that said place was about a hundred yards from the office of witness. The defendant offered a variety of evidence, tending to show that the deceased was a resident and citizen of Anne Arundel County at the time of his death, and that he always claimed a right to vote in said county, and that he had stated on various occasions that he did vote in said county at popular elections.

Thereupon the plaintiffs offered two prayers, the first of which is given in the opinion of this Court, and the second is as follows:

2nd. If the jury find that the note offered in evidence was made by George W. P. Smith, and that James Higgins, the deceased, endorsed the same as offered in evidence, and that before the note became due, Higgins died, and no letters of administration were granted on his estate until long after said note was due; and if the jury shall further find that the said James Higgins, at the time of his death, and long before, lived at Barnum's Hotel, in the City of Baltimore,  [**4]  and had an office for business in said city, and had for a long time been habitually in the City of Baltimore, in and about his said place of business, and in other places; and if they shall further find that Geo. E. Sangston, notary public, having a knowledge of these facts, and believing that the residence of said Higgins was in Baltimore City when said note became due, made demand for payment, and gave notice of protest, as stated in the protest offered in evidence, the plaintiffs are entitled to recover.

And the defendant prayed the Court to give the jury the following instructions:

1. That there is in this case, no sufficient evidence of notice to the defendant of the presentment and non-payment of the note sued on.

2. That if the jury shall find from the evidence that the note sued on in this case, was passed by the maker to the plaintiffs on account of a debt due by him to them, then there is no excuse shown for the want of notice to the defendant, and the plaintiffs cannot recover

3. That if the jury shall find from the evidence, that the office of the notary who made the protest, was a short distance (not more than a few hundred yards) from the office occupied [**5]  and used by James Higgins, deceased, at the time of his death, then the notice of protest is insufficient, and the plaintiffs cannot recover.

4. That there is no sufficient evidence in this case to show diligence on the part of the notary in making inquiry as to the residence of the deceased, and that it was necessary to leave or send a notice of presentment and non-payment to the last place of residence or business of the deceased, and directed to him, and for want of such notice so sent, the plaintiffs cannot recover.

The Court granted the plaintiffs' first prayer, and rejected their second, and granted the first prayer of the defendant, and rejected the rest. The defendant excepted to the rejection of their second, third and fourth prayers, and to the granting of the plaintiffs' first prayer. And the verdict and judgment being for the plaintiffs, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Competency of the Drawer of a Note to Testify for the Plaintiff in a suit thereon by the Endorsee against the Endorser -- When notice of Demand on the Maker of a note, and of his Default, is not necessary to bind the Endorser.

In a suit upon a promissory note by the endorsees against the executrix of the endorser, the maker of the note is a competent witness for the plaintiffs, to prove that at the time the deceased endorsed the note, he was indebted to the witness in an amount exceeding the amount of the note, and that the witness owed the plaintiffs the sum mentioned in the note, and that it not being convenient for the deceased to pay the money he owed the witness, it was agreed between them that the deceased should endorse the note to be given to the plaintiffs, and that he would pay it at maturity.

In an action against an executrix, by the endorsees of a promissory note, drawn payable to the order of her testator, and by him endorsed, proof of notice to him of demand upon, and non-payment by, the maker of the note, is not necessary to fix the responsibility of the defendant, it being shown that the deceased endorser agreed with the maker to pay the note at maturity absolutely as his own indebtedness. 

COUNSEL:
Alex. B. Hagner, and Wm. H. Tuck, for the appellant.

But for the Act of 1864, ch. 109, Smith was incompetent, on the ground of interest, because, if he could succeed in fastening this claim upon Higgins, as the party primarily liable on a note made for his accommodation, the [**6]  executrix of Higgins could never recover the amount from Smith, after paying the judgment to the appellees. If, as between Smith and Higgins, the latter agreed that he would pay the note, as a credit on his indebtedness to Smith, there would be no ground on which Higgins could recover it back. And if the appellees had recovered judgment against Smith, the latter, as soon as Higgins paid their judgment, might claim to have the judgment against himself entered "satisfied," and not for the use of Higgins, which might have been done, if Higgins had been merely liable as indorser for Smith's accommodation.

And if there is no judgment against Smith, and the appellant is made to pay the claim to the appellees, she can only proceed against Smith, by offering the record in evidence, from which it would appear that Higgins was himself the real debtor, as between him and Smith. Hence, the witness had a direct interest in the result of the suit.

Where the holder sues the indorser, and does not sue the maker, the indorser can only recover against the maker for the amount of the judgment paid by him, by suing the maker himself for money paid, and offering the judgment in evidence; for [**7]  the note being merged in the suit against the indorser, or at least out of his control, he could not sue as holder of the note by indorsement from the appellees. If, then, the appellant is made to pay this debt, and should seek to recover from Smith, the maker of the note, the very evidence which she must offer, would shew that a jury had found that Higgins was himself the real debtor, as between Smith and himself, and that she had no ground of action to recover the money back. Hence, Smith had a direct interest in the result of the suit against the appellant. It is for this reason that an indorser is not a competent witness for the holder of a note in a suit against the maker or prior indorser, for if made to pay himself, he would be entitled to an assignment of the judgment against all prior parties to the note. Owens vs. Collinson, 3 G. & J., 25; Funk's Lessee vs. Kincaid and Murdock, 5 Md., 404.

Under the Act of 1868, ch. 116, Smith was clearly incompetent as a witness. Miller vs. Motter, 35 Md., 432.

The Court erred in granting the plaintiffs' first prayer. The alleged agreement was not made with the plaintiffs, and they were not entitled to recover upon it. Price vs.  [**8]  Easton, 24 Eng. C. L. R., 96.

The alleged indebtedness from Higgins to Smith, was not extinguished. The plaintiffs had not agreed to release Smith, and Smith had not released Higgins. If Higgins, by parol, agreed to pay Smith's debt to the plaintiffs, the agreement was void under the Statute of Frauds. Owings vs. Owings, 1 H. & G., 484.

It was necessary to protest the note, and the notice was insufficient in this case. French vs. Bank of Columbia, 4 Cranch, 141; Willis vs. Green, 5 Hill, 232; Mathewson vs. Strafford Bank, 45 New Hamp., 107; Cory vs. Scott, 3 B. & Ald., 619; Byles on Bills, 183, 203, 297; Smith's Mercantile Law, 244.

William S. Waters, for the appellees.

The notice given was under the circumstances sufficient. Sascer vs. Whitely & Stone, 10 Md., 100--104; Bell vs. The Hagerstown Bank, 7 Gill, 229; Boyd vs. City Savings Bank, 15 Grat., 501; Boyd vs. Orton, 16 Wis., 495; Staylor vs. Ball & Williams, 24 Md., 196; Moore vs. Hardcastle, 11 Md., 490; Tate vs. Sullivan, 30 Md., 470; Linderman's Executors vs. Guldin, et al., 34 Penn., 54.

There was under the circumstances no notice required. Walters & Co. vs. Munroe, 17 Md., 155; Lewis vs Kramer and [**9]  Rahn, 3 Md., 291; 3 Kent's Comm., 113; Story on Promissory Notes, secs. 22, 268, 281 and 357; Bond, et al. vs. Farnum, 5 Mass., 170; Mechanics Bank vs. Griswold, 7 Wen., 168; Sharp vs. Bailey, 9 B. & C., 44.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*357]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted by the appellees to recover from the appellant, the amount of a promissory note, 

 [*358]  drawn by George W. P. Smith, and endorsed by James Higgins the appellant's testator.
The defence was, that there was not sufficient notice of the dishonor of the note, to bind the appellant; and the Court below in refusing the second prayer of the appellees, and granting the first prayer of the appellant, ruled that question in her favor; it does not, therefore, properly arise on this appeal, and is not material to be decided.
The bills of exceptions present two questions for our decision:
First.--Whether Smith, the drawer of the note, was a competent witness for the appellees, to prove the facts stated in the first bill of exceptions, and second; whether the facts testified to by him, and stated [**10]  in the appellees' first prayer, were sufficient to bind Higgins' executrix to pay the note, without notice of demand and non-payment.
First.--The competency of the witness Smith does not depend in any manner upon the construction of the Act of 1868, ch., 116. In a suit upon a promissory note by the endorsee against the endorser, the drawer has always been held to be a competent witness for the plaintiff, not having any interest in the event of the suit which would disqualify him; his testimony could not tend in any manner to exonerate himself; for he still remains liable to the holder of the note; and is answerable over to the endorser, in case judgment has been recovered against the latter, and paid by him. No authorities need be cited for this familiar rule of evidence; it was conceded by the appellant's counsel in the argument. But it was contended that the witness was incompetent to testify to the particular facts enumerated in the exception; because it is supposed they tended to relieve himself from his primary liability upon the note, and to fix it upon Higgins the endorser. Such however, could not in our opinion, be the effect of his testimony. If the judgment 

 [*359]   [**11]  recovered against the appellant in this case be paid by her, she would have a right of action against the witness, as drawer of the note; the judgment would be evidence of his liability, and fix its amount; and in a suit against him, he could not avail himself for his defence, of the testimony given by him in the present suit, but would be compelled to establish his defence by independent, legal and competent testimony.
A question very similar to this, arose in Bank of Columbia vs. Magruder, 6 H. & J. 172, where objection was made to the competency of George Magruder, the drawer of the note, as a witness for the plaintiff in a suit by the endorsee against the administratrix of the endorser.
The testimony offered by the witness was "that at the time the note was drawn and endorsed, the intestate was indebted to him (the maker) in a large sum of money, which though not exactly liquidated between them, was believed by them both to be fully equal to the amount of the note, and that it was agreed between them that the note should be offered for discount at the Bank of Columbia, and the proceeds taken by the witness on account of the debt so due to him by the intestate; and [**12]  that the intestate should have all the time to pay the note that the bank would allow him."
The Court decided that the witness was competent to give the testimony offered. In noticing the objection, Judge Earle said, (p. 178,) "Should the case be established on his testimony against the administratrix, and the principal, interest and costs recovered of her, she will have her remedy against him as drawer, and it is not easy to perceive how the evidence given by him, or the verdict founded on it, could any way benefit him in the defence he may please to set up to her action. If the account he has spoken of, is used in bar of her suit, it must be supported by competent testimony, wholly 

 [*360]  unconnected with his narrative concerning the original negotiation between him and the endorser; and he can have no advantages in such defence, which he would not have in an action instituted against the administratrix on the same account. A recovery in this cause against the administratrix will carry the costs, and as far as they go, will augment her demand against George Magruder; and in this view, he may be said to be a witness swearing against his interest."
We consider this reasoning [**13]  as a complete answer to the objection now urged to the competency of the witness Smith, and therefore, affirm the ruling of the Court below, in the first bill of exceptions.
2d. By the appellees' first prayer, which was granted, the jury were instructed, "that if they should find, that the note offered in evidence was made by Smith, and endorsed by Higgins, and that at the time the note was made and endorsed, Higgins was indebted to Smith in an amount larger than the amount named in the note, and in consideration of said indebtedness, and for the purpose of paying the same, in whole or in part, it was agreed by Higgins with Smith, that said Higgins should pay said note to the holder thereof, unconditionally, as his own indebtedness; then no notice of demand and protest of said note, is necessary to fix the responsibility of the defendant in this action."
We find no error in this instruction. The question whether there was evidence proper to be submitted to the jury, to support the facts stated as the hypothesis of the prayer, is not an open question for the appellant in this Court. Not having been specifically made in the Court below, as required by rule 4, (29 Md. 1,) [**14]  the appellant is precluded from making it in this Court.
There can, we think, be no well founded objection to the proposition of law announced by the prayer.
It is unnecessary to examine the several cases cited at 

 [*361]  the bar involving the question of what particular facts and circumstances have been held sufficient, or insufficient to excuse the want of due demand and notice to bind the endorser. The present case is free from difficulty on this point. Judge STORY in his work on Promissory Notes sec. 357, says: "An original agreement on the part of the endorser, made with the maker or other party at all events to pay the note at its maturity," renders such notice unnecessary. This case falls directly within that rule; for the jury were required to find "that Higgins agreed to pay the note to the holder thereof, unconditionally as his own indebtedness." The effect of such an agreement, is that the endorser thereby agrees to become the principal debtor, and in such case, notice is not required to bind him. The object and reason for requiring notice to the endorser, is to enable him to secure himself by proceeding against the drawer; but where, as between them, no such right [**15]  exists, the endorser is not entitled to notice.
It is not necessary that the agreement should be made with the endorsee; the question of want of privity does not arise here, as in the case of Price vs. Easton, 24 E.C.L. 93, cited by appellant's counsel. Here the suit is not based upon the alleged agreement between Higgins and Smith; but that is relied on only as evidence to show the true relations between the drawer and endorser, for the purpose of showing that the latter was not entitled to notice of demand on the drawer, and non-payment of the note. Nor is it obnoxious to the objection that it varies or contradicts the terms of the written contract as expressed by the note; as was the case in Free vs. Hawkins, 8 Taunton, (4. E. C. L., 31,) also cited by appellant's counsel.
In the opinion delivered by GIBSON, C. J., in Kramer vs. Sanford, 4 W. & S. 328, cited by appellant, the learned judge expresses in a few terse and pointed words 

 [*362]  the true rule governing cases of this kind. He says, (p. 331,) "The true criterion seems to be the obligation to take up the note. When that remains with the maker, it continues to be [**16]  the duty of the endorsee to apprize the endorser of the maker's default; where it has devolved on the endorser himself, he needs no notice."
That obligation depends upon the true relations between the maker and endorser; and where the latter has agreed to pay the note at maturity, absolutely as his own indebtedness; then he is denied the right to require that demand should first be made upon the maker, and that he should have notice of his default.
Judgment affirmed. 

60 of 144 DOCUMENTS 

JOSEPH MINCE vs. GEORGE W. TUCKER, Administrator of THOMAS THOMPSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 362; 1873 Md. LEXIS 11 

February 18, 1873, Decided 

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

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

When an Appeal will be dismissed.

Where the transcript of the record of proceedings on an appeal from a Court of Equity is not transmitted to the Court of Appeals within six months from the time of the appeal prayed, and it is not made to appear to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk, the appeal will be dismissed.  

COUNSEL:
William H. Cowan, for the appellant.

Innes Randolph, for the appellee.  

JUDGES:
The cause was submitted to BARTOL, C. J., BRENT, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*363]  BRENT, J., delivered the opinion of the Court.
The motion to dismiss the appeal in this case will be granted. The order of the Court below, dissolving the injunction, was passed on the 26th of June, 1871, and the appeal therefrom was taken by the complainant on the 29th of the same month. The transcript of the record, however, was not transmitted to this Court until the 22d of May, 1872, nearly eleven months after the appeal was taken.
Among the rules and regulations respecting appeals, adopted by this Court under the 18th section of Article 4 of the Constitution, the tenth rule requires that the transcript of the record should have been sent up within six months from the time the appeal was prayed. And the sixteenth rule provides that "no appeal shall be dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals, that such delay was occasioned [**2]  by the neglect, omission or inability of the clerk; but such neglect, omission or inability, shall not be presumed, but must be shewn by the appellant."
To meet this requirement, the appellant has filed the deposition of Mr. Charles D. Hiss, who states that about a month after the appeal was taken, he called at the request of the appellant, at the office of the Circuit Court and asked the clerk to send up the record in this case, that the clerk told him he would not send it up until the costs were paid. The witness then asked him what the costs were, and was informed they were fifty-two dollars and twenty-five or thirty-five cents. He also states, that the cost of the record was fifteen dollars.
It appears from the certificate of the clerk attached to the record, that the transcript was completed on the first day of September, 1871.
Upon this proof we cannot say, that the failure to send up the record in time, is shown by the appellant to be 

 [*364]  from any neglect, omission or inability on the part of the clerk. On the contrary, the deposition which he has filed, tends to prove that he himself is the party who has been guilty of a want of proper diligence. About a month after [**3]  the appeal was taken, he was actually notified through his agent, Mr. Hiss, that the record would not be sent up unless the costs were paid; yet he seems to have done nothing towards paying them, or offering to pay them. The clerk had the authority of law for demanding his costs; and in requiring them to be paid before sending up the record, he did only what it was his right to do. The proof does not show any difficulty or disagreement between the clerk and the appellant as to the true amount of such costs. If more was demanded than was actually due, the appellant should have taken steps to have had the matter properly adjusted. But from July to the following May he seems to have laid quietly by and made no effort to have the record sent up, although the clerk had proceeded to make out the transcript, and had it ready for transmission on the first day of September, less than four months after the appeal was prayed.
Certainly, from all that appears to this Court, it was as easy if proper diligence had been used by the appellant, to have had the record sent up in September as it was in May, 1872, when it was actually transmitted. If he had pursued the same course he then did, the record [**4]  would no doubt have been transmitted within the time required, and his appeal would not have been lost upon a motion to dismiss.
Appeal dismissed. 

61 of 144 DOCUMENTS 

JOHN GLENN and others, trading as JOHN GLENN & CO., vs. C. Y. DAVIDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 365; 1873 Md. LEXIS 12 

February 18, 1873, Decided 

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

The facts are stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Real Estate Brokers -- when entitled to commissions.

D. employed G., a property agent in Baltimore. at a commission of two and a half per cent. to negotiate for him a loan of $ 10,000, for three years at eight per cent. to be secured by a mortgage on real estate. D. also employed other property agents to effect the same loan on the same terms. G. discovered a person able and willing to make the loan, and notified D. who, declined to accept, stating that he had already perfected a loan of that amount on the same property and at the same rate for one year, through one of the other agents whom he had employed, and had paid him his full commissions. It was a usage among the brokers in Baltimore, that when two or more were employed to negotiate the same transaction, the broker who first succeeded in making such negotiation was entitled to full commissions and the others were not entitled to any. G. sued D., for his commissions, alleging that his right to recover could not be affected by the usage, because the loan made differed from the one which he had been employed to make in being for one year, instead of three; HELD:

That the loan accepted was substantially the same as that which G. had been employed to negotiate, and that G. under the recognized custom of brokers, was not entitled to recover. 

COUNSEL:
A. McD. McBlair and T. Wallis Blackistone, for the appellant.

If the appellants found a person ready, able and willing to make the loan which they were employed to negotiate, upon the terms upon which they were authorized by the defendant to negotiate it, and so notified the defendant, and the consummation of the loan was prevented solely by the fault or refusal of the defendant, they were entitled to recover, unless the jury found the existence of the custom alleged to exist among brokers in Baltimore, and that the defendant had obtained a loan in all respects similar from another broker before he was notified by the plaintiffs. Schwartze vs. Yearly, 31 Md., 270; Henderson and Lupton vs. Kimberly, 29 Md., 512.

R. Stockett Matthews, for the appellee.  

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

OPINIONBY:
BRENT 

OPINION:

 [*366]  BRENT, J., delivered the opinion of the Court.
The action in this case was brought to recover a broker's commission of two and a half per cent. on $ 10,000. It appears that the appellee employed [**2]  the appellants, who are property agents in the City of Baltimore, to negotiate for him a loan of that amount, upon mortgage on certain real property belonging to him, for three years, at the rate of eight per cent. per annum. He also employed other property agents in Baltimore to effect the same loan upon the same terms. These appellants succeeded in effecting the loan upon the terms stipulated from a responsible person, who was ready, able and willing to comply on his part, and so notified the appellee. He did not, however, accept the loan, stating as his reason that he had already perfected a loan of that amount upon the same property and at the same rate for one year, through one of the other agents whom he had employed and had paid him his full commissions. Upon these facts the appellants claim they have a right to recover.
The right of the appellee to employ at the same time more than one broker to effect a loan was conceded at the argument, and also the usage among brokers to the effect that when two or more were employed to negotiate the same transaction, the broker who first succeeded in making 

 [*367]  such negotiations was entitled to full commissions, and the others [**3]  were not entitled to any.
But it was contended on the part of the appellants, that their right to recover could not be affected by this custom, because the loan which had been obtained, although the same in other respects, differed from the one, which they had been employed to make, in being for one year instead of three; and they insist that their third prayer, which presents this point, ought not to have been rejected by the Court below. A broker who fully discharges his duty, and performs all that he undertook to do, is entitled to recover for his services, without regard to the fact whether such services were beneficial, or of value to his employer. Henderson & Lupton vs. Kimberly, 29 Md. 512; Schwartze vs. Yearly, 31 Md. 270. The only exception to the rule is that which grows out of the usage or custom of brokers above referred to. And this brings us to the question, was the loan effected for the appellee through the agency of another broker, the same transaction as that which the appellants had been employed to accomplish? If it was, there is an end of this case. In substance, and in all its important elements, it unquestionably was.  [**4]  It was for the same amount, at the same rate of interest, and upon the same security. What the appellee desired to secure, through the agency of those whom he employed, was a fixed sum of money, for the use of which he proposed to allow to the lender eight per cent. per annum, and to give him as security a mortgage upon certain designated property. These, and not the time mentioned, were of the essence of the transaction, and the important marks by which its identity is to be determined. It would be giving too narrow a construction to the rule, so wisely established by the custom among brokers to avoid the payment of double commissions, to hold that any and every slight variation of terms changed the character of a transaction, although its more important features were left unaltered. 

 [*368]  It is impossible to lay down a rule specifying what variations from the proposed transaction will destroy its identity, as each case of this sort must depend upon its peculiar facts, but it may be stated generally that the alteration in the terms must be so material, that the two transactions cannot be fairly said to be substantially the same. If they are substantially the same, but one commission [**5]  is to be paid, and that to the broker who first submits the one negotiated by him to the approval of his employer. We cannot assume, in the absence of any proof upon the subject, that it is more difficult to procure a loan, upon satisfactory security, for three years than for one. Those who are seeking investments would ordinarily prefer the longer period, so as to avoid the trouble and expense of a re-investment. It cannot, therefore, be said to follow, as of course, that the greater difficulties to be encountered by the appellants in procuring a loan for three years rendered the loan proffered through them substantially a different transaction from the one which was accepted by the appellee, through the agency of another broker. We are all agreed that the loan accepted in this case was substantially the same as that which the appellants had been employed to negotiate. And as it was first negotiated through the agency of another broker, who is entitled to full commissions on it, these appellants, under the recognized custom of brokers, are not now entitled to recover the commissions claimed by them. It follows that the third prayer offered by them was properly refused by the Court [**6]  below.
It becomes unnecessary to examine fully the twelfth, thirteenth and fourteenth prayer of the defendant. While we do not affirm the "literal correctness" of the twelfth, or the application of the doctrine, announced in the fourteenth prayer, to the facts in this case, we think the law of the case was properly given to the jury by the first and second prayers of the plaintiffs which were granted, and in the thirteenth prayer of the defendant.

 [*369]  The views, however, which we have expressed in regard to the third prayer of the plaintiffs are fatal to their recovery, and even if we considered the defects in the twelfth and fourteenth prayers of the defendant sufficiently vital to justify a reversal, the case would not be sent back for a new trial.
Judgment affirmed. 

62 of 144 DOCUMENTS 

JOHN S. STANSBURY vs. STEPHEN M. FOGLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 369; 1873 Md. LEXIS 13 

February 18, 1873, Decided 

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

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

Exception.--The plaintiff offered the following prayers:

1. If the jury shall believe from the evidence in the cause that the defendant instituted or caused to be instituted the prosecution under which the plaintiff was arrested, maliciously and without probable cause, and shall further find that said prosecution is terminated, then their verdict must be for the plaintiff.

2. If the jury believe from the evidence that said prosecution was instituted, or caused to be instituted, by the defendant under such circumstances as would not have induced a reasonable and dispassionate man to believe that the plaintiff was guilty of the crime so charged against him, then the jury may infer that the defendant was actuated by malice in instituting, or causing to be instituted, said prosecution, while it is competent for the jury to infer malice from a want of probable cause, the question whether the defendant was actuated by malice or not, is one to be determined upon the whole evidence; and if upon the whole evidence the jury believe that the defendant did not act [**2]  maliciously, then their verdict must be for the defendant.

3. If the jury shall find a verdict for the plaintiff, they are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained in consequence of the defendant's wrongful act, but may also award exemplary or punitive damages as a punishment to the defendant for such wrongful acts.

The defendant offered the following prayers:

1. That in order to maintain the present action, it is necessary for the plaintiff to satisfy the jury that the alleged arrest, commitment and imprisonment of the plaintiff were caused or procured by the defendant, and that the mere fact that the defendant testified before the committing Justice, is not sufficient evidence that it was so caused or procured by him.

2. That it is further necessary for the plaintiff to satisfy the jury, that in respect to such arrest, commitment and imprisonment, (even if the jury should find that the defendant instituted or caused the same,) the defendant acted without reasonable or probable cause, and to constitute reasonable and probable [**3]  cause, it is not necessary that the plaintiff should have been in fact guilty of the crime charged; but it is enough for the defendant's justification, if they find that he had reasonable ground to think that the plaintiff was guilty of the matter charged.

3. The burden is upon the plaintiff to prove that there was an absence of such probable cause for the prosecution as would justify an ordinarily prudent man in instituting the same, and not upon the defendant to prove the contrary.

4. It is further necessary for the plaintiff to prove that the defendant acted with malice; and if the jury find that the defendant did not act maliciously in the premises, but all that he did, tending towards the imprisonment of the plaintiff, was done under the advice and direction of counsel, and without malice on his own part, then the verdict must be for the defendant.

5. That if the plaintiff sold and delivered to the defendant the articles mentioned in the bill of sale offered in evidence, and represented to the defendant that he owned and had the right to sell said articles, and if upon the faith of the truth of said representation by the plaintiff, the plaintiff obtained from the [**4]  defendant a certain grey horse, referred to in the commitment offered in evidence, and they find that said representation was not true, then there was probable cause justifying the charge upon which the plaintiff was committed, and the plaintiff cannot recover.

6. That the plaintiff is not entitled to recover, under the declaration in this case, any damages for injury resulting from contracting, while in jail, any contagious disease.

7. That in order to maintain the present action, it is necessary for the plaintiff (among other things) to satisfy the jury that the alleged arrest, commitment and imprisonment were caused by the defendant; and if they believe that the same were caused by Mr. Waterman, acting upon his own volition, and that the defendant did not authorize or ratify the same, then the mere fact that the defendant testified before the committing magistrate does not make the defendant responsible therefor in this action.

The Court (DOBBIN, J.,) granted the first and third prayers of the plaintiff as offered, and the second with the conceded addition in italics; it also granted the second, third, fourth and sixth prayers of the defendant and refused his first,  [**5]  fifth and seventh. To the rejection of his first, fifth and seventh prayers, the defendant excepted, as also to the granting of the prayers of the plaintiff. The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice. -- What objections to Instructions not allowable in the Appellate Court. -- Malicious Prosecution. -- What is Probable cause. -- Punitive damages allowable. -- Prosecutor need not be Originator of prosecution, nor alone. -- When knowledge of Prosecutor as to falsity of Representations a defence in case of False pretences.

No objection can be made in the Court of Appeals to an instruction on the ground that it submitted a question of law to the jury, or that it assumed facts, unless it appear from the record that an objection for such defect was taken at the trial below.

Probable cause (for a criminal prosecution) is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offence of which he is charged.

On a suit for malicious prosecution the jury are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained in consequence of the defendant's wrongful act, but may also award exemplary or punitive damages as a punishment to the defendant for such wrongful act.

In an action for malicious prosecution it is not necessary for the plaintiff to show that the defendant was the originator of the proceedings against him; but if the defendant participated voluntarily in the prosecution of the plaintiff, and it was carried on with his countenance and approbation, he is liable in damages, whether there were others who were concerned in it or not, provided the jury find the other facts necessary to render him liable.

Want of prudence on the part of the prosecutor in a case of false pretences is no defence: but where he knows that the representations constituting the false pretences are false at the time he parts with his goods, or where he is instructed and admonished by a law suit against him to place no reliance in them, he cannot claim to have parted with his property upon faith in their truth.  

COUNSEL:
R. J. Gittings and A. W. Machen, for the appellant.

Three things were necessary to be established in order to enable the plaintiff to maintain his action, viz: that the prosecution was made or instigated by the defendant, that there was a want of reasonable and probable cause, and that the defendant was impelled by malice. The circumstances of this case made it peculiarly important that the first of these requisites should be attended to. It has been thus defined by the Supreme Court of the United States: "The plaintiff must prove, in the first place, the fact of the prosecution, and that the defendant was himself the prosecutor, or that he instigated its commencement." Wheeler vs. Nesbitt, 24 How., 549.

In this present case it is clear, that the prosecution complained of in the declaration was neither begun nor instigated by the defendant. The only circumstance which could connect him with it at all was his attendance [**6]  before the justice; and that being fully explained in the evidence, the jury ought not to have been left to infer that it was conclusive against him. The defendant's first prayer should, therefore, have been granted. There was error in granting the plaintiff's first prayer. But certainly the defendant was, at least, entitled to have the question whether or not the alleged arrest, commitment and imprisonment--the grievance complained of in the declaration--were caused by him, presented to the jury. Weston vs. Beeman, 27 Law. Journ. N. S. Exch., 57; Burnap vs. Albert, Taney's Dec., 244.

The jury were not properly instructed in regard to the other necessary ingredient of want of reasonable and probable cause. The rule of the Common law, that it is for the judge, and not the jury, to determine whether the facts amount to probable cause, is stated with great clearness in Buller's Nisi Prius, page 14, upon the authority of the manuscript case of Golding vs. Crowle, (also reported Sayer, 1;) where a verdict for the plaintiff was set aside, "not as a verdict against evidence, but as a verdict against law." It has been repeatedly affirmed since. Boyd vs. Cross, 35 Md., 194; Munns vs. Dupont,  [**7]  3 Wash. C. C., 37; Douglas vs. Corbett, 6 El. & Bl., 511; Walker vs. South Eastern R. Co., L. R., 5, C. P., 640; Lister vs. Perryman, L. R. 4 Eng. & Ir., App., 521; Davis vs. Hardy, 6 B. & C., 231; 1 Taylor's Ev., sec. 26.

Here, even had the action been framed, (as in Weston vs. Beeman. 27 L. J. N. S. Exch., 57; it was,) upon a malicious adoption and prosecution of a proceeding begun by a third party, there was, as that case shows, no want of probable cause on the defendant's part--brought into the affair at the stage and under the circumstances in which he was--for doing all that he did do. Brooks vs. Blaine, 39 Law Journ. N. S. C. P., 1; Gibson vs. Veasey, 15 Law Times, N. S. 586; Gilbert vs. Emmons, 42 Ill., 144.

But, upon another, distinct ground there was no want of probable cause. There was abundant evidence that the plaintiff was actually guilty of the charge upon which he was held and committed. That this fact is always a complete bar to any action for malicious prosecution is undeniable; the unsuccessful result of the criminal case being no criterion. Hailes vs. Marks, 7 Hurl. & Nor., 61, 63, 64.

There was ample evidence to support the defendant's fifth prayer,  [**8]  and those facts made out such a prima facie case of false pretences, that upon them a jury would be warranted in finding the party guilty of the offence--Matthews Digest, 169. There was then probable cause.

An indictment lies for obtaining goods by false pretences, where a party represents himself to be the owner of property which does not belong to him, and thus fraudulently induces the owner to sell the goods to him on credit. The People vs. Kendall, 25 Wend., 399.

To establish a case of false pretences, it is not necessary that the representations made should have been the sole inducement; the rule being that it is sufficient if the pretences proved to be false had such a material effect in procuring the credit, or inducing the party defrauded to give up his property, that without the existence of its influence upon his mind he would not have parted with it. The People vs. Haynes, 11 Wend., 566; Reg. vs. Jennison, 9 Cox C. C., 158. It is clear therefore, that the defendant's fifth prayer ought to have been granted. Reg. vs. Naylor, 10 Cox C. C., 149; Reg. vs. Fry, 7 Cox C. C., 394.

It was the more important that the Court should properly instruct the jury as to what [**9]  would amount in law to want of probable cause, for the reason, that, by granting the plaintiff's second prayer, the Court, expressly authorized them to infer malice from the want of probable cause. Hence, not only in refusing the defendant's prayers, but also in granting the plaintiff's second and third prayers, the Court erred. Boyd vs. Cross, 35 Md., 194; Cecil vs. Clark, 17 Md., 524; Morrison and Kildow vs. Hammond's Lessee, 27 Md., 616, 617; Mayor, &c., of Baltimore vs. Poultney & Trimble, 25 Md., 30, 34; Dunham vs. Clogg, 30 Md., 292. None of the granted prayers of the defendant at all supplied the place of those that were refused.

James W. Denny and W. C. N. Carr, for the appellee.

The prayers of the Plaintiff were properly granted by the Court.

The first prayer sets forth--

1st. The facts of the prosecution.

2d. That the defendant was the prosecutor, and instigated it.

3d. That the prosecution was ended.

4th. That it was instituted maliciously, and without reasonable or probable cause. 2 Greenleaf on Ev., sec. 450, 455; Wheeler vs. Nesbitt, 24 Howard S. C., 549; Boyd vs. Cross, 35 Md., 194.

The plaintiff's second prayer, it is believed,  [**10]  presents no difficulty.

After connecting the defendant with the prosecution, and defining probable cause, the instruction leaves the jury at liberty, in the absence of probable cause, and in the absence of any proof or circumstances to satisfy them to the contrary, to find the prosecution was malicious, and the question of malice, in the absence of probable cause, is to be determined from all the circumstances of the case. Wheeler vs. Nesbitt, 24 Howard, 552; Boyd vs. Cross, 35 Md., 194; Munns vs. Dupont. 3 Wash. C. C. R., 31; Foshay vs. Ferguson, 2 Denio, 617: Cabiness vs. Martin, 3 Devereux, 454; Cecil vs. Clark, 17 Md., 524; Turner vs. Walker, 3 G. & J., 386; Spengler vs. Davy, 15 Grat., 381; Camp. R., 244; 1 Hilliard on Torts, 464; 2 Greenleaf on Ev., secs. 453, 454; Williams vs. Taylor, 6 Bing. 183; 1 American Lead. Cases, 213; Hull vs. Suydam, 6 Barb. S. C. R., 83; Haddrick vs. Heslop, 12 Adol. & Ellis, 267, N. S.

The plaintiff's third prayer presents the question of compensatory and exemplary damages. Sedgwick on Damages, 522; 2 Greenleaf on Ev., sec. 456; Zimmerman vs. Helser, 32 Md., 277; 1 Hilliard on Torts, 465; Sniveley vs. Fahnestock, 18 Md., 392; Ridgely vs.  [**11]  Bond and Wife, 17 Md., 23; Cromwell vs. Owings, 7 H. & J., 60; Shafer vs. Smith, 2 H. & J., 68; Tillotson vs. Cheatham, 3 Johnson, 56.

The defendant's first, fifth and seventh prayers were properly rejected.

The first and seventh are similar in structure, and so framed as to mislead the jury from the subject for their consideration.

The procuring the arrest is not the question to be determined in this suit, the facts are not in issue as defendant's second prayer admits, but the gist of the action is whether the arrest was procured maliciously, and without probable cause. This is entirely omitted. Harkrader vs. Moore, Md. Law R., Nov. 8.

The second part of the prayer is defective for the same reason. "The mere fact" of the defendant's testimony caused the plaintiff's arrest, and if that were the only "mere fact" in the case, it alone, unsupported by any evidence on which to base his belief, and without any foundation, would be evidence of want of probable cause, and of a malicious intent.

Besides, the plaintiff's second prayer directs the jury that while they may infer malice from want of probable cause, that all the circumstances of the case must be considered;  [**12]  and to grant an instruction on one mere fact, when there are so many others to be considered, and disregarding the motives of the defendant in doing that mere fact, it is submitted would be illegal and contradictory. Hilliard on Remedies for Torts, 369--case in note; 2 Chitty's Pleading, 609 c; Cotton vs. Huidekoper, 2 Penn. Rep., (Penrose & Watts,) 149, &c.; Jones vs. Nicholls, 3 Moore & Payne, (full Ed.) 15, &c.

This prayer is defective because it instructs the jury to find that certain facts discharge the appellant from responsibility. Such a prayer would be irreconcilable with the plaintiff's prayers granted by the Court as to the existence of malice and want of probable cause. Lohrfink vs. Still, 10 Md., 530.

The mere fact of the arrest, wilfully and purposely made to the injury of another, without probable cause, is sufficient to induce the belief that it was malicious. Dubois vs. Keates, 4 Jur., 148, and 3 Perry & Dav., 306; 2 Greenleaf on Ev., sec. 453.

The defendant's second, third and fourth prayers which were granted, will not be considered. It cannot be said that with these instructions before the jury, the defendant's case was not fully and fairly before [**13]  them on every question of law presented in the case, and material for defendant's defence.

The fifth prayer was very properly rejected for numerous reasons.

False pretenses must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property. Codrington's Case, 1 Car. & P., 661; Rex vs. Dale, 7 Car. & P., 352; Rex vs. Williams, 7 Carr. & P., 354; Goodhall's Case, 1 Eng. C. C., 461.

The seventh prayer of the defendant is liable to the same objections as the defendant's first prayer--"among other things" in a prayer is certainly vague, indefinite and liable to mislead, and ought not to be granted. Tortfeasors are severally liable for the part they wrongfully take in a prosecution. Bicknell vs. Dorion, 16 Pick., 468; 2 Greenleaf on Ev., pagc 512; Cotton vs. Huidekoper, 2 Penn. R., 149 by P. & W.

The want of probable cause and malice being the gist of this action, the instruction as requested ignores the actual belief and intent of the defendant at the time he made the arrest, and therefore it was properly rejected.

The mere fact that the defendant testified may make him responsible, if he acted maliciously and without probable [**14]  cause, and the existence of these elements is ascertained by the jury from all the circumstances in the case, and therefore to grant the defendant's seventh prayer would be irreconcilable with the law of the case as admitted by the defendant in his addition to the plaintiff's second prayer. 2 Chitty's Pleading, 609 c.  

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

OPINIONBY:
MILLER 

OPINION:

 [*378]  MILLER, J., delivered the opinion of the Court.
In several very recent cases, one of which (Cooper vs. Utterbach, ante. 282,) has been decided at the present term, this Court has had occasion to consider the general 

 [*379]  rules of law governing actions for malicious prosecution and false imprisonment, and we shall therefore proceed at once to determine the particular questions presented for review by this appeal. These are the rulings of the Superior Court in granting the three prayers offered by the plaintiff, and rejecting the defendant's first, fifth and seventh prayers.
1st. The objections to the plaintiff's first prayer are that it assumes as facts (what was clearly established by the proof in the case,) that the plaintiff was arrested and imprisoned [**15]  upon a criminal charge, and that the prosecution against him had been terminated by his exoneration and discharge, and that it submits to the jury a question of law in allowing them to find that such prosecution was without probable cause. But it does not appear from the record that objection to the prayer upon either of these grounds was taken at the trial. This Court is therefore precluded by its Fourth Rule and Regulation respecting appeals, from considering either of these objections, no matter how well founded and fatal to the judgment they might be if properly presented for revision. That Rule, which was in force when this case was tried, was made and prescribed by the Judges of the Court of Appeals under and by authority of the eighteenth section, of the fourth article of the Constitution, and by virtue thereof has "the force and operation of law until rescinded, changed or modified by the said Judges or the General Assembly." It provides among other things that no instruction actually given shall be deemed by the Court of Appeals to be defective by reason of any assumption therein of any fact, or because of a question of law having been thereby submitted to [**16]  the jury, unless it appear from the record that an objection thereto for such defect was taken at the trial. It is a rule of easy observance, is in strict accordance with previous legislative enactments upon the same subject, and tends to prevent expense, delay and hindrance of justice 

 [*380]  resulting from reversals of judgments upon grounds not presented to or considered by the tribunals that rendered them. If these objections to this prayer had been suggested to the opposing counsel, or to the Court in the trial of the case, it would have been easy to obviate them by a different framing of the instruction, or if so presented and overruled by the Court, it was equally easy to make that fact apparent upon the record.
2d. The plaintiff's second prayer is addressed to the question of malice. As originally presented it asked the Court to instruct the jury that if they believed from the evidence that the prosecution against the plaintiff was instituted or caused to be instituted by the defendant, under such circumstances as would not have induced a reasonable and dispassionate man to believe that the plaintiff was guilty of the crimes so charged against him, then they may [**17]  infer that the defendant was actuated by malice in instituting or causing the institution of such prosecution. To this was then appended this conceded addition: "While it is competent for the jury to infer malice from a want of probable cause, the question whether the defendant was actuated by malice or not is one to be determined upon the whole evidence, and if upon the whole evidence the jury believe that the defendant did not act maliciously, then their verdict must be for the defendant," and with this addition the prayer was granted. As was said in Boyd vs. Cross, 35 Md. 194, "Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution, but it does not necessarily follow that because there is an absence of probable cause the defendant must have been actuated by malice. The presumption of malice resulting from the want of probable cause is only prima facie, and may be rebutted by the circumstances under which the defendant acted." This prayer with its conceded addition gave the defendant 

 [*381]  the full benefit of this law, and the only objection that has [**18]  been urged to it is that it gives an erroneous definition of want of probable cause. In this respect the prayer contains a simple negation of what in law constitutes probable cause. That which is generally considered the best definition of these terms is the one given by Mr. Justice Washington in Munns vs. De Nemours, 3 Wash. C. C. 31, 17 F. Cas. 993, cited with approval in Boyd vs. Cross, viz: "A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offence of which he is charged." But it is not necessary to follow the precise words of this definition. It is sufficient if language of equivalent import is used. Thus in Cooper vs. Utterbach, the Court's instruction that probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the defendant, that the plaintiff was guilty of the crime for which he was prosecuted, was held to be identical in meaning with that adopted by Judge Washington, and the appellee's second and fourth prayers affirmed [**19]  in that case, define want of probable cause in very nearly the exact language employed in the instruction we are now considering. Again, the jury in this case were instructed at the instance of the defendant himself, by the granting of his third prayer, that the burden is upon the plaintiff to prove that there was an absence of such probable cause for the prosecution as would justify an ordinarily prudent man in instituting the same, and not upon the defendant to prove the contrary. In our judgment the language of the prayer in this respect is equivalent in meaning to that sanctioned and approved by adjudged cases of the highest authority. In addition to those already cited we refer to the cases of Wheeler vs. Nesbitt, 65 U.S. 544, 24 How. 544, 551, 552, 16 L. Ed. 765; Humphries vs. Parker, 52 Me. 502; Spengler vs. Davy, 56 Va. 381, 15 Gratt. 381, and to 1 Amer. Lead. Cases 213, where the annotators 

 [*382]  in their notes to the case of Munns vs. Dupont have collected a large number of cases on this point.
3rd. The plaintiff's third prayer is directed to the question of damages. It asserts, that if the [**20]  jury shall find a verdict for the plaintiff, (that is to say, if they first find every thing necessary to support the action mentioned or assumed in the preceding prayers, including the finding upon the whole evidence, that the defendant in instituting or causing the institution of the prosecution, was actuated by malice,) then they are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained, in consequence of the defendant's wrongful act, but may also award exemplary or punitive damages, as a punishment to the defendant for such wrongful acts. The correctness of this instruction, was not seriously questioned in argument, and we know of no authority which has decided that, in an action like the present, and under such circumstances as this case discloses, the jury is not at liberty to award exemplary or punitive damages. The case in all its features, is wholly unlike that of Sears vs. Hathaway, 12 Cal. 277, referred to by the appellant's counsel.
4th. The defendant's first and seventh prayers are addressed to that branch of the [**21]  case which relates to the defendant's participation in the prosecution of the plaintiff. Upon this subject there is much conflicting testimony. These facts however appear to be undisputed; the plaintiff was arrested by a police officer in the law office of Mr. Waterman, on the 10th of March, 1870, the defendant and Waterman both being present at the time; he was then taken to a magistrate's office by the policeman, accompanied by the defendant and Waterman; the officer at the time had no warrant for his arrest, and no warrant for that purpose had then been issued; Waterman 

 [*383]  then made a statement or charge against the plaintiff, as to his having obtained a grey horse from the defendant; the defendant was then questioned in reference to it, both by the magistrate and Waterman, whom the magistrate regarded as defendant's counsel, and the defendant then made oath to the truth of the facts he had testified to, and the plaintiff was then committed to jail, under a warrant of commitment issued by the magistrate in the usual form, charging him with obtaining from John S. Stansbury, a grey horse under false pretences; he remained in jail until the 16th of March, when he was released [**22]  on bail, and at the following May Term of the Criminal Court was discharged, upon request of the grand jury, who had first summoned, sworn and examined the defendant and his son, who had been returned by the magistrate as witnesses for the State.
There was evidence offered on the part of the plaintiff tending to show that this arrest and imprisonment was directly caused or procured by the defendant,--that he was in fact the originator of the prosecution, and the plaintiff's prayers leaving it to the jury to find that the prosecution was instituted, or caused, or procured to be instituted by the defendant, are based on that view of the testimony. There was however, evidence offered on the part of the defendant tending to show that his agency or participation in the matter was not that of an originator of the proceedings, nor was it necessary he should have been, in order to make him liable in this action provided the case was in other respects made out against him. Two persons may be parties to an arrest and imprisonment, and both be liable; one may be the active originator and promoter of the prosecution, and the other may voluntarily aid and assist therein, either by direct personal [**23]  participation, or by instigation and advice.
While mere passive knowledge and consent to the acts of another, is not sufficient to render a party liable, 

 [*384]  (Gilbert vs. Emmons, 42 Ill. 143,) yet voluntary aid and assistance undoubtedly will. The first prayer of the appellee in Cooper vs. Utterbach, approved by this Court, was to the effect, that if the jury found from the evidence that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff, and aided and contributed to said prosecution, then he is liable to be sued by the plaintiff in this action, provided, the jury under the instructions of the Court, shall find the other facts necessary to render him so liable. So, in Cotton vs. Huidekoper, 2 Penna. Rep., (Penrose & Watts,) 143, the Court state what is unquestioned law, "if the defendant participated voluntarily in the prosecution of the plaintiff and it was carried on with his countenance and approbation, he is liable in damages, whether there were others who were concerned in it or not."
The evidence in this case clearly shows that the defendant participated in the prosecution,  [**24]  at least to the extent of giving it voluntary aid and assistance. For assuming the police officer was called in and directed to arrest the plaintiff by Mr. Waterman acting upon his own volition, still the defendant had been present at the previous interview, as testified to by the witnesses in which the plaintiff was told in effect that he had obtained the horse from the defendant upon the strength of representations which were false. And he was also present when the arrest was made, and then without any legal compulsion, he accompanied the parties to the magistrate's office, and there testified under oath, and upon his sworn testimony, the commitment in the usual form was made out, by virtue of which the plaintiff was imprisoned. This of itself constitutes such voluntary aid and assistance in the prosecution as would render the defendant liable, if the other essential facts of want of probable cause and malice were established. The great defect in the two prayers we are now considering, is, that they both ignore 

 [*385]  altogether this law as to voluntary aid and assistance, which, in view of the testimony in the case, should not have been omitted in instructions like these,  [**25]  which profess to state what was essential to the maintenance of the action Each of them in unqualified terms asserts, that in order to maintain the present action, it is necessary for the plaintiff to satisfy the jury that the alleged arrest, commitment and imprisonment of the plaintiff were, as expressed in the first prayer, "caused or procured," and as expressed in the seventh prayer, "caused" by the defendant, whereas we have shown that voluntary aid and assistance in the prosecution was sufficient. Assuming therefore, (without so deciding,) that the additional parts of each of these instructions standing by themselves, or connected with true antecedent legal propositions would have been correct, still being coupled with an insufficient and erroneous statement of the law of the case, the prayers were incorrect and misleading, and were hence properly rejected. In so far as the testimony might warrant an instruction exonerating and protecting the defendant, by reason of his having acted in the matter under the advice and direction of counsel, the granting of his fourth prayer gave him the benefit of all the law on that subject to which he was entitled.
5th. The remaining [**26]  question is as to the propriety of the rejection of the defendant's fifth prayer. In considering this question it is necessary to notice an instruction given at the instance of the defendant himself. The Court granted his second prayer by which the jury were told that it is further necessary for the plaintiff to satisfy them that in respect to the alleged arrest, commitment and imprisonment, (even if they should find the defendant instituted or caused the same,) the defendant acted without reasonable or probable cause, and to constitute reasonable and probable cause, it is not necessary that the plaintiff should have been in fact guilty of the crime 

 [*386]  charged, but it is enough for the defendant's justification if they find he had reasonable ground to think that the plaintiff was guilty of the matter charged. Having obtained this instruction in these broad terms, by which the jury were told it was enough to justify the defendant and therefore defeat the action against him, if they could find from the testimony he had reasonable ground to think the plaintiff was guilty of the offence charged, whether he was so in fact or not, it is difficult to perceive what further instruction [**27]  upon the question of probable cause he had the right to ask. In our judgment, the Court having granted this instruction at his instance, not only leaving the question of law to the jury as he requested, but stating that law in the most favorable terms for him, were quite right in rejecting any additional instruction on the same subject, and for this reason alone, there was no error in the rejection of his fifth prayer.
But again, what is this fifth prayer? It asserts that if the plaintiff sold and delivered to defendant, the articles mentioned in the bill of sale offered in evidence and represented to the defendant that he owned and had the right to sell said articles, and if upon the faith of the truth of said representation by plaintiff he obtained from the defendant a certain grey horse referred to in the commitment offered in evidence, and the jury find such representation was not true, then there was probable cause justifying the charge upon which the plaintiff was committed, and the plaintiff cannot recover.
This prayer is based solely upon a portion of the testimony given by the plaintiff himself as a witness. It is now the established doctrine, both in this country and in [**28]  England, that what facts and circumstances amount to probable cause is a question of law, but whether these facts and circumstances exist in the particular case is for the jury. In this State the jury are instructed hypothetically as to what constitutes probable cause, leaving it to 

 [*387]  them to find the facts embraced in the hypothesis. 35 Md. 194. But when a Court has to deal with such a case, after the evidence is all in, it would be highly improper to allow a particular part of the testimony, disconnected from all the other conceded facts and circumstances of the case, to be selected as the hypothesis, and upon that alone to declare there was probable cause for the prosecution, and thus defeat the action. Such a course would, in many instances, defeat the ends of justice. It appears from the proof in this record that the plaintiff, for many years prior to 1869, had pursued the business of a huckster, and during that period had dealings with the defendant who was a wholesale and retail grocer in Baltimore city. In the spring of 1869 the plaintiff sold to the defendant two huckster's wagons, and three horses with harness and gear, and conveyed the same to [**29]  him by bill of sale, with warranty of title, dated the 19th of May of that year, for the consideration expressed in the deed of $ 737. At the time of this sale the plaintiff represented the property to be his, that he had a right to sell it, and no third party had any claim upon it. The agreement between them as to the payment of the purchase money, was that about $ 200 of it should go in extinguishment of an antecedent debt for that amount due by the plaintiff to the defendant, and the residue should be paid in two or three weeks; the defendant, however, never paid any of this purchase money, and it does not appear that he was ever the worse off by a single dollar on account of this transaction. He allowed the plaintiff to remain in possession of the property, and early in June following it was taken by the Sheriff under a writ of replevin from the Court of Common Pleas at suit of Wm. G. Wilson against the defendant, and it then appeared Wilson claimed the property as owner by virtue of a purchase thereof from the plaintiff some time in the preceding winter. After the writ of replevin had been executed, 

 [*388]  and Wilson's claim to the property had thus been made known to [**30]  the defendant in the most formal and explicit manner by a suit at law, the plaintiff, some time in the latter part of June or in July, came to the defendant, and said he was out of employment, but if he had a horse he could borrow a wagon, and carry on a huckstering business. The defendant thereupon purchased a grey horse at a cost of about $ 40 or $ 45, and delivered it to the plaintiff. The plaintiffs wears the horse was merely loaned to him. The defendant swears he sold the horse to the plaintiff upon the understanding that the price thereof would be deducted from the balance due upon the purchase money mentioned in the bill of sale; and his son swears he supposed that in case his father was successful in the replevin suit, the horse would belong to the plaintiff, but if not so successful the horse would come back to his father or be paid for. But whatever may have been the understanding of the parties in this respect it is clear the plaintiff did not obtain the horse until more than a month after the bill of sale, and not until after the property had been replevied by Wilson. The defendant further swears, (and this is the testimony upon which the prayer in question is based,  [**31]  ) that this purchase and delivery of the horse were in consequence of and in reliance upon the representations of the plaintiff, then again repeated by him, that he owned all the articles mentioned in the bill of sale at the time of its execution, and had full right to sell the same, and that Wilson had no interest therein, nor ground to claim the same. But the defendant then well knew that the truth of these statements was denied and questioned in the most solemn form; he knew that Wilson claimed the property by virtue of a previous purchase from the plaintiff, and had asserted that claim by a law suit actually commenced against himself. Though the general rule is that want of prudence on the part of the prosecutor in a case of false pretences is no defence if 

 [*389]  he was really imposed upon, yet there are some exceptions to it, and it is well settled that if a party knows the representations to be false at the time he parted with his property, he cannot claim he was influenced by them. 2 Wharton's Amer. Cr. Law, secs. 2126 and 2128 to 2131. Here though the defendant might not have known that the representations were absolutely false, yet he was instructed and admonished [**32]  by the law suit against him to place no reliance upon them, and after this it was his own folly to have relied upon them, when reiterated, or to have parted with property upon faith in their truth. Indeed it would seem he could not possibly have done so except upon the hope or expectation that the plaintiff would testify under oath, as a witness in the replevin suit, to the truth of what he had thus stated. But further the plaintiff after obtaining the horse used it in his business as a huckster, and it does not appear he ever made any attempt to sell or dispose of it, but on the contrary the horse, which was blind, remained in his possession and died on his hands before this prosecution was instituted. The prosecution was not instituted until more than eight months after he had obtained the horse, and not until he had said to the defendant and his counsel that he would not testify in the replevin suit that the property there involved did not belong to Wilson. Immediately upon his making this statement he was arrested and imprisoned upon the charge of having obtained this horse nearly nine months previously by means of false pretences. In this state of case we are of opinion the Court [**33]  not only committed no error in rejecting this prayer as offered, but could properly have refused to grant any instruction to the effect that there was probable cause for this prosecution.
We have carefully examined all the numerous authorities cited in argument, and particularly the cases of Hailes vs. Marks, 7 Hurl. & Nor. 56, and Weston vs. Beeman, et al. 27 Law Jour. N. S., (Exch. Rep.) 57, which 

 [*390]  were especially relied on by the appellant's counsel, but can discover nothing in either of them inconsistent with the conclusions and views we have reached and expressed in this opinion. We have also given to the case especial care and consideration, because of our thorough conviction of the good sense and propriety of the observations of Mr. Justice Washington, which we have cited with approval in Boyd vs. Cross, 35 Md. 194, but we find in this case no ground of error subject to our revision in the rulings of the Court to which exception was taken, and its judgment must be affirmed.
Judgment affirmed. 

63 of 144 DOCUMENTS 

DAVID H. HOOPES vs. VICTOR STRASBURGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 390; 1873 Md. LEXIS 14 

February 18, 1873, Decided 

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

The case is stated in the opinion of the Court.

Exception.--The plaintiff prayed the Court to instruct the jury:

That if they find from the evidence that the carpet and rug, as testified to, were sold and delivered by the plaintiff to the defendant at the prices named, and that the defendant paid on account thereof the sum of $ 3.59, and in payment of the balance delivered to the plaintiff the promissory note of Brewer & Hoffacker, offered in evidence, dated December 6th, 1867, at 20 days, drawn originally to the order of blank, but having the name of plaintiff inserted therein by the defendant as payee, at or before the delivery thereof; and shall further find that the plaintiff, either placed the said note in the Howard Bank of Baltimore for collection in due course of business, or discounted the same at said bank, and that the said note was not paid at maturity, and that immediately thereupon, that is, on the same day, the plaintiff took said note from said bank and went to the place of business of said Brewer & Hoffacker, to present the same for payment, and found the said place of business closed, and found also that said Brewer [**2]  & Hoffacker had, at least several days before, failed and left the city, and that immediately thereupon, on the same day, the plaintiff called upon the defendant and notified him of the non-payment of said note, and of the failure of said Brewer & Hoffacker, and demanded payment of the defendant of the balance of $ 150, due upon the sale of said carpet and rug, and that no part of the said $ 150, has been paid, and that no part of said note has been paid, and that said note has been produced at this trial and tendered by plaintiff to defendant, then the plaintiff is entitled to recover; notwithstanding they may find the fact that the plaintiff agreed to accept said note absolutely as payment, and to run the risk of its collection, provided they find that the plaintiff knew nothing of the pecuniary responsibility of said Brewer & Hoffacker at the time of taking said note, and relied entirely upon the representations of the defendant in reference thereto, and that the defendant falsely represented the said note to be perfectly good, and the said Brewer & Hoffacker to be responsible for their paper and in good credit, while in fact the said Brewer & Hoffacker were not responsible for [**3]  their paper nor in good credit, but were then insolvent, and that the defendant then knew that said Brewer & Hoffacker were not pecuniarily responsible nor in good credit, but were insolvent, and that his representations were false.

The defendant asked the following instructions:

1. If the jury find the making of the bill and receipt as offered in evidence by the plaintiff, without mutilation, then such bill and receipt embody the contract in writing between the parties, and it is not competent for the plaintiff to contradict or vary the terms of said contract by oral testimony; and he cannot recover under the pleadings in this case.

2. That the jury are confined, in ascertaining the contract in regard to the sale and delivery of the goods in question, to the written paper marked "A," (being the bill and receipt set out in the opinion of the Court;) if the jury shall find the signature thereto signed by the plaintiff to be his genuine signature, and shall further find that said paper has not been mutilated or altered since.

3. That the plea of payment is sustained by the evidence in the cause, if the jury find that the signature of the plaintiff to the paper marked [**4]  "A," was placed there at the time of the delivery of the carpet and acceptance of the note, and that such paper proved conclusively the payment and extinguishment of the original cause of action, and that the construction and effect of such paper is matter of law for the Court, if the above facts are found by the jury, and establish the plea of payment.

4. That, under the pleadings in this cause, it is not competent for the jury to determine or consider whether the said defendant, in passing said note to the plaintiff, acted in good faith or not; because this form of action does not involve such question; that their verdict must be for the defendant if they find that the plaintiff accepted said note and receipted for the same in manner as shown by the paper writing marked "A," without regard to the question whether said note was of any value or not.

5. If the jury find from the evidence the sale and delivery of the goods in question, by the plaintiff to the defendant, and that it was part of said contract that the note of Brewer & Hoffacker was to be taken and received in payment therefor, to the amount of said note, then the plaintiff cannot recover under the pleadings in [**5]  this cause.

6. That in order to a recovery under the pleadings in this case, it was essential that the plaintiff should tender the note in question to the defendant after the discovery by him of the fraud alleged against the defendant in this case.

7. That if they find there was fraud on the part of the defendant in making the contract in this case, and that upon making discovery of such fraud the plaintiff elected to avoid such contract, and to that end made a tender of the note in question to the defendant, and manifested to the defendant, at the same time his determination to avoid the contract, then such contract on the part of the plaintiff rescinded the whole contract between them, and the title of the goods in question did not pass from the plaintiff to the defendant by reason of such fraud, and the plaintiff cannot recover the price of the goods under the pleadings in this case.

8. If the jury find the sale and delivery of the goods, and the taking of the note by plaintiff, as shown by the evidence; and shall further find that said note was not paid at maturity; and shall further find that the transfer of the note was fraudulently made by defendant; yet their [**6]  verdict must be for the defendant in this case, unless the jury shall find that within a reasonable time after the discovery of such fraud by the plaintiff he returned said note to defendant; and as there is no evidence that he returned the note, or offered to do so, he cannot recover in this case.

9. That the tender of the note in question by the plaintiff to the defendant, at the trial table, during the progress of this trial, and the refusal of the defendant to accept the same, does not affect or change in any respect the responsibility of the defendant in this case to the plaintiff.

10. That it is not competent for the plaintiff to tender the note in question to the defendant, at the trial table, during the trial of this cause, with a view to recover upon the count for goods sold and delivered, because more than three years have elapsed since the maturity of said note, and no legal recovery thereon could now be had against the makers of said note, and the relation of the parties to such note remain as if no such tender had been made, the same having been rejected by defendant.

11. That there is no evidence in this case, that within a reasonable time after the plaintiff [**7]  discovered the alleged fraud in this case, he tendered back to the defendant the note in question, and therefore the plaintiff cannot recover in this case.

12. If the jury believe from the evidence, that after the maturity of the note, and after the plaintiff discovered that the makers of said note were not responsible, and that the alleged statements of the defendant, at the time of the transaction, were not true, the said plaintiff went to the office of the defendant and offered to sell him the note for one-half its nominal value, then the plaintiff cannot set up any fraud in the original contract to defeat the plea of payment made in this case.

13. If the jury find the sale and delivery of the goods in question, and that the note was received by Strasburger, as stated in the receipt offered in evidence by him, then such note was payment pro tanto for such goods and the plaintiff cannot recover under the pleadings in this case.

14. That the plaintiff cannot recover upon the count for goods sold and delivered in this case, because he has proved a special contract between the defendant and himself, which he is required by the rules of pleading to set out in his declaration.  [**8]  

15. If the jury find that the plaintiff sold and delivered the goods in question te the defendant, and upon the terms mentioned in the bill of parcels and receipt, offered in evidence by the plaintiff, then he cannot recover under the pleadings in this case.

The Court (GAREY, J.,) granted the prayer of the plaintiff, and rejected the prayers of the defendant; who thereupon excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Payment. -- Right of a Vendor who takes the note of a third party in Payment, which proves worthless, to affirm the Sale where the Vendee is guilty of fraud, and sue in Assumpsit for the price of the goods.

If a party accept from his debtor a note or bill of a third person, and agree to receive it absolutely as payment, and to run the risk of its being paid, the original debt will be thereby paid and extinguished.

The plaintiff sold and delivered certain goods to the defendant for a stipulated price, a part of which was paid in cash, and agreed to accept in payment of the balance, a note of a third party, and run the risk of its being paid, relying upon the representations of the defendant, who stated that the note was good, and would be paid at maturity. The note was not paid at maturity, and proved worthless, the drawers having failed several days before it became due. On the day of its maturity the plaintiff notified the defendant of its non-payment, and of the failure of the makers, and demanded of him payment of the balance due on the goods sold.

In an action on the original contract, it was HELD:

1st. That if the agreement to accept the note as payment, was induced by the fraudulent misrepresentations of the defendant, such fraud rendered the receipt given by the plaintiff invalid, and he had the right to affirm the sale and sue in assumpsit for the price of the goods.

2nd. That in the absence of fraud on the part of the defendant, the receipt by the plaintiff of payment in full for the goods sold and delivered, by the note of a third party, would have been a bar to an action of assumpsit on the contract of sale.

3rd. That the production of the note by the plaintiff, and the offer to deliver it to the defendant at the time of the trial, was sufficient.  

COUNSEL:
Benj. C. Barroll, for the appellant.

The contract between the plaintiff and defendant was in writing, and was contained in the bill of parcels, and the agreement set forth in the receipt annexed to it. Batturs vs. Sellers and Patterson, 6 H. & J., 249.

The receipt offered in evidence by the plaintiff sustained the plea of payment. Berry vs. Griffith et al., 10 Md., 27; Md. & N. Y. Coal and Iron Co. vs. Wingert, 8 Gill, 171.

If the plaintiff was defrauded as contended, then such fraud defeated and annulled (it may be) the contract made between them; and the plaintiff was entitled to reclaim his goods, or to sue in tort for the deceit. He could not sue upon the contract for "goods bargained and [**9]  sold," and at the same time set up fraud to defeat it. Either the goods were "bargained and sold for the note which he received or they were not sold at all."

The tender of the note at the trial table, four years and a half after maturity, was a mere mockery, and had no legal effect whatever. If tender could avail for any purpose, it should have been made as soon as the fraud was discovered. Clements vs. Smith's admrs. 9 Gill, 156; Fisher vs. Fredenhall, 21 Barbour, 82; Masson vs. Bovet, 1 Denio, 69.

If it was part of the agreement of sale that plaintiff was to take the note and run the risk of its payment, then the note was in law, absolute payment for the goods, under the pleadings in this case, irrespective of the question of fraud, because the nar. affirms the contract, and by the contract the note was payment.

The plaintiff could not recover upon the common count for goods bargained and sold, because of the special contract proved. It was not a contract for the payment of money. The entire contract as made must stand or fall, and it was as much the contract that the plaintiff should take the note, as it was that the defendant should take the carpet.

The plaintiff's [**10]  prayer concedes that the "plaintiff agreed to accept the note absolutely as payment, and to run the risk of its collection," and then sets up the theory that because of the fraud alleged, the plaintiff can repudiate this part of the contract. But it is clear that the contract is entire, and that he cannot repudiate the part which involves the taking of the note, and substitute another, to wit: a "money" consideration. The purchase was made upon the consideration of this specific note, which was delivered and accepted in discharge of the debt. The plaintiff got what he intended and what he agreed to take for the carpet.

In his prayer the plaintiff says that he notified the defendant of the non-payment of the note, and demanded payment of the balance alleged to be due, $ 150, on the sale of the carpet. But this is fatal to plaintiff's case, because it shows that he did not intend to rescind the contract. If the plaintiff intended to avail of the fraud, he should have repaid the $ 3.59, tendered the note and demanded a return of the goods. A fraudulent contract is null and void. It binds neither party or is in full force against both. It was not a case wherein the plaintiff could [**11]  waive the tort (fraud) and sue in assumpsit for the value of the goods, because if the fraud was waived then the bill was paid by the note.

Again, by the plaintiff's prayer, the plea of payment is confessed, because the plaintiff himself offered the evidence of payment. He ought to have relied on the fraud by way of replication to the plea. The only fact which was necessary to establish the plea, was proved by the plaintiff himself--the acceptance of the note under the agreement.

If the plaintiff sued in assumpsit he was bound to sue on the specific contract made between them. The law never raises an assumpsit in conflict with the actual contract. Stockett vs. Watkins' adm'rs. 2 G. & J., 326.

When the consideration of the contract is not money, to be paid, the law never allows a recovery upon an implied indebitatus assumpsit. If the contract is executed and nothing remains on either side but to pay the money, then, and only then can a recovery be had by indebitatus assumpsit. Ellicott vs. Peson's Exc'rs. 4 Md., 479; Jenkins vs. Long & Byrne, 8 Md., 132.

The contract in this case was fully executed on Dec. 6th, 1867, by acceptance of the note and delivery of the [**12]  goods--being fully executed on both sides, no cause of action could possibly accrue except in tort, for misrepresentation and deceit. These, even if established, do not alter the fact of "payment." The fraud, if any, goes to the original contract, not to the fact of payment. The fraud was in inducing the plaintiff to make the agreement to sell the goods for the note. That plaintiff did accept the note as absolute payment is not a fact disputed in the cause. If the contract stands and is enforced, then the payment stands as part of it; if it is avoided for fraud, then the payment is also avoided as part of it.

If the plaintiff's view of the fraud is correct, then the title to the goods never passed to the defendant, and, of course he cannot be sued in assumpsit for the price of the goods, either upon the special contract or in indebitatus assumpsit. But in this case the plaintiff offered in evidence and relied upon the agreement in writing made December 6th, 1867, the alleged fraudulent agreement; he relied upon it, showed by it, the date, the price, the amount, and everything necessary to establish his case. The account filed with the nar. was not offered in evidence. After having [**13]  thus used the bill of parcels, and the agreement and receipt which are annexed, it is not allowable to repudiate it. He proved to the jury by the paper A, all the facts of the agreement between them, including the acceptance of the note as absolute payment.

Where the contract set out in the nar. is different from the contract proved, the variance is fatal. Ferguson vs. Cappeau, 6 H. & J., 401.

In contemplation of law all acts done in pursuance of a purpose to defraud are but one act; the order in which they occur is immaterial. Moore et al. vs. Blondheim et al., 19 Md., 172. A contract induced by misrepresentation is void. Joice and wife vs. Taylor, 6 G. & J., 54. Fraud in the formation of a contract avoids it, or makes the fraudulent party liable in damages. Boring vs. Lemmon, 5 H. & J., 223; Watkins vs. Stockett, 6 H. & J., 444. The law of this case is covered by the cases of Hall vs. Hinks, 21 Md., 420, and McAleer vs. Horsey, 35 Md., 440.

W. Burns Trundle, for the appellee.

The prayer of the plaintiff covered the whole case, and correctly stated the law. The appellee would have been bound by his receipt, had there been no fraud. But on the establishment of fraud,  [**14]  he had the right to rescind the sale, and sue in trover or replevin for the goods, or affirm the sale, and sue in assumpsit for the value. Trisler vs. Williamson, 4 H. & McH., 219; Glenn vs. Smith, 2 G. & J., 493; Wyman vs. Rae, 11 G. & J., 416; Berry vs. Griffin, 10 Md., 28; Morrison vs. Welty, 18 Md., 169; Shelton vs. Tiffin, 6 How., 164; Alexander vs. Dennis, 9 Porter, 174; Leas vs. James, 10 Ser. & R., 307; Story on Prom. Notes, secs. 117, 118, &c., note; Story on Bills, secs. 109, 116; Parsons on Notes and Bills, 160 and 206.

The first, second, fourth, fifth, seventh, fourteenth and fifteenth prayers of the appellant proceed upon the erroneous theory, that the appellee's receipt constituted a special contract. Even if there had been a special contract in respect to the sale, it was competent for the appellee, on the establishment of fraud, to disregard it, and sue in assumpsit.

The third and fourth prayers of the appellant ignore the element of fraud.

The sixth, eighth, ninth, tenth and eleventh prayers misconceive the purpose and legal effect of producing the note at the trial table.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, BOWIE and ROBINSON,  [**15]  J.  

OPINIONBY:
BARTOL 

OPINION:

 [*400]  BARTOL, C. J., delivered the opinion of the Court.
The appellee sued the appellant in assumpsit, and declared for goods bargained and sold and on an account stated; the narr. also contains the other common counts. The defendant pleaded, "that he never promised as alleged," and "payment."
At the trial the plaintiff produced a promissory note, dated December 6, 1867, for $ 150, payable twenty days after date, to the order of V. Strasburger, (the plaintiff,) and signed by Brewer & Hoffacker, and offered to deliver the same to the defendant, which the latter refused.
The plaintiff then proved that he sold a carpet and rug to the defendant for $ 153.59; and gave in evidence the bill and receipt as follows:
"D. H. HOOPES,
To V. STRASBURGER, Dr.

________________________________________________________________________________

  1867.	
Dec. 6,	To 67 1/4 yds. Brussels carpeting, at $ 2.15	
	  per yard	144 59	
1 Rug		9 00	
		$ 153 59	
________________________________________________________________________________

Received payment in full of the above account, by note of Brewer & Hoffacker; I running the risk of the note being paid.
V. STRASBURGER."
The carpeting was delivered at defendant's dwelling.
The note was not paid at maturity, and proved worthless; the drawers having failed [**16]  several days before it became due, and left the city. Of these facts, the defendant was immediately notified, and payment of the bill demanded of him.

 [*401]  Testimony was offered on the part of the plaintiff, tending to prove that the note was worthless, that the makers were insolvent at the time the note was passed, that these facts were well known to the defendant, and that he falsely and fraudulently represented the note to be good, and that it would be paid at maturity. The defendant offered evidence contradictory of the same, and tending to prove the bona fides of the transaction on his part.
If a party accept from his debtor, a note or bill of a third person, and "agree to receive it absolutely as payment, and to run the risk of its being paid," the original debt will thereby be paid and extinguished. Glenn vs. Smith, 2 G. & J. 493, 509; Berry vs. Griffin, et al., 10 Md. 27. It is very clear therefore, that in the absence of fraud on the part of the defendant, the receipt of the plaintiff offered in evidence, would be a bar to the present action. But the plaintiff seeks to avoid its effect, by showing that the defendant falsely [**17]  and fraudulently represented that the promissory note of Brewer & Hoffacker was good and would be paid, when in fact he knew that it was worthless, and thereby induced the plaintiff to accept the note, and give the receipt. There appears to have been a conflict of testimony upon the question of fraudulent misrepresentation; but it was fairly submitted to the jury by the plaintiff's prayer, which was granted, and was found against the defendant. We must therefore deal with the case, assuming the fraud to be established.
The question for this Court to determine, is what is its legal effect upon the rights of the parties in the present suit? And we shall consider first the several grounds of defence presented by the defendant's prayers, and relied on by the appellant. These resolve themselves into an objection to the form of action which rests upon the theory that the bill and receipt constitute a special contract, 

 [*402]  whereby the plaintiff agreed to sell and deliver the goods, and receive in exchange or payment therefor, the note of Brewer & Hoffacker, that the legal effect of the agreement when executed by the delivery of the goods, and the receipt of the note, was to satisfy [**18]  and extinguish the plaintiff's demand for the price of the goods, and to destroy his right of action to recover the same in an action of assumpsit, for goods sold and delivered. That if he was induced to enter into the contract by the fraud or misrepresentations of the defendant, his remedy was by an action of tort, for the deceit, or he might have repudiated the contract, as soon as the fraud was discovered, and promptly returned or tendered the note to the defendant, and recovered the goods by an action of replevin, or their value in trover.
In support of this theory, a very ingenious argument was made by the appellant's counsel, who cited Masson vs. Bovet, 1 Denio 69; Fisher vs. Fredenhall, 21 Barb. 82; and Clements vs. Smith and others, 9 Gill 156. We think these cases do not support the appellant's positions to the full extent contended for. Unquestionably it would have been competent for the plaintiff, on discovery of the fraud, to have sued in tort for the deceit; or he might have repudiated the whole contract, and asserted his right to the goods; this is the extent of the decision, in 1 Denio and 9th  [**19]   Gill; the same doctrine was decided in Alexander vs. Dennis, 9 Porter 174. But these authorities do not support the position, that in a case like this, a suit cannot be maintained on the original cause of action for the price of the goods. In 21 Barbour, which was a case somewhat like this, the Court held that the action by the vendor on the contract of sale, could not be maintained. But there was no fraud alleged on the part of the vendee, and the case was in other respects unlike the present.
The transaction between these parties, as evidenced by the bill and receipt, was not such a special contract as 

 [*403]  the appellant has construed it. It was a sale and delivery of goods by the plaintiff to the defendant, for a stipulated price; and an agreement to accept in payment therefor, a note of a third party, and run the risk of its being paid. If the agreement to accept the note as payment, was induced by the fraudulent misrepresentations of the defendant, the effect of the fraud is to render the receipt invalid. The transaction consists of two elements, easily separable, and there is no reason why the plaintiff may not affirm the sale, and sue in assumpsit [**20]  for the price. To such an action, the receipt having been obtained by fraud, could furnish no valid defence.
In support of this position, we refer to Trisler vs. Williamson, 4 H. & McH. 219, decided by the General Court in 1798, a case which we accept as binding authority in Maryland. It was argued by eminent counsel, and decided by learned and able judges, and although no opinion appears to have been delivered by the Court, the point ruled, clearly appears in the report; and we think, supports the views we have expressed in the present case.
The argument of the appellant's counsel, that it was the duty of the appellee to return or tender the note to the appellant promptly after discovering the fraud, is answered by the cases of Glenn vs. Smith, 2 G. & J. 493, and Wyman vs. Rae, 11 G. & J. 416, which show that the production of the note and the offer to deliver it to the defendant at the time of the trial, was sufficient. The receipt being rendered void and of no effect, by the fraud of the defendant, the case stood in this respect, as if no receipt had been given. The defendant cannot be heard to complain of any prejudice [**21]  suffered by him, in consequence of delay in tendering him the note; because he was promptly notified of the failure and default of the makers to pay it, and might, by paying the plaintiff's bill, have at once entitled himself to its possession.

 [*404]  We have not considered the several prayers of the defendant separately, because they are comprehended in the points to which we have adverted.
We think there was no error in rejecting them; and being of opinion that the instruction given to the jury in the plaintiff's prayer was correct, and fully covered the law of the case, we affirm the judgment.
Judgment affirmed. 

64 of 144 DOCUMENTS 

EDWARD K. COOPER vs. CHARLES H. UTTERBACH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 282; 1873 Md. LEXIS 5 

January 30, 1873, Decided 

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

The statement of the case as contained in the opinion of the Court, together with the arguments of counsel, will suffice to indicate the legal principles involved and the points decided. Two exceptions were taken by the plaintiff--the first of which is stated in the opinion of the Court.

Second Exception.--The plaintiff presented the following prayers:

1. If the jury find from the evidence that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff in the Criminal Court, and aided and contributed to said prosecution, then the defendant is liable to be sued by the plaintiff in this action, provided the jury, under the instructions of the Court, shall find the other facts necessary to render the said defendant so liable.

2. If the jury shall find that the plaintiff was indicted, tried and acquitted in the Criminal Court of Baltimore city, on the charges set forth in the record of that Court, offered in evidence, and shall find that the defendant was connected with said prosecution, as set forth in the plaintiff's first prayer, and shall further find that there were no circumstances [**2]  connected with the transaction out of which the said criminal prosecution arose, which would induce a reasonable, dispassionate man to believe the plaintiff to have been guilty of the charge made against him, and to induce such a man to have undertaken such a prosecution from public motives, then there was no probable cause for said prosecution, and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary, that said prosecution was malicious in law.

3. If the jury shall find that the prosecution was without probable cause, as the same is defined in the second prayer, and shall further find that said prosecution was instigated or set on foot by the defendant's procurement, rashly and recklessly, or that it was designed by the defendant to accomplish any private end of his own, by means of said prosecution, then the jury may find that said prosecution was malicious, notwithstanding they may believe that the defendant had no personal ill-will towards the plaintiff, and the plaintiff is entitled to recover.

4. If the jury shall find that there were any circumstances connected with or growing out of the transaction out of which the prosecution arose,  [**3]  existing at the time the indictment was procured, which might induce a reasonable and dispassionate man to believe that the plaintiff was guilty of said charge, and to induce such a man to undertake the prosecution of the plaintiff for public motives; yet, if the jury shall find that before the arrest and trial of the plaintiff, the defendant had received additional information, sufficient to satisfy the mind of a reasonable and dispassionate man that the plaintiff was not in fact guilty of said charges, and if they shall further find that notwithstanding such information, the defendant afterwards procured the arrest and prosecution of the plaintiff, and endeavored to procure his conviction under said indictment, then in the absence of sufficient proof to the contrary, the jury may find that said prosecution was malicious, and the plaintiff is entitled to recover.

5. If the jury find for the plaintiff the measure of damages is such an amount as the jury may find will compensate the plaintiff for his actual outlay and expenses about his defence in the criminal trial, and for his loss of time and for the injury to his feelings, person and character, by his imprisonment and prosecution;  [**4]  and the jury may also, if they find said prosecution to have been pursued by the defendant for his private ends, and with reckless disregard to the rights of the plaintiff, give such punitive damages as they may think proper to award for such conduct on the part of the defendant.

The defendant offered six prayers, the first and third of which were granted by the Court (DOBBIN, J.,) and the second and fourth were conceded by the plaintiff--the others were as follows:

5. That if they shall find that the defendant, in reference to the institution and prosecution of the criminal charge complained of, acted bona fide and without malice, under the professional advice and direction of his counsel, Col. Mosby, believing such advice to be sound, he is not liable and the plaintiff cannot recover in this action, even although Col. Mosby's advice may not have been sound, and although, but for such advice, the defendant would have had no probable cause for his action.

6. That the questions decided between the plaintiff and the defendant, in the proceeding in Virginia, upon the bill filed by the defendant, of which the record has been read to the jury, are to be taken as finally settled [**5]  and concluded between the parties, and no longer open to controversy, and the Court having determined in that case that the transaction between the plaintiff and defendant, out of which said controversy and the criminal proceedings arose, and with which the present suit is connected, was altogether fair on the part of the defendant, and was not tainted by fraud or usury as the plaintiff in that case contended, it is no longer competent for the plaintiff to set up in argument or otherwise, or for the jury to find as an element of their verdict, that said transaction was otherwise than fair and honest on Cooper's part, as the said Court has pronounced it.

The Court granted the first, second, fourth and fifth prayers of the plaintiff, but rejected his third because of the absence of any sufficient evidence in the cause tending to show any design on the part of the defendant to accomplish any private end of his own, by means of the prosecution referred to in said prayer. The Court rejected the fifth prayer of the defendant as offered, but granted the same with the words "concealing no material facts from him, and" interposed between the words "Mosby" and "believing," in the fifth [**6]  line of the prayer.

The Court likewise rejected the sixth prayer of the defendant, because whilst the legal validity of the claim of the defendant to be paid the $ 11,000, secured by the deed of trust to Rasin, is conclusively established by the decree in Virginia, and is not open to impeachment in this case, yet the facts and circumstances attending the original transaction, to the extent to which they may shed light upon the conduct and motives of the parties, in relation to the matters involved in this suit, are open to all fair analysis, comment and argument before the jury.

The defendant at the trial objected to the prayers of the plaintiff, because they were not only erroneous in point of law, but were without any sufficient legal evidence in the cause to support them.

The defendant also objected to the modification of his fifth prayer, because there was no sufficient legal evidence in the cause, of any such concealment as referred to in the said modification.

The Court gave the following instruction of its own accord:

I instruct the jury, that "probable cause," as used in these instructions, means the existence of such facts and circumstances as would [**7]  excite the belief in a reasonable mind, acting on the facts within the knowledge of the defendant, that the plaintiff was guilty of the crime for which he was prosecuted.

Whereupon the defendant excepted to the granting of the first, second, fourth and fifth prayers of the plaintiff, and to the refusal of the Court to grant his fifth and sixth prayers as offered, and to its modification of his fifth prayer, and also to its additional instruction granted of its own accord.

The verdict and judgment were for the plaintiff, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Malicious Prosecution -- Evidence -- How far Judgments conclude parties to the action -- Instructions -- Practice -- Punitive Damages in an action for Malicious Prosecution -- When a Defendant in an action for Malicious Prosecution is relieved from Liability, by having acted under the Professional advice of his Counsel -- When Malice may be inferred from Want of Probable Cause -- Definition of Probable Cause.

In an action for malicious prosecution in having the plaintiff indicted and tried upon a charge of obtaining money and stock under false pretences, a witness for the defence, a lawyer, in his examination in chief, gave certain testimony, the object of which was to rebut the presumption of malice, by showing that the defendant in instituting the prosecution for which he was sued, had proceeded in good faith, upon the advice of counsel, learned in the law, given upon a full representation of the facts. Upon cross-examination the plaintiff propounded to the witness the following question, stating at the same time that its object was to ascertain whether all the facts had been communicated to him: "You have stated that with all the facts before you, you advised the defendant that the plaintiff had been guilty of obtaining money under false pretences; please state what were the facts upon which that advice was based?" To this question and the admissibility of the matters inquired of, the defendant objected, for the reason, among others, that the correctness of the opinion of the witness was not in issue, nor were the reasons or grounds on which he based it, but only the fact that he had formed and expressed it to the defendant. HELD:

That the question was proper, the object being to test the good faith of the defendant, by ascertaining whether he or his agents had disclosed all the facts bearing on the guilt or innocence of the accused, in his possession, in his consultation with his legal adviser, and the answer to the question was evidence for the jury.

A suit in Equity was instituted in Virginia, the object of which was to obtain a decree for the sale of certain land conveyed in trust to secure the complainant's debt, being a loan to the respondent, and an appropriation of the proceeds of sale in discharge of the same. The respondent in his answer charged that the complainant cheated him in the transaction of the loan, and pleaded usury as well as fraud. Issues were directed by the Court to a jury to inquire whether fraud or usury had been practiced by the complainant on the defendant; the jury found for the complainant; and the Court thereupon decreed that he was entitled to have the real estate sold for the satisfaction of his debt. Some time after the Equity suit in Virginia was instituted, the respondent was indicted in the Criminal Court of Baltimore city, at the instance of the complainant, for obtaining money and stock from him by false pretences -- the charge growing out of the transaction of the loan. The accused was tried, acquitted and discharged, and thereupon brought a suit against the complainant for malicious prosecution. At the trial of this action the plaintiff read certain proceedings and depositions from a duly certified transcript of the record of the Equity suit in Virginia. Both parties, in fact, read from it without objection. The defendant contended that the questions decided between himself and the plaintiff in the Equity suit in Virginia were to be taken as finally settled and concluded between them, and no longer open to controversy, and the Court having determined in that case that the transaction between them was altogether fair on the part of the defendant, and not tainted by fraud or usury, it was no longer competent for the plaintiff to argue, or for the jury to find otherwise than as the Court had pronounced it. HELD:

That the matter directly in issue in the Equity case in Virginia, was the right of the complainant to a lien on certain lands therein, in preference to all other creditors, and to have said lands sold, and to the extent of that issue the record was conclusive. But that the record was not offered or used by either side, merely to prove the fact of the decree; nor were the depositions used to prove what had been testified to by any particular witness in the cause who had since died or become disqualified; but it would seem they were used by each side as a substitute for the oral examination of witnesses not then before the Court, who had been examined in the Equity case on the several matters involved therein, which were also the subject of investigation in the criminal prosecution and in the present action for malicious prosecution; they thus became original testimony, on which the counsel were at liberty to make such comments, and the jury to form such conclusions as the facts warranted, without regard to the final decree in the case.

The refusal by the Court, in an action for malicious prosecution, to grant a prayer of the plaintiff because of the absence of any sufficient evidence tending to show any design on the part of the defendant to accomplish any private end of his own by the prosecution, and the granting of another prayer, at the instance of the plaintiff, authorizing the jury to find that the prosecution was pursued by the defendant for his private ends, does not present a case of conflicting instructions, as the rejected prayer could have no influence properly on the minds of the jury, it being excluded from their consideration by the action of the Court.

If in an action for malicious prosecution, the jury find that the prosecution originated without probable cause and in malice, they may legitimately, if not necessarily, find from the same premises that the prosecution, if pursued, was persisted in for some private end, as the want of probable cause and malice exclude all public motives, and so finding they may give punitive damages.

In an action for malicious prosecution, it is not sufficient, in the absence of probable cause, for the defendant, in order to relieve himself from liability, to show that he acted bona fide, and without malice, under professional advice; the advice must be based upon a full disclosure of all the facts in the defendant's knowledge, or which with due diligence he might have known. The omission of any material fact, by design or otherwise, will render the advice nugatory.

If in an action for malicious prosecution, it appear that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff, and aided in the prosecution, and that the plaintiff was indicted, tried and acquitted, and there were no circumstances connected with the transaction out of which the criminal prosecution arose, which could induce a reasonable, dispassionate man to believe the plaintiff was guilty of the charge made against him, and to undertake such a prosecution from public motives, then there was no probable cause for the prosecution, and the jury might infer, in the absence of sufficient proof to satisfy them to the contrary, that the prosecution was malicious in law.

Probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the defendant in an action for malicious prosecution, that the plaintiff was guilty of the crime for which he was prosecuted.  

COUNSEL:
L. L. Conrad and S. Teackle Wallis, for the appellant.

1st Exception.--The question to Col. Mosby, the allowance of which was the subject of the first exception, ought to have been excluded. It was founded on a false assumption of what the witness had stated in chief, and it required him to explain something which he had not stated. It assumed that he had advised Cooper as to Utterbach's guilt, "with all the facts before him," and then asked him to recapitulate those facts, whereas he had proven that his opinion was based exclusively on the facts he had heard from Rasin and had found out for himself.  [**8]  He did not profess to have known "all the facts."

Besides, (and this was the substantial objection to the question,) it was not pertinent to the issue, to enquire or prove upon what facts the witness had based his opinion, because, whatever they were, he had received none of them from Cooper. If Cooper had stated the facts to him, it would have been perfectly competent for the appellee to test Cooper's good faith, by ascertaining from the witness whether Cooper had told him all the facts, or the real facts. But, as Cooper never stated a single fact to him, and he advised Cooper, voluntarily, and without a word or enquiry from Cooper, directly or indirectly, on the subject, as was proven and is not disputed, the relevancy of the question propounded is inconceivable. Whether Col. Mosby had or had not found out all the facts, by his own enquiries, or by the information he derived from Rasin, had nothing to do with the case, because neither the good faith nor the professional accuracy of Col. Mosby was in issue. The suggestion that when Mosby saw Cooper in person, the latter ought to have told him all the facts, and that the question to Mosby was proper, in order to find out whether [**9]  or not he had done so, is susceptible of two obvious replies. In the first place, Mosby had given Cooper the advice in regard to Utterbach's guilt, through Rasin and by letter, three months before he saw Cooper in person; and, secondly, there is not the slightest evidence tending to show that the personal interview was of Cooper's seeking, or that Cooper consulted Mosby on the subject, or that the latter had any conversation with Cooper, except to reiterate to him ("of his own accord," as he states,) precisely what he had previously volunteered to tell him. On the contrary, Mosby proves positively, that he was never consulted by Cooper, or by any person for him, at any time, as to the matter of Utterbach's criminal liability.

On the Prayers.

1. The first prayer of the appellee could not otherwise than mislead the jury. It is not easy for even a professional mind to understand what is meant by an instruction that a defendant is liable to be sued if the jury shall find certain facts, provided they shall find certain other facts, not enumerated, which may be necessary to render him so.

There is an obvious confounding of the legal liability to be sued, with the actual liability [**10]  to the plaintiff for damages in the particular action.

2. The Court refused to grant the third prayer of the appellee, because there was no evidence of "any design on the part of the appellant to accomplish any private end of his own," by the criminal prosecution of the appellee, and yet the Court in the same breath granted the appellee's fifth prayer, allowing the jury to find, if they saw fit, in assessing the damages, that the said prosecution had been "pursued by the appellant for his private ends."

It is admitted that these plainly contradictory statements of the legal position and effect of the evidence would have justified a reversal, under our decisions, if they had been contained in two instructions granted, but it is insisted that as the contradiction arises through the granting of one prayer and the rejection of another, which latter thus did not go to the jury, there was no harm done. Surely this is not to deal seriously with the exception. If the Courts delivered their opinions out of the hearing of the jury, there might be some foundation for the distinction taken. But where a Court rejects a prayer, for the reason that it puts facts to the jury of which there [**11]  is no evidence, and the judge not only assigns that reason, publicly, in the presence of the jury, but puts it in writing, as was the case here, to be taken as part of his ruling, it is hard to understand how the jury can avoid being bewildered, when he proceeds to instruct them that they may give punitive damages, provided they find the very facts of which he has already said, in their presence, that there is no legal evidence. It is no answer, to say that the former of the two prayers involved was wrongfully rejected. That question is not before this Court, because the rejection is not appealed from. But, even if it were, it could not affect the point, here under discussion, which does not depend on the legal correctness of either of the Court's rulings, but merely on the admitted fact that they are contradictory and cannot be reconciled, and must have misled the jury.

3. After the Court had granted the appellee's 2d prayer, defining "probable cause," it was error to volunteer another and different definition of its own. One definition at a time, of a legal term, is quite as much as a jury can be expected to understand. And the instruction volunteered was of itself, eminently [**12]  calculated to mislead them, besides.

"I instruct the jury," says the Court below, "that 'probable cause' as used in these instructions, means the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the defendant, that the plaintiff was guilty of the crime for which he was prosecuted."

Obviously, the Court should have said--"the existence, and knowledge by the defendant, of such facts and circumstances" or "a reasonable mind acting on those facts." Either charge would have expressed the idea, without which the definition is faulty; for the existence of facts would amount to nothing, unless the defendant knew them and based his belief upon them.

4. In cases of malicious prosecution, it is the duty of the Court, not to submit facts to the jury, as in ordinary causes, merely because they may tend to prove the affirmative of the issues joined, but to determine, for itself, and say to the jury whether a case of want of probable cause is made out. The rule in such cases is anomalous, but it is well established. Panton vs. Williams, 42 E. C. L. Rep., 634; Walker vs. S. E. Railway Co., 5 Com.  [**13]  Pleas, (Law Rep.) 644; Lister vs. Perryman, 4 House of Lords, 521, 542; Rex vs. Stratton, 1 Campb. N. P., 549, n.; Carpenter vs. Sheldon, 5 Sandf. 96-7; Baldwin vs. Weed, 17 Wend., 224, 232; Willans vs. Taylor, 6 Bingh., 183; Wheeler vs. Nesbitt, 24 How., 544; Cecil vs. Clarke, 17 Md., 508; Boyd vs. Cross, 35 Md., 194.

Upon the facts, there was no such case of malice or want of probable cause as the Court should have submitted to the jury, and the appellee's first, second, fourth and fifth prayers should have been rejected.

5. But, whatever may be the view of this Court upon the preceding points, it is submitted that the rejection of the appellant's sixth prayer cannot be sustained. That prayer asked the Court to instruct the jury that the questions decided by the Circuit Court of Fauquier County, Virginia, in the Chancery record which was in evidence, were to be taken as finally settled, between Cooper and Utterbach, and no longer open to controversy, and the Fauquier Court having determined that the original transaction between Cooper and Utterbach was altogether fair, on Cooper's part, and untained by fraud or usury, it was not competent for the appellee to set up the [**14]  contrary, in argument or otherwise, or for the jury to find the contrary as an element in their verdict. The Superior Court conceded the conclusiveness of the Fauquier decree as to the legal validity of the claim established by it, but rejected the prayer, because it held the appellee entitled to review the facts and circumstances of the original transaction, for the purpose of shedding light on the conduct and motives of the parties as to the matters here in suit. The Court held these facts and circumstances "open to all fair analysis, comment and argument before the jury." What analysis was "fair" was not determined, but was left to the discretion of counsel. Practically, this amounted to ruling, that although the original transaction had been conclusively adjudged to be honest, fair and valid, the appellee was entitled, nevertheless, to argue that it was a fraudulent, dishonest and usurious imposition on Utterbach. It was accordingly, so argued with great ability and effect, and the large damages found were the result.

If there is any elementary proposition clear, it is supposed to be that which establishes the absolute conclusiveness, inter partes, of the judgments of Courts [**15]  of competent jurisdiction, upon questions litigated before them. Marsh vs. Pier, 4 Rawle, 288--9; Outrain vs. Morewood, 3 East., 356; Sturdy vs. Jackaway, 4 Wallace, 175; Herman on Estoppel, secs. 81 to 84; Bigelow on Estoppel, 40; McKinzie vs. B. & O. R. R. Co., 28 Md., 174--5.

Any such question says this Court, in the last cited case, "once tried, all litigation of that question, between the same parties should be closed forever."

Every fact essential to the adjudication is concluded, as fully as the thing directly decided, and whether arising directly or collaterally in the subsequent litigation. Herman on Estoppel, secs. 80, 83.

If the facts or matters were essential to the judgment, it is not necessary that issue should have been taken upon them. They are as fully concluded as if put directly in issue. Ibid., sec. 83.

In the Fauquier equity suit, the one only question, between Cooper and Utterbach, was the validity of the original contract between them, out of which the present and all their controversies grew. Utterbach disputed its validity, on two grounds only. He averred in his answer, that it was fraudulent and usurious. Upon these two averments, and none [**16]  other, was issue joined between them, and the Fauquier Court submitted distinct issues on those two points only, to a jury, which found for Cooper on both. The Court approved the finding, and decreed for Cooper upon it. About all this, there is no dispute possible, and the Fauquier Court states it in these words: "The issue tried by the jury was, whether or not there was fraud or usury practiced by the plaintiff (Cooper,) on the defendant Charles (Utterbach,) and the verdict exonerates the plaintiff from that charge. As between these two parties therefore, the right of Cooper is clear." There is no color in the record, for the intimation that the question between Cooper and Utterbach, was at all as to the priority of Cooper's lien over the other incumbrances on the mortgaged property. Not only was this not the case, but a glance at the answer of Utterbach will shew, that he not only admits, but strongly asserts and contends for the priority of Cooper's claim, if valid. Nay, more, Utterbach insists in his answer, that he had kept faith with Cooper, and had fully secured him his promised priority. The very brief and argument of the appellee here, has relied on the fact of Cooper's thus [**17]  obtaining his priority, and Utterbach not disputing it, as evidence of the good faith and innocence of the latter throughout. Indeed, as the Chancery record shows, not only was the question of priority not mooted between Cooper and Utterbach, in fact, but it could not possibly have been mooted, for it was one in which Utterbach had no interest. The validity of the claim was all that concerned him. The question of priority arose between Cooper and the other incumbrancers only. They only had any interest in disputing it, and they and no one else, joined issue with him upon it. These then being the facts, patent on the face of the record, and not open to controversy, the questions of fraud and usury in the original transaction were closed forever, as between the parties here, not by incidental and implied, but by express and positive adjudication, in terms. To permit the appellee's counsel to reopen them, or treat them as still open for argument, and to argue on them to the jury, that Cooper had been guilty of fraud and usury, and to establish malice, was, therefore, a plain subversion, it is submitted of an indisputable, wise and beneficial rule of law. A much greater injustice could [**18]  hardly have been done the apellant, for having the right to presume, that questions once closed could not be re-opened, he was not, and could not be prepared or expected to try over again, the old issues already settled in Fauquier before a jury of Utterbach's own people.

It cannot be necessary to consider how the Fauquier record was put in evidence, for that could have nothing to do with its legal effect or conclusiveness when in. It was produced by the appellee, and admitted without objection, or limitation. It was therefore, fully before the Court and jury, as a foundation for the appellant's sixth prayer.

Charles Marshall, for the appellee.

The first prayer of the plaintiff below, was intended merely to instruct the jury as to the facts which would be sufficient to connect the defendant with the criminal prosecution in such wise as to render him liable to be sued, if the other elements of liability should be found to exist. 2 Greenleaf's Ev., sec. 450; Wheeler vs. Nesbitt, 24 Howard, S. C., 549; Boyd vs. Cross, 35 Md., 194.

The second prayer of the plaintiff requires the jury to find--

1st. That the plaintiff was indicted, tried and acquitted of the charge.  [**19]  

2d. The connection of the defendant with the prosecution.

3d. That there was no probable cause for the prosecution.

4th. That if the jury find that there was no probable cause, they may in the absence of proof to satisfy them to the contrary, find that the prosecution was malicious.

As to the correctness of the 1st and 2d branches of this prayer, there can be no question. 2 Greenleaf on Ev., sec. 449, 450.

The third branch of the prayer, assumes that it is the province of the Court to decide what probable cause means, and of the jury to decide whether the facts exist to prove that there was no probable cause. It also assumes that the burden of proof of want of probable cause, in such an action, is on the plaintiff. As to the duty of the Court, and that of the jury, with reference to probable cause, see 2 Greenleaf on Ev., sec. 454, and cases cited, and Boyd vs. Cross, 35 Md., 194.

No question can be raised as to the correctness of imposing upon the plaintiff the burden of proving the absence of probable cause. The same instruction is reiterated in the first and third prayers of the defendant which were granted. The only remaining question as to this branch [**20]  of the prayer, is the definition of probable cause which it contains.

This definition must be considered, in connection with the Court's own instruction, defining probable cause. This instruction became necessary because the first and third prayers of the defendant had failed to define probable cause. The definition of probable cause contained in the plaintiff's second prayer and that given in the Court's instruction, are correct. Wheeler vs. Nesbitt, 24 Howard, 552; Munns vs. Dupont, 3 Wash. C. C. R., 31; Foshay vs. Ferguson, 2 Denio, 617; Cabiness vs. Martin, 3 Devereux, 454; Cecil vs. Clarke, 17 Md., 524; Boyd vs. Cross, 35 Md., 194.

The 4th branch of the plaintiff's second prayer, leaves the jury at liberty to find malice from the absence of probable cause. That they might do so is abundantly shown by the authorities, and by reason. Cecil vs. Clarke, 17 Md., 524; 1 Hilliard on Torts, 464; Blunt vs. Little, 3 Mason, 102; Wheeler vs. Nesbitt, 24 Howard, 551; 2 Greenleaf on Ev., sec. 453; Boyd vs. Cross, 35 Md., 194; Turner vs. Walker, 3 G. & J., 386.

The third prayer of the plaintiff was refused upon the ground, that the Court did not consider that there was sufficient [**21]  evidence that the defendant undertook the prosecution to accomplish any private end.

The fifth prayer of the plaintiff, however was granted, and it is contended by the defendant's counsel that it should have been rejected, for the same reason that the third prayer was refused, because it is supposed to submit to the jury to find that the prosecution was for a private end. There was abundant evidence to have warranted the granting of the third prayer, as well as the fifth, but there is a manifest difference between them which might have justified the Court in granting the fifth, even if it should have thought that there was no sufficient evidence to support the hypothesis of the third prayer. There was evidence to sustain the fifth prayer, besides the evidence of malice which the proof of absence of probable cause alone would supply. Malice means doing an act without just cause, or from any improper and indirect motives. Jones vs. Gwin, Gilbert's Cases, 130; Haddrick vs. Haslop, 12 A. & E., (n. s.,) 267; Mitchell vs. Jenkins, 1 B. & A., 594; Commonwealth vs. Bonner, 9 Met., 410; Wren vs. Heslop, and Haddrick vs. Heslop, 12 Jurist, 600; Willans vs. Taylor, 6 Bingham, 188, 189; Turner [**22]  vs. Walker, 3 G. & J., 386.

Upon examining the plaintiff's fourth prayer, it will be seen that a distinction is taken between the institution of a criminal prosecution, and the persistence in it, and it is asserted that the jury may find malice from the persistence of the defendant in the effort to convict the plaintiff, although there might have been probable cause in the inception, if they found that before the arrest and trial of the plaintiff, the defendant had received additional information, sufficient to convince a reasonable and dispassionate man that the plaintiff was not in fact guilty. In other words, persistence in a prosecution after the prosecutor knows or believes it to be unjust and unfounded, is as much proof of malice as the original setting on foot of a prosecution with like knowledge. Burnap vs. Albert, Taney's Dec., 244; Honeycut vs. Freeman, 13 Iredell, 320; 1 Hilliard on Torts, 475.

The third prayer of the plaintiff relates to the inception of the prosecution, the fifth prayer relates to the persistence of the defendant in pursuit of the plaintiff.

There might be probable cause for the institution of a prosecution, and yet the prosecutor, from [**23]  obstinacy, malice, ill will, pride of opinion, or a desire to escape the apprehended consequences of his own mistake, might persist in endeavoring to secure the conviction of the party accused, after he had become, or ought reasonably to have been, satisfied that the charge was erroneous. Any of these motives for persistence would be private and not public motives, and would taint the prosecution with actual malice.

The fifth prayer of the plaintiff, is unobjectionable, so far as it relates to damages strictly compensatory. 2 Greenleaf on Ev., sec. 456. And it is believed to be equally correct, so far as it relates to punitive or exemplary damages. Sedgwick on Damages, 39; Snively & Keys vs. Fahnestock, 18 Md., 392; Ridgely vs. Bond & Wife, 17 Md., 23; Hewlett vs. Cruchley, 5 Taunton, 277; Ogden vs. Gibbons, 2 Southard, 518; Schindel vs. Schindel, 12 Md., 122; Cromwell vs. Owens, 7 H. & J., 60; Harker vs. Dement, 9 Gill, 17; Tillotson vs. Cheatham, 3 Johnson, 56; Moore vs. Schultz, 31 Md., 423; The Amiable Nancy, 3 Wheaton, 558; Woert vs. Jenkins, 14 Johnson, 352; Walker vs. Smith, 1 Wash. C. C. R., 152; 1 Hilliard on Torts, 465.

The first four prayers of the defendant raise [**24]  the question not merely of the existence of probable cause, which was all that the defendant's case required, but they distinctly (especially the second and fourth prayers,) submit to the jury to try again the issue of guilty or not guilty. Such a plea, that is a plea that the plaintiff was in fact guilty, notwithstanding his acquittal, would dispense with any proof of the absence of probable cause. 2 Greenleaf on Ev., sec. 454.

These prayers certainly leave no room for the jury to doubt as to the conditions of the plaintiff's right to recover, and taken in connection with those of the plaintiff, they certainly cover the ground entirely, if they be not in fact too favorable to the defendant, and there was no error in the instructions under which the jury considered the questions presented by these prayers.

The remaining exception as to the prayers, is taken to the Court's modification of the defendant's fifth prayer.

The Court modified the fifth prayer so as to instruct the jury that the advice of counsel in order to protect the defendant must not only have been followed bona fide and without malice, but that no material fact should have been concealed in taking the [**25]  opinion of counsel. It is not the mere omission of a material fact through inadvertence or ignorance of its importance, but it is the concealment of it, according to this modification, which would prevent the advice of counsel, obtained by such concealment, from affording a defence. Assuming that there was evidence of such concealment, the modification was correct. Blunt vs. Little, 3 Mason, 102; Hewlett vs. Cruchley, 5 Taunton, 277; Snow vs. Allen, 1 Starkie, 502; Ash vs. Marlow, 20 Ohio, 119.

But the fifth prayer as offered, and even as modified, should not have been granted. It assumes that the mere following of the advice of counsel, bona fide, and without malice, will protect a man in instituting a criminal prosecution without regard to his own belief of the guilt or innocence of the party accused, and even if without that advice, he would have had no probable cause.

Counsel may advise that such and such facts constitute an offence, or evidence of it, and the facts may exist, and the party receiving the advice may believe it to be entirely sound, and it may in fact be sound advice, yet the party who takes the opinion of counsel may himself believe the accused to be innocent.  [**26]  The belief of a party as to the guilt of the accused is most material in such cases. It has been decided that he will not be protected if other counsel give contrary advice. Stevens vs. Fassett, 14 Shepley, 206.

Should he be protected if his own belief is that the accused is innocent, notwithstanding all that counsel (in whom he confides fully so far as the soundness of his legal opinion is concerned,) may tell him? 2 Greenleaf on Ev., Sec. 455; 1 Hilliard on Torts, 473; Addison on Torts, 592.

The reasons and authorities cited in support of the Court's modification of the defendant's fifth prayer, apply equally to the exception to a question propounded to Col. Mosby on cross-examination, being the defendant's first bill of exceptions.

Mosby had stated that with all the facts before him, he had advised the defendant that the plaintiff was guilty. He also had stated that he had learned the facts that transpired in Baltimore at first from J. M. Rasin, and subsequently from the defendant just before the presentment was made by the grand jury in March, 1868. The question excepted to, was asked in order to ascertain what statement of facts had been made to Mosby, upon which [**27]  he gave his opinion, and unless it be held that the advice of counsel, irrespective of the facts communicated to him, will protect the defendant, the question was properly allowed. If it was proper that the witness should state, as the question asserts that he did state, that he gave his opinion with all the facts before him, surely, on cross-examination, the witness might be required to give particularity to his general assertion.

The point as to whether erroneous advice, honestly given and bona fide believed and followed, will protect, is not raised by the exception, but only whether advice based upon an imperfect and unfair statement of facts, will protect.

With reference to the defendant's sixth prayer, which asks the Court to instruct the jury as to the legal effect of the Chancery Record and decree offered in evidence, the Court was right in rejecting it, and g ranting the instruction contained in the reasons assigned for the refusal.

The prayer asserts that the Virginia decree establishes that the original transaction between the parties was "altogether fair on the part of the defendant." The decree certainly establishes conclusively that the transaction was so [**28]  far fair on the part of the defendant, as to entitle him to the decree, but it nowhere finds that it was altogether "fair" in every sense, so as to preclude comment or argument upon the facts of that suit, so far as those facts may go to show the motives of the parties. This suit, moreover, cannot be said to be connected with anything decided by the Virginia Court, except so far as the circumstances out of which that suit arose may tend to throw light upon the question of motive in this case.

The decree certainly does not, and ought not to preclude the counsel of the plaintiff in argument, or the jury, from adverting to the facts as they stood at the time of the institution of the prosecution, in order to find evidence of the defendant's motives. The bargain, to say the least of it, however fair and valid for the purposes of the decree, was hard and oppressive. It was denounced as fraudulent and usurious by the plaintiff's answer in Chancery, filed two weeks before his arrest. Is it possible that if the evidence should indicate that the filing of this answer was in any way the cause of the arrest of the plaintiff, his counsel in argument, may not endeavor to show the fact?

Are [**29]  not Courts constantly obliged to give effect to legal rights which they do not regard as well founded in conscience?

Could it not be argued that Shylock's bond was harsh, cruel and not "altogether fair," without bringing into question its legal validity? The instruction given by the Court secures to the defendant every right he acquired by the decree, and informs the jury that such right cannot be impeached. If the original circumstances of the case will throw any light upon the motives of the defendant, may they not be examined in argument, notwithstanding the decree has fixed their mere legal effect for the purposes of the chancery suit? The Court did all that the defendant could ask when it instructed the jury that nothing could be said against the validity of the decree itself, and that the rights it secured to the defendant could not be impeached.

Moreover, the instruction asked for precludes the plaintiff from commenting upon any facts upon which the Court may have relied as reasons for its decree. If those facts illustrate properly the present case in any particular, it can hardly be contended that the decree is of such virtue and effect as to render the reasons assigned [**30]  by the Court for its decision, sacred and unquestionable. There are more cases than one in our own Reports, in which this Court have affirmed judgments, while differing with the Court below as to its reasons. Oberndorff, Trustee, vs. The Union Bank, 31 Md., 126, is one of these cases; a decree or judgment is only conclusive as to the rights established by it, and not as to the reasons upon which it is based.

If there was evidence to show the want of probable cause, the jury might infer malice from that fact alone, and it cannot be said, that if they had proof of want of probable cause, there was not evidence of malice, even if there were no other evidence of malice except that furnished by want of probable cause. But there was other evidence of malice, as disclosed by the record.

The jury had before them two distinct and different versions of the circumstances out of which the prosecution arose. The criminal prosecution arose from a loan made by the defendant to the plaintiff, in July, 1866, and whether there was evidence of probable cause or not, will be found to depend upon the question which of those two versions the jury believed?

If there was competent legal evidence [**31]  before them to establish the plaintiff's account of the circumstances of the loan, the jury could not well avoid finding that there was not the least pretence for the criminal charge, or in other words, they must have found a total want of probable cause. But besides this, there was evidence before them to justify them in disbelieving the defendant's version of the affair, and if they did disbelieve it, they were justified not only in finding that there was no probable cause, but also that the defendant had set up an unfounded account of the circumstances, in order to protect himself, thus establishing the fact that he knew there was no probable cause, and endeavored to fabricate it.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*304]  BOWIE, J., delivered the opinion of the Court.
The exceptions brought up by the appeal in this case, were taken in an action for malicious prosecution, instituted by the appellee, against the appellant, in the Superior Court of Baltimore City.
The general issue was entered, and the parties agreed "that all errors of pleading be waived, and either party be permitted to prosecute or defend, on any evidence [**32]  in the cause applicable to any state of the pleadings."
The appellee to maintain the issue on his part, offered in evidence a certified copy of a requisition from the Governor of Maryland, on the Governor of Virginia, accompanied by a record of the indictment and proceedings of the State of Maryland against him, charging him with obtaining money and stock of the appellant by false pretences, and showing his arrest, submission, and trial by the Court; the finding of not guilty, and judgment that he be discharged. The indictment was found 

 [*305]  at January Term, 1868, of the Criminal Court of Baltimore City, and the finding and judgment thereon rendered at May Term following.
The appellee also offered in evidence, certain proceedings and depositions, from a duly certified transcript of the record of an Equity suit, in the Circuit Court of Fauquier County, Virginia, instituted the 7th of February, 1868, by the appellant against the appellee and others, as defendants. The bill in this case charged that the appellant loaned the appellee in July, 1866, eleven thousand dollars, payable in two years, for which he took the appellee's note for the principal, and four notes for the interest [**33]  to accrue, and as security for the same, the appellee executed a deed of trust on certain lands in Fauquier County, Va. The bill further charges, that "During the pendency of the negotiation of the loan, the appellant was informed there was a prior deed of trust on said land, executed by the appellee, to one Phillips, to secure a debt from the appellee, to his father Armstead Utterbach, who was dead, and that letters of administration were granted on his estate, to the appellee. As the value of the land on which Utterbach, (the appellee,) proposed to secure the loan from your orator (the appellant,) was about equal to the amount of money he desired to borrow, your orator declined advancing any sum upon it until satisfied that it was clear of all incumbrances."
The bill then charges certain acts and declarations of Utterbach, in his own right, and as administrator of Armstead Utterbach, by which he pretended to extinguish the prior incumbrance, and induced the complainant to believe it was released, and insisted the said acts amounted to a release, and prayed the lands might be sold to satisfy the appellant's debt.
The appellee's answer admitted the execution of the notes mentioned [**34]  in the bill, but denied the appellant had 

 [*306]  loaned him $ 11,000; on the contrary, he averred that the money loaned was $ 4,980.17, and the balance of the consideration, was 86 shares of Navassa Phosphate stock, fraudulently represented by the appellant to be worth 55 per cent., and which he was induced to take at 70 per cent., making in the whole $ 6,020, which made up the consideration of the note of $ 11,000.
He admits that at the time of the negotiation, his real estate was encumbered by the deed of trust to Phillips, to secure six several bonds to Armstead Utterbach's estate, only three of which were due, the rest having been discharged, and was also encumbered by several judgments to a large amount, and these encumbrances he was required to remove; that he was advised he had the legal right as administrator, to release the deed of trust, and took the necessary steps to effect a release.
With regard to the judgments, he made an arrangement with his creditors, that their respective amounts should be deposited in a Baltimore bank, and they were paid out of the $ 4,980, aforesaid.
The answer of Charles T. Green, administrator de bonis non of Armstead Utterbach, was [**35]  filed claiming priority of lien under the deed of the appellee to Phillips, etc.
By agreement, commissions were issued to Baltimore, and the depositions of various witnesses in relation to the negotiation of the loan between the appellant and the appellee, were taken and returned.
Numerous depositions were also taken by the appellant and the appellee, in the State of Virginia.
Issues were directed by the Court to a jury, to inquire whether fraud or usury was practiced by the appellant on the appellee, which being found for the former, the Circuit Court on the 23d of September, 1871, decreed that the appellant was entitled to subject the real estate conveyed by the appellee to Robert W. L. Rasin, by his 

 [*307]  deed of trust, to the satisfaction and discharge of the debt thereby secured.
The appellee having further proved by the State's Attorney for Baltimore City, that the requisition for the appellee was issued at his instance, upon the application of the appellant, who gave his version of the circumstances of the offence, thought himself aggrieved, and that the law had been violated; and was eager to have the appellee brought to justice, further proved by the same witness,  [**36]  that at the criminal trial, facts favorable to the prisoner were brought out in the testimony for the defence, and possibly on the cross-examination of the State's witnesses, (though of this last he had no recollection,) which facts had not been previously known to witness. "Cooper and Ridgely told witness that the plaintiff had not relieved the lien, and had not given defendant an unincumbered title. This was when they saw witness before the issuing the requisition."
The plaintiff, (the appellee,) having rested, the appellant read certain depositions and proceedings from the Chancery Record, ("which was read on both sides, at the pleasure of counsel, without objection," says the bill of exceptions,) and proved by Col. John S. Mosby, that he was a member of the bar of Fauquier County, Va., and employed by the appellant, to enforce his rights under the deed of trust to Rasin, set forth in the Chancery Record. After detailing his connection with the case, and proceedings in prosecuting it, Col. Mosby said, "he examined and ascertained all the facts connected with the case in Virginia for himself, and from them, and James M. Rasin's statement of the facts of the original transaction [**37]  between plaintiff and defendant, witness came to the conclusion that the plaintiff, (the appellee,) had obtained the appellant's money and stock, under false and fraudulent pretences.
"The defendant did not, nor did Jas. M. Rasin consult witness on this point, but only employed him to enforce 

 [*308]  defendant's lien, and witness himself, of his own accord, volunteered to say to Rasin, and he thinks he wrote to defendant, that in his opinion, plaintiff had laid himself open to a criminal prosecution for false pretences."
The witness further testified, that "to the best of his recollection, he filed the bill in the Chancery case, a short time before the March rule day of the Fauquier Circuit Court; which rule day was the first Monday in March. The next day after filing it, (probably towards the close of February, 1868,) witness came to Baltimore, and went to see defendant, to whom he repeated orally the opinion in regard to plaintiff's criminal liability, which he had expressed to Rasin, and also, he thought to defendant himself, by letter, the November before."
The witness further stated, "that the evidence against the plaintiff in the criminal trial did not conflict [**38]  or differ in any particular with that of the same witnesses, given in the Chancery proceeding here in evidence, upon the matters involved in the criminal case, and that the facts proven by the State on the criminal trial, were substantially the same as those shown by the depositions of the same witnesses in the Chancery Record. Either in chief, on the part of the State, or on cross-examination of the State's witnesses, all the facts came out on which witness had formed his own opinion as to plaintiff's guilt, and which appear in the Chancery Record, in the depositions of the same witnesses, without any thing to the contrary."
On cross-examination, the plaintiff's counsel then propounded to the witness the following question, stating at the same time, its object was to ascertain whether all the facts had been stated to witness, viz:
"You have stated that, with all the facts before you, you advised Captain Cooper (the defendant) that Utterbach had been guilty of obtaining money under false pretences; please state what were the facts upon which that advice was based?"

 [*309]  To which question and the admissibility of the matters enquired of, the defendant objected, for [**39]  the reason, among others, that the correctness of the opinion of witness was not in issue, nor were the reasons or grounds on which he based it, but only the fact that he had formed and expressed it to the defendant.
The Court overruled the objection, and allowed the question to be asked and the answer to go to the jury, which forms the ground of the first exception.
It is obvious from the nature of the action, which requires proof of want of probable cause, and malice, to sustain it, that the testimony of the witness in his examination-in-chief, (in the particulars which have been quoted,) was given to rebut the presumption of malice, by showing that the defendant, in instituting the prosecution for which he was sued, had proceeded in good faith, upon the advice of counsel learned in the law, given upon a full representation of the facts.
"It has been doubted (says a learned author) whether this defence can be set up where the party omits to state to his counsel, a fact well known to him, but which he honestly supposed was not material--or omits, through ignorance, to state a material fact which actually existed. And it is well settled, that he must show that he communicated to [**40]  such counsel, all the facts bearing upon the guilt or innocence of the accused, which he knew, or by reasonable diligence could have ascertained." 1 Hilliard on Torts, 438; Ash vs. Marlow, 20 Ohio 119; Bliss vs. Wyman, 7 Cal. 257; Potter vs. Seale, 8 Cal. 217.
The object of the question excepted to, was to test the good faith of the appellant, by ascertaining whether he or his agents had disclosed all the facts bearing upon the guilt or innocence of the accused, in his possession, in his consultation with his legal adviser, and this could only be effected by allowing some such question as that propounded and excepted to.

 [*310]  The theory of the appellant, that the correctness of the opinion, or the reasons or grounds on which he based it, were not in issue, would be correct in a case where all the facts were divulged; the better opinion being, where such is the case, the prosecution is not liable to an action for a malicious prosecution, even if the facts did not warrant the advice and prosecution. See Walter vs. Sample, 25 Pa. 275; Hall vs. Suydam, 6 Barb. 83.
But [**41]  the advice of counsel cannot protect where there has been a "suppressio veri," or "suggestio falsi."
The suggestion, that there was no evidence that Cooper had ever made any communication to Col. Mosby, and therefore the question could be no test of Cooper's good faith, in conferring with Mosby, proves too much. If it be true, that Cooper, neither by himself nor agent, made any statement of the facts which came to his knowledge, touching his transactions with the appellee, he could not claim the benefit of Mosby's advice; for they could only stand in the relation of counsel and client after having consulted either in person or by agent. If he consulted through the medium of a third person, it was as important to know what had been conveyed through that medium, as if communicated in person, since the omission of any important fact, in such consultation through the medium, would be as fatal to the client as if he had failed personally to disclose it.
The question, however, was not confined to facts communicated by Cooper, but was general, and comprehended all means of information.
It may be, as argued by the appellant, that the assumption on which the question was founded,  [**42]  was not literally accurate, yet it was substantially so.
The pith and marrow of Col. Mosby's evidence was, that after full investigation of the facts in Virginia, for himself, and information of the facts attending the loan in Maryland, from Jas. M. Rasin, defendant's agent, he 

 [*311]  had expressed to the defendant the opinion that the plaintiff was liable to prosecution for obtaining money, etc., under false pretences. This was sufficient to warrant the question on cross-examination of the witness by the appellee's counsel, requiring him to state "what were the facts on which his advice was based?" as by specifying those, the facts not disclosed, (if any) would negatively appear. For these reasons, we think the ruling of the Court below, on the first exception, was right.
After the testimony was closed, the appellee offered five prayers, to all of which the appellant objected, because they were not only erroneous in point of law, but without any sufficient legal evidence to support them.
The first, second, fourth and fifth of the appellee's prayers were granted, and the third rejected.
The appellant offered six prayers, the first and third of which were granted, as submitted;  [**43]  the second and fourth conceded; the fifth granted with modifications, and the sixth refused.
The Court of its own accord, gave an additional instruction explaining the words "probable cause." To which action of the Court, in granting the prayers of the appellee, refusing and modifying those of the appellant, and granting the additional instruction, "sua sponte," the appellant excepted, which constitutes his second exception.
Taking up the points in the order presented in the appellant's brief, the appellant's sixth prayer will be the next subject of consideration. This prayer virtually proposed to exclude from argument, and the consideration of the jury, all the facts developed in the record of the case of the appellant against the appellee, and others, in the Circuit Court of Fauquier County, on the ground that the questions decided in the case, were to be taken as finally settled and concluded between the parties, and no longer open to controversy; and the Court having 

 [*312]  determined in that case, that the transaction between the plaintiff and defendant, out of which said controversy and the criminal proceedings arose, and with which the present is connected, was altogether [**44]  fair on the part of the appellant, and not tainted with fraud, or usury, as the appellee contended, it was no longer competent for the plaintiff to argue, or the jury to find otherwise, than as the Court had pronounced it.
"The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that which was directly in issue, and not to everything which was incidentally brought into controversy during the trial." 1 Greenleaf on Evidence, sec. 528.
The matter directly in issue in the case decided in Fauquier Circuit Court, was the right of the appellant to a lien on certain lands therein, in preference to all other creditors, and to have the said lands sold, which issue was decided in the appellant's favor, and to that extent, the record was conclusive. In the course of that suit, many collateral matters were introduced, numerous witnesses were examined touching the conduct and character of the appellee in other transactions.
It was agreed in the cause, as we have seen, that errors in pleading be waived, and either party be permitted to prosecute or defend, on any evidence in the cause applicable to any state of the pleadings.  [**45]  
The depositions and proceedings in the Chancery Record were read, (according to the bill of exceptions,) on both sides at the pleasure of the counsel without objection. The record was not offered, or used by either side, merely to prove the fact of the decree, nor were the depositions used to prove what had been testified to, by any particular witness in the cause, who was since dead or disqualified; but it would seem, the depositions were used by each side, as a substitute for the oral examination of witnesses, 

 [*313]  not then before the Court, who had been examined in the Chancery cause on the several matters involved in said cause, which were also the subject of investigation, in the criminal prosecution, and the action for malicious prosecution now under review.
They thus became original testimony, on which the counsel were at liberty to make such comments and the jury to form such conclusions, as the facts warranted, without regard to the final decree in the case.
As the action of the Criminal Court in Baltimore, acquitting the appellee, would not, if offered in evidence in the Chancery cause, pending in Virginia, have established conclusively any other fact, than his [**46]  acquittal of the charge; so the record and proceedings in Virginia, did not establish any fact but those directly in issue, the right of the complainant therein to his prior lien.
Neither the conduct nor character of the appellant or appellee was directly in issue in the Chancery cause, and matters collaterally involved were mere incidents. "Neither the judgment of a Court of concurrent nor exclusive jurisdiction, is evidence of any matter which came collaterally in question, though within its jurisdiction; nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." 1 Greenleaf on Ev., sec. 528; 2 Kent's Com., 119, 121.
The appellant's third point is, that the action of the Court below in rejecting the appellee's third prayer, "because of the absence of any sufficient evidence in the cause tending to show any design on the part of the defendant to accomplish any private end of his own, by means of the prosecution referred to in the said third prayer" is inconsistent with its action, in granting the appellee's fifth prayer, by which the jury were authorized to find that said prosecution was pursued by the appellant for his private [**47]  ends.

 [*314]  It is argued that, if there was no evidence to warrant the hypothesis in the third prayer, there was a like absence of evidence to sustain that hypothesis in the fifth. This is not a case of conflicting instructions like that referred to in 13 Md. 85, by the appellant. In that case, an instruction had been granted at the instance of the appellant, which was excepted to by the appellee, but not brought up by appeal, and a prayer of the appellant's rejected which was inconsistent with that previously granted. In reviewing the action of the Court below, this Court said "the Court did right in the rejection of the defendant's last prayer, in regard to the standard of damages. The Court had previously given an instruction on this subject, in its character much more liberal, than the defendant in law had a right to ask. Inasmuch as that instruction is not before us on this appeal, we decline the examination of the principle contained in it. To have given the instruction embraced in the last exception, would not only have been clearly erroneous, but to give contradictory instructions on the same subject, a procedure wholly inadmissible." Cumberland Coal & Iron Company vs. Tilghman, 13 Md. 74. [**48]  
In the present case the Court below rejected a prayer of the appellee and granted another, supposed to be obnoxious to the objection for which the former was refused. The rejected prayer of the appellee could have no influence properly on the minds of the jury; it was shut out from their consideration by the action of the Court, and therefore no conflict could ensue.
But the objection that the fifth prayer has no evidence to sustain it, still remains to be answered. The appellee insists there is abundant evidence to sustain the hypothesis, that the prosecution was pursued by the defendant, for his private ends, as presented in the fifth prayer, if not, that it was designed by the appellant, to accomplish such private end, as presented by his third.

 [*315]  As the appellee's third prayer is not before us on this appeal, we cannot properly review the action of the Court below in rejecting it for the reasons assigned; but considering the fifth prayer as directed to the measure of damages, to be estimated after the jury had found from the evidence that the prosecution was without probable cause and malicious, we think there was sufficient evidence, to warrant the Court in [**49]  instructing the jury, they might give punitive damages, "if they found the said prosecution to have been pursued by the defendant for his private ends."
Assuming that the jury had found the prosecution originated without probable cause and in malice, they might legitimately, if not necessarily, find from the same premises, that the prosecution if pursued, was persisted in for some private end, as the want of probable cause and malice excluded all public motives.
If the appellant could only justify his prosecution of the appellee, (in the absence of probable cause,) by showing that he had acted in good faith, upon the advice of counsel, given upon a full representation of all the facts, as we have shown in our review of the first exception, it necessarily follows that the appellant's fifth prayer should not have been granted, as submitted, or as modified. It is not sufficient as that prayer assumes that the defendant or prosecutor acted "bona fide" and without malice under professional advice, but the advice must be based upon a full disclosure of all the facts in the defendant's knowledge, or which with due diligence he might have known. The omission of any material fact [**50]  by design or otherwise, would render the advice nugatory. The appellant was not, therefore injured by granting a prayer more favorable to him than the law authorized.
The fourth point of the appellant is, that the first prayer of the appellee was calculated to mislead the jury, because it instructed them that certain facts rendered the 

 [*316]  appellant liable to be sued, provided they should find certain other facts necessary to render him so liable; which was beyond the grasp of the jury and not law, if the instructions to which it refers, and which were subsequently granted, should turn out as contended by the appellant, to be unsupported by evidence.
It is conceded by the objection, that the first prayer referred to those subsequently granted, a construction necessarily following from the language of the proviso, which although not as specific and particular as it might be in referring to the succeeding prayers of the series, evidently pointed to them.
With this concession, the objection resolves itself into that raised by the fifth point, that there is no sufficient evidence in the record, tending to show want of probable cause, and malice, on the part of the appellant [**51]  in the prosecution complained of.
The facts enumerated in these prayers as a basis on which want of probable cause and malice might be predicated, are "if the appellant aided and assisted in procuring the arrest and prosecution of the appellee in the Criminal Court, and aided in the said prosecution, and the appellee was indicted, tried, and acquitted in the Criminal Court, on said indictment, and there were no circumstances connected with the transaction out of which said criminal prosecution arose, which would induce a reasonable, dispassionate man to believe the appellee to have been guilty of the charge made against him, and to induce such a man to have undertaken such a prosecution from public motives, then there was no probable cause for said prosecution, and the jury might infer, in the absence of sufficient proof to satisfy them to the contrary, that said prosecution was malicious in law."
After the great latitude conceded by the parties to each other, by their agreement that either be permitted to prosecute and defend on any evidence in the cause, applicable 

 [*317]  to any state of the pleadings, and the wide investigation of all the facts connected with the transactions [**52]  between the plaintiff and defendant, and the proceedings in the criminal and civil courts in Maryland and Virginia, submitted to the jury, tending on the one hand to criminate the plaintiff, and on the other to exculpate the defendant, it required the exercise of very questionable power in the Court to reject the prayers of the plaintiff on the ground that there was no sufficient legal evidence in the cause to support them.
The prayers of the plaintiff submitted to the jury all the facts necessary to constitute a prima facie case, in a suit for malicious prosecution; defined with precision what was the essential evidence of probable cause, and the legal incident of malice to be inferred from its absence, leaving it properly to the jury to determine whether the evidence established the existence or absence of probable cause, and to draw the inference which the absence of probable cause, if found, warranted.
The last objection of the appellant is, that the definition of "probable cause volunteered by the Court, was obscure in itself and calculated to confuse the jury." The authorities say, it is the province of the Court to instruct the jury what facts constitute in law "probable [**53]  cause," and leave it to the jury to find those facts.
In the case of Boyd vs. Cross, 35 Md. 194, this Court declared "The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court. The jury, in our practice, are always instructed hypothetically as to what constitutes probable cause, or the want of it, leaving to them to find the facts embraced in the hypothesis."
The definition of "probable cause" in the instruction granted "sua sponte" by the Court, is not in the exact 

 [*318]  language adopted by the books, yet it is clearly comprehended by them, and consistent with the decided cases.
In Cecil vs. Clarke, 17 Md. 508, 524, Ch. J. LE GRAND adopted the language of Greenleaf on Evidence, 2d vol., sec. 454, viz: "Probable cause for a criminal prosecution is understood to be such conduct on the part of the accused as may induce the Court to infer that the prosecution was undertaken from public motives."
In Boyd vs. Cross, 35 Md. 194, [**54]  this Court says, "Perhaps the most accurate definition of probable cause is that given by Judge WASHINGTON, in Munns vs. De Nemours, 3 Wash. C. C. 31, 17 F. Cas. 993, as being such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the party accused to be guilty."
The Court below, in the instruction given of its own accord, uses language identical in meaning with that adopted by Judge WASHINGTON.
In the prayer granted at the instance of the appellee, the definition is the same, as to the inducements to belief in a reasonable man, that the plaintiff was guilty of the charge made against him, with an additional qualification, "and to induce such a man to have undertaken such a prosecution from public motives."
The Court's spontaneous explanation of the meaning of the words "probable cause," may be regarded as a substitution, to that extent, of its last, for its former instruction, simplifying and conforming it to the most recent decisions.
In concluding our review of the several prayers of the appellee, excepted to by the appellant, it may be proper to add, they are not to be construed [**55]  separately or collectively, unconnected with the prayers of the appellant, granted or conceded in the cause.
These imposed upon the appellee the burden of proving that the prosecution (the ground of the present action) 

 [*319]  was instituted or prosecuted without probable cause and with malice, by the appellant, before he could claim a verdict. They declared that the acquittal of the appellee by the Criminal Court of Baltimore was only "prima facie" evidence of his innocence of the charge, notwithstanding which he might be found guilty of the offence charged in this case, and submitted to the jury the inquiry, whether the appellee had obtained of the appellant money or stock by false pretences.
The whole ground in controversy was covered by these instructions.
The law was expounded as favorably to the appellant as he was entitled to, leaving to the jury to find the facts involved in the several instructions, according to the evidence.
Where a full and fair trial has been had, this Court will not be hypercritical to discover technical defects in the rulings of the Court below.
Finding no error in the action of the Court on the several exceptions, the judgment will be affirmed.  [**56]  
Judgment affirmed. 

65 of 144 DOCUMENTS 

CHARLES W. LORD and GEORGE W. ROBINSON vs. THE ESSEX BUILDING ASSOCIATION, NO. 4.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 320; 1873 Md. LEXIS 6 

January 30, 1873, Decided 

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

In this case, the property mortgaged to the appellee was, upon default of the mortgagor, sold under a decree of the Court; the sale was ratified, and the auditor stated an account, awarding the entire fund in the hands of the trustee, to the appellee. Prior to the report of the auditor, the appellants filed their petition, claiming an allowance out of the fund in the trustee's hands to satisfy a judgment in their behalf against the mortgagor.

By direction of the solicitor for the judgment claimants, the auditor stated another account, allowing the judgment claim, and awarding the residue of the fund to the appellee in part payment of its mortgage debt: to this last account the appellee filed exceptions, and the appellants excepted to the account first stated. The Court overruled the appellants' exceptions to the first account, and finally ratified the same; from which order the exceptants appealed.

The certificate of the Secretary of the appellee, which the appellants claimed to be defective, is as follows:

I, August Reuter, Secretary of the Essex Building Association, No. 4, do hereby certify, that the aforegoing [**2]  is a true copy of the Constitution of the Essex Building Association, No. 4, adopted by said Association on the second day of December, A. D. 1867, and that the persons whose names are thereto signed, are members thereof.

In testimony whereof, I have hereunto signed my name, and affixed my seal, this ninth day of December, eighteen hundred and sixty-seven.

AUGUST REUTER,   [Seal.]
Secretary.

The opinion of the Court contains the other essential facts.  

DISPOSITION:
Order affirmed, with costs, and cause remanded.  

HEADNOTES:

Construction of Article 26, sections 30, 31 and 32, of the Code of Public General Laws -- Certificate of Secretary of an Association seeking incorporation -- Compliance with provisions of the Corporation Law as to capital stock and number of shares, not a condition precedent to corporate existence.

The certificate of the secretary of an association seeking incorporation, required by Article 26, sections 30 and 31, of the Code, stated the copy of the constitution furnished by him, to be a true copy, and that "the persons whose names are thereto signed are members" of the association. HELD:

That this was a sufficient compliance with the statute.

A compliance with the provisions of Article 26, section 32, of the Code, is not a condition precedent to the existence of a corporation. A violation of the provisions of this section can only be made cause for affecting the corporate existence by direct proceeding taken at the instance and in the name of the State.  

COUNSEL:
C. L. L. Leary, for the appellant.

A substantial compliance with the provisions of the general law constitute a condition precedent to the recognition in law of the appellee as a body politic. Frost's Lessee vs. Frostburg Coal Co., 24 Howard, 281, 283; Harris vs. McGregor, 29 Cal., 124; Field vs. Cooks, 16 La. An., 153, 154; Mokelumne Co. vs. Woodbury, 14 Cal., 424; Selma, &c. R. R. Co. vs. Tipton, 5 Ala., 787; Wheadon vs. Peoria R. R. Co., 42 Ill., 494; Oroville R. R. Co. vs. Plumas Co., 37 Cal., 354; Basshor vs. Dressel, 34 Md., 509.

The principle declared in Taggart vs. Western Md. R. R. Co., 24 Md., 596, is not applicable to this case. The objection [**3]  here is urged by a judgment creditor, between whom and the appellee there is no privity of contract. The argument here is not that the appellee, as a corporate body, has misused or abused its corporate powers, but that it was never legally invested with a corporate character; the record by which this is sought to be legally effected is fatally defective. This objection may be insisted on by a judgment creditor of the mortgagor, whose cause of action accrued before the appellee, as a corporation, had a legal existence, if it ever had any, and whose action against the mortgagor was pending when the mortgage was executed.

In this case the provisions of the 30th and 31st sections of Article 26 of the Code, have not been complied with. The certificate of the secretary of the association is fatally defective. He does not certify that the persons whose names are signed thereto actually did sign it. The record therefore furnishes internal evidence of the verity of the copy, and of the membership of the persons whose names are subscribed, but it does not prove the signatures of these members, and this is required by the 31st section of the general law. Harwood vs. Marshall, 9 Md., 86,  [**4]  103.

The third article of the alleged charter of the appellee, is directly repugnant to the 32d section of Article 26 of the Code. The legal effect of this conflict between the positive requirements of the general law and the provisions of the articles of association is, as against these appellants, to deprive the appellee of its standing in Court. Hughes vs. Antietam Manuf'g Co., 34 Md., 324.

The doctrine announced in sections 94 and 777 of Angell & Ames on Corporations, that "a cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally or incidentally," &c., is not questioned.

But the question involved in this case is entirely distinct from that determined by the authorities cited by the above named authors. They will be found to apply to cases where the association whose acts had been questioned, had, either by statute or general laws, been actually endowed with corporate capacity, and the legal difficulties involved, arose out of irregularities in organizing the body politic under the charter, or out of proceedings showing misuser of powers or violations of duty granted or prescribed by the charter. The distinction is palpable.  [**5]  The appellee never had a corporate existence; there was no charter to forfeit.

Neither does the principle announced by this Court, in Franz vs. Teutonia Building Association, 24 Md., 270, apply to this case. The appellants here are judgment creditors, occupying a legal position with reference to the mortgage debtor, entirely independent of the appellee.

Thos. W. Griffin, for the appellee.

No condition precedent was necessary to enable the appellee to exercise its powers, except to lodge with the Clerk of the Superior Court of Baltimore City, a copy of its Articles of Association, signed by at least seven members and certified by the secretary thereof. The law was strictly complied with in this respect. The vitality of the appellee was complete and perfect, and every presumption will be made to sustain it. Hagerstown Turnpike Co. vs. Creeger, 5 H. & J., 125; Busey, et al. vs. Hooper, et al., 35 Md., 30.

Even if the corporation charter be incorrect, the contracts of the corporation are not therefore void, they are only voidable. Unless the deed of incorporation be a nullity, the body corporate exists. The validity of that deed is an issue collateral to the effect [**6]  of the mortgage in this case, and the two issues cannot be tried at the same time.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*324]  ALVEY, J., delivered the opinion of the Court.
The mortgage to the Building Association, the appellees, was made on the 16th of April, 1868, and the decree thereon for sale of the mortgaged premises was passed on the 5th of June, 1871. The judgment in favor of the appellants against the mortgagor was rendered on the 27th of June, 1868; and the question is, as between these mortgage and judgment creditors, which have priority in the distribution of the proceeds of sale? and this depends upon the further question, whether the appellees have been legally incorporated, so as to enable them, in their corporate capacity, to take and enforce the mortgage security as against the judgment creditors of the mortgagor, the judgment constituting a lien on the estate mortgaged?
The right of the appellees to take the benefit of the mortgage, as against the appellants, is resisted on the ground that they have not been legally incorporated;--that there is, as supposed, a radical defect in the proceedings [**7]  necessary, under the law, to confer upon them corporate capacity.
The appellees claim to have been regularly incorporated under and in pursuance of the 30th and 31st secs. of the 26th Art. of the Code. By the latter of these sections it is provided, that before any such association shall become a corporation, they shall lodge with the clerk of the county, or the city, as the case may be, in which such corporation is designed to act, a copy of the articles of association of such corporation, signed by at least seven members, and certified by the secretary thereof, to be recorded in the office of such clerk. The defect that is supposed to exist in this case, consists in the omission of the secretary, who certified the copy of the articles of association for record, to certify to the fact, that the seven members whose names appear to the articles did in truth sign the same. The secretary certified that the 

 [*325]  copy of the articles lodged in the clerk's office for record was a true copy, "and that the persons whose names are signed thereto are members" of the association. But it is insisted, that as the parties named could have been members without signing the articles of [**8]  association furnished for record, the secretary should have done more than he did; that he should have certified that the members named, did in fact, sign the articles; and because of his omission to do so, the association altogether failed to obtain a corporate character or capacity, as they intended, and that, therefore, they cannot maintain their claim as against the appellants.
There is certainly no doubt of the general proposition as contended for on the part of the appellants, that where a corporation is created by statute, or under a general statute as in this case, which requires certain acts to be done before it can be considered in esse, there those acts must appear to have been done, in order to establish the corporate existence. Ang. & Am. on Corp., sec. 83. For, as was said by the Court in the case of Agnew vs. The Bank of Gettysburg, 2 H. & G. 478, 493, "Upon authority it is clear that the plaintiff, to maintain his case, must shew that by law he has been effectually created a corporation."
Such being the requirement, have the appellees shewn that it has been complied with? We think they have. The certificate of the secretary would seem [**9]  to embrace by fair construction, every fact essential to entitle the parties associating, to have their articles or constitution recorded, and to become endowed with the faculties and capacity of a corporation. The copy of the articles furnished for record by the secretary, who was the agent of the association, is certified by him to be a true copy, and that the parties whose names appear thereto, are members. We are not to assume, that those names were forged, or that they were signed without authority. We should rather presume the contrary. As we read the 

 [*326]  certificate, it imports that the names were properly signed to the articles, for the purpose of gratifying the requirement of the law. If indeed the parties, whose names appear to the articles, were members, and consented to, or acquiesced in the action of the secretary, in furnishing the copy of the articles for record, as we must suppose they did, it is difficult to imagine under what circumstances they could ever be heard to controvert the fact of their names being properly signed to such articles. Such question could certainly never arise in any mere collateral proceeding.
It is supposed, however, that the omission [**10]  of the secretary to certify to the signing of the articles by the seven members whose names appear thereto, is not the only defect which involves the validity of the incorporation of the appellees. By the 32d section of the Article of the Code before referred to, it is provided, that any corporation formed under the preceding section shall have power to declare in their articles of association the number of shares, not exceeding one thousand, of which its capital stock shall consist, the par value of the same, not exceeding four hundred dollars per share. In disregard of this provision of the statute, the appellees, in their articles of association, provided that the number of shares should be indefinite; and that each member could hold as many shares as he liked; but that he should have but one vote.
But, in our view, whatever may be the true construction of this particular provision of the statute, as to the necessity of making the articles of association conform to it, it does not prescribe a condition precedent to the existence of the corporation itself. The only conditions precedent are those prescribed by the sections 30 and 31, before referred to. Upon doing the acts there [**11]  prescribed, it is expressly declared that the association shall "be considered a body politic and corporate, and as such shall be 

 [*327]  capable to hold and dispose of property, both real and personal, and may choose presiding and other officers." Whether all the provisions that may be incorporated into the articles of association exactly conform to law, is a question that is not, by any means, necessarily or properly involved in the inquiry, whether the association has acquired corporate existence or not? Many of the provisions in such articles may be found to be without the warrant of law, and still the corporation exist, and be capable of exercising the rights and franchises conferred upon it by law. Such question as that here attempted to be made, cannot arise in any mere collateral proceeding like the present. In any proceeding to enforce and give effect to a provision incorporated into the articles of association in conflict with or not justified by law, another and a different question would be presented. But, if the law has been violated in the particular supposed, it can only be made cause for affecting the corporate existence by direct proceeding, taken at the instance [**12]  and in the name of the State, and of the State alone. The Regents vs. Williams, 9 Gill & Johns. 365, 426; Cochran, et al. vs. Arnold, et al., 58 Pa. 399.
As we perceive no error in the order appealed from, it will be affirmed, with costs.
Order affirmed, with costs, and cause remanded. 

66 of 144 DOCUMENTS 

ABRAHAM JOHNSON, Garnishee of WILLIAM H. COWAN vs. DAVID LEMMON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 336; 1873 Md. LEXIS 8 

January 30, 1873, Decided 

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

The judgment on which the attachment in this case was issued, was rendered on the 10th of September, 1860, in favor of the appellee, against William H. Cowan, for $ 670. The attachment for $ 670, with interest from September 10th, 1860, and costs, was issued on the 5th of April, 1871, and on the 8th of the same month, was laid in the hands of the appellant as garnishee, returnable to the ensuing May Term. At May Term, on the return day, condemnation nisi was entered against the appellant, he having failed to appear, and at the September Term, on October 19th, 1871, a fieri facias was issued against him for $ 670, with interest from 10th September, 1860, and $ 6.23 costs.

On the 1st of November, 1871, the appellant, by his attorney, R. J. Brent, Esq., filed a petition, stating, that at the time he was served with the attachment, he understood the deputy sheriff to say that it would be time enough for him to appear at September Term, 1871, and knowing nothing of forms, he relied on the statement; that he was not indebted to Cowan, who had sued him, in the Court of Common Pleas, and having employed counsel to resist that suit,  [**2]  he supposed that he could suffer no detriment, if he appeared to the attachment at the September Term; that he had been informed, however, by his counsel, of the entry, &c., of judgment nisi, &c., &c.; that Cowan was his debtor, and was so when the attachment was issued, and that he was ready to prove it. He claimed that the attachment was irregularly issued, for the following reasons:

1st. Because under the Act of 1862, ch. 262, the attachment having been issued more than three years after the date of the judgment, the same was subject to the same defences by the defendant as in cases of scire facias; and that to entitle the plaintiff, Lemmon, to the benefit of the attachment without any previous scire facias, the defendant, Cowan, was at least entitled to the same time that he would have been entitled to if a scire facias had issued on the judgment, and no judgment by default could be taken against the petitioner, as his garnishee, until the second and then pending term of the Court, as such would have been the course of proceedings on a scire facias.

2d. Because in cases of attachment on judgment the plaintiff should proceed under the 16th section of Art. 10 of the Code [**3]  of Public General Laws, which the plaintiff, Lemmon, did not do, but irregularly and illegally obtained a judgment of condemnation without any evidence being shown to the Court touching the amount of credit, if any, in the hands of the petitioner.

3d. Because the judgment was for the costs of the attachment suit, in addition to the debt, and that this was in contravention of the 14th section of Art. 10 of the Code of Public General Laws.

4th. Because the plaintiff, Lemmon, knew that the petitioner disputed the suit and claim of Cowan, and denied all indebtedness to him, and being apprised of said dispute and denial, it was a fraud on the petitioner for the said Lemmon to obtain said condemnation, and to seek to enforce the same by fieri facias, as he was doing. The petitioner prayed that the judgment and the writ of fieri facias issued thereon might be set aside and annulled, and the case brought forward for trial.

The petition was sworn to, and subsequently the petitioner filed an affidavit, in which, among other things, he stated that the suit by Cowan against him had been agreed; and in proof thereof he filed a short copy of the docket entries from the Court of Common [**4]  Pleas, by which it appeared that the entry of "agreed" was made on the 9th of October, 1871. The affidavit further showed that the deputy sheriff, when he served the attachment, told the affiant, that it was only intended to attach such judgment as Cowan might obtain; the truth of this was further sustained by an affidavit of a witness present at the time.

The appellee filed no answer to the petition, but contented himself with excepting to the admissibility in evidence of the affidavits and the docket entries filed by the petitioner.

On the 5th of February, 1872, the Court (DOBBIN, J.,) overruled the motion of the petitioner, and hence the present appeal.  

DISPOSITION:
Judgment reversed and attachment quashed.  

HEADNOTES:

Attachment -- Construction of the Act of 1862, ch. 262.

On the 5th of April, 1871, an attachment under the Act of 1862, ch. 262, was issued on a judgment rendered on the 10th of September, 1860. There was no stay of execution on the judgment, nor was it revived by scire facias. The attachment, returnable to the ensuing May Term, was laid in the hands of A. J., garnishee of the defendant in the judgment. The writ contained no clause of scire facias as to the defendant. At May Term, on the return day, a judgment of condemnation nisi was entered against the garnishee, he having failed to appear, and at the September Term, on the 19th of October, 1871, upon this judgment of condemnation a fieri facias was issued. Shortly after the issuing of the fieri facias, and during the same term, the garnishee appeared by petition and prayed, for reasons therein stated, that the judgment and execution thereon be set aside and annulled. This application was refused. On appeal it was HELD:

That the attachment was defective in not containing a clause of scire facias as to the defendant in the judgment; and it not appearing from the sheriff's return, or any other part of the proceedings, that the defendant was ever made aware of the issue and levy of the attachment, the judgment entered thereon against the garnishee should be set aside and the attachment itself quashed.

The attachment under the Act of 1862, ch. 262, to some extent, performs the double office of execution and scire facias. It calls upon the defendant to shew cause why condemnation should not be had of the property, rights or credits seized under the attachment. He has the right to appear and plead to the attachment; and unless he has been duly warned of the time and place for his appearance to make defence to the writ, no judgment of condemnation thereon can be rendered.

If both the defendant and garnishee fail to appear at the regular call of the docket, judgment of condemnation nisi may be entered; but upon the appearance of either at any time during the Term, such judgment should be stricken out, and the party allowed to defend against condemnation.

If the defendant regularly appear during the Term, according to the exigency of the writ, and make defence, no judgment of condemnation should be entered until such defence is fully tried and determined.

The omission in a writ of attachment under the Act of 1862, ch. 262, of a clause of scire facias as to the defendant, does not render the writ absolutely null and void, but voidable only. It is such a defect as the garnishee should be allowed to take advantage of in resistance of a judgment of condemnation. 

COUNSEL:
S. Teackle Wallis, for the appellant.

The exception of the appellee to the appellants, was not well taken. This Court in Lambden vs. Bowie, 2 Md., 340; does not adjudge ex parte affidavits to be inadmissible in support of motions. It only determines, that where the truth of the facts stated is not admitted, reasonable opportunity should be given for the production of evidence, (other than ex parte affidavits) to be taken as the Court may direct. Here there was no denial [**5]  of the facts averred in support of the motion, nor was there any exception to the admissibility or sufficiency of the facts themselves, or to the petition. If, therefore, the Court thought that ex parte affidavits did not furnish sufficient ground for its action, it should have directed the parties to take proof in some prescribed mode. Gittings vs. State, 33 Md., 463.

The same reasoning applies to the short copy of the docket entries from the Court of Common Pleas. All of the Courts, of which the Judges compose the Supreme Bench, are practically one tribunal with distributed functions. All their writs and other process are attested by the Chief Judge of the Supreme Bench, so that they are in no sense altogether disconnected, and a certified extract of entries from the docket of any of them, ought to be received as prima facie evidence by the rest, especially where their truth is not denied. If the Court desired a full record, it should have so said, in a summary proceeding like this.

By the terms of the fourteenth section of Article 10 of the Code, attachment on execution cannot be levied for any costs but those of the attachment itself. The attachment in this case was for [**6]  the costs, as well as principal and interest of the original judgment. Hinkley and Mayer on Attachments, 93, (sec. 239.)

Until the Act of 1862, ch., 262, an attachment could not issue upon a judgment after the lapse of three years, without its previous revival by scire facias. Boyd vs. Talbott, 7 Md., 407.

The Act of 1862, ch. 262, removed the necessity for the previous scire facias, and also the bar of limitation, but provided expressly, that where the judgment should be more than three years old, all attachments thereupon should "be subject to the same defences by the defendant, as is cases of scire facias." Whatever defences the defendant could set up, the garnishee could raise for him, of course. By this legislation, then judgment creditors, attaching after three years, were not clothed with the right to a condemnation nisi, as, of course, on the return of the writ, but the case was required to take the usual course of a scire facias, and judgment could only have been rendered at the first term, in the usual way, upon default of appearance, &c., under the ordinary rules. The judgment of condemnation, therefore, as taken, was illegal and irregular, and void in itself.  [**7]  

Under the Act of 1862, there should have been a summons and scire facias directed to and served upon the defendant. The omission of these is fatal to the whole proceeding.

The motion, on its merits, addressed itself strongly to the equitable consideration of the Court, and should have been granted.

The averment is, that the appellant was not indebted to Cowan at all, but was, on the contrary, his creditor; that the appellee was aware that the appellant denied indebtedness to Cowan, and issued his attachment with such knowledge; that the appellant was misled by the statement of the deputy sheriff, when the attachment was served, and supposed that by defending Cowan's suit, he would protect himself from all liability as Cowan's garnishee; that, being thus misled, he did not employ counsel till the September Term came round, when he found that judgment had already gone against him. None of these facts are denied, and the case comes up as if upon a demurrer to the motion, and admitting them. The appellant being an ignorant man, and there being no impeachment of his good faith or truthfulness, the facts establish as clear a case of surprise as could be stated. Green vs. Hamilton,  [**8]  16 Md., 317; Kemp vs. Cook, 18 Md., 130; Montgomery vs. Murphy, 19 Md., 576.

Alexander H. Hobbs, for the appellee.

The motion of the appellant, that the judgment and the fieri facias issued thereon, should be set aside and annulled, not having been made during the term at which the judgment of condemnation was entered, was too late, and the motion was properly overruled. Hall et al. vs. Holmes, 30 Md., 558; Sherwood vs. Mohler, et al., 14 Md., 564; Dawson, admr. vs. Contee, 22 Md., 27; Freidenrich, et al. vs. Moore, et al., 24 Md., 308 and 309; Windwart vs. Allen, 13 Md., 196; Boyd, et al. vs. Chesapeake and Ohio Canal Company, 17 Md., 209 and 211; Anders vs. Devries, et al., 26 Md., 222; Post and Barrett vs. Bowen, Garnishee, 35 Md., 235 and 236.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*342]  ALVEY, J., delivered the opinion of the Court.
The attachment in this case by way of execution was issued on the 5th of April, 1871, on a judgment rendered on the 10th of September, 1860. There does not appear to have been any stay of execution of the judgment, nor has the judgment ever been revived by scire facias.  [**9]  
The attachment was laid in the hands of the appellant as garnishee of the defendant in the judgment; and, failing to appear at the return term, judgment of condemnation was entered against him in the usual way. Upon the judgment of condemnation a fieri facias issued on the 19th of October, 1871.
After the term had elapsed to which the attachment was returnable, and after the issuing of the fieri facias, but during the next succeeding term of the Court, the appellant appeared by petition, and prayed that the judgment and execution thereon, be set aside and annulled, for reasons stated in the petition. This application was refused, and hence this appeal.
That the garnishee can take advantage of any defect in the attachment, is well settled; (Harden vs. Moore, 7 H. & J. 4;) and there being a radical defect in the 

 [*343]  attachment in this case, we think the judgment entered thereon against the garnishee should have been set aside, and the attachment itself quashed.
The attachment was issued after the lapse of more than ten years from the rendition of the judgment. This judgment at the date of the attachment, was not subject to execution in the ordinary course [**10]  of proceeding, until regularly revived by scire facias; for, after the lapse of three years from the date of the judgment, or from the expiration of the stay of execution, the presumption is that the judgment has been paid or that execution has been released, and therefore it is, that the plaintiff in the judgment is put to his scire facias to revive it, to which the defendant may appear, and plead in the same manner as to an action founded upon an original writ. Mullikin vs. Duvall, 7 Gill & J. 355, 359; 2 Tidd's Pr., 1103; 2 Inst., 470. But, by the Act of 1862, ch. 262, it is provided, that execution by way of attachment may issue at any time within twelve years from the date of the judgment, "and if more than three years have elapsed after the date of the judgment, or expiration or removal of the stay thereon, the said attachment shall be subject to the same defences by the defendant as in cases of scire facias." The attachment under this Act, performs the double office of execution and scire facias; that is, to some extent. It is not, it is true, a scire facias for the purpose of reviving the judgment, and procuring an award of execution.  [**11]  But, having reference to the presumption of payment or release, it calls upon the defendant to shew cause why condemnation should not be had of the property, rights or credits seized under the attachment. To this attachment, the defendant in the judgment has a right to appear and plead. As a condition, therefore, upon which judgment of condemnation can be rendered on such attachment, it must appear that the defendant has been duly warned of the time and place for his appearance to make 

 [*344]  defence to the writ. On failure of both the defendant and garnishee to appear, at the regular call of the docket, judgment of condemnation nisi may be entered, as was done in this case; but, upon the appearance of either at any time during the term, such judgment nisi should be stricken out, and the party allowed to defend against condemnation. If the defendant regularly appears during the term, according to the exigency of the writ, and makes defence, no judgment of condemnation should be entered until such defence is fully tried and determined. For otherwise execution might issue on the judgment of condemnation, or the garnishee hasten to pay to the plaintiff, before it had been [**12]  determined whether the original judgment had been paid or otherwise discharged.
On examination of the writ of attachment in this case, it appears that while it is in all other respects formal and proper, with a clause of scire facias as to the garnishee, there is a total omission of any such clause as to the defendant in the judgment. The sheriff, to whom the writ was directed, was commanded to make known the writ, and his action under it to the garnishee, that he might be in Court, at the time and place designated, to shew cause against condemnation; but there was no such command as to the defendant; and there is nothing either in the sheriff's return or any other part of the proceedings that shows that the defendant was ever made aware of the issue and levy of the attachment. The writ should contain on its face such command as to notice as would justify its issue; and as the law secures to the defendant the right to appear and plead to the writ, it is proper and essential that he be made a party to it, and receive due notice of its issue. Here, all command or direction as to notice has been omitted; and because of this omission we think the writ insufficient and voidable, and [**13]  that the garnishee should have been allowed to take advantage of the defect. The defect is such as to entitle 

 [*345]  him, under the well established power of the Court, recognized by section 38 of Article 75 of the Code, to be heard at the time and under the circumstances of his application, in resistance of the condemnation and execution thereon. Kemp and Buckley vs. Cook and Ridgely, 18 Md. 130.
It is proper that we should say, however, that we do not regard the writ of attachment in this case as absolutely null and void. In our opinion it is voidable only. Miles vs. Knott, 12 Gill & J. 442, 453.
The case being finally disposed of in the views expressed, it becomes unnecessary to refer to the several other questions presented in the arguments at bar.
Judgment reversed and attachment quashed. 

67 of 144 DOCUMENTS 

AMANDA NEWMAN, by her next friend, L. P. D. NEWMAN vs. WILLIAM A. FISHER, Garnishee of THE BALTIMORE COUNTY DAIRY ASSOCIATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 259; 1873 Md. LEXIS 3 

January 29, 1873, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Jurisdiction of the District Courts of the United States, in proceedings in Bankruptcy.

The property of a bankrupt in the hands of his assignee, duly appointed under the Bankrupt Law of the United States, is not liable, at the instance of a creditor of the bankrupt, to attachment under the laws of a State.

Under the Act of Congress, entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, the District Courts of the United States have original, superior and exclusive jurisdiction over a bankrupt, his estate, and all questions connected therewith, from the time proceedings in bankruptcy are begun until the final distribution and settlement of the bankrupt estate. 

COUNSEL:
L. P. D. Newman and B. C. Barroll, for the appellant.

The District Court had no jurisdiction to pass upon the application in bankruptcy, its proceedings were coram non judice--and wholly inoperative, null and void. And if this be true, any decree which the Court might pass in the premises, could not be set up as a defence by the garnishee against condemnation of funds in his hands, of such association duly attached.

The District Court of the United States, sitting as a Court in bankruptcy exercises a limited, statutory, special jurisdiction. In adjudicating a party a bankrupt, the facts giving the Court jurisdiction must appear on the face of the record--otherwise its decree is coram non judice and void. It is apparent from the record in the Dairy Association case, that the Court had no jurisdiction to adjudicate the Association a bankrupt, because the Act of Congress requires, that the petition shall be filed on behalf of the corporation, "by an officer duly authorized by a vote of a majority of the corporators present at any legal meeting called for the purpose.  [**2]  " Bankrupt Law, sec. 37.

The demurrer in this case admits the fact alleged in the replication that "the said W. F. Fundenberg was not duly authorized to file (the petition) by a vote of the majority," &c. Wherefore the District Court was without jurisdiction to adjudicate the Association a bankrupt; its decree to that effect was null and void.

The plea of "bankruptcy" set up by the garnishee was bad--and judgment on the demurrer ought to have been for the appellant--(the plaintiff below.) Matter of Lady Bryan Mining Co., 2 Abbott's U.S. Rep., 527; Gray vs. Larrimore, 2 Abbott's U.S. Rep. 548.

In case of special jurisdiction, the facts giving jurisdiction should appear on the face of the record. Boarman vs. Israel, &c., 1 Gill, 381; Taylor vs. Bruscup, &c., 27 Md., 226; Mears vs. Remare, 33 Md., 250; Armstrong vs. Mayor, &c., of Hagerstown, 32 Md., 56; Harris vs. Hardeman, et al., 14 Howard, 338, 343; Williamson et al. vs. Berry, 8 Howard, 540; Thompson vs. Tolmie, 2 Peters, 163; Thatcher vs. Powell, 6 Wheaton, 127; The Chemung Canal Bank vs. Judson, 4 Selden, 259; Starbuck vs. Murray, 5 Wendell, 158.

William A. Fisher and J. Morrison Harris, for the appellee.

The [**3]  Courts of the United States, although of limited, are not of inferior jurisdiction; they have exclusive and paramount jurisdiction over the subject matter of bankruptcy, and have the exclusive authority to determine the mode of the exercise of such jurisdiction; the proceeding against the bankrupt association in the Bankrupt Court is one "in rem"--and the jurisdiction cannot be controverted in this action by the plaintiffs. McCormick vs. Sullivant, 10 Wheat., 192; Shawhan vs. Wherritt, 7 Howard, 627; Raborg vs. Hammond, 2 Har. & Gill, 42; Van Nostrand vs. Carr, et al., 30 Md., 128; Bankrupt Law, Sec. 1--5 inclusive; Corry vs. Ripley, 57 Maine, 69; Bump's Law and Practice of Bankruptcy, 244, note (b.,) and cases there cited; Taylor vs. Carryl, 20 Howard, 594-5; U. S. vs. Booth, 21 Howard, 506; Freeman vs. Howe, et al., 24 Howard, 450; Brown vs. Wallace, 4 G. J., 495-6.

The fund, being held by the garnishee as assignee under an appointment of the United States Court, cannot be withdrawn from his custody by the act or process of the State Court. Wiswall vs. Sampson, 14 How., 65-6; Peale vs. Phipps, et al., 14 How., 368; Brown vs. Wallace, 4 G. & J., 495-6; U. S. vs. Booth, 21 How.  [**4]  , 523; Harris vs. Dennie, 3 Peters, 292.

The provisions of sec. 37 of the Bankrupt Act are directory merely, and the petition having been filed by the authority of the president and directors, who are competent to do all acts in relation to conducting and closing the business of the corporation, the Bankruptcy Court having jurisdiction over the subject matter, acquired it also over the party; and in fact, the District and Circuit Courts have both decided to exercise and retain jurisdiction in the matter. Bankrupt Law, Sec. 37.

Form No. 3, "Corporation" petition as adopted by the Supreme Court Judges. Union Bank of Tennessee vs. Gill, et al., 6 G. & J., 363, 371.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*261]  ROBINSON, J., delivered the opinion of the Court.
An attachment was issued on judgment recovered by the appellant against "The Baltimore County Dairy Association," and laid in the hands of the appellee, as garnishee.

 [*262]  The garnishee pleads, that prior to the issuing of the attachment, the Association had been duly declared and adjudged to be a bankrupt by the District Court of the United States [**5]  for the State of Maryland, and that the funds in question are held by him as assignee in bankruptcy.
To this plea the appellant replies that the Association had been adjudicated a bankrupt by the District Court, upon a petition filed by an officer of said Association, authorized to do so by a vote of the directors, and not by the vote of a majority of the corporators, at a meeting called for that purpose.
To this replication the garnishee demurred, and this appeal is taken from the judgment of the Court sustaining the demurrer.
The appellant contends that the District Court had no jurisdiction to adjudicate the Association a bankrupt, because the bankrupt Act of 1867 requires the petition to be filed by a person authorized by a vote of a majority of the corporators, at a meeting called for that purpose. Assuming this construction to be correct, without, however, so deciding, the question is, whether the property in the hands of the assignee in bankruptcy is liable at the instance of creditors to the attachment laws of this State.
The Bankrupt Act of 1867 was passed by Congress in pursuance of Section 8, Article 1, of the Constitution of the United States. By that [**6]  section full power is conferred upon Congress over the subject of bankruptcy, with the single qualification, that the laws passed in pursuance thereof shall be uniform throughout the United States.
The first section of the Act of 1867, provides that the several District Courts of the U. States shall have original jurisdiction in proceedings in bankruptcy, and this is followed by a general provision extending such jurisdiction to all acts, matters and things to be done under and in virtue of the bankruptcy, until the final distribution 

 [*263]  and settlement of the bankrupt estate. The jurisdiction hereby conferred on the Federal Courts is superior and exclusive in all matters arising under the statute, and from the time proceedings in bankruptcy are begun, the District Court has jurisdiction over the bankrupt, his estate and all questions connected therewith. The bankrupt Act having been passed in pursuance of the Constitution of the United States, whenever by express words, or by necessary implication, it affects the jurisdiction of State Courts or the remedies of suitors therein, they must yield to the paramount law. Not only is original jurisdiction in matters of [**7]  bankruptcy conferred by the Act of 1867 upon the Federal Courts, but it would be inconsistent with the plain purposes of the law, and destructive of the system itself to permit creditors, by resorting to State tribunals, to withdraw against the will of the bankrupt Court, property or cases belonging to the jurisdiction of that Court. Bump's Law and Practice of Bankruptcy, 262. Moreover, if the contention of the appellant be correct, we should have the State Courts deciding one way and the Federal Courts another, thus inevitably leading to a conflict in jurisdiction, which it was the obvious policy of the law to avoid.
The question, then, as to whether the petition in this case was filed by an officer of the corporation legally authorized by the Act of 1867, is one which belongs to the Bankrupt Court, and whilst the proceedings in bankruptcy are in fieri, its judgment and the grounds upon which it was rendered, are not matters of review in a State Court. The assignee holds the property by virtue of his appointment by the bankrupt Court, and to that Court alone, is he responsible for its custody and disposition.
For these reasons the judgment of the Court below will be [**8]  affirmed.
Judgment affirmed. 

68 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. HENRY STRAUSS and LEVI STRAUSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 237; 1873 Md. LEXIS 1 

January 17, 1873, Decided 

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

The bill of complaint in this case was filed by the appellees against the appellant, on the 19th of January, 1871. The case which is sufficiently stated in the opinion of this Court was heard on bill, exhibits and answer, and the Circuit Court, (SCOTT, J.,) ordered the injunction to issue as prayed. From this order the respondent appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

When an Injunction will be granted, and when not.

If the right of way, over a street, of the owner of a lot fronting thereon, is so unlawfully obstructed as to subject him to a special injury, not common to, but distinct and different from that suffered by the public, and for which he cannot obtain adequate compensation at law, he is entitled to the summary interference of a Court of Equity by injunction.

If a party fully cognizant of his rights, permits a public corporation to expend large sums of money in laying down and completing its railroad tracks in contravention of his rights, and makes no complaint, and does not attempt to interfere, or interrupt them during the progress and construction of the work, he is precluded, by such acquiescence, from relief by injunction.

The owner of a lot of ground fronting on a public street, suffered a railroad company which had constructed one track on said street, to lay down and complete at considerable expense, two additional tracks thereon, and made no complaint, and interposed no objection during the progress and construction of the work, but acquiesced therein. Ten years after the completion of the two additional tracks, the owner of the lot filed a bill in Equity, asking that the railroad company might be restrained from using or maintaining more than two tracks, upon the ground that the use of the three tracks was an obstruction of his right of way over said street, and had done, and was doing him an irreparable injury for which he had no adequate remedy at law. HELD:

That the complainant had not used due diligence in making his application, and was therefore not entitled to an injunction. 

COUNSEL:
John H. B. Latrobe, for the appellants, argued,

That the railroad company, in laying down its tracks on the streets in question, had not in any respect exceeded the rights granted to it by the Mayor and City Council of Baltimore, under the Act of 1827, ch. 209, so far as to authorize the interference of chancery.

Edward Otis Hinkley and I. Nevett Steele, for the appellees,

Contended that the order appealed from was right, and in support thereof, referred to the following authorities: Balto. & Ohio Railroad Co. vs. Thompson, 10 Md., 87; Roman vs. Strauss, 10 Md., 89; 1 Redfield on Railways, 234, 235, 236, 241, 243, 246, 248, 250, 252, 292, 297 to 320; 2 Redfield on Railways, 562, 564; Act of 1827, ch. 209; Ordinance No. 21 of 1845; Craig vs.  [**2]  Rochester R. R. Co., 39 N. Y., 404; Schurmeier vs. St. Paul and Pacific R. R. Co., et al., 10 Minn., 82; Jersey City Railroad, 20 N. J. Ch. (5 Green,) 61; Kier vs. Boyd, 60 Penn., 33; Clark vs. Blackmar, et al., 47 N. Y., 150; Milhau vs. Sharp, 27 N. Y., 626; Corning vs. Lowerre, 6 John. Ch., 439; Roberts vs. Easton, et al., 19 Ohio State, 78.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*239]  ROBINSON, J., delivered the opinion of the Court.
The bill in this case, seeks to enjoin the appellant from using or maintaining more than two of its three railroad tracks on Nicholson street, -- secondly, from using the three tracks branching off from Nicholson street above Cooksie, and running across an alley in the rear of the complainants' property,--and thirdly, from using any more than the two centre ones of the seven branches at Towson street.
First, the tracks on Nicholson street.
The bill alleges, that the complainants purchased in 1850, a tract or parcel of land fronting on Nicholson street, and that they are entitled to a right of way over said street; that at the time of said purchase, there was [**3]  one track of the defendant's railway running through the centre of the street; that in 1859, the defendant laid down two more tracks in said street without any right so to do; that the distance between the footway and the track nearest to the same, is not sufficient to allow carts, 

 [*240]  wagons, and other vehicles to pass, without running the risk of being struck by the steam engine and cars of the defendant; that the use of said tracks by the defendant, is of such a character, as to render it impossible for the complainants, their servants and employees, to pass over said street without imperilling their lives, and running very great risk of having their vehicles destroyed; that the land of the complainants is improved by a store at the northern-most corner of Towson and Nicholson streets, and that the way over the latter street is the only reasonably convenient way to said store, but so completely is it obstructed by said use of it by the tracks and cars of the defendant, that a load of fuel, or barrel of flour, cannot be brought to said store on a cart, dray or wagon.
And so the complainants say, the defendant has done, and is daily doing them an irreparable injury, for which [**4]  they have no adequate remedy at law; the use made by the defendants of the said three tracks, being so great an obstruction to the complainants' right of way, as to render their said land and the improvements thereon, of comparatively little value.
The respondents admit they have laid down and are now using the three tracks on Nicholson street, but deny that the same are opposite to the property of the complainants. The allegations in the bill in regard to the nature and extent of the obstruction occasioned thereby-- that Nicholson street is the only reasonable and convenient way to the property of the complainants--that they have done, or are doing the complainants an irreparable injury, for which they have no adequate remedy at law, all of these allegations are expressly denied. The defendants also claim the right to lay down said tracks by virtue of their charter, and an Ordinance of the Mayor and City Council of Baltimore.

 [*241]  The case is submitted on bill and answer, and maps, showing the location of the complainants' property, and the obstructions complained of.
It can hardly be necessary to say, that the right of the complainants to relief, does not in any manner [**5]  depend upon the question as to whether the alleged obstructions are in point of fact, opposite to, or in front of their property. If they are owners of a lot on Nicholson street and the defendants have unlawfully obstructed their right of way over said street, so as to subject them to a special injury not common to, but distinct and different from that suffered by the public, and for which they could not be adequately compensated by damages at law, there could be no question as to their right to the summary interference of a Court of Equity.
Nor is it necessary to decide whether the Acts of 1826, chap. 126, and 1827, chap 209, and the Ordinance of 1845, of the Mayor and City Council of Baltimore, authorized the defendants to lay down and use the tracks in question.
There are other objections not set up in the answer, nor relied on in the argument, which in our opinion, are fatal to the relief prayed. We take the law to be well settled in cases of this kind, where a Court of Equity is asked to restrain a rail road company from using tracks constructed at great expense and labor, a party must use reasonable diligence in making the application. Kerr on Injunctions, 348;  [**6]  Hilliard on Injunctions, 24.
Whatever may have been the original equities of a party, if he has been guilty of laches or unreasonable delay, if fully cognizant of his rights, he has lain by, and suffered a public corporation to expend large sums of money in laying down and completing its rail road tracks in contravention of his rights, and makes no complaint, and no attempt to interfere or interrupt them during the progress and construction of the work, such 

 [*242]  acquiescence will preclude him from relief by way of injunction.
Thus in Birmingham Canal Company vs. Lloyd, 18 Vesey 514, where the canal company had the use of certain reservoirs, and the defendants who were proprietors of neighboring coal mines, gave notice of their intention to make a level on their mines, the effect of which would be to draw off the water in the reservoirs used by the plaintiffs for the purpose of feeding their canal, and the defendants commenced their work, and having expended about two thousand pounds, the canal company applied for an injunction, Lord ELDON said:
"Assuming for the present purpose, this piece of water, called Broadwater, to be a reservoir, within this [**7]  Act of Parliament, the plaintiffs must establish their right to damages at law, before I ought to grant this injunction. I proceed here upon the circumstances of delay. The defendants having, in pursuance of their promise to give six months notice of beginning to work their mines, given notice in April, expressly mentioning their purpose to open the sough, the company having given a counter notice, that they would in that case seek damages at law, and having a right to apply promptly to this Court to prevent the act, instead of taking that course, permit the defendants to expend £  2000, in proceeding towards getting coal by erecting fire engines, &c., and when they are about to get the coal, the plaintiffs come for an injunction. They ought to have commenced their opposition when they could have done so with justice. *** These plaintiffs, therefore, not having applied until nearly two years after the notice was received, must take their chances at law; and this Court ought not to interfere by granting an injunction."
So in the case of the Great Western Railway Company vs. The Oxford, Worcester and Wolverhampton Railway Co., 3 De Gex, Mac. & G. 358, where an application [**8]  

 [*243]  was made for an injunction to restrain the opening or using of a narrow guage line from Evesham to Wolvercot, until the line of the Oxford, Worcester and Wolverhampton Railway was formed throughout its entire length on the broad guage, Lord Justice TURNER said:
"Where the summary interference of this Court is invoked, in cases of this nature, it must be invoked promptly. Parties who have lain by and permitted a large expenditure to be made, in contravention of the rights for which they contend, cannot call upon this Court for its summary interference. The jurisdiction to interfere is purely equitable, and it must be governed by equitable principles."
To the same effect is the case of Greenhalgh vs. The Manchester and Birmingham Railway Company, 3 Mylne & Craig 784, where it was held, that the owner of land, upon which a railway company empowered by Parliament, is about to enter, will not be entitled to an injunction to restrain them, if, by his silence and conduct, he has permitted the company to carry on their works upon the supposition, they were to "enter on and take the land in question." And in Wood vs. Sutcliffe, 2 Sim. N. Rep. 163, an injunction [**9]  to restrain the defendants from interrupting a water right of the plaintiffs, was denied expressly on the ground of delay in making the application. After considering whether an injunction would restore the plaintiffs to their rights, and further, whether the mischief complained of was such as could be ade quately compensated by pecuniary damages, the Vice Chancellor says:
"But I do not rest my decision upon either of the grounds which I have mentioned. The principal ground upon which I conceive that I must refuse this injunction is, that the plaintiffs have not used due diligence in vindicating their rights. They stood by whilst the defendants constructed their works, and they suffered the defendants 

 [*244]  to use their works after they were constructed, from the beginning of 1845 until the beginning of 1850, a period of nearly five years, without giving them any hint that they were doing anything that they had not a lawful right to do; and if there had been nothing else in this case, I should have been of opinion, on this ground alone, that the plaintiffs were not entitled to the injunction."
Now, in the case before us, the complainants lie by and suffer the defendants to [**10]  construct two additional tracks, incurring necessarily thereby a considerable expense, without a word of complaint, and without a hint that they were obstructing the right of way over Nicholson street, or doing them an irreparable injury, for which compensatory damages could not be obtained at law, and ten years afterwards,--not five years as in Wood vs. Sutcliffe, --when these additional tracks may be absolutely necessary to accommodate the large and increasing trade and business of the defendants, this Court is asked to restrain them from using one of the three tracks, to the construction of which no objection was made by these complainants. Under such circumstances, a Court of Equity may well say, that due diligence has not been used in making the application, and that to grant an injunction in such a case would be unjust and oppressive to the defendants.
Secondly.--The three tracks across the alley, in the rear of the complainants' property.
It neither appears from the bill, nor the answer, when these tracks were laid, and we cannot therefore say, that the claim to relief is barred on the ground of delay and acquiescence. The bill alleges that the tracks are laid on a [**11]  level higher than the bed of the alley, and, in consequence thereof, wagons, carts and vehicles cannot pass over the same. The respondents, however, deny that these tracks were laid down or constructed by them, or 

 [*245]  that they are in any manner responsible on account thereof. It is clear, then, that if the complainants are entitled to relief in this respect it must be against other parties than the defendants. The mere use of these tracks would not certainly constitute such an injury as to entitle the complainants to an injunction. In Roman vs. Strauss, 10 Md. 89, the bill alleged that the only reasonable and convenient way to the property of the complainant was across the alley,--that the defendant, by laying a railroad track across the same, had caused them irreparable injury, and by the use thereof had almost destroyed the value of their property. The case was submitted on bill alone, and the Court held that these allegations entitled the complainants to an injunction. No such averments are made in this bill in regard to the alley obstructions. On the contrary, it alleges that Nicholson street is the only reasonable and convenient [**12]  way to the complainants' property, and that it is by obstructing the right of way over the same that the value of their property is destroyed, and irreparable injury done, &c.
Thirdly.--The seven branches at Towson street.
In regard to these tracks it is sufficient to say, that the equities of the bill are expressly denied by the answer, and in the face of this denial, we cannot say, looking to the maps showing the location of the property, that the obstructions are of such a character as to justify this Court to interfere by injunction.
For these reasons, the order of the Court below granting the injunction will be reversed, and the cause remanded.
Order reversed and cause remanded. 

69 of 144 DOCUMENTS 

FRANCES JONES, Administratrix of ANDREW D. JONES, vs. GEORGE W. JONES, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 459; 1872 Md. LEXIS 91 

December 20, 1872, Decided 

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

The appellant on the 27th of July, 1872, filed her petition in the Orphans' Court of Baltimore City, alleging that since the decree of the Court of Appeals in the case of Jones, Adm'x, vs. Jones, et al. (see ante p. 447,) passed on the 20th of June, 1872, a certain Henry Jones, professing and alleging himself to be the sole and only son and heir of Andrew D. Jones, deceased, had filed his petition in the said Orphans' Court, claiming the whole of the property in her hands for distribution, and though the same had been dismissed, it might be renewed in that Court or some other. The petitioner further stated, that since the last mentioned petition, certain David Jones, Robert Jones and Andrew Jones claiming to be the children of George Jones, deceased, who was the youngest brother of her deceased husband, the said Andrew D. Jones, had also filed their petition claiming one-half of his estate, after her share as widow, was taken therefrom; that her husband in his life time spoke to her of his younger brother George; and if the said petitioners were really his children, and she had no reason to doubt that they were, they were equally [**2]  entitled, under the decision of the Court of Appeals in Jones, Adm'x, vs. Jones, et al., to an equal share in the estate of her intestate, with the children of his elder brother, David Jones; that the children of George Jones were not apprised of the former proceedings in this Court, were not parties thereto, nor bound thereby. The petitioner prayed the Court to appoint a day, under the provision of Article 93, sec. 143 of the Code of Public General Laws, for the meeting of persons entitled to shares of the estate, so that distribution might be made according to law.

On the 30th of July, 1872, the Court passed an order dismissing the petition, upon the ground that the Court of Appeals by its decree in the case of Jones, Adm'x, vs. Jones, et al., had not only settled who were the distributees of the estate of Andrew D. Jones, deceased, but had gone further and said what their interest was; and therefore to grant the prayer of the petition would be to treat the authority of the Court of Appeals with contempt.

From this order the present appeal was taken.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Construction of a Decree of the Court of Appeals -- Article 93, section 143, of the Code -- Distribution of an Intestate's Estate.

The Court of Appeals decided in a case before them, that the marriage of a certain David Jones and Hannah Williams was valid, and that their children were entitled to one-half of the estate of Andrew D. Jones, deceased, as his nephews and nieces. Shortly afterward, the administratrix and widow of the deceased Andrew, filed a petition in the Orphans' Court of Baltimore city, alleging that other persons, who were not parties to the proceedings in the Court of Appeals, had filed their petition in said Orphans' Court, alleging themselves to be the children of the youngest brother of her intestate, and claiming to share in his estate. The administratrix prayed the Court to appoint a day in virtue of Article 93, section 143, of the Code, for the distribution of the estate among those entitled. The Court dismissed the petition on the ground that the Court of Appeals by its decree, had not only determined who were the distributees of the intestate's estate, but also their interest, and that such decree was final. On appeal from the order dismissing the petition, it was HELD:

1st. That the decree of the Court of Appeals in so far as it determined that the marriage of David Jones was valid, and that his children were entitled to inherit from the intestate as his nephews and nieces, was final; but upon the question of distribution, it was final only in the event of the claimants of the estate remaining unchanged, and the same as presented in the case in which the decree was passed, until the administration was legally closed.

2d. That if other claimants appeared after the decision of the Court of Appeals, the Orphans' Court should hear and pass upon the merit of their claims, so that the estate might be distributed to the "next of kin," according to their rights under existing laws.

3d. That the administratrix was entitled to have such orders passed upon her petition, as would enable her to make a proper distribution of her intestate's estate among those entitled.  

COUNSEL:
George H. Williams, for the appellant, argued

That this Court, in affirming [**3]  the order of the Orphans' Court hereinbefore, were not determining, and did not mean to determine the distributive shares of the estate due respectively to various claimants, but merely that the appellees were nieces and nephews of the intestate, and entitled to such shares as nephews and nieces would be entitled to, having reference to other claimants. Here a son springs up, also other nephews and nieces. If the son establishes his rights, those appellees would be entitled to nothing, and the distributive order would be a nullity. If the son fails, and the other nephews, recently appearing, establish theirs, and as no one denies that they are such, then those appellees are reduced to one-fourth of the estate instead of one-half.

The decree of the Court did not bind these new claimants; they were not parties to the proceedings, and the appellees in the former case have no right to bar and ignore their claims under a novel use of the defence of res adjudicata. No such issues as have been since made were for decision then. Here an administratrix wishes to distribute fairly and honestly, and for protection wants a warning order of publication, notifying every one to appear. The Article [**4]  93, sec. 143, of the Code, expressly provides what she is entitled to have. State vs. Boyd, 2 G. & J., 365.

There having been no distribution in fact made when the new claimants appeared, and application having been made to the Orphans' Court for a notice of publication in due time, warning all persons interested to appear, it was the duty of the Orphans' Court to rectify any mistake that there might be in their former order, notwithstanding its affirmance by this Court, which was merely a declaration of the correctness of the order passed by the Orphans' Court upon the then existing state of the case as presented to this Court. Shultz vs. Houck, Ex'r, 29 Md., 27.

The Orphans' Court could not receive new evidence to show the appellees in the former case not to be nephews and nieces; that the Court of Appeals had settled; but they meant to settle nothing else, for nothing else was before them.

Wm. Shepard Bryan, for the appellees.

The decree of the Court in the case referred to in the petition of the appellant, is conclusive upon all the parties to the record. The petitioners in that case alleged that Andrew D. Jones did not leave any child, or brother or sister,  [**5]  or any descendants of brother or sister except themselves. If they had failed to establish this averment in all its parts, they would so far have failed to make out their case, and their petition would either have been dismissed, or they would have recovered a smaller portion of their uncle's estate.

The present appellant resisted their claim in toto, and sought to prove by witnesses that her husband left no relations. In the former case she was not attempting to protect the rights of these pretended relations, but was claiming the whole estate for herself, while the petitioners in that case were claiming one-half. They prevailed in the controversy. The decree is binding on Frances Jones in all its integrity.

If other persons claiming to be distributees, file petitions against her, she must litigate the question with them, and not with those who have already succeeded.

She cannot have a bill of interpleader after a decree has passed against her at the suit of one of the parties. Union Bank vs. Kerr and Glenn, 2 Md. Ch. Dec., 460; Cornish vs. Tanner, 1 Younge & Jervis, 333.

Whether she can protect herself against other claimants, will depend on the question whether [**6]  she has acted bona fide. Charlotte Hall School vs. Greenwell, 4 Gill & Johns., 407. With this question the former petitioners, George W. Jones and others have no concern.

In her petition to the Orphans' Court, she states that all parties recognize the share to which she is entitled as widow, and the object of the petition seems to be to distribute shares of the estate, and not the whole of it.

Henry Jones' claim is based upon a total denial of her title as widow.  

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

OPINIONBY:
BRENT 

OPINION:

 [*463]  BRENT, J., delivered the opinion of the Court.
In passing the order of the 30th of July last, from which this appeal is taken, the Orphans' Court understood the decision of this Court upon a former appeal in a more extended and conclusive sense than was designed. In that case the decision rested only upon the state of facts then presented by the record. The real question presented was the marriage of David Jones, the brother of the intestate Andrew D. Jones, with Hannah Jones, and the legitimacy of their children. If the marriage was valid in law, the children were legitimate, and of consequence entitled [**7]  to inherit from the intestate as nephews and nieces. In regard to this marriage and the relationship of the parties, the decree of this Court is final. But upon the question of distribution, the decision was final only in the event of the claimants to the estate remaining unchanged, and the same as presented in that record, until the administration was legally closed. If there were others, not parties to this proceeding, their interest in the estate could not be bound. So long as the estate was unadministered, the administratrix had the right to take such steps as were authorised by the testamentary law for its proper and final administration and distribution. Among these was the appointment of a day for the meeting of persons entitled to a distributive share of the estate, so that distribution might be made under the Court's direction and approval. 1 Code, Art. 93, sec. 143. If other claimants, since the former decision of this Court, have appeared, it is proper that the Orphans' Court should hear and pass upon the merit of their claims, so that the estate may be distributed to the "next of kin" in such proportion as they may be entitled under existing laws.
The case is properly [**8]  before the Orphans' Court, upon the petition of the administratrix, Frances Jones, filed on the 

 [*464]  27th day of July last, and we think she is entitled to have such orders passed under it, as will enable her to make a proper distribution to those entitled.
The order of the Court, passed on the 30th of July last, dismissing her petition, will therefore be reversed, and the case sent back, that the necessary orders may be passed for a final distribution of the estate to those who may be found entitled according to the degree of their relationship.
Order reversed and cause remanded. 

70 of 144 DOCUMENTS 

THE MAYOR AND COUNCIL OF HAGERSTOWN vs. NATHANIEL SEHNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 180; 1872 Md. LEXIS 118 

December 20, 1872, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Validity of the Act of 1867, chapter 282, amending section 2 of Article 82, of the Code, entitled "Riots" -- Power of the Legislature over the Counties, incorporated Towns and Cities of the State -- Retrospective Laws.

On the 4th of May, 1867, an action was brought under the provisions of Article 82, of the Code, entitled "Riots," against the Mayor and Council of Hagerstown, a municipal corporation, by a citizen of the town, to recover damages for injury to his hardware store, situated within the corporate limits of the town, and for the destruction, injury and taking away of his goods, and other personal property therein deposited, done by riotous and tumultuous assemblages of people on the nights of the 24th and 25th of May, 1862. Article 82 of the Code fixed no limit of time within which suits under its provisions might be brought. The defendant, besides "not guilty," pleaded that the cause of action had not accrued within three years before suit instituted. The plaintiff demurred to the plea of limitations; and joined issue on the plea of "not guilty." Before the institution of the suit, the Act of 1867, chapter 282, was passed, amending the second section of Article 82, of the Code, by providing that suits might be brought for any cause of action which had theretofore arisen under the first section of the article, within five years from the time of its accrual, and not after. It was urged against the demurrer that the Act of 1867, chapter 282, was invalid, as taking from the defendant the vested right to plead the pre-existing limitation of three years in bar of the suit. HELD:

1st. That no such vested right existed in the defendant, and that the Act of 1867, chapter 282, was not invalid because its ultimate effect might be to subject the tax-paying inhabitants of the municipality to increased taxation.

2nd. That the power of the Legislature to impose a liability upon the counties, incorporated towns and cities of the State, for injuries done to property by riotous and tumultuous assemblages, as provided in Article 82 of the Code, carried with it the power to direct and determine the time and manner in which such liability should be enforced, and the Act of 1867, chapter 282, was therefore valid.

Between private citizens and counties, incorporated towns or cities of the State, there is a wide and substantial distinction with respect to vested rights protected from legislative power. Such public bodies are public corporations created by the Legislature for political purposes, with political powers to be exercised for purposes connected with the public good in the administration of civil government. They are instruments of government subject at all times to the control of the Legislature with respect to their duration, powers, rights and property. It is of the essence of such a corporation that the government has the sole right as trustee of the public interest, at its own good will and pleasure, to inspect, regulate, control and direct the corporation, its funds and franchises.

The Legislature of this State having the right to pass retrospective laws so far as they relate to civil cases, the retrospective character of the Act of 1867, chapter 282, does not affect its validity.  

COUNSEL:
George Freaner and Attorney General Syester, for the appellant.

The right to plead the Statute of Limitations to a cause which has become completely barred, is a vested right--a right to which a party may adhere, and upon which he may insist, without violating any principle of sound morality.

The Legislature can constitutionally extend the time of limitation if the cause of action be not already barred. Wenston vs. McCormick, 1 Smith, (Ind.,) 8; Royce vs. Hurd, 24 Vt., 620; Henry vs. Thorpe, 14 Ala., 103; and Angell on Limitations, Par. 23 and notes; because no right to plead the Statute having accrued, the party is presumed to be in possession of, and to have retained his proofs and muniments of defence, and being notified of the extension, could retain them until the extended period had elapsed. This power is conceded because of the acknowledged authority and control which each State has over the remedies in use in its own Courts. Girdner vs. Stephens, 1 Heiskell, 280.

But where the Statute has become a flat bar, under pre-existing laws,  [**2]  it is beyond the constitutional power of the Legislature to pass an Act extending the time. The right to plead the Statute, then, becomes a vested and valuable right, and is beyond the reach of any retrospective legislation, no matter how definite in its terms and purposes and expressions. Cooley on Const. Lim., 357, 365, 369, et seq.; Potter's Dwarris on Stat. and Const. Law, 164 to 167, and notes; 2 Hilliard on Real Property, 163 and 164; Sedgwick on Stat. and Const. Law, 659; Angell on Limitations, 22 and 23, note; Wright vs. Oakley, 5 Metcalf, (Mass.,) 400; Joy vs. Thompson, 1 Doug., (Mich.,) 373; Hawkins vs. Campbell, 1 Eng., (Ark.,) 513; Couch vs. McKee, 1 Eng., 484; Robb vs. Harlan, 7 Barr, (Penn.,) 292; Forsyth vs. Ripley, 2 Greene, (Iowa,) 181; McKinney vs. Springer, 8 Black, (Ind.,) 506; Davis vs. Minor, 1 Howard, (Miss.,) 183; Wires & Peck vs. Farr, 25 Vt., 41; Davis vs. O'Ferrell, 4 Greene, (Iowa,) 168; Society for Prop. Gospel vs. Wheeler, 2 Gallison, 105; Holden vs. James, 11 Mass., 396; 2 Paine C. C. R., 517.

Vested rights are not confined to a party's title to property alone; they are not applicable only and solely to tangible things. A vested right of action is [**3]  property in the same sense in which tangible things are property, and equally protected against arbitrary interference. Griffin vs. Wilcox, 21 Ind., 370; Norris vs. Doniphan, 4 Met., (Ky.,) 385; Streuble vs. Mil. & Miss. R. R. Co., 12 Wis., 67; Clark vs. Clark, 10 N. H., 380; Westervelt vs. Gregg, 12 N. Y., 211; Burch vs. Newbury, 10 N. Y., 374.

In the case at bar, the appellant, under the law, enjoyed a complete and perfect immunity from all accountability in the premises. Its right to the defence of the Statute of Limitations was as perfect, and complete, and as well assured, as was the right to institute his action assured in the beginning to the appellee. The appellant's right to set up the defence, depended alone and exclusively on its own will, and was dependent on no other power.

By the exercise of that right, it could defend and protect its property, and the estates and property of its inhabitants, its treasure, and the money of the people, in a full, ample and unquestioned manner, and the assurances of this right were as strong and as valuable as any on which persons or parties can possibly rely.

By his laches the appellee lost his right to maintain his action--it [**4]  was utterly extinguished--simply and only because the very instant he lost his right, another and countervailing right in the appellant was fixed and established by law, to wit, the right to set up the Statute as a defence. The right to set up the Statute depended alone on the will and disposition of the appellant. No subsequent acknowledgment of the appellant could be relied on by the appellee to re-invest him with the right and power he had lost, or divest the appellant of the defence and immunity it had acquired, and with which the law clothed it as a protection to its treasure, and the property and money of its people, for no new promise, no acknowledgment, revives a right of action in torts. Galligher vs. Hollingsworth, 3 H. & McH., 122; Hurst vs. Parker, 1 Bar. & Ald., 92; Short vs. McCarthy, 3 Barn. & Ald., 626.

By the operation of law the appellant was as effectually released from this demand as if he had actually satisfied it; and so long as the appellant saw fit to stand on the defence which the Statute of Limitations gave it, it was a remedy and answer to the demand of the appellee, so effectual, so complete, so ample and perfect, that not even its own promise and acknowledgment [**5]  could be set up as a waiver of the defence. And in this respect the rights, remedies and defences with which it stood armed, were as perfect, complete, ample and effectual as if it had actually paid the full extent of the demand. It was actually released and exonerated from any further accountability.

If the right to plead the Statute to the appellee's cause of action had become complete--a vested right--one that could be maintained without violating any principle of sound morality, then the Act of 1867, chapter 282, was an unconstitutional exercise of power, because retrospective and destructive of this right. 1 Kent Com., 511, and notes; Potter's Dwarris on Stat., 163 to 166; Cooley on Con. Lim., 369, 370; The People vs. Livingston, 6 Wendell, 531; Broom's Legal Max., 28; 2 Paine's C. C. Rep., 517; Girdner vs. Stephens, 1 Heiskell, 280; Baugher, et al. vs. Nelson, 9 Gill, 299; Wilderman vs. Mayor, &c., of Balt., 8 Md., 551; Sedgwick on Stat. and Const. Law, 406 and 407.

The Legislature has no more power to deprive a corporation--a municipal corporation--of a vested right, by a retrospective law, than it has to take it away from an individual. A municipal corporation, such [**6]  as the Mayor and Council of Hagerstown, is a public corporation, created for public purposes, and is invested with the exercise of a portion of the State's sovereignty within its corporate limits. The exercise of this delegated sovereignty, or any of its chartered functions or powers, is completely subject to legislative control. New powers may be conferred, old ones may be taken away, abridged or enlarged.

Its corporate existence may be destroyed by the repeal of its charter, but there the original sovereignty of the Legislature ceases. Whatever rights of property it may have acquired under laws in force during its existence, or whatever vested and valuable incorporeal rights may have accrued to it, are as much protected from legislative confiscation as those of individuals. It has no "vested right" in any of its corporate functions or delegated sovereignty as against the State; but as against individuals, whether corporators or strangers, rights acquired under existing laws are as much protected by the guarantees of the Constitution and fundamental law, as those of individuals. Public corporations are to be governed according to the laws of the land. Regents &c. vs. Williams,  [**7]  9 G. & J., 401; State, use of Wash. Co. vs. Balt. & O. R. R., 12 G. & J., 440; Terrett vs. Taylor, 9 Cranch, 44; 2 Kent Com., (11th Ed.,) 305; The Town of Pawlet vs. Clark, et al., 9 Cranch, 292.

The corporate name of the appellant is the "Mayor and Council of Hagerstown," and as such it appears upon the record, but in contemplation of law, all the inhabitants of the corporation are parties to the suit, and the judgment may be enforced against the property of any corporator found within the territorial limits. Russell vs. The Men of Devon, 2 Term, 667; The King vs. The Inhabitants of Woburn, 10 East., 395; The King vs. The Inhabitants of Hardwick, 11 East., 577; Riddle vs. Proprietors of Locks, &c., 7 Mass., 187; Inhabitants of Brewer vs. Inhabitants of New Gloucester, 14 Mass., 216; Merchants' Bank vs. Cook, 4 Pick., 405; Adams vs. Wiscasset Bank, 1 Greenleaf, 361; Fuller vs. Hampton, 5 Conn., 417; Atwater vs. Woodbridge, 6 Conn., 223; Cooley on Const. Limitations, 241 to 246; 1 Greenleaf on Ev., sec. 331; 2 Kent Com., (11th Ed.,) 274.

The reason of the law being that the corporation having no corporate fund, and there being no power to compel a resort to taxation, the judgment [**8]  might otherwise go unsatisfied.

An examination of the charter of the appellants (Code Pub. Local Laws, Art. XXI, secs. 109 to 143, and supplements,) will show that they are unendowed, and that they have no power to resort to taxation to pay this judgment. Therefore, without an enabling Act, the judgment must go unsatisfied or be enforced against the property of some one or more of the corporators within its limits; and if this be correct, the Act of 1867, chap. 282, depriving the corporation of the right to plead the perfected bar of the Statute to the claim of the appellee, effectually destroys the vested right of each and every corporator to a defence, which, without this legislative interference would have protected their property from execution.

Hy. Kyd Douglas, Z. S. Claggett and Wm. M. Merrick, for the appellee.

There is no constitutional prohibition against the enlargement or suspension of the term of limitations in actions of tort. The privilege of limitations as a defence in cases of tort, is not such a vested right as will be protected by the fundamental law against the legislative power. Baugher, et al. vs. Nelson, 9 Gill, 309; Foster vs. Essek Bank, 16 Mass.  [**9]  , 245.

The defence under the Statute of Limitations in an action of tort, is but a favor granted by the Legislature, and no individual (a fortiori no corporation) can have a vested right in a legislative indulgence. Welch vs. Wadsworth, 30 Conn., 149; Curtis vs. Leavitt, 15 N. Y., 9; Commonwealth vs. Bird, 12 Mass., 443.

A Legislature has gone to the extent of granting a new trial, after the Court had refused to do so under its rules, and after the term had passed, and the right of one of the parties to property, by virtue of the judgment in the case, had become vested. And the Supreme Court of the United States sustained the Act. Calder, et ux. vs. Bull, et ux., 3 Dallas, 386.

The plea of limitations is a plea to the remedy and is not to the merits--it is not amendable, and is not favored by the Courts. Kunkel vs. Spooner, 9 Md., 462; Farmers' Bank of Maryland vs. Sprigg, 11 Md., 389; Nelson and wife vs. Bond, 1 Gill, 218; McCann, et al., Admrs. vs. Sloan & Caldwell, 25 Md., 575.

But assuming that the Legislature have not the power to deprive an individual of a perfected bar by limitations to an action of tort, the principle has no application to the class of cases [**10]  embraced by the Act of 1867, chap. 282, because the statutory liability, under the Act, is a liability of counties, cities and towns, all of them public political corporations, parts of the State itself, created and existing, at the pleasure of the Legislature, solely for the public good; and at all times subject to its control in respect to their duration, powers, rights and property. All the so-called vested rights, and all the contracts of such corporations, are subject to the disposing power of the Legislature, and are outside the protection of the Constitution of the United States, or of the fundamental law of the State. Such corporations are but the children of the State, subject, in all respects, to its jurisdiction and power. State, use of Washington County, vs. Balt. & Ohio R. R., 12 Gill & John., 436 to 442; Angell on Corporations, sec. 31, and note 4, and authorities there cited; Regents, &c. vs. Williams, 9 Gill & John., 401; Cooley on Cons. Lim., 192; Regents, &c. vs. Williams, 9 Gill & John., 400; Trustees Dartmouth College vs. Woodward, 4 Wheat., 518; Argument of Danl. Webster, Webster's Speeches; Terrett, et als., vs. Taylor, et als., 9 Cranch, 52; People vs. Morris,  [**11]  13 Wend., 331; People vs. Wren, 4 Scammon, (Ill.,) 273; City of St. Louis vs. Allen, 13 Mo., 414; Allen vs. McKeen, 1 Sumn., (Circ. Ct.,) 276; Davidson vs. Mayor, &c., of N. Y., 27 How. Pr., 342; Abbott's Digest Law of Corporations, title "Charters," secs. 158 to 171.  

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

OPINIONBY:
MILLER 

OPINION:

 [*188]  MILLER, J., delivered the opinion of the Court:
This action was instituted by the appellee against the Mayor and Council of Hagerstown, a municipal corporation, on the 4th of May, 1867; to recover damages for injury to his hardware store situated within the corporate limits of said town, and for the destruction, injury and taking away of his goods and other personal property therein deposited, done by riotous and tumultuous assemblages of people on the nights of the 24th and 25th days of May, 1862. The suit, in form an action on the case, was brought under the provisions of Article 82 of the Code, which is a codification of the Act of 1835, ch. 137. The constitutional validity of this law has been recognized by several decisions of this Court, and was in no wise assailed in this case. Its provisions are [**12]  familiar and need not be here stated at length. It is only necessary to say that it fixes no limit of time within which suits under it may be brought and prescribes no form of action for the injured party, but simply declares that "the full amount of the damage so done shall be recoverable by the sufferer or sufferers by suit at law against the county, town or city within whose jurisdiction such 

 [*189]  riot or tumult occurred," "and that in any suit under this Article, the plaintiff may declare generally and give the special matter in evidence."
The defendants besides non cul. pleaded that the cause of action did not accrue within three years before suit instituted. The plaintiff demurred to the plea of limitations and that demurrer was sustained. The verdict and judgment were in favor of the plaintiff upon issue joined on the plea of "not guilty," and this appeal by the defendants presents the single question, was the demurrer to the plea of limitations rightfully sustained by the Court below?
Before this suit was instituted, the Legislature had passed the Act of 1867, ch. 282, amending the second section of Article 82 of the Code, so as to provide "that any cause of [**13]  action that may have heretofore arisen under the first section of this Article shall be prosecuted within the period of five years from the time of such cause accruing, and not after; and all causes under the first section hereafter accruing, shall be prosecuted within the period of three years from the time of the accrual of the same."
The suit having been brought more than three and less than five years after the cause of action accrued, the power of the Legislature to extend the time of limitations in such cases is the question to which most of the very able and elaborate arguments of counsel both oral and written have been addressed. The Court has encountered great difficulty in arriving at a satisfactory determination of this question, and it was in consequence of this difficulty that a re-argument was ordered at the last term. It has now become our duty notwithstanding the embarrassments which still surround it, to dispose of the case.
To determine the statute to be invalid, it must of course be assumed that the existing law of limitations in 

 [*190]  Article 57 of the Code, was applicable to actions like the present. It cannot be said however, in view of [**14]  the decisions in French vs. O'Neale, 2 H. & McH. 401, and Keedy vs. Newcomer, 2 Md. 19, that, that question is entirely free from doubt.
The annulling of this Act must also assume that it is not within the scope of legislative power to pass a law which will have the effect to revive, as between private individuals, a cause of action which was completely barred by limitations before its passage. It must be conceded that the weight of authority elsewhere sustains this proposition. Cooley's Cons. Lim., 369. But it is not clear that the Maryland decisions would allow of its adoption here. They have not yet gone to that extent, and what has been said by this Court in Baugher vs. Nelson, 9 Gill 299, would present a serious obstacle to that result, at least so far as actions arising ex contractu are concerned. But upon this point we express no opinion for assuming this position to be sound, and that laws thus operating upon causes of action between private individuals are inoperative and void, still we are of opinion after the best consideration we have been able to give the subject, that this Act is of such a character [**15]  that its validity must be sustained.
Before considering what its true character is it may be well to recur briefly, to some of the well settled principles which govern Courts when dealing with grave questions of this kind. They are always regarded as the most important that can be submitted for adjudication. It is certainly an attribute of judicial tribunals in this Country, to annul an Act of the Legislature when it is manifest that in passing it, the Legislature have violated or abused the powers granted to them by the people. But this high power is to be exercised with the most guarded circumspection and care. An Act emanating from a co-ordinate branch of the Government is presumed 

 [*191]  to be valid, and all agree that it is incumbent upon those who assail a Statute on the ground of its invalidity, to make out a clear case of legislative usurpation. 9 Gill 299, 304. The usual grounds of attack are alleged infringements of some of the express or necessarily implied inhibitions of the Constitution of the State or of the United States; but even with respect to such objections the Courts have uniformly declared they would not, in any doubtful case, pronounce [**16]  an Act of the Legislature void. 15 Md. 376, 389; 12 G. & J., 438. No objection of this kind is made to the present law. But it is said that independent of such constitutional restrictions "there is a fundamental principle of right and justice inherent in the nature and spirit of the social compact, the character and genius of our government, the causes from which they sprang and the purposes for which they were established, that rises above, and restrains, and sets bounds to the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative power." 9 G. & J. 365, 408. Extreme cases of such legislative usurpations may, and sometimes do, occur where there would be no redress for the citizen, unless there resided in the judicial Department of the Government, the power to declare them void, and where no protection could be found, save in an honest and fearless exercise of that power by the Courts. Retrospective laws which have the effect to divest parties of vested and [**17]  valuable rights, are generally stated as instances of such usurpation. But it is not an easy matter to determine what the vested rights thus protected are. No clear, definite or comprehensive rule on that subject is to be found. By the current of decisions in other States the right to plead the Statute of Limitations when it has once run and become a bar to a demand arising either ex contractu or ex 

 [*192]  delicto, is treated as a vested right, beyond the reach of retrospective legislation. In Baugher vs. Nelson, it is said "when vested rights are spoken of by the Courts, as being guarded against legislative interference, they mean those rights to which a party may adhere, and upon which he may insist without violating any principle of sound morality. There can be no vested right to do wrong. In the nature of things there can be no vested right to violate a moral duty, or to resist the performance of a moral obligation." In that case a retrospective law which deprived a party of the right to avoid a contract of loan by pleading in bar of the action thereon, the Statute of usury, in force at the time the loan was made and the contract created, was sustained as valid [**18]  and as interfering with no vested right. Whether there exists any well founded distinction between the right to a defence of this character, and the right to plead limitations is a question that need not now be discussed. Nor is it necessary for the purposes of this case to enter upon an enquiry into the nature and effect of limitation laws in their operation upon cases of contract and tort, whether in both they merely operate upon and affect the remedy, or in the latter, strike down and extinguish the right. Our judgment proceeds upon a different and distinct ground.
All the cases to which we have been referred, or our own researches have disclosed, are suits or actions between individuals, and all the legislation declared null and void on this ground, has been such as operated directly upon and divested rights vested in private persons or private corporations. Such is not the character or effect of the law here assailed. It is not directed against individuals or private corporations. It applies to the counties, incorporated towns and cities of the State, and to all of them. Between these public bodies and private citizens, there is a wide and substantial distinction, with respect [**19]  to vested rights protected from 

 [*193]  legislative power. They are public corporations created by the Legislature for political purposes, with political powers, to be exercised for purposes connected with the public good, in the administration of civil government.
They are instruments of government subject at all times to the control of the Legislature with respect to their duration, powers, rights and property. It is of the essence of such a corporation, that the government has the sole right as trustee of the public interest, at its own good will and pleasure, to inspect, regulate, control and direct the corporation, its funds and franchises. These are the unquestioned general doctrines on this subject, sustained by all the authorities.  9 G. & J. 365, 397, 401; 12 G. & J. 399; 15 Md., 462, 490 to 492. In the case of East Hartford vs. Hartford Bridge Co., 51 U.S. 511, 10 How. 511, 534, 13 L. Ed. 518, the Supreme Court in speaking of Towns, declares them to be "mere organizations for public purposes, liable to have their public powers, rights and duties modified or abolished at any moment by the Legislature.  [**20]  They are incorporated for public, and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts; hence, generally, the doings between them and the Legislature are in the nature of legislation rather than compact, and therefore to be considered as not violated by subsequent legislative changes."
Indeed, in view of the doctrines thus broadly and distinctly announced, it would be difficult to conceive how such corporations could have conferred upon them or could acquire any vested rights not subject to legislative control. The case of State, use of Washington County vs. The Baltimore & Ohio Rail Road Company, 12 G. & J. 399, is a very instructive one, as to the power the Legislature may exercise over the supposed 

 [*194]  rights of such corporations. The Legislature in an Act to promote internal improvements, had inserted a proviso, that if the railroad company did not locate their road so as to pass through Hagerstown, they should forfeit one million of [**21]  dollars to the State, for the use of Washington County. The company failed to make the designated location, and suit was then brought against them in the name of the State, for the use of the county, to recover this sum. The Legislature then passed an Act releasing this forfeiture, and directing all suits against the company for its recovery, to be discontinued. The validity of this latter Act was assailed, but was sustained by the Court. After announcing some of the general doctrines above stated, in that part of their opinion where they treat the case as one of contract, and not of penalty, they say in this view of the case, "it is material to consider who are the contracting parties, and in what relation does the cestui que use stand to the legal plaintiff on the record? The contracting parties are the State on the one part, and the railroad company on the other. The consideration of the contract were the franchises and privileges derived by the company from the State, and the cestui que use is one of the counties of the State, claiming an interest incidentally in her political character and capacity, in virtue of one of the provisions contained in that contract.  [**22]  The State for reasons which she deemed sufficient, has thought proper, by an Act of her Legislature, to annul the contract and release the claim of the cestui que use, which this action has been instituted to enforce. In doing so, the Legislature have not transcended their constitutional limits. Washington County by which the claim is attempted to be enforced, is one of the public territorial divisions of the State, established for public purposes, connected with the administration of the government. In that character she would receive the money as public property, to 

 [*195]  be used for public purposes only, and not for the use of her citizens in their private individual characters and capacities. In that relation they would have no immediate interest, and could assert no title. She is one of the instruments of the government, invested with a local jurisdiction, to aid in the administration of public affairs, and may be emphatically termed a part of the State itself. If then it be public, and not private property, it would seem to be completely at the disposal of the government, and the Act of 1840, was nothing more than a rightful exercise of legislative power. [**23]  " This judgment was affirmed by the Supreme Court, in 3 How., 534, where it was held that by the repealing Act, the Legislature had dealt altogether with matters of public concern, and had interfered with no private right, because neither the County Commissioners nor the county, nor any one of its citizens, had acquired any separate or private interest in this money, which could be maintained in a Court of justice. These citations are made more especially for the purpose of clearly showing that no rights of individual citizens which the Courts can notice or protect, are invaded by such legislation, though their interests may be indirectly affected by it.
How then stands the case before us? The Legislature, by the Act of 1835, embodied in the Code, had made these public corporations liable to be sued by the injured party, for neglect on the part of the corporate or municipal authorities to use due and reasonable diligence in exerting the powers with which the law had clothed them for the prevention or suppression of riots or mobs, by which individual citizens might suffer loss or injury. The power of the Legislature to impose this liability has not been [**24]  questioned. Nor does it appear to be an arbitrary, unreasonable or unqualified requirement, for it carefully provides that "no such liability shall be incurred, by any county, incorporated town or city, unless 

 [*196]  the authorities thereof shall have had good reason to believe that such riot or tumultuous assemblage was about to take place, or having taken place, shall have had notice of the same in time to prevent the injury or destruction either by its own police or with the aid of the citizens of such county, town or city, it being the intention of this Article that no such liability shall devolve on such county, town or city, unless the authorities having notice have also the ability of themselves, or with their own citizens, to prevent the injury; and in no case shall indemnity be received when it shall be satisfactorily proved that the civil authorities and citizens of such county, town or city, when called on by the civil authorities, have used all reasonable diligence, and all the powers entrusted to them, for the prevention or suppression of such riotous or tumultuous assemblages." That law was in force when the Act of 1867 was passed, which provides that suits may be [**25]  brought for causes of action that may heretofore have arisen under this existing law within five years from the time of their accrual and not after. The objection is that this takes away a vested right to plead the pre-existing limitation of three years in bar of the suit. But by whom is this objection made? Not by any one to be personally bound by the judgment, or whose property can be levied on and seized in execution for its satisfaction or on which it can operate as a lien, but by a public municipal corporation created by the Legislature for public purposes, charged with the duty and invested with the power to protect the property of the citizen, and deriving its existence and discharging its functions at the will and by the direction of the supreme legislative power of the State. That is the party which asserts as residing in itself, in its public corporate capacity, this vested right beyond the control of its creating and governing power. In our judgment no such vested right exists in the appellants, and were 

 [*197]  it not for the rights and interests of the tax-paying inhabitants of the municipality lying behind, and which may be indirectly but ultimately affected [**26]  by this law, there would be no difficulty in the case. But after the most careful consideration of that question, we are of opinion the law is not invalid because its ultimate effect may be to subject them to increased taxation. That might be a strong argument when addressed to the Legislature against the wisdom and policy of such legislation, but with that the Courts have no concern. They can pass no effective judgment upon that question. Their province is to determine the naked question of legislative power, and upon this alone must the law stand or fall. The tax-payers are not parties to this suit; their property is not bound by the judgment and cannot be taken in execution for its satisfaction. They can be reached and their interests affected only by and through an exercise of the taxing power conferred upon the corporation, which could have been exerted to the same extent for the prevention as for the satisfaction of the injury complained of. This indirect and contingent interest or responsibility does not amount to a vested right which the Courts can recognize and protect against a positive enactment of the Legislature, lawfully imposed upon the corporate body whose constituents [**27]  they are. In our judgment the power of the Legislature to impose the liability in the first instance carries with it the power to direct and determine the time and manner in which it shall be enforced. A different state of case would be presented if the Legislature had in the first instance imposed a direct tax, or commanded these corporations to impose one, upon the people of any particular town, county or city of the State, in order to make compensation for past injuries of this character. The Legislative records of this and other States contain statutes which were intended to, and in effect did, impose or enforce taxation of this 

 [*198]  description; but it does not appear that any question as to their validity has ever been raised and determined by the Courts, and it is not our duty now to express any opinion upon that question. Our duty in this case is simply to pass upon the validity of the law before us, and for the reasons already stated, we determine it to be valid; we cannot pronounce it an instance of legislative usurpation of power. It is to be observed the clause of the statute we have considered, is so clearly retrospective in its terms as not to admit of any construction [**28]  to the contrary. But that fact alone is no objection to its validity. There is no provision in the Declaration of Rights or Constitution of this State, or of the United States, prohibiting the passage of retrospective laws affecting civil causes. The decision by Judge STORY in 2 Gall. 105, 139, 22 F. Cas. 756, is based expressly upon a provision of the Bill of Rights of New Hampshire, denouncing retrospective laws "either for the decision of civil causes or the punishment of offences." The corresponding provision in our Declaration of Rights is by its terms confined to retrospective criminal or ex post facto laws, and this has been regarded as a recognition of the right of the Legislature to pass retrospective laws so far as they relate to civil cases and contracts.  9 Gill 299, 306.
Judgment affirmed. 

71 of 144 DOCUMENTS 

HENRY R. HAZLEHURST, and others vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 199; 1872 Md. LEXIS 119 

December 20, 1872, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Power of the City of Baltimore to Condemn the Right of Wharfage on a Street -- Construction of Acts of 1796, chap. 45, 1801, chap. 92, and 1805, chap. 84, and of Ordinance of 1869, No. 7, of Baltimore City -- Jurisdiction of Equity where the Street Commissioners of Baltimore assess Excessive Damages or proceed irregularly.

The Acts of 1796, chapter 45, 1801, chapter 92, and 1805, chapter 84, authorized the owners of lots binding on Light street, in Baltimoee, to extend wharves into the basin to a certain line, and provided that sixty 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." The Ordinance of 1826, chapter 12, section 3, declared that it should not be lawful to encroach upon these wharves with any article landed thereon further than eighteen feet, measuring from the inner edge of the logs or stones of which they are formed; but it did not appear that this Ordinance was ever enforced. By the Ordinance of 1869, No. 7, of the City Council of Baltimore, the Street Commissioners were directed "to condemn and widen all that part of Light street between Pratt and Lee streets: the said widening to be made twenty feet eastwardly from the eastern side of said street." The powers and duties of the Street Commissioners are defined in the Ordinance of 1866, chapter 26, the 17th section of which provides that they shall be allowed ninety days to complete any proceedings commenced by them under that, or any future, Ordinance; and, if they cannot so complete the same, they shall report the fact to the Mayor and City Council, and shall suspend all further proceedings until otherwise directed. On a bill for an injunction to restrain the collection of an assessment for the condemnation of the wharfage rights of the proprietors along Light street, made under Ordinance of 1869, No. 7, it was HELD:

1st. That the Acts of 1796, chapter 45, 1801, chapter 92, and 1805, chapter 84, established an incomplete, limited and qualified highway over the wharves, leaving to the proprietors thereof the right to use as much of it as was necessary for the fair and just enjoyment of the privileges granted and reserved to them by those statutes: and it was competent for the city authorities to condemn the rights still remaining in the proprietors, and to assess the benefits arising from such condemnation on the neighboring proprietors.

2nd. That a Court of Equity will not interfere on the ground that the damages allowed and benefits assessed in the condemnation, were excessive -- the remedy of parties objecting on this ground being an appeal.

3rd. That in determining what was the eastern line of Light street in the phrase "the widening to be made twenty feet eastwardly from the eastern side of said street" occurring in the Ordinance of 1869, No. 7, reference must be had to the state of things existing at the passage of the Ordinance, and not to the highway described in the Acts of 1796 and 1805.

4th. That a Court of Equity will not interfere on the ground that the Street Commissioners failed to comply with Ordinance of 1866, chapter 26, section 17, by not completing their work in ninety days, and by completing it afterwards without first obtaining direction from the city authorities -- the remedy of parties objecting on this ground being an appeal from the action of the Street Commissioners.  

COUNSEL:
E. J. D. Cross and George H. Williams, for the appellants.

No single issue involved in Page's case exists in this, nor any contradiction of what was said in that case is intended in this; in fact, this assumes the absolute correctness of what was therein decided; and while wharfage rights are the subject of condemnation here, they are not condemned, but are continued intact, with practically a cession of fourteen feet to them out of sixty feet, which the State has declared should be and remain, as a whole, sixty feet forever.

The title to the soil covered by navigable water was in the State, and as a free gift from it, the riparian proprietors were permitted to fill out and wharf, and have an "estate upon condition," viz., that a highway of sixty feet should there exist for the public forever. The made land, wharfage, and the sixty foot highway are all to coexist, and the sixty foot highway, to its full width, is to exist before any estate or wharfage can arise; and embanking out upon the State's land binds to the performance of this condition precedent.  [**2]  

The only estate the riparian owners can have is a right to moor vessels to the edge of the wharf, and to receive fees for such use, and for the loading and unloading cargoes. Should any space for such purposes be required, then it should have been taken, then sixty feet be laid off, and then they might have erected warehouses on the residue. As it now is, what with the warehouses on the one side and those wharves as so used on the other, that which the State of Maryland declared should be sixty feet forever, has been reduced to only twenty-four feet, to which twenty feet is now to be given graciously out of their own, to a long-suffering, good-natured public, that has endorsed it--the gift being at the expense of adjoining proprietors, enormously assessed to pay for illegal encroachments. 1 Greenleaf's Cruise, (2d Ed.,) Tit. xiii, ch. 2, secs. 1 and 4; Charles River Bridge Case, 11 Peters, 546.

Embanking out binds to the performance of all conditions. Atty. Genl. vs. Christ's Hospital, 3 Brown's Chy. Rep., 165; Messenger vs. Andrew, 4 Russell R., 478, (p. 165, mgl.); 4 Kent Comm., 125; Spofford vs. Manning, 6 Paige, (N. Y.,) 288; 1 Greenleaf's Cruise, Title xiii, ch. 2, secs.  [**3]  15 and 16; Acts of 1796, ch. 45; 1801, ch. 92; 1805, ch. 84.

Should the existence of a sixty foot highway make nugatory the wharfage right, it must yield to the highway. Commonwealth vs. Erie R. R. Co., 27 Penna., 355.

The highway once having been shown to exist by the dedication as such by the State, any alteration or distinction of the rights of the public can only be effected by the power which created them. No adverse use can be claimed or set up, and no limitations can avail against the State. Washb. on Easements, 156; Commonwealth vs. Erie and Northeast R. R. Co., 27 Penna., 339, 358; Commonwealth vs. Alburger, 1 Wharton, 469, 486, 487.

No adversary possession avails against the State. Hall vs. Gittings, 2 H. & J., 112; Angell on Limitations, sec. 37.

Light street having been dedicated in perpetuity by the State as a highway sixty feet wide, the subsequent delegation by the Legislature to the City of Baltimore of the power to regulate streets, &c., within the city limits, was made with reference to and in contemplation of the former Acts. That the widening was intended to be twenty feet on the easternmost side of the street, is the natural and legal interpretation [**4]  of the Ordinance of 1869. Foster's Case, 11 Coke Rep., 63; Sedgwick on Cons. and Stats., 124; Dwarris on Stats., (Potter's Ed.,) 117; Williams vs. Pritchard, 4 Term, 2, 4; Dugan, et al. vs. Gittings, 3 Gill, 138.

The municipal authorities, as far back as Ordinance, chap. 12, 1826, sec. 3, enacted, "that it shall not be lawful for any person to encroach further on Pratt or Light street wharf, with any article landed thereon, than eighteen feet, measuring from the inner edge of the logs or stone of which the said wharves are formed, nor shall any article not subject to inspection, be permitted to remain on said wharf longer than forty-eight hours, under a penalty of ten dollars for each and every offence," &c. This Ordinance excludes the wharf proprietors from sixteen feet of the twenty feet; for which damages are now claimed, and only contemplates a right of landing on the sixteen feet mentioned. This Ordinance is in force to-day, and is embodied in the City Code, Article 22, sec. 42, p. 234.

The provisions of section 17, Ordinance 26, 1866, (p. 838, City Code,) are mandatory, and by occupying more than ninety days, the action of the Commissioners is null and void, the assessments [**5]  imposed by them are of no effect, and cannot act as liens on the property of the appellants, which can be enforced by sale.

In all cases of Courts of inferior jurisdiction, boards, commissions, bodies with delegated powers conferred by statute, where the manner of obtaining jurisdiction is prescribed by statute, and in all cases where one may be divested of his estate by proceedings under statute, the mode of proceeding is mandatory, and must be strictly complied with, or the action is null and void.

Where, in the exercise of its discretion, the city has prescribed ninety days, the power of Commissioners to occupy longer time is taken away, and they are prohibited from doing any thing further until some other thing is done, to wit: "Report to the Mayor and City Council the causes of such inability, &c.; and suspend all further proceedings until otherwise directed." Any other construction would place the municipal authorities above the laws and above their own laws.

It cannot be said that the assessments made thus are only irregularities, for an assessment made at a time when a board has no right to make the same, and when it has been ordered to stop, is a nullity. It [**6]  cannot impose a lien on, or divest title of, real estate.

The general rule as to whether statutes are "directory" or "mandatory," may be stated from the authorities, that where the words are affirmative merely, and relate to the manner power is to be exercised, and not to the limits to power; such words may be, and often have been, construed directory merely, but negative words, which go to the power and jurisdiction itself, and which prevent and forbid the exercise of a power at any other time, or in any other manner, can only be construed as mandatory. Bladen vs. Philadelphia, 60 Penna., 464; State, ex rel. Webster vs. Co. Commissioners of Balt. Co., 29 Md., 516, 523; Commissioners of Public Schools of Allegany Co. vs. County Commissioners, 20 Md., 449; Ellicott vs. Levy Court, 1 H. & J., 360; Kerr vs. State, 3 H. & J., 560; State vs. Merryman, 7 H. & J., 79; George Douglass, 46 N. Y., 42, 44; Staylor vs. Hallings, 7 Indiana, 144, 147; Dawson vs. Gill, 1 East., 62, 70; Pond vs. Myers, et al., 3 Mass., 230, 231; Thames Mfg. Co. vs. Lathrop, 7 Conn., 555.

Chas. J. M. Gwinn for Johns Hopkins, one of the appellants.

The Mayor and City Council derived their sole authority [**7]  to enact the Ordinance of 1869 from the provision of the Code of Pub. Local Laws, Art. 4, sec. 837. The Commissioners for Opening Streets had in their turn no other power to act in the premises, than was conferred by the particular Ordinance under which their proceedings were conducted.

In a word, the Mayor and City Council are not authorized to do any act which the State, acting in the due exercise of its legislative power, has not authorized it to undertake. And the Commissioners for Opening Streets have no power to perform any act which they are not, by Ordinance, specially authorized to do.

But if they depart from that power which the law has vested in them, and assume a power over property not given them by law, then a Court of Equity must treat them, whether they be a corporation or individuals, as persons dealing with property without legal authority. 2 Joyce on Injunctions, (Ed. 1872,) 1023: Frewin vs. Lewis, 4 Myl. & Craig, 249, 254, 255.

If such persons, under pretence of an authority, which the law does give them to a certain extent, go beyond the line of their authority, and infringe or violate the rights of others, they become like all other individuals,  [**8]  amenable to a proceeding by injunction. Frewin vs. Lewis, 4 Myl. & Craig, 250.

The cases of Holland vs. Mayor & C. C. of Baltimore, 11 Md., 197; Bouldin vs. Mayor & C. C. of Baltimore, 15 Md., 18; and Mayor & C. C. of Baltimore vs. Porter, 18 Md., 301, 302, rest upon these principles.

The bill shows that the Commissioners did not, in point of fact, widen that part of Light street which lies between Pratt and Lee streets, or make said widening twenty feet eastwardly from the eastern side of the said street.

The space of sixty feet, parallel to Light street, was, therefore, by the Act of 1796, amended by the Act of 1805, made a street or highway, subject to the right of the proprietors of the wharves to enjoy the benefit and advantage of the wharfage thereof. Under these Acts the proprietors of lots bounding on the water, in this particular locality, were permitted to wharf out, extend and improve, within certain limits, the whole front of their lots, and it was declared that they should be exclusively entitled to the emoluments arising from the wharfage so made.

This was no recognition of the existing right of these proprietors to that land then covered by water,  [**9]  upon which the improvements were made. It was, on the contrary, a denial of such right, and an assertion that the right in the soil, so covered by water, then remained in the State. For if the proprietors had any right in the soil, they would not have sought an easement from the Legislature, nor would the Legislature have undertaken to confer such easement. It was, on the contrary, a grant of power to make an improvement upon soil in which the proprietors of the lots bounding on the water, had no property.

It was, in a word, the grant of an incorporeal hereditament; for of this nature such easements always are. Washburn on Easement, 2d Ed., 3, 14, 240; Schuylkill Navigation Company vs. Stoever, 2 Grant's cases, 462; Bosley vs. Susquehanna Canal, 3 Bland, 67, 68.

The grant of this incorporeal hereditament did not in fact contract the limits of the highway, dedicated by the Acts of 1796 and 1805. If these Acts made a public highway sixty feet wide, in a qualified sense, it was nevertheless, in this qualified sense still a highway sixty feet wide; for the easement did not in law, abridge the declared width. The Acts themselves show that it was their purpose that the highway [**10]  and easements should always co-exist.

When, therefore, the Commissioners for Opening Streets were directed to condemn and widen that part of Light street, to which the Ordinance of February 20th, 1869, refers, and were directed to make said widening twenty feet eastwardly from the eastern side of the said street, they had no authority to do otherwise than to make the extension from the eastern line of that street, which had been dedicated by the Act of 1796, and limited by the Act of 1805. The Act of 1805, and the Ordinance of 1869, imperatively defined the beginning line of their work.

It is not pretended that it may not be to the public advantage that such easements should be extinguished. They would be properly extinguished if the Ordinance of February 20th, 1869, was properly construed and applied. Light street might then be in fact widened, and these easements, appurtenant to the property fronting on the water, be wholly extinguished.

The proceedings of the Commissioners for Opening Streets, to which exception was taken by the bill of complaint, were not simply irregular. The law of this case is not, therefore, governed by Page vs. Mayor and City Council of Baltimore,  [**11]  34 Md., 564. For proceedings are deemed irregular, in the sense of the Court of Appeals, where the person so acting had a lawful end in view, but did not comply with the forms prescribed for the execution of the Act which was authorized to be performed. The proceedings taken in this case were, as we contend, not irregular, but wholly void from the instant of time at which the Commissioners designated the boundaries of Light street, as they would exist after that street was "widened." They were not "irregular," because they were not mistaken methods of exercising a real authority. They were void, because they were wholly beyond the scope of the authority of the Commissioners.

Albert Ritchie and I. Nevett Steele, for the appellees.

The injunction is prayed upon the ground, that Light street wharf was already a highway, and that, therefore, there was nothing to condemn.

It seems immaterial to discuss the question of where the fee simple title to the sixty feet at the end of the wharfed out property, is to be found. If it be not in the proprietors of the property which was wharfed out under the Acts of Assembly, then there is no private title to any property between Pratt [**12]  and Lee and Charles and Light streets. If the argument of complainant below be worth anything, the title to that entire block is to-day in the state and subject to patent, for the whole of it was "wharfed out" under the said Acts, and if there be no private title in the sixty feet, there is none in any of the rest. And in that block there would not even be the rights of wharfage which appertain to the sixty feet.

But, whether the proprietors have a fee, subject to the easement of a highway or not, is immaterial, because they, at all events, have "proprietory rights in the wharves liable to condemnation." Page vs. Mayor and City Council of Baltimore, 34 Md., 568.

If it be of any importance, however, to show it, the fee simple of the sixty feet did pass out of the State and into the proprietors who so wharfed out, not only by the true construction of the Act of 1796, but by the express language of the Act of 1745, ch. 9, sec. 10, which provides, that "all improvements of what kind soever, either wharves, houses, or other buildings, that have, or shall be made out of the water, or where it usually flows, shall (as an encouragement to such improvers) be forever deemed the right,  [**13]  title and inheritance of such improvers, their heirs and assigns forever.

The Act of 1783, ch. 24, did not repeal the Act of 1745, ch. 9, sec. 10. It simply (in this connection) prohibited the future construction, extension, etc., of any wharf without the permission of the Port Wardens. The Acts of 1796, 1801 and 1805, gave a legislative permission for the extension in question, and after it was made, the fee simple vested in the proprietors under the Act of 1745, even if it did not by the true construction of the Acts referred to. Such would be the operation of the Act of 1745, ch. 9. Harrison vs. Sterrett, 4 H. & McH., 540; Giraud's Lessee vs. Hughes, 1 G. & J., 249; Dugan vs. M. & C. C. of Balto., 5 G. & J., 357; Wilson's Lessee vs. Inloes, 11 G. & J., 357; The Wharf case, 3 Bl., 361; Baltimore vs. McKim, 3 Bl., 453; Casey's Lessee vs. Inloes, 1 Gill, 430.

The Act of 1745, ch., 9, sec., 10, vested the fee in the proprietors of the binding land. The Acts of 1796 and 1801, call those who should extend "the proprietors of the said wharfs." And the Court of Appeals, in Page's case says, there "are proprietory rights in the wharves liable to condemnation."

The injunction [**14]  is again prayed on the alleged ground, that the Commissioners did not complete their proceedings within ninety days. City Ords., City Code, sec., 17, p. 838.

Grant, ex gr. that this provision is mandatory, and also that it was not complied with. The complainant nevertheless, has no remedy in Equity.

Where an Ordinance altogether void is about to be enforced, Equity may restrain by injunction, but where the ordinance is valid, and there is simply some irregularity, fault, or defect, in the execution of its provisions, the remedy is on appeal by a motion to amend or quash. Page's case, 34 Md., 558; Alexander, et al. vs. M. & C. C., 5 Gill, 383; M. P. Church vs. M. & C. C., 6 Gill, 391; Richardson vs. M. & C. C., 8 Gill, 433; Mayor and C. C. vs. Bouldin, 23 Md., 330; Mayor & C. C. vs. Porter, 18 Md., 301; Mayor, &c., of Balto. vs. Eschbach, 18 Md., 281; People vs. Whiteside, 23 Wend., 277; Williamson vs. Carnan, 1 G. & J., 212; Baltimore City Code, sec. 9, pp. 834-5.

The Acts of Assembly provide that before the Mayor and City Council shall pass any ordinance, (for opening, widening, etc., of streets) at least sixty days notice shall be given of the application, &c. See [**15]  City Code, sec. 2, p. 822.

In Page's case, the alleged violation of this law was assigned as a reason in the motion to quash. The Court of Appeals clearly intimates that such was the proper proceeding, though it holds there is no evidence of the failure.

It would certainly seem, that, if the violation of the Act of Assembly, in a provision precedent to the passage of the ordinance, on account of which the ordinance itself is assailable, be properly reached by a motion to quash on appeal, the failure of the servants of the City to strictly comply with the directions prescribed by an unimpeached ordinance, might properly be reached in the same way. If it could be, then equity has no jurisdiction; and even if it had, it would not be exercised in behalf of a party who by his own laches, had lost the opportunity of going into the proper Court.

But, grant, ex. gr. that this section 17 is mandatory, that it was violated, and that equity would have jurisdiction. Still it would not issue an injunction at the suit of this complainant, because he can show no injury from the thing complained of. People vs. Mayor, &c., 2 Hill, 9; Lunt vs. Hunter, 16 Me., 9; Page's case, 564.

The [**16]  party complaining must be one "whose interests are to be injuriously affected thereby." (Page's case, 564.)

Now the act complained of, is the alleged delay of the commissioners; the party complaining is one assessed for benefits. The question of whether he was benefitted, and the amount of his benefits, were clearly questions for appeal. No appeal having been taken, it is therefore settled that he is benefitted, and in the precise amount assessed. He had ample remedy on these points in the City Court, and asking none there, he is precluded from saying here that he is not benefitted, and in the amount assessed. Not being able to deny that he ought to pay these benefits, how is he affected by the act complained of, viz: the alleged delay? He is not injured at all, but actually benefitted by having the time of payment deferred.

Equity will not favor the application of this complainant, who suffers nothing from the act complained of, in order that he may have a second opportunity to raise questions, which he failed to raise when invited to do so, or, in other words, in order that he may be relieved from consequences which he does not complain of, and which he could not set forth [**17]  in this proceeding if he would.

But the ninety days provision, is merely directory. Whether any provision of a statute be directory or not "must depend upon the sound construction of the nature and object of each regulation, and of public convenience, and apparent legislative intention." Bank of United States vs. Dandridge, 12 Wheaton, 81.

(See City Code, sec. 9, page 835, setting forth the powers of the City Court on appeal.) Sedgwick, on Stat. & Const. Law, 368; State vs. Commissioners of Balto. Co., 29 Md., 522; McPherson vs. Comptroller, 29 Md., 381.

It can hardly be necessary to notice the point, that the intention of the ordinance was to establish twenty feet of highway east of the sixty feet, through the water, that its object was to open a street twenty feet wide in front of the whole of Light Street wharf. Such a view ignores the whole of Page's case. With the ordinance, the proceedings of the Commissioners and the maps of the Surveyor before them, all showing the sixty feet in question, and the twenty feet in question, and that the twenty feet was part of the sixty feet, the counsel argued and the Court decided Page's case, as if the twenty feet were embraced [**18]  within the sixty feet, and it cannot now be well said, that the twenty feet in question are not where counsel and Court supposed them to be, but are outside of the sixty feet in the water.  

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

OPINIONBY:
MILLER 

OPINION:

 [*211]  MILLER, J., delivered the opinion of the Court.
This bill prays for an injunction to restrain the Mayor and City Council of Baltimore, and the City Collector from proceeding to collect certain benefits and assessments imposed upon the property of the complainants, for the widening of Light Street under City Ordinance No. 7, of 1869. The first section of that Ordinance, authorizes and directs the Street Commissioners "to condemn and widen all that part of Light Street, between Pratt and Lee Streets; the said widening to be made twenty feet eastwardly, from the eastern side of said street." According to our reading of the bill and understanding of the arguments of the appellants' counsel, the grounds upon which the validity of this Ordinance and the proceedings themselves are assailed, and upon which the injunction is asked, are in substance these:
1st. That the twenty feet taken for this supposed [**19]  widening are part of the public highway of sixty feet, established by the Acts of 1796, ch. 45, 1801, ch. 92, and 1805, ch. 84, and that it is beyond the scope of 

 [*212]  municipal power, either to abridge or condemn, and dedicate anew any part of the public highway, thus irrevocably made such by authority of the State itself, and over its own property.
2nd. That by the plain meaning of the Ordinance, the widening must be made from the eastern edge of the highway, as established by these Acts of the Legislature, that is to say, twenty feet into the water, eastwardly from the present water edge of the Light Street wharves, and that the Commissioners by adopting an erroneous line of commencement, have acted outside of the authority conferred by the Ordinance.
3rd. That the proceedings under this special Ordinance, are null and void, because the Commissioners did not complete the exercise of their powers and duties thereunder within sixty days, as prescribed by general Ordinance, No. 26, sec. 17, of 1866.
1st. We are unable to distinguish the first ground of objection from that stated in the fifth reason for quashing the proceedings, which was overruled by this Court in Page's  [**20]   case, 34 Md. 558. The objection then made and urged was, that Light Street wharf, from Pratt to Lee Streets, for many years prior to the passage of this Ordinance, had been and still is a public highway, having been condemned as such by the Acts of 1796 and 1805. In that case, the several Acts of Assembly bearing upon the subject, the Ordinance of 1826, ch. 12, sec. 3, and the damage plat showing what part of the locality had been used exclusively as a street, and what for the purpose of wharves only, before and at the time the Ordinance of 1869 was passed, were before the Court and pressed upon its attention. Elaborate arguments were made by counsel upon the construction and effect of these laws, and the question not unattended with difficulty, was carefully considered by the Court. Its judgment, with the reasons therefor, adverse to the objection, and 

 [*213]  sustaining in this respect the validity of the Ordinance, was deliberately formed and pronounced. The only additional matter contained in this record is proof by ancient plats, and oral testimony, as to the relative position of the land and water in 1796 and 1805, when these laws were passed. That however [**21]  furnishes but little if any aid, in determining the true construction of this legislation, and the conflicting rights of wharfage and public highway thereby created. The only useful inference deducible from it, is that the filling up and wharfing out contemplated and authorized by these laws, was a work of considerable magnitude, and must have been attended with great expense to the riparian owners and improvers.
The argument for the complainants more fully presented, perhaps, in this than in the former case, is that the title to the soil covered by navigable water was in the State, and by these laws and as a free gift from it, the riparian proprietors were permitted to fill out and wharf and have "an estate upon condition," viz: that a highway of sixty feet should there exist for the public forever; that the made-land, wharfage, and highway of sixty feet are all to co-exist; that the highway to its full width is to exist before any estate or wharfage can arise, and that embanking out on the State's lands binds to the performance of this condition precedent: that the only estate the riparian owners can have is a right to moor vessels to the edge of the wharves, and to receive fees [**22]  for such use and for the loading and unloading of cargoes: that should any space for such purpose be required it should have been taken, then the sixty feet laid off, and then warehouses might have been erected on the residue: and even should the existence of a highway of sixty feet make nugatory the wharfage right, it must yield to the highway. But in our judgment the doctrine of estates upon condition, and the rule of strict construction most wisely 

 [*214]  applied by the Courts to grants of franchises to private corporations, can find no application here. These laws belong to a different class of legislation, and the rights conferred by them are to be ascertained from the language used, the obvious purpose of the Legislature expressed upon their face, and the end plainly designed to be accomplished. Long prior to the first of these enactments, the Legislature by the Act of 1745, ch. 9, sec. 10, supplemental to other Acts erecting Baltimore Town, had declared that all improvements of what kind soever, either wharves, houses, or other buildings that have been or shall be made out of the water or where it usually flows, shall, as an encouragement to such improvers, be forever [**23]  deemed the right, title and inheritance of such improvers, their heirs and assigns forever. The Act of 1796 was passed, as its preamble shows, upon petition of a number of inhabitants of Baltimore Town, setting forth that for want of convenient wharves at the west end of said town, that part of said town is deprived of many advantages it would otherwise enjoy, and in consideration of the representation thus made it was enacted by the second section, "that each and every of the proprietors of lots binding on and entitled to the privileges of the water, at the west end of Baltimore Town, between Pratt street and Forest street, shall be and are hereby permitted to wharf out, extend and improve the whole front of their several lots respectively, and for such distance as from time to time they may deem fit, until they intersect the east side of a line drawn from the east side of Light street to the east side of Forest street, provided the whole front of each proprietor's lot be extended, and no dock or vacant space left on part thereof." The third section then declares, "that the proprietors of said wharves shall be entitled solely and exclusively to the emoluments arising from the  [**24]   wharfage thereof, provided always that the proprietor or proprietors of said lots in making out and extending the 

 [*215]  same, shall be subject to the rules, regulations and ordinances of the Board of Wardens, or other constituted authority of Baltimore Town, respecting the manner the said wharves shall be extended, and also for the regulation of the wharfage thereof; and provided also, that eighty feet of the 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." The Act of 1801 limits the highway to sixty feet with the same reservation of wharfage. In 1805 another petition was presented to the General Assembly, stating that some of the proprietors had made the improvements, and that but a small part of the work remained to be done. The Legislature thereupon passed an Act making it the duty of the proprietors who had not extended their lots, to do so within two years, and if they made default, the [**25]  city was authorized to complete the work within one year thereafter, and if the latter neglected or refused, then it was made lawful for any individual who should first signify his intention so to do, to make the improvement. This Act also contains a section respecting wharfage and the highway of sixty feet, to the same effect and in almost the identical language of the Act of 1796.
From a careful consideration of these statutes, it is apparent to our minds, the main purpose the Legislature had in view, and the improvements they deemed important, was not the making of a public highway, but the construction and erection of wharves to accommodate and promote the commerce and trade of the city. And in order that this might be done without direct charge to the State or city, the Legislature encouraged and induced private owners of water-lots to fill out and build the wharves at their own cost and expense, by an express 

 [*216]  grant and reservation to them of wharfage rights and privileges. The work having been thus undertaken and completed by private individuals at their own expense, upon the faith of this grant and reservation, no narrow construction should be placed upon it as [**26]  against them and in favor of the highway. The terms as well as the purpose of the statute forbid it. For it not only designates these improvers as "proprietors of the wharves," and makes an express and exclusive grant to them of "the emoluments arising from the wharfage," but in the clause establishing the highway there is a careful reservation "to the proprietors of the wharves of the benefit and advantage of the wharfage thereof." Thus the very proviso which creates the highway qualifies it by the reservation of these rights. The highway thus established cannot make nugatory the wharfage right; if either is paramount, and if conflict arises between them, it is the former and not the latter which is subordinate, and must give way. Again, these statutes do not permit the filling out to be extended beyond the designated line, and the sixty feet of highway is made to extend to the same line. Under these laws no space could be filled up or wharves constructed eastwardly beyond the sixty feet, and therefore any use of these wharves as authorized to be built for the purpose of loading or unloading cargoes, would necessarily obstruct and interfere with some part of these sixty feet, [**27]  so as to prevent it from being an unqualified highway. This clearly shows it could not have been the design of this legislation to make, and that it did not in fact make, a complete and absolute highway throughout the whole limit of these sixty feet, but that for a part at least of this extent it was to be, and in truth is, "incomplete, qualified and limited," as was said in Page's case.
How much then of this space have these proprietors the right to use and occupy for wharfage purposes? We 

 [*217]  know of no better answer to be given to this question than to say, they have the right to use as much of it as is necessary for the fair and just enjoyment of the privileges granted and reserved to them by these statutes. These privileges, defined by the law to be "emoluments arising from," and "the benefit and advantage of, wharfage," are not confined to the mere right to moor vessels to the edges of the wharves and receive fees for such use of them, but extend to the use of the wharves for such space and time as may be necessary for the purpose of loading and unloading from vessels, cargoes of every kind and description, and for receiving and protecting the same for a reasonable [**28]  time, before and after, as well as while in the course of being loaded and unloaded. The damage plat offered in evidence, shows that these proprietors have used and are now using these wharves, and interfering with the highway in a greater or less degree, for a space extending from their edges to and over the twenty feet condemned by this Ordinance. Assuming this to be necessary to the just and reasonable enjoyment of their privileges, their right to such use is valuable, and can only be extinguished for the purpose of an unqualified highway or street, by an Ordinance of this character. We cannot determine the contrary from anything appearing in this case, if indeed such a question could be raised in a proceeding like the present. What would constitute an unwarrantable use by them of any portion of this space, or what would be an unauthorized abridgment of this highway by the erection of improper buildings or obstructions on these wharves, or whether any such have been or are now placed thereon, are questions which we have no power to adjudicate under this bill. What we are asked to do now, (and that is the foundation of the jurisdiction of a Court of Equity to grant the relief prayed [**29]  for,) is to declare this Ordinance totally null and void, and we can do that only upon the ground, that the right of highway 

 [*218]  in the entire twenty feet of widening which it directs to be made, is absolute, unqualified and paramount, and irrevocably made so by these statutes. Our opinion upon that question has been sufficiently expressed. The Ordinance of 1826, ch. 12, sec. 3, declared it should not be lawful to encroach upon these wharves with any article landed thereon further than eighteen feet, measuring from the inner edge of the logs or stones of which they are formed, Even this would allow an encroachment upon part of the twenty feet now condemned, but it does not appear this Ordinance was ever enforced, and in our opinion it could not have been enforced against the wharf proprietors, in restriction of the enjoyment of their privileges to the extent and in the manner before stated. Whether the fee in these sixty feet remained in the State, or passed, by the laws to which we have referred, to the improvers, is a question more difficult than important now to be determined; for if it be conceded to remain in the State, that fact could in no wise limit or affect the [**30]  wharfage rights we have been considering. They exist by force and effect of the grants and reservations contained in the statutes themselves, no matter where the fee in the land may remain. It results from these views that we cannot determine that the Ordinance in question is not a valid exercise of the power conferred upon the city authorities, to open and widen streets, because there are no proper subjects of condemnation for that purpose upon which it can operate. The first ground of objection to it therefore cannot be sustained.
With respect to what is alleged in the bill, and has been said in argument as to the amount of damages allowed for this condemnation, and the corresponding heavy assessments for benefits, it is hardly necessary to say that this Court under this proceeding, has no power to administer relief for such grievances. The law has provided other modes for their redress, and if 

 [*219]  the complainants have neglected to pursue or have unsuccessfully pursued them, it is a misfortune which cannot be made a substantive ground of relief by a bill in Equity.
2d. What has already been said, enables us to dispose of the second objection in a few words. The Ordinance [**31]  of 1869 was passed with reference to the state of things then existing, and it must be thereby construed and applied. It cannot be referred to the highway mentioned, and described in the Acts of 1796 and 1805. If therefore, the commissioners in applying the Ordinance to existing state of things found, as it appears they did, that but twenty-six feet from the western side of Light street had been paved and used exclusively as a public street, and that the remainder of the sixty feet were held and used by the wharf proprietors, they were entirely right in assuming the eastern edge of these twenty-six feet, as the eastern side of said street, and making this the line from which the twenty feet of widening eastwardly was to be made.
3d. The third objection is of a different character. It does not assail the validity of the Ordinance of 1869 upon any ground. It concedes that the Mayor and City Council had power and jurisdiction to pass it, and that the commissioners did that which it authorized and directed to be done. Conceding this, the objection attacks the validity and regularity of the proceedings of the commissioners, because they failed to observe one of the directions or requirements [**32]  of the Ordinance of 1866, ch. 26. This latter Ordinance provides for the appointment of Street Commissioners, defines their powers, prescribes their duties, and directs the mode of procedure to be observed by them; and among these is the provision of sect. 17, that they shall be allowed ninety days to complete any proceedings commenced by them under that or any future Ordinance, and if they cannot so complete the 

 [*220]  same, they shall report the fact to the Mayor and City Council, and shall suspend all further proceedings until otherwise directed. Failure to observe this direction or requirement, constitutes the objection now made. Whatever force this objection might have had if presented at the proper time and in the proper forum, we are clearly of opinion it furnishes no ground for the interference of a Court of Equity. Objections like this may be taken advantage of upon the appeal provided by law from the action of the Street Commissioners. Failure to complete their work within ninety days and completing it afterwards without first obtaining direction so to do from the City authorities, is a defect, if one at all, of the same character as failure to take the prescribed [**33]  oath or to give the required notice before proceeding to act. It was decided in Page's Case, upon a careful review of the authorities that such objections could be availed of by motion to quash the proceedings on appeal to the City Court by a party, deeming himself aggrieved by the assessment of damages. The Court in that case said "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 proposition was supported by reference to cases where execution of Ordinances was enjoined by a Court of Equity, because the municipal authorities had, or had acquired, no jurisdiction or authority to pass them. But it was also there decided that where an appeal is given by law to the parties to be affected by the action of Street Commissioners, any objections going merely to the legality and regularity of their proceedings, are open for review on that appeal, and redress on such grounds must be sought in that mode only. The authorities there cited not only sustain [**34]  this position, but also the further and familiar 

 [*221]  one, that a party who fails or neglects to avail himself of the means provided by law for redress of the wrong of which he complains, is without remedy in a Court of Equity. 6 Gill 391, 402; 6 G. & J., 312.
Decree affirmed. 

72 of 144 DOCUMENTS 

BENJAMIN R. YOE vs. HUGH GELSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 233; 1872 Md. LEXIS 121 

December 20, 1872, Decided 

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

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

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

Practice -- Motion for a Non Pros. on the ground of the Defendant's non-residence.

A suit was instituted in the Court of Common Pleas, on the 6th of March, 1871, and the summons made returnable to the second Monday of that month, being one of the return days fixed by law. The defendant was returned "summoned," and appeared by counsel, and the cause was continued to the May Term, when on the 15th of June, the declaration was filed; and a copy thereof served on the defendant's attorney on the same day, and a rule entered that he plead within fifteen days thereafter; the service was acknowledged. The cause was then continued till the succeeding September Term, and on the 14th of October, the defendant moved for a judgment of non pros. on the ground of his non-residence. HELD:

That the motion was made too late; the defendant had waived his right to question the jurisdiction of the Court.

A notice served on the defendant's attorney, with a copy of the declaration, that on the day of the filing of the declaration in Court, a rule will be entered requiring the defendant to plead to said declaration within fifteen days thereafter, is to be understood as limiting the time within which a dilatory plea, not going to the merits of the case, should be pleaded.

Where a party intends to avail himself of his statutory exemption, by plea or motion for non pros., by reason of non-residence, the purposes of justice require that he should use reasonable diligence in making his defence.  

COUNSEL:
Patrick M' Laughlin, for the appellant.

Isaac D. Jones, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*234]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted by the appellant in the Court of Common Pleas on the 6th day of March, 1871, the summons was returnable to the second Monday of that month, being one of the Return days fixed by the Local Code relating to the City of Baltimore, Art. 4, sec. 161, as amended by the Act of 1864, ch. 6, and was duly returned "summoned."
The record states that the defendant being called, appears by his attorney, Isaac D. Jones, Esquire.

 [*235]  Afterwards, on the 15th day of June in the same year, which was during the succeeding May Term, the declaration was filed, and a copy thereof was served on the appellee's counsel the same day, with the notice, "that on the day of the filing of the declaration, a rule would be entered requiring him to plead to the declaration within fifteen days thereafter.  [**2]  "
On the back of the declaration was endorsed as follows:
"Service of copy admitted, June 15th, 1871.
"ISAAC D. JONES, "Atty. for Defendant."
Afterwards, on the 12th day of September, 1871, the defendant, by his attorney, filed a motion for a judgment of non pros., on the ground of non-residence of defendant; a demurrer was filed thereto, which was sustained by the Court. Whereupon the defendant, by his attorney, prayed leave of the Court to file an amended motion for judgment of non pros., which was granted, and, on the 14th day of October in the same year, the amended motion was filed, averring in proper form that the defendant was a resident of Baltimore County, and that no summons had been issued against him and returned in said county, before the issuing of the writ in this cause; this was verified by the affidavit of the defendant filed therewith.
Whereupon the Court ordered a judgment of non pros., and the plaintiff appealed.
The Code, Article 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 [**3]  in such county."
The appellee was entitled to claim the benefit of this statutory exemption; and according to the practice in this State, he was at liberty to avail himself of his privilege, 

 [*236]  either by plea, or by a motion addressed to the Court. Hamilton vs. State, 32 Md. 348; Gittings vs. State, 33 Md. 458; Same vs. Same, 35 Md. 169.
It is also settled by those cases, that a party may make this defence either in person or by attorney, the appearance by attorney for that purpose not being a waiver of the exemption. 35 Md. 169, 173.
The only question therefore, which is open on this appeal, is whether the motion was made in time. In the case last cited, 35 Md. 169, 173, this Court said the same limitations must apply to motions of this kind, as are prescribed by the rules of Court for filing dilatory pleas, such as pleas to the jurisdiction or in abatement. In that case, it was held that the motion need not be made on the return day of the writ. There the summons was returned on the 11th day of April, and the motion for non pros. was made on the 9th day of May following,  [**4]  being the first day of the May Term, and in the absence of any rule of Court, showing the contrary, it was decided to be in time. In this case however, the record discloses a very different state of facts. The summons was returned during the January Term, (being on the March return day,) the defendant appeared by counsel, and the cause was continued to the May Term; when on the 15th day of June, a copy of the declaration was served on the defendant's attorney, and a rule entered that he plead within fifteen days thereafter, the service of which was acknowledged. Then the cause was continued till the succeeding September Term, and on the 14th day of October, the motion for non pros. was entered.
In our opinion the motion came too late.
The appellee's counsel has argued that the rule of Court not appearing in the record, this Court ought to presume that the decision below was not in conflict with it. But it does sufficiently appear by the notice served on the defendant's attorney, with the copy of the declaration, 

 [*237]  that the time prescribed by the rule was fifteen days. This must be understood as limiting the time within which a dilatory plea, not going to the merits,  [**5]  ought to have been pleaded.
Where a party intends to avail himself of his statutory exemption, by plea or motion for non pros., by reason of non residence; the purposes of justice, require that he should use reasonable diligence in making his defence. His right may be lost by unreasonable delay, or waived by his own acts; and in this case, apart from any positive rule of Court on the subject, we are of opinion that the defendant had waived his right to question the jurisdiction of the Court; and that the motion was too late.
The judgment of the Court below, will therefore be reversed, and the cause remanded, to the end that the defendant may be allowed to plead to the merits, and that the cause may be tried.
Judgment reversed and cause remanded. 

73 of 144 DOCUMENTS 

THE WESTERN MARYLAND RAILROAD COMPANY vs. ABRAHAM B. PATTERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 125; 1872 Md. LEXIS 114 

December 19, 1872, Decided 

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

The appeal in this case is from an order of the Court below, granting an injunction upon a bill filed by the appellee against the appellant. The allegations of the bill are sufficiently stated in the opinion of this Court. The case was heard in the Court below on the bill and exhibits, and the answer of the appellant was not filed until after the injunction had been issued.  

DISPOSITION:
Order reversed, and bill dismissed.  

HEADNOTES:

Special and exclusive Jurisdiction of the Superior Court, and the Circuit Courts for the Counties, as Courts of Law, to hear and determine all questions arising upon an application to Confirm or set aside an Inquisition for the Condemnation of Land for the use of a Railroad.

A bill of complaint, filed in the Circuit Court of Baltimore City, charged that the Western Maryland Railroad Company, by virtue of their original charter and the supplements thereto, had proceeded to have condemned a portion of the land of the complainant lying in the city of Baltimore; that an inquisition had been taken, and with the official certificate of the sheriff of his proceedings in relation to the matter, had been returned to the Clerk of the Superior Court; that it appeared by the inquisition that the land of the complainant had been condemned for the use and occupation of the railroad "in fee simple;" that it did not appear on the face of the inquisition, for what purpose the land so condemned was designed to be used; nor did the inquisition specify or declare that it should be used, and was condemned to be used, for construction, or any purpose for which the railroad company was authorized to condemn land; but on the contrary that the inquisition declared that damages were awarded for the use and occupation of the land in fee simple, by the railroad company; and that the complainant was advised that if the inquisition should be confirmed, and he should receive the damages, he would be forever precluded from contesting the right of the company to exercise over the land, the right of a fee simple proprietor. The bill also charged that the condemnation of the land in fee simple was in direct contravention of the charter of the company and the Constitution of the State; that there was no authority to condemn any other estate than an easement, and the attempt to condemn the land in fee simple was altogether ultra vires; that the complainant was advised that the Circuit Court had ample jurisdiction to prevent by injunction the attempted exercise of powers which were altogether void of any foundation or justification in the charter of the company or the laws of the State. The bill prayed for an injunction to restrain the railroad company from further proceedings for the condemnation of the land; from asking of the Superior Court confirmation thereof, and from exercising any right over the land until the further order of the Court. HELD:

That the Circuit Court of Baltimore city had no jurisdiction to enjoin proceedings in fieri under the charter of the railroad company, for objections apparent upon their face, or otherwise; the Superior Court having special and competent authority to adjudge and determine them.

And for the same reason, the Circuit Courts generally, have no such jurisdiction.  

COUNSEL:
William A. Fisher and Arthur W. Machen, for the appellant.

The first objection made to the inquisition is that it attempts a condemnation of the land in fee simple, and that if the appellee accepts the amount awarded by the jury, he will be estopped to contest the right of the appellant to an absolute fee simple estate in the land. If such an attempt had been made, the condemnation would not be void, inasmuch as there is full power in the appellant to condemn such an interest as may be necessary for its use: "The condemnation" (would) "confer" (upon the company,) "in perpetuity, the use and occupation of the" (land) "for the purposes mentioned in the Act, but leave in the land owner all such use of it as did not [**2]  injuriously interfere therewith." Kane vs. The Mayor, &c., of Baltimore, 15 Md., 250.

The language of the Act of Assembly, under which the condemnation was made against Kane by The Mayor and City Council, is the same as that found in the Act under which the appellant acted.

The position taken in Kane vs. The Mayor, &c., i. e. that even if a fee simple is sought to be condemned it will be limited to being co-extensive with the public use, is confirmed by the best considered cases in other Courts. Mouchet vs. Great Western Railway, 1 Eng. Railway Ca., 575; The People vs. White, 11 Barb., 28; Hooker vs. Utica Turnpike Co., 12 Wendell, 371; Giesy vs. Cin. & Zanesville R. R. Co., 4 Ohio N. S., 325, 327, 328; 1 Redfield on Railways, sec. 69, subs. 12, p. 253 of 3d Ed.

It is entirely immaterial whether the estate acquired be treated as a qualified fee simple in the land, or as an easement merely. Many cases treat the estate as a qualified fee simple, determinable when the public use ceases. The People vs. White, 11 Barb., 28; Giesy vs. Cin. & Zanesville R. R. Co., 4 Ohio N. S., 325, 327, 328; Hooker vs. Utica Turnpike Co., 12 Wendell, 371; Munger vs. Tonawanda R. R. Co., 4 [**3]  Comstock, 349; Raleigh, &c. R. R. vs. Davis, 2 Dev. & Bat., 467, 468; Pinchin vs. London & Blackwall Railway Co., 5 DeG. M. & G., 862.

The words "in fee simple," inserted as descriptive of the extent of interest taken, are for the benefit of the land owner. They insure his being allowel full value for his land. Any more qualified or restricted description of the interest required would have tended to mislead the jury, and thereby take from the full compensation to which the owner was entitled. The whole matter is nothing but a thin question of definition; in substance nothing was sought to be taken but an use and occupation, in the nature of an easement. The interest acquired is so described in many of the cases. Shelford on Railways, 7; Hazen vs. Boston & Maine R. R. Co., 2 Gray, 580.

The statute requires that the inquisition shall describe the property taken, the boundaries of the land, and the duration of the interest. The interest acquired is an use and occupation of the described land for railroad purposes. The metes and bounds of the land over which the use extends are given. The duration of the interest is expressed by the statement that it is unlimited, i. e. in fee [**4]  simple. No form of expression more appropriate for the description of the easement can be devised than the words "use and occupation" employed in the inquisition.

Assuming that the interest is to be treated as an easement, the same estates exist in an easement as in the land itself, and it is perfectly correct to describe an estate in fee simple in it. 1 Washburn on Real Property, 56; Washburn on Easements, &c., 5; Ex-parte Coburn, 1 Cowen, 568.

It is conceded that we may acquire an interest in the land "in perpetuity;" this is not a technically correct mode of expression, while that adopted is well known. The easement (regarding the interest as an easement,) certainly has all the essential elements of a fee simple; inasmuch as so long as it is employed for the public use for which it was taken, it will pass to successors and assigns within the limits authorized by the charter of the appellant. Erie &c. R. R. Co. vs. Casey, 26 Penna. State, 307.

It is argued by the appellee that if he accepts the amount awarded under the condemnation, he will be estopped from denying that the appellant has acquired an absolute fee simple estate in the land. No such estoppel can arise.  [**5]  The appellant is incapable of taking an interest more extensive than required for the public use, (15 Md., 250,) and the estoppel would be limited by the capacity of the grantee to acquire.

If any estoppel arose at all, it would be subject to such construction as has been put upon such inquisitions, and under the decision in Kane's case, the appellee could not be concluded from asserting an estate in the land, subject only to such interest as might be necessary for the use of the appellant. The People vs. White, 11 Barb., 27-29.

In Kane's case the question of estoppel was distinctly presented and the Court held that Kane was not concluded although he held under a grantor who had accepted the amount awarded, and the inquisition purported to pass a fee simple estate in the land.

It is also insisted that the inquisition is void, because it does not state that the land is required for construction, or for any other purpose authorized by the charter of the appellant. The inquisition in this case, especially when connected with the warrant, does state that the land is required for construction, but it is wholly unnecessary that such statement should occur in the inquisition.  [**6]  The statute prescribes what the inquisition shall contain, and nothing more need be stated. It is an "use and occupation" which is taken for a railroad company, and no application of the land can be made except for purposes authorized by the charter. 1 Redfield on Railways, sec. 69, sub-sections 12 and 14.

The oath administered to the jurors, and set out in the inquisition, necessarily implies that the land is to be used for railroad uses, and the appellant would be estopped by that alone from making any application of it for other purposes, and equity would interfere if it were attempted.

The inquisition is part of a proceeding which commences with the warrant and ends in a judgment for the land owner against the railroad company, after the confirmation of the inquisition by an order of the Court; the whole constitute one record, and the inquisition is to be read with reference to the warrant, with which it is connected by the sheriff's return, and to which on its face it refers. Tidewater Canal Co. vs. Archer, 9 Gill & Johns., 505, 506, 507, 508, 517; Shelford on Railways, secs. 274-5, p. 205; Taylor vs. Clemson, 2 Ad. & Ellis N. S., 1030; Jean vs. Spurrier, 35 Md., 110;  [**7]  Taylor vs. Clemson, 11 Clark & Fin., 610.

The land could be used for any rail road uses of the appellant, but for no other purpose. Hamilton vs. Annapolis and Elk. R. R. Co. 1 Md., 553; Dean vs. Sullivan R. R. Co. 2 Foster, 316; U. S. vs. Harris, 1 Sumner, 21.

Bernard Carter and S. Teackle Wallis, for the appellee.

Under its charter and the fundamental law of the State, the appellant is authorized to acquire by condemnation, not a fee simple estate or interest in the land of the appellee, but only an easement in a right of way over the land of the appellee; and the title to the soil vested in the appellee under the deed by which he acquired title, would not be at all divested or disturbed by any right which the appellant lawfully acquired by condemnation in said land, such right leaving the fee simple title in the appellee, burdened with such a servitude as is requisite to enable the appellant to construct and maintain its rail road over said land.

No greater or other dominion can be acquired by the appellant, than the simple right to use the land for the legitimate purposes of the construction and maintenance of its railway upon said land; and the appellant, therefore,  [**8]  is not authorized to acquire in said land such rights of user as an owner thereof in fee simple would have. The fee simple under a legitimate proceeding for condemnation remains in the land owner. Kane vs. Mayor & C. C. of Balt., 15 Md., 240; Blake vs. Rich, 34 N. H., 282, 288; Brainard vs. Clapp, (Shaw, C. J.,) 10 Cushing, 8; 1 Redfield on Railways, 247, 251, (section 7, chapter 11;) Susquehanna Canal Co. vs. Bosley, 3 Bland, 67.

The inquisition of the jury in the case at bar does purport on its face to condemn for the appellant a greater estate and interest in the land of the appellee than under the charter of the appellant, and the laws of the State of Maryland, the appellant is authorized to acquire by condemnation; and does, in fact, condemn for the appellant the right to use and enjoy the land of the appellee, embraced within the lines of condemnation; in the same manner that the owner in fee simple would have the right to use and enjoy the same.

The 2d section of the Act of 1872, ch. 71.--(Amended charter of appellant,) requires, that the "inquisition shall in all cases describe the duration or quality of the interest in the land condemned, valued for the company.  [**9]  "

In the inquisition in question, it is said that the jury say, "we value the damages which the owner of said tract of land has sustained, or will sustain, by the use and occupation of the same in FEE SIMPLE by the said railroad company, at the sum of $ 13,000."

It was held by Baltimore County Court, in Balt. & Susq. R. R. Co. vs. Compton, et al., 2 Gill, 29, that it is necessary in order to sustain an inquisition under a charter similar in this respect to that of the appellant, that the inquisition should set forth, that the land was condemned for the use of the company for construction, and that this would be sufficient, but the statement of that fact in the warrant of the justice of the peace, does not comply with the requirement of the law that it should appear in the inquisition. The inquisition in the case at bar does not contain any statement that the land condemned by it is wanted by the railway company for the construction thereon of its railroad. Under the decision in 2 Gill, 29, this defect in itself is fatal to the inquisition.

If in accordance with the decision in 2 Gill, 29, the inquisition had set forth that the appellee's land was wanted by the railroad [**10]  company for the construction of its railroad, and that the jury had valued the damages which the appellee would sustain by such use and occupation, then it would be clear that the railroad company was vested only with such rights over the land as were necessary for the construction and maintenance of the works it is authorized under its charter to construct; and the rights thus given to it by the language of the inquisition would be exactly commensurate with these which the railroad is authorized to acquire by condemnation.

If the inquisition had been in the language thus suggested, and thus have condemned the land for the construction thereon of the railroad of the appellant, both parties, the land holder and the railroad company, would have been referred to the principles of law established by the decisions of the Courts in this class of cases, for the ascertainment of their respective rights in the property thus condemned. Such language in the inquisition would have vested all proper authority over the land in the railroad company, and all such rights as are necessary to be enjoyed for the prosecution of its enterprise, and at the same time would have divested the land owner [**11]  of no estate or right in the property save such, the exercise of which would be inconsistent with the proper prosecution of the enterprise of the railroad company. Brainard vs. Clapp, 10 Cush., 8.

In the inquisition in question, however, no such language is to be found; but on the contrary, the inquisition, omitting the language thus held to be the proper language, substitutes other language of an import altogether at variance with the language above referred to, and with the due ascertainment of the respective rights of the appellant and appellee, under the charter of the former and the law of the State.

According to the inquisition now under review, the rights acquired by the railroad company in the land of the appellee, are not those necessary for the construction thereon of the railroad of the appellant, but the use and occupation of said land in FEE SIMPLE.

What right or title then is given by the words "use and occupation of the land in FEE SIMPLE by the railroad company? The plain, natural and ordinary meaning of these words, if not their only meaning, is to vest an absolute estate in fee simple in the company.

Is not the purport of these words the same as [**12]  the words of the usual form of the habendum in an ordinary deed conveying land in fee simple? What is the difference between "to have and to hold to the use of the said railroad company in fee simple," and the words "use and occupation in FEE SIMPLE by the said railroad company?" Suppose there had been inserted in the habendum in a deed between private individuals the words to "use and occupy the said land in fee simple," would not the Court say that a fee simple passed?

Though the company has no power to condemn the estate which they have attempted to condemn by this inquisition, yet if the appellee allows it to be confirmed and receives the money, he is estopped from setting up the unconstitutionality of the condemnation, and the railroad company would be the owner in fee simple. State vs. B. & O. R. R. Co., 34 Md., 364; Baker vs. Braman, 6 Hill, 48; Embury vs. Conner, 3 Comstock, 521; Dodge vs. Burns, 6 Wisconsin, 520; Burns vs. Mil. & Miss. R. R. Co., 9 Wisconsin, 456; Hitchcock vs. D. & N. R. R. Co., 25 Connecticut, 519; Cooley on Constitutional Limitations, 539, 540, 541. The jurisdiction of the Circuit Court on the case made by the bill and exhibits, is clearly established [**13]  by the following decisions of this Court: Holland vs. M. & C. C. of Baltimore, 11 Md., 197; W. Md. R. R. vs. Owings, 15 Md., 199; Mayor, &c., of Balt. vs. Gill, et al., 31 Md., 395; Mayor, &c. of Frederick vs. Groshon, 30 Md., 436.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*134]  BOWIE, J., delivered the opinion of the Court.
The right of eminent domain being an exercise of extreme power, upon the principle of public necessity, all the restraints imposed by law to prevent its abuse should be scrupulously enforced.
For more than half a century, this State yielding to the spirit of enterprise which animated her citizens, and their desire to develope her resources by internal improvements, has delegated this power with liberal hand to various corporations; prescribing in the several Acts of incorporation, the mode of acquiring private property for the several purposes contemplated by their charters.
In all these charters, as in the amended charter of the appellants, the corporations are authorized to agree with the owner or owners of any land, &c., which may be wanted for the proper construction or repair of said railways, or any [**14]  of their works, for the purchase, use, occupation, or diversion of the same; and if they cannot agree or the owner for any cause be incapable of contracting, application is directed to be made to a justice of the peace, for a warrant to be directed to the sheriff, commanding him to summon a jury, (which being sworn in manner and form as prescribed,) are required to estimate and determine the damages sustained by the owner, and to reduce their inquisition to writing, and sign and seal the same; and it shall then be returned to the clerk of the Superior or Circuit Court of the county, to be filed by the clerk, and confirmed by the Court at the next 

 [*135]  term or session, if no sufficient cause to the contrary be shown; and when confirmed, shall be recorded, but if the same be set aside, the Court shall direct another inquisition to be taken in the manner above described.
The inquisition shall in all cases describe the property taken, or the bounds of the land condemned, and the duration or quality of the interest in the same, valued for the Company; and such valuation, when paid, or tendered to the owner or owners, his, her, or their legal representatives, shall entitle the [**15]  Company, to the estate and interest thus valued, as if it had been legally conveyed by the owner, &c.
By these and similar provisions, a specific mode of proceeding is prescribed, and a special tribunal established for the purpose of supervising the exercise of the power of eminent domain, and hearing and determining all questions which can arise upon the application to confirm, or set aside the inquisition.
Whether these regulations are sufficient to protect the rights of all persons in all cases, it is not for the Courts to enquire; but if there is any deficiency, it is the province of the Legislature which delegated the power, and erected special tribunals, or conferred the jurisdiction on the Circuit Courts to supply the defect.
It is remarkable that notwithstanding the great value of the property often sought to be condemned, and the important legal questions incidentally involved, the proceeding is not in form, "in personam," but "in rem"; no summons or notice to the owner is in most cases provided; no day in Court assigned to the parties interested; and no appeal allowed from the final action of the Circuit Court on the inquisition.
Hence the whole system of [**16]  condemnation of private property for public uses in this State, has been matured by the practice and decisions of the County or Circuit Courts.

 [*136]  No case has been cited, and we believe that in the practice of this State not an instance exists, in which an appeal has been allowed, or the proceedings of those Courts while "in fieri" have been arrested or reviewed by any other judicial authority.
The object of the bill in this case is to procure an injunction, restraining the Western Maryland Rail Road Company, from proceeding any further with the proceedings instituted by them for the condemnation of the appellee's property: and from asking of the Superior Court of Baltimore City, confirmation thereof and from exercising any right over the land, until the further order of the Court.
The proceeding is so anomalous, that the first inquiry which suggests itself is, whether a Court of Equity has jurisdiction in such a case.
The allegations upon which the intervention of the Court is sought, consist of supposed defects, for the most part apparent on the face of the proceedings complained of, and which are yet pending in a Court of competent jurisdiction.
The bill charges [**17]  that the appellants by virtue of their original and amended charters have procured a warrant to be issued to the sheriff of Baltimore City, to summon a jury to condemn a portion of the land of the appellee, within the limits of the city; which jury convened on the 3rd of May 1872, condemned the land described, valued the damages and signed and sealed their inquisition; which, together with the official certificate of the sheriff of his proceedings in relation to said matters, were returned by the sheriff to the Clerk of the Superior Court, a copy of which is filed with the bill.
It is alleged that it appears by the said inquisition, that the land of the complainant therein described, has been condemned thereby, for the use and occupation of the appellants "in fee simple."

 [*137]  That "it does not appear on the face of said inquisition, for what purpose said land so condemned is designed to be used, nor does the said inquisition specify or declare that it shall be used and is condemned to be used for construction, or any purpose for which the appellants are authorized to condemn land; but on the contrary, said inquisition declares that damages are awarded for the use and [**18]  occupation of said land in fee simple, by said railroad company, and if the said inquisition should be confirmed, and the complainant receive the damages, he would be forever precluded from contesting the right of the company, to exercise over the land, the right of a fee simple proprietor.
The complainant charges that the condemnation of the land in fee simple, is in direct contravention of the charter, and the Constitution of Maryland; that there is no authority to condemn any other estate than an easement, and the attempt to condemn the land in fee simple is altogether "ultra vires."
That the Court has ample jurisdiction to prevent, by injunction, the attempted exercise of powers which are altogether void of any foundation or justification in the charter of the company, or laws of the State.
These objections, if well taken, would be as available if made to the confirmation of the inquisition in the Circuit Court, as in a Court of Equity.
There is no necessity for an injunction, (which is an extraordinary preventive power,) when the Courts, peculiarly vested with authority over the subject, are competent to relieve, and it is a sufficient ground for refusing it, that the [**19]  complainant has an ample remedy at law.
The fifth point of the appellee's brief assumes, that the question of jurisdiction, needs for its determination, a simple reference to the decisions of this Court, and refers to Holland vs. Mayor & C. C. of Baltimore, 11 Md. 186, 197; W. Md. R. R. vs. Owings, 15 Md. 199; Mayor & C. C. 

 [*138]  of Baltimore vs. Gill, 31 Md. 375; Mayor, etc. vs. Groshon, 30 Md. 436.
The first case was that of an injunction to restrain the city authorities from selling the complainant's lot, for a paving tax, which it was alleged was illegally and irregularly levied.
The injunction was sustained, on the ground that the debt (or tax) was not due, and to prevent the owner of the land from being vexed by a multiplicity of suits, "to save him from an annoying, protracted and expensive litigation." There were no other means of relief. No special jurisdiction was open where the wrong, if any, could be redressed.
The proceedings necessary to fix the complainant's liability to the tax were consummated, and the property actually advertised for sale; if a Court of Equity had not intervened,  [**20]  the complainant would have been without remedy.
The case in 15 Md. 199, was an injunction to restrain the Western Maryland Railroad Company from making its road over the land of the complainant, before paying, or tendering compensation, for the use of the land, as provided in Article 3, section 46, of the Constitution of the State.
The violation of this constitutional inhibition, was considered sufficient to warrant the interposition of the Court, without regard to the question whether the damage complained of was irreparable or not; but, in this case, the inquisition had been finally ratified. The injunction was founded on matter subsequent.
The case of the Mayor of Frederick vs. Groshon, 30 Md. 436, was one in which the corporation proceeded to exercise the authority to condemn property, under a law which had been repealed; of course, there could be no question of jurisdiction in such a case.
The repeal of the law swept away all the machinery, by which its proper exercise was limited and controlled. 

 [*139]  Its only parallel would be an attempt on the part of an association, or individuals, to appropriate the private property of another [**21]  without a charter.
So, in the case of the Mayor & C. C. of Baltimore vs. Gill, 31 Md. 375, the injunction rested upon the want of constitutional power of the corporation to contract a debt or loan, having no analogy whatever to the case before us.
The distinction between the cases where the proceedings are void, for want of authority, and irregular and defective because of some omission or neglect, which may be cured pendente lite, or taken advantage of whilst "in fieri," is broadly taken and sustained in the case of Page vs. Mayor & C. C. of Baltimore, in the opinion of this Court, in 34 Md. 558, 564, 565.
In the former class of cases, it was held a Court of Equity had jurisdiction, but in the latter it had none. Vide 6 Gill 391, 402; The Mayor & C. C. of Baltimore vs. Bouldin, 23 Md. 328.
In 6 Gill 391, 402, Judge DORSEY said: "To persons aggrieved by the proceedings of the Commissioners, in cases like 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."
Although the [**22]  appellants' counsel, under the circumstances of this case, seem to consider the question of jurisdiction unimportant, preferring to have a decision on other points, to avoid what they call ruinous delay; we think our duty requires we should dispose of it "in limine," to prevent all judicial authority from being drawn into a Court of Chancery.
There is, in our opinion, no jurisdiction in the Circuit Court of Baltimore City, or the Circuit Courts generally, to enjoin proceedings "in fieri" under the charters of the appellants, for objections apparent on their face, or otherwise; the Circuit Courts having special and competent authority to adjudge and determine them.

 [*140]  We do not mean to affirm, there is no case in which a Court of Chancery may interfere to prevent the abuse of a power of condemnation, by color of an act of incorporation, whilst the proceedings are "in fieri," and subject to be confirmed or rejected; but to insist, that whilst the powers of the special tribunals to afford relief, are ample and unexhausted, the Court of Chancery should not intervene, upon a mere allegation that the corporation is exceeding its charter, or violating the Constitution.  [**23]  
The order of the Circuit Court of Baltimore City granting the injunction will be reversed, and the bill dismissed.
Order reversed, and bill dismissed 

74 of 144 DOCUMENTS 

THE CUMBERLAND AND PENNSYLVANIA RAILROAD COMPANY vs. THE STATE OF MARYLAND, use of MARY FAZENBAKER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 156; 1872 Md. LEXIS 116 

December 19, 1872, Decided 

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

This action was brought against the appellant, in the name of the State, for the use of Mary Fazenbaker and her three infant children, to recover damages for the killing of William Fazenbaker, the husband and father of the equitable plaintiffs, on the 26th of March, 1870, by the explosion of one of the company's locomotives. The plea was "not guilty."

The deceased was a brakeman in the service of the appellant, and his place was in the middle of the train when in motion. On the day in question he left his place on the train, and rode for about half a mile on the tool box on the engine, over the boiler. The train then stopped, and after standing still for about five minutes the engine exploded, and he was killed. He had been in the service of the appellant for seventeen years.

Evidence was offered at the trial below on the part of the appellee tending to prove that the engine had been defectively repaired, and that the explosion was the result of such defect--and that in the opinion of the witness, E. L. Cleaveland, the master mechanic, W. L. Jordan, under whose supervision the engine was rebuilt, was not competent for [**2]  his place, and that the engine as repaired was not safe.

The appellant then offered evidence tending to prove that the engine was of approved construction when originally put upon the road; that it had been thoroughly and completely repaired a short time before the accident, and that as repaired it was perfectly safe--that the master mechanic was a competent and experienced man, thoroughly fit for his place, and was selected by the president of the company, Mr. Millholland, under whom he had served for eighteen years, as a superior man, and had been six years in the service of the company as master mechanic; and that Joseph McCune, the boiler-maker, Thaddeus Beall, the foreman of the machine shop, and George Wills, engineer of the locomotive which exploded, were each and all competent employes.

Exception.--The plaintiff offered two prayers, the first of which as follows, the Court (MOTTER, J.) granted, the other it rejected:

1st. If the jury shall find from the evidence that the defendant owned and worked a railroad leading from Cumberland, Md., to Piedmont, West Va., during the years 1869 and 1870, and that it had and owned, in connection with the working of said road,  [**3]  during that time, a shop or shops located at Mt. Savage, on the line of said road, in which the defendant assumed or undertook to manufacture, reconstruct or rebuild the engines in use upon its said road; that William L. Jordan was, during said time, and still is the master mechanic, superintendent or agent of the defendant, having control and general direction of the employees in said shop or shops; that the engine named "C. E. Detmold," now known as "No. 11," was taken to said shop or shops to be rebuilt or reconstructed, in or about the month of December 1869; that said engine was rebuilt or reconstructed under the direction and supervision of said Jordan; that the said Jordan materially altered, changed or modified the plan and general arrangement of said engine, whereby it was rendered of unapproved and unsafe construction; that said engine, at the time it came from the shop or shops of the defendant, in and about the month of February 1870, and at the time it was placed upon the road of the defendant, was not of approved and safe construction, but was of unapproved and unsafe construction; that Erastus L. Cleaveland, a skilful and experienced machinist in the employ of the defendant [**4]  in said shop or shops, if the jury shall so find, warned and notified the said Jordan that the changes, alterations or modifications, in the general plan and arrangement of said engine, which the said Jordan was then making or proposing to make, would render it unsafe, and would cause it to blow up or explode very soon thereafter; that said Jordan persisted in and did have the changes, alterations or modifications proposed by himself made and carried out in the rebuilding or reconstruction of said engine, that it was because of such changes, alterations or modifications in the plan and general arrangements of said engine that it blew up or exploded, on or about the 26th March 1870, between Mt. Savage and Frostburg, on the line of said road; that by said explosion William Fazenbaker, the husband and father of the equitable plaintiffs in this case, was instantly killed while in the employ of the defendant as a brakeman on the train to which said engine was attached; that said Fazenbaker was not notified of the said changes, alterations or modifications so made in the general plan and arrangement of said engine, nor was aware of the unsafe and unapproved construction, if any, of said [**5]  engine; that he did not contribute to his own death by the want of ordinary care on his part; that at the time of said explosion he was using ordinary care; that the unsafe and unapproved construction of said engine, if any, was known to or could have been ascertained by reasonable skill, care and diligence on the part of the defendant or its agents before said explosion occurred, then the plaintiffs are entitled to recover, and the jury may award such damages as they may think, proportioned to the injury resulting from such death, to the widow and minor children respectively of the said deceased, for whose benefit this action is brought.

The defendant, prayed the Court to instruct the jury as follows:

1st. That even if the jury shall believe from the evidence, the injury complained of was caused by a defect in Engine No. 11, and that such defect was owing to the negligence of the agents of the defendant, still the plaintiff cannot recover unless it shall satisfy the jury, from the evidence in the cause, that the defendant did not use reasonable care in procuring sound machinery and faithful and competent employees, and that the plaintiff has offered no evidence to show that [**6]  the defendant did not use such reasonable care, and therefore the verdict must be for the defendant.

2d. That even if the jury find from the evidence that the injury to Fazenbaker resulted from a defect in the Engine No. 11, and that such defect existed by reason of the neglect or want of care of other employees of the defendant, whether mechanics to repair and keep in order the machinery, or the master mechanic or inspector of the machinery and rolling stock of the company, or the superintendent of trains on the defendant's road; yet the plaintiff cannot recover, because there is no proof that the defendant did not use reasonable care in procuring said engine or selecting said employees.

3d. That if they find from the evidence in the cause that Engine No. 11 was of approved construction and material when put in use on the defendant's road, and that the defendant used reasonable care in selecting the co-employees of Fazenbaker, then the plaintiff cannot recover, even though the jury may believe from the evidence that the boiler of said engine was defective at the time the injury happened, and that such defectiveness caused the injury, because there is no proof in the cause [**7]  that the defendant had notice of such defectiveness, and failed after such notice to use reasonable diligence to repair the same.

4th. That to enable the plaintiff to recover, it must satisfy the jury, by the evidence, that engine No. 11 was defective and insufficient at the time of the accident, and that such defective condition of the engine, was well known to the defendant, and was the cause of the injury sued for, and that the defendant did not use reasonable care in procuring said engine, or in repairing the same after such knowledge of its defectiveness, or in procuring faithful and competent co-employees of Fazenbaker, whose duty it was to keep said engine in good condition and repair, and that the plaintiff has offered no evidence to show that the defendant did not use reasonable care in procuring said engine and co-employees, or that the defendant knew of such defective condition of said engine, and therefore cannot recover.

5th. That if they find from the evidence in the cause, that Fazenbaker was employed as first brakeman on the train attached to engine No 11, at the time of the accident, and that it was his duty, as such brakeman, to be on the middle of said [**8]  train, and that some time before the train stopped, he got on the engine and role half a mile, more or less, upon it until the train stopped, and remained on said engine after the train stopped, and was on it at the time the accident happened, and that but for this conduct on his part, the injury inflicted upon him, and for which the suit is brought, could not have been inflicted upon him, then the plaintiff is not entitled to recover.

6th. That if they find from the evidence that Joseph McCune was boiler maker, and William L. Jordan, master of machinery, Thaddeus Beall, foreman of the machine shop for the defendant, and that George Wills was engineer on engine No. 11, and that the defendant used reasonable care in selecting said persons as competent employees, as also in procuring said engine No. 11, and that about five weeks before the accident happened, said engine was put in sufficient repair, according to the judgment of said McCune, Jordan, Beall and Wills, and that it was the duty of said Wills to report promptly all defects in said engine, to said McCune and Jordan and Beall, or one of them, and that said Wills did not report any defects between the time the said engine [**9]  was so repaired and said accident happened, then the plaintiff cannot recover, even though the jury may believe the engine was defective, and that such defectiveness caused the injury sued for, and that the witness, Cleaveland, differed in opinion with said McCune, Jordan and Beall, as to the sufficiency of the repairs made upon said engine.

7th. Even if the jury shall find that Fazenbaker's death was caused by the injuries received by the explosion of the boiler of engine No. 11, they are not at liberty to infer any default or negligence on the part of the defendant merely from the injury done to said Fazenbaker, but they must find from the evidence in the cause that said injury occurred by some fault on the part of the defendant.

The Court granted the defendant's third, sixth and seventh prayers, (which last was conceded by the plaintiff's counsel,) and rejected its first, second, fourth and fifth prayers; but granted the first after striking out as follows; "And that the plaintiff has offered no evidence to show that the defendant did not use such reasonable care, and therefore the verdict must be for the defendant;" and granted the defendant's fourth prayer after modifying [**10]  it by striking out: "And that the plaintiff has offered no evidence to show that the defendant did use reasonable care in procuring said engine and co-employees, or that the defendant knew of such defective condition of said engine, and therefore cannot recover." To the ruling of the Court in granting the plaintiff's first prayer, and rejecting the defendant's first, second, fourth and fifth prayers, and granting its first and fourth with the modifications, the defendant excepted.

The verdict was for the plaintiff; and the damages were assessed at $ 3,600; which after deducting the costs not recovered from the defendant, was specifically divided among the equitable plaintiffs. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Negligence, or the want of reasonable Skill and Care, a question for the Jury -- Province of the Court and Jury.

In an action against a railroad company, in the name of the State, for the use of the widow and infant children of an employe of the company, to recover damages for his death by the explosion of one of its locomotives, it was HELD:

That what constituted negligence, or ordinary care, or the want of it, in the deceased, contributing to his death; and the reasonable skill, care and diligence exercised on the part of the railroad company, to relieve it from responsibility for the fatal occurrence, were questions, according to the nature of the evidence in the case, to be determined by the jury from all the facts and circumstances.

The Court, upon application, will always instruct the jury as to the degree of diligence, or skill and care, which the law imposes upon the respective parties; and the jury must determine if the requisite conduct has been observed.  

COUNSEL:
John P. Poe, for the appellant.

The appellant's fifth prayer accurately defined the law applicable to the facts of the case--was unobjectionable in form, was warranted by the evidence, and should, therefore, have been granted. The company did not require the deceased to be where he was at the time of the explosion which caused his death; his being there was not within the line of his duty as brakeman; by being there he exposed himself to a danger which [**11]  was not one of the risks to which the terms of his employment subjected him, and in so exposing himself voluntarily, he contributed to his own death.

The law requires, that the deceased should not have contributed by his negligence to the injury complained of, and the declaration meeting this requirement, alleges that "while using due care, and in the legitimate discharge of his duty" he was killed.

The allegation was a material one to be made and proved, and yet the Court below, by rejecting the defendant's fifth prayer, and granting the plaintiff's prayer, virtually instructed the jury that even although they might find that the deceased violated his duty, and that he lost his life in consequence of such violation, he was nevertheless using due care, and not guilty of contributory negligence.

The hypothesis of the fifth prayer, made out a clear case of such contributory negligence as would have precluded a recovery, if believed by the jury; and the appellant was entitled to have this theory of its case fairly and distinctly presented. If the injury to him could not have been inflicted, but for his negligent and improper exposure upon the engine, where he had no business [**12]  to be, it seems impossible to understand how he can be said not to have contributed to the fatal result by his own negligence--and if this be so, the law is perfectly well settled in this Court, that there can be in such cases no recovery, even although the defendant may also have been negligent. Miller's case, 29 Md., 252; Price's case, 29 Md., 420; Balt. & Ohio R. R. Co. vs. Fitzpatrick, 35 Md., 43; Geis' case, 31 Md., 357; Shipley's case, 31 Md., 368; Coughlan's case, 24 Md., 84.

There was no evidence, that the appellant had not used due diligence in procuring sound machinery and competent employees, and therefore even assuming, that the violation by the deceased of the regulations of the company was not such contributory negligence as would bar a recovery, still the appellee was not entitled to recover.

Before the plaintiff could recover, it was necessary for it to prove that the appellant had failed to meet the obligation resting upon it to use due diligence in procuring sound machinery and competent employees. O'Connell vs. Baltimore and Ohio Rail Road Co., 20 Md., 212; Shanck vs. N. C. R. W. Co., 25 Md., 462; Cumb'd Coal and Iron Co. vs. Scally, 27 Md., 589.

An [**13]  analysis of the testimony will show, that not only did the appellee not prove such failure, but it did not even offer any evidence legally tending to prove it, and therefore, the first and second prayers of the appellant which asked the Court to instruct the jury that there was no such evidence, should have been granted.

The obligation upon the master is not that machinery, sound in fact, and employees competent in fact, shall be procured, but it merely is that due diligence shall be used to procure them.

Machinery may prove to be unsound, and employees may turn out to be incompetent, but the company's liability in such a case as the one under investigation would not thereby be established. The test of its responsibility is not its success in obtaining sound machinery, and securing competent employees, but its bona fide diligence in its efforts to procure them--a very wide and clear distinction.

As between co-employees the master does not warrant their competency, and is not responsible to them for each other's negligence. It is only his duty to exercise due care in their selection. This is now settled Maryland law.

In this case, if the engine was originally sound,  [**14]  then its subsequent unfitness and the negligence or want of skill on the part of Jordan in repairing it, are not in themselves any evidence at all of the failure of the company to exercise all reasonable care in his selection--nor do they rebut or tend to rebut in any degree the positive proof the other way on the part of the appellant.

He may have been incompetent in fact, and yet the appellant not thereby liable--he may have been competent in fact, yet negligent or unskillful in this particular instance, and the appellant still not liable--and he may have been incompetent in fact, and negligent and unskillful in repairing the engine, and the appellant even then not liable, for if due diligence was used in procuring the engine and in selecting Jordan, the appellant would not be responsible for the imperfect and defective repairing of the engine by Jordan, unless it had knowledge of such defective repairing, and failed to use reasonable diligence to remedy it. This knowledge the plaintiff, of course, must prove.

There was no evidence that the appellant had any knowledge or notice of such alleged defective repairing.

The engine was repaired five weeks before the accident,  [**15]  and was in the interval in charge of the engineer Wills. He testified that he never reported to any one of the defendant's agents that the engine was out of order, and considered her as good and safe as any engine on the road. This is the only testimony on the subject.

The plaintiff clearly failed to prove want of due care on the part of the appellant in procuring sound machinery and competent employees, which was its only obligation. It also failed to prove any knowledge on the part of the appellant of any defect in the engine. And upon the testimony offered, the deceased manifestly contributed by his own negligence to his death, as but for it he would not have been injured at all.

Upon these grounds the plaintiff was not entitled to recover, and the appellant's prayers embodying these views which were rejected, should have been granted without modification.

Jacob Brown and Henry W. Hoffman for the appellee.

The appellee does not seek to enlarge the measure of responsibility. It is not the question of negligence between fellow-servants, whether of a higher or lower grade. Has there been, in view of all the facts and proof in the cause, "use of due and reasonable [**16]  diligence in providing safe and sound machinery, and in the selection of fellow-servants of competent skill and prudence?" Wonder vs. Baltimore & Ohio R. R. Co., 32 Md., 417.

"A Court of original jurisdiction should not submit to the jury the finding of a fact of which there is no evidence; but if there be any evidence tending to prove it, it would be trenching on the province of the jury to refuse the instruction, because the evidence on which it was founded might not be deemed conclusive by the Court." The Cumb. Coal and Iron Co. vs. Scally, 27 Md., 601.

The second prayer, which was rejected by the Court, contained no principle of law not embraced in the first, third and sixth prayers, which were granted. It was objectionable, moreover, on the ground, that if granted without modification, it took the case from the jury on the same premise which had invoked the modification in the first and fourth prayers. And as it contained no principle not already given to the jury, its only office would have been to multiply prayers, whose effect would be to confuse and mislead. In the discretion of the Court, it was, therefore, properly rejected. The Cumb. Coal and Iron Co. vs. Scally,  [**17]  27 Md., 603; Whiteford vs. Burckmyer and Adams, 1 Gill, 153.

The hypothesis of the fifth prayer does not make out a case that would bar the appellee's right of recovery. To assume that if the decedent had been elsewhere at the moment of the explosion, the injury inflicted could not have happened, furnishes no excuse for the appellant's culpability, assuming that there was such, unless the person injured contributed to the immediate cause of the injury. What, though Fazenbaker had ridden a half mile or more on the engine in violation of the company's order? The proof is, that at the time of the explosion, the train had reached a point where it was usual to stop fifteen minutes, and had been standing still five minutes before the explosion occurred.

"If the negligence of the railroad were the proximate, and that of the party injured the remote cause of the injury, the action is maintainable, notwithstanding the party injured may not have been entirely without fault." North. Cent. Railway Co. vs. The State, use of Price, et al., 29 Md., 420.

Moreover, the facts were before the jury, and the appellee's prayer, granted by the Court, submitted properly the law respecting contributory [**18]  negligence.

The appellee's first prayer, which was granted, is not subject to any valid objection. It announced no principle in conflict with the law of the prayers offered by and granted to the appellant.

On the whole, the prayers granted left with the jury all the circumstances which qualified the liabilty of the appellant in the amplest manner. The law of the case was as fully and as favorably stated for the defence as they had a right to expect, or the Court was authorized to grant. The appellant was not prejudiced by the rejection of the prayers which were refused. The Cumb. Coal and Iron Co. vs. Scally, 27 Md., 603.  

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

OPINIONBY:
STEWART 

OPINION:

 [*168]  STEWART, J., delivered the opinion of the Court.
William Fazenbaker was killed on the 26th March, 1870, by the explosion of a locomotive belonging to the appellant; and the action was brought in the name of the State, for the use of his widow and children, to recover damages from the appellant on account thereof.
Exception has been taken, by the appellant, to the rulings of the Circuit Court, in granting the appellee's first prayer, and rejecting [**19]  the first, second, fourth and fifth prayers of the appellant, and modifying its first and fourth prayers.
The prayer of the appellee submitted to the jury, amongst other matters, two prominent propositions, which form also, leading considerations in the several prayers of the appellant.
First.--The question of negligence on the part of the deceased, contributing to his own death, which, if found to be true, would defeat the action. To authorize a recovery, the prayer requires the jury to find from the evidence, that at the time of the accident, he was using 

 [*169]  ordinary care, and did not contribute to his own death, by the want of ordinary care. The proposition is presented both affirmatively and negatively, that is, before the jury, according to the theory of the prayer in this particular, could find for the plaintiff, they must be satisfied, not only that the deceased was using ordinary care at the time of the accident, but that he did not contribute to his own death by the want of ordinary care. The fifth prayer of the appellant merely involves this question, and requires the Court to determine it.
Second.--Reasonable skill, care and diligence on the part of the appellant,  [**20]  or its agents, which if found to be true, would relieve the appellant from responsibility for the accident. The first, second, third, fourth and sixth prayers of the appellant involve the consideration of this branch of the same question.
What constituted negligence, or ordinary care, or the want of it in the party, contributing to his death; and the reasonable skill, care and diligence exercised on the part of the appellant, to relieve it from responsibility for the fatal occurrence, are questions, according to the nature of the evidence in this case, to be determined by the jury, from all the facts and circumstances. It is their province, from the controverted facts to make the reasonable deductions, and these questions must be referred to the jury. Such is the rule and practice, although in some cases the question of negligence may be a legal one for the Court to decide.  State, use of Miller vs. B. & O. R. R., 29 Md. 252; State, use of Price vs. B. & O. R. R., 29 Md. 420; Balt. City Pass. R. W. vs. Wilkinson, 30 Md. 224; B. & O. R. R. vs. Shipley, 31 Md. 368; B. & O. R. R. vs. Fitzpatrick, 35 Md. 32, 44; [**21]  B. & O. R. R. Co. vs. State, use of Dougherty, 36 Md. 366. But the Court will always instruct the jury, if applied to, as to the degree of diligence or skill and care which the law imposes upon the respective parties, and the jury are to determine if the requisite conduct has been observed.

 [*170]  The fifth prayer of the appellant proposed, virtually to withdraw the question of negligence, or want of ordinary care on the part of the deceased, from the jury, and to have it determined by the Court, upon the proposed hypothesis of facts, as a question of law, and it was on that account properly rejected. In our opinion, the facts stated in the prayer do not authorize the Court to pronounce, as matter of law, that they constitute such contributory negligence as would prevent a recovery by the appellee. The case is not of that character in its circumstances as to warrant the intervention of the Court, in withdrawing the question from the jury.
The first and fourth prayers of the appellant, without the modifications made by the Circuit Court, proposed to submit to the jury, upon the hypothesis of facts, assumed respectively in each, that there could be no recovery,  [**22]  unless there was proof that the appellant did not use reasonable care in procuring sound machinery, and faithful and competent employees, and required the Court, at the same time, to instruct the jury; that there was no evidence to show want of such reasonable care.
Evidence had been adduced, and whether sufficient or not was to be determined by the jury; and the Court, very properly, refused the prayer as presented, and made the modification, which left the question, whether reasonable care had been observed by the appellant, to be found by the jury.
The second prayer of the appellant was obnoxious to the same objection as the first and fourth, in assuming there was no proof that the appellant did not use reasonable care in procuring the engine and selecting the employees.
The appellant's third and sixth prayers presented distinctly the question of reasonable care on the part of the appellant, in selecting the co-employees of the deceased, and the procuring engine No. 11, omitting the assumption 

 [*171]  that there was no evidence applicable thereto, and were granted. The jury having found adversely to the theories of these prayers, could not have been satisfied, from the evidence,  [**23]  that such reasonable care had been observed by the appellant.
In granting the third and sixth prayers of the appellant, the Circuit Court could not have consistently allowed its first and fourth prayers, without the modification made.
From a careful consideration of all the prayers granted, to wit: the appellee's first and appellant's third and sixth absolutely, and first and fourth modified, and the seventh of the appellant conceded, we think the jury were properly instructed as to the law applicable to the facts of the case, and that the appellant has no ground of complaint, so far as the law pertinent thereto has been expounded.
If the jury have misapprehended the facts, that is a matter which this Court has no right to assume, nor power to correct.
Judgment affirmed. 

75 of 144 DOCUMENTS 

PHILIP W. DOWNES, Executor of WILLIAM H. DOWNES, vs. THE MARYLAND AND DELAWARE RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 100; 1872 Md. LEXIS 111 

December 18, 1872, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Queen Anne's County.

The case is stated in the opinion of the Court. The verdict and judgment were for the plaintiff.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Competency of Stockholders in a Railroad Company, as witnesses for the Company -- Act of 1868, chapter 116, section 2.

In a suit by the Maryland and Delaware Railroad Company, a corporation created by the Act of 1854, chapter 274, amended by the Act of 1856, chapter 50, against an executor to recover the amount of an alleged subscription by his testator, to the capital stock of the company, it was HELD:

That stockholders in the Company were not parties to the contract, or to the suit within the letter or spirit of the second section of the Act of 1868, chapter 116, and were therefore competent witnesses for the plaintiff.  

COUNSEL:
John B. Brown and Thomas J. Keating, for the appellant.

Lloyd Tilghman, for the appellee.  

JUDGES:
The case was submitted on briefs to BARTOL, C. J., STEWART, BOWIE, BRENT and MILLER, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*101]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted by the appellee, to recover the amount of the alleged subscription by the appellant's testator, to the capital stock of the appellee. The questions presented by this appeal arise upon two bills of exceptions taken by the defendant below, as follows: The Court below after objection by the defendant, allowed Robert Jarrell, a stockholder in the company, to testify generally for the plaintiffs on their call, and the question of his competency forms the subject of the second bill of exceptions.
The first bill of exceptions presents substantially the same legal question. It states that Dr. G. W. Goldsborough, who was a director in the company at the time of the alleged subscription, and who had ceased to be a director,  [**2]  but continued to be a stockholder, was allowed, notwithstanding the defendant's objection, to testify for the plaintiffs generally on their call, (except as to matters transpiring while he was a director;) and was allowed to testify as to conversations relating to the alleged contract of subscription, which took place between the defendant's testator and himself, after he had ceased to be a director.
Before the Act of 1864, ch. 109, a stockholder was an incompetent witness for the corporation, on account of his interest in the event of the suit.  Union Bank vs. Ridgely, 1 H. & G. 324. But that Act has removed all the incompetency of witnesses in civil cases arising from interest.
The appellant contends that the witnesses Goldsborough and Jarrell were incompetent, not on account of their interest in the event of the suit, but because being stockholders "they constitute each an integral part of the company and are substantial parties to the contract, and 

 [*102]  to the suit; and come within the exception in the second section of the Act of 1864, as amended by the Act of 1868, ch. 116, which forbids a party to a contract or a party to the [**3]  suit to testify in his own behalf, the other party being dead, and his executor being a party to the suit."
The provision of the second section of the Act above referred to is as follows: "When an original party to a contract or cause of action is dead, or is 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 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."
In support of the position that a stockholder is disqualified as a party to the suit, the appellant's counsel has referred to The King vs. The Inhabitants of Woburn, 10 East., 395, and The King vs. The Inhabitants of Hardwick, 11 East., 578. In the former of those cases it was decided that in a suit between the church-wardens and overseers of the poor of two parishes, respecting the settlement of a pauper, a rated inhabitant of one of the parishes was a party to the suit; and as such could not be compelled to testify for the other party. This decision was followed [**4]  in the case in 11 East., where, in a suit of the same kind, it was held that a rated parishioner not being bound to give evidence against his own parish, by reason of his being a substantial party to the suit, his declarations were admissible in evidence when offered by the other party.
Those cases were cited and reviewed by the Court of Appeals, in The City Bank of Baltimore vs. Bateman, 7 H. & J. 104, 110, to which we will presently refer more particularly.
In Fletcher vs. Greenwell, 1 Cromp., M. & R. 754, it was decided in the Court of Exchequer, that "where an 

 [*103]  Act empowers the directors and overseers of the poor of a parish to sue and be sued in the name of their clerk, in an action for goods supplied to the directors, a person who was one of the directors at the time when the goods were supplied, is a competent witness for the defendant." In the argument of counsel against the competency of the witness, it was said, "the defendants are not a corporation, and except for the clause in the Act of Parliament, they must have been sued as individuals. Their real character of defendants is not altered by that clause, the witness therefore was substantially [**5]  a party to the suit, and as such incompetent." But this argument did not prevail; and it was held that the witness was competent under the provision of the local Act which made inhabitants of the parish competent witnesses. This decision was afterwards followed by the Court of Exchequer in McGatrey vs. Alston and Sewell, 2 Mee. & W. 206; and in Sinclair vs. Sinclair, 13 Mees. & W. 640, it was decided that a prochein ami is not a party to the suit, and is a competent witness under the Statute of 6 & 7 Vict., ch. 85, sec. 1, which took away all objection on the ground of interest. In that case, PARKE, B., during the course of the argument, likened the position of a prochein ami to that of a member of a corporation, who is not individually named as a party to the suit.
We have referred to these cases to show the course of decisions in England upon the question, as to who are parties to a suit at the common law, and within the meaning of their statutes, because they furnish some aid in the construction of our Acts of Assembly. The same question arose in the case of The City Bank of Baltimore vs. Bateman, 7 H. & J. 104, before cited,  [**6]  which being a suit against a corporation, is more analogous to this. There the plaintiff offered in evidence the declarations of Hollingsworth, the president of the bank, on the ground that he was a party defendant, the suit being against the 

 [*104]  "President, Directors and Company of the City Bank of Baltimore."
The Court say, (p. 109,) "The admissions of a party on the record are always evidence against himself; because being a party, he cannot be compelled to give evidence against his interest in a Court of law. But that principle does not reach to this case. **** Samuel Hollingsworth is sued and is a party on the record only in his corporate capacity, and not in his natural and individual capacity. **** There was therefore no objection to his being sworn and examined as a witness against the appellants on the ground of his being a party to the suit."
Here the appellee is a corporation created by the Act of 1854, ch. 274, amended by the Act of 1856, ch. 50.
Those statutes impose no individual liability upon the stockholders for the debts of the corporation; nor are they individually liable for costs in this suit. They are not therefore parties to the suit within the [**7]  meaning of the second section of the Act of 1868.
We agree with the proposition stated by the appellee in argument, that "if a stockholder was not a party to a suit by or against the corporation, so as to render him an incompetent witness on that ground, prior to the Acts of 1864 and 1868, he is not so since those Acts, for their chief object and purpose is to remove the incompetency of witnesses, not to impose additional restrictions."
Nor were the stockholders offered as witnesses in this case, parties to the contract sued on, so as to bring them within the exception contained in the second section of the Act of 1868, and render them incompetent witnesses, because the other party to the contract is dead, and the suit is against his executor. The contract was made with the corporation, not with the witnesses, who were merely stockholders. It does not appear that they were, either of them, agents of the corporation in making the 

 [*105]  contract, or had anything to do with its inception; and they were not in our judgment parties to the contract or to the suit within the letter or the spirit of the Act of Assembly, and were therefore competent witnesses for the appellee; all objection [**8]  on the ground of interest, which was the only objection that could at any time have been urged against their competency, having been removed by the Acts of Assembly.
Judgment affirmed. 

76 of 144 DOCUMENTS 

THOMAS M. LANAHAN vs. PATRICK GAHAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 105; 1872 Md. LEXIS 112 

December 18, 1872, Decided 

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

This was an appeal from a decree dissolving the injunction, issued upon the application of the appellant, and dismissing his bill. The case is sufficiently stated in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Injunction.

Where the rights involved are purely legal, a Court of Equity will interpose by injunction solely to protect the property until such rights can be determined by a Court of law; and this protection will only be given in cases where the mischief threatened or impending is likely to be ruinous or irreparable.

Where after filing a bill praying that the defendant be enjoined from the use of a division wall between his lot and that of the complainant, the latter sells his property, the injunction will not issue.  

COUNSEL:
John Carson, for the appellant.

Patrick M'Laughlin, for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*106]  ALVEY, J., delivered the opinion of the Court:
The appellant seeks to restrain the appellee by injunction from the use of a division wall between their adjoining lots, alleging that such wall, being the northern wall of his building, is his exclusive property, and that the use attempted to be made of it by the appellee will weaken and impair it, and, at the same time, tend to destroy its exclusive character and convert it into a party wall. The appellee, on the other hand, contends that he has a right to use the wall as contemplated by him, because the same is partly located on his ground, and is not therefore the exclusive property of the appellant; and he denies that the use he was about making of the wall, being the insertion of joists for [**2]  the extension of his building, would in any manner weaken or impair it, as alleged by the appellant.
It is plain, from the very nature of the claims and pretensions of the respective parties, that the rights involved are purely legal rights, and such as should be determined by a Court of law, and not by a Court of equity. The proper office of a Court of equity, as said by Lord COTTENHAM, in the case of Harman vs. Jones, 1 Cr. & Phil. 301, upon applications of this kind, is not to ascertain the existence of a legal right, but solely to protect the property until that right can be determined by the jurisdiction to which it properly belongs; and this protection will only be given in cases where the mischief threatened or impending is likely to be ruinous or irreparable. An injunction is never granted to restrain a mere trespass, where the injury is not destructive and irreparable, but is susceptible of perfect pecuniary compensation by action at law. Jerome vs. Ross, 7 John. Ch. 315. The 

 [*107]  doctrine of Courts of equity upon this subject is briefly but fully stated by the Master of the Rolls, in the case of Hilton vs. Granville, 4 Beav. 130, [**3]  which was an application to have the defendant restrained from so working his mines as to injure or endanger the foundations of the plaintiff's house He said: "The rights asserted on the part of the plaintiff and of the defendant are legal rights; and the plaintiff, asking for the assistance of a Court of equity to protect him from a violation of his alleged legal rights, ought to shew that the right has been established, or that, having had no means of establishing it, but the right being prima facie well founded, the interference of this Court is necessary to prevent that species and extent of mischief which this Court calls irremediable, before the right can be established by legal proceedings." Indeed, upon this subject, no other authority is needed than the case of Amelung, et al., vs. Seekamp, 9 Gill & John. 468, in which is fully sanctioned the doctrine just stated.
Now, supposing that it may be determined at law that the plaintiff's alleged right to the wall is well founded to the extent claimed by him, we have carefully examined the record in this case to ascertain whether there be evidence to show that, by the use of the wall as contemplated by the [**4]  defendant, irreparable injury would likely result to the plaintiff, before the right can be tried and determined at law. But that examination has utterly failed to discover any such evidence On the contrary, the only evidence furnished by the record, as to the effect of the defendant's proposed use of the wall, is, that the wall itself would be strengthened instead of weakened by such use. In reference to this, however, opinions may differ among those best able to judge. But this fact is fully disclosed, that since filing the bill in this case, and being restrained by the injunction, the defendant not only desisted from the further use of the wall, but cut out the 

 [*108]  joists already inserted, and provided other supports for his joists, and has completed his building. So that, in truth, the danger complained of is no longer impending, and therefore the injunction can be of no further necessity as a means of protection to the property. Moreover, it appears in the evidence that the plaintiff has, since the commencement of this litigation, sold his property; and if such be the case, it is not apparent that he is any longer interested in the subject-matter of the controversy.  [**5]  
Without in any manner expressing an opinion as to the grounds upon which this case was decided by the Court below, we shall affirm the order or decree appealed from, for the reasons we have stated.
Decree affirmed. 

77 of 144 DOCUMENTS 

CHARLES C. BROWNE vs. THE TRUSTEES OF THE METHODIST EPISCOPAL CHURCH IN THE CITY AND PRECINCTS OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 108; 1872 Md. LEXIS 113 

December 18, 1872, Decided 

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

This was an action brought on the 2nd December, 1871, by the appellant against the appellees to recover damages for the obstruction of an alleged right of way. At the trial below, the plaintiff offered in evidence the Act of 1849, ch. 323, a supplement to an Act authorizing the defendants to hold certain lands as a burial ground; a notice to the defendants to remove the ob structions to the road; the record of the case of Bujac vs. Browne, et al., in the Circuit Court for Baltimore County, in Equity, as also the record of the case of Bousquet, et al., vs. Guestier, et al., in the Superior Court of Baltimore City, in Equity, the various deeds under which the parties claimed, and a copy of the will of Elizabeth Lawson. By this will admitted to probate in February, 1814, the testarix directed her executor, Charles C. Browne, the father of the plaintiff, to lay off ten acres of land, adjoining her dwelling house in Baltimore County, called "Font Hill," which she devised as follows: "I do hereby devise and bequeath the said dwelling house called 'Font Hill,' with the land and appurtenances before mentioned, to be laid out as directed,  [**2]  unto Charles C. Browne, and his heirs, in trust, to permit Sarah Browne to take and receive the profits during her natural life, or to reside thereon if she shall think proper; but if she shall not reside thereon, it is my will and desire, that the same shall remain in the hands of the said Charles C. Browne, he paying over to her the annual rents and profits thereof, during her natural life, and at the death of the said Sarah Browne, I give, devise and bequeath the said dwelling, with the appurtenances, unto the heirs of her body lawfully begotten, and failing such heirs, unto Elizabeth Browne, daughter of the said Charles C. Browne, and to her heirs forever."

The residue of her real estate, the testatrix directed her executor to sell and "to convey the same to purchasers absolutely and in fee simple."

Elizabeth Browne mentioned in the will died about 1826 or 1827, intestate, unmarried, and without issue. Sarah Brown died in 1855, intestate, unmarried, and without issue. The plaintiff became the owner in fee of "Font Hill," and the ten acres adjoining, under proceedings in the case of Bujac vs. Browne, et al.

The plaintiff offered in evidence a plat of Font Hill, signed [**3]  Cornelius Howard, 1st May, 1815, and introduced evidence tending to show that it was the identical plat referred to in the several deeds, as having been exhibited at the sale of the property of Mrs. Lawson, by her executor. A witness for the plaintiff testified on cross-examination, that the road leading through the property claimed by the appellees, being Mount Olivet Cemetery, was closed by a Mr. Patterson, when he bought the property in 1829. Other evidence in relation to this road will be found in the opinion of this Court.

A witness in behalf of the defendants testified that he was one of the trustees and also one of the committee to take charge of Mount Olivet Cemetery, and that he never heard of a claim of a right of way through the property, by the plaintiff prior to this suit.

Plaintiff's Exception: The plaintiff asked the following instruction:

If from the evidence the jury find that Elizabeth Lawson was seized of the land embraced in the plat offered in evidence by the plaintiff, that she died leaving the will offered in evidence by the plaintiff, that Charles C. Browne, her executor, sold and conveyed the several parts of said land of said Elizabeth Lawson [**4]  to Guestier, known on said plat as "Nos 1 and 2, 3 and 8," by the deeds offered in evidence, and that the defendants hold the said tracts so sold to Guestier, by the mesne conveyances offered in evidence. If they further find that said plot so offered in evidence, is the plot referred to in said deeds offered in evidence. If they further find that the said Sarah Browne, named in said will of Elizabeth Lawson, died in 1855; that Elizabeth Browne, named in said will, had previously died intestate, unmarried and without issue, and that her heirs-at-law were Charles C. Browne, the plaintiff, Mary E. Browne, Ellen E. Wilson, wife of Dr. Thos. Wilson, and Charles J. B. Mitchell, and that said C. C. Browne, the said executor, died intestate, leaving as his heirs-at-law, said C. C. Browne, Ellen E. Wilson, and his widow, Martha T. Browne; that said widow died also before the bringing of this suit; that Robert Browne, named in said will, died intestate in 1856, leaving James T. Browne, his sole heir-at-law. If they further find that said heirs-at-law of Elizabeth Browne, said heirs-at-law of said C. C. Browne, the elder, and said heirs-at-law of Robert Browne, were parties defendants to the [**5]  action of Bujac vs. Browne, et als., in the Circuit Court of Baltimore County, in Equity, the record of which was read in evidence, and that said C. C. Browne, the plaintiff, under the decree in said cause, acquired all the right, title and interest of all the parties to this cause. If they moreover find that the road marked on said plat between lots 3 and 8, and east of lot No. 1, is the road in controversy in this suit, and was actually in existence at and subsequent to the time of said conveyances from Browne, executor, to Guestier, and was used as a road connecting Font Hill with the Frederick Turnpike Road, as testified before them, and that the defendants caused to be erected a fence which prevents the use of said road, as testified before them, then they must find for the plaintiff, although they should further find that said road has not been actually used by the occupants of Font Hill since it was obstructed by Patterson in the manner testified before them, if they find such obstruction to have been so made, nor although the defendants themselves, prior to the late erection of said fences, had obstructed said way by planting trees or burying the dead.

The Court (YELLOTT [**6]  and WATTERS, J.) refused to give the instruction and granted the following prayer of the defendants:

2. If the jury shall find that the defendants, and those under whom they claim had, prior to the bringing of this suit, enjoyed adverse possession of the bed of the road in question for more than twenty years, then the plaintiff is estopped from setting up any claim to the reopening of said road, and is not entitled to recover in this action, although they shall further find that the said road existed at the time of the sales of Font Hill by Charles C. Browne, executor of Elizabeth Lawson, as delineated on the plat of Font Hill, offered in evidence, and that the said plat is the identical one mentioned in the deeds from said executor to Peter A. Guestier, offered in evidence, and that the plaintiff, and those under whom he claims, were entitled to the use of said road before its closing.

To this ruling of the Court the plaintiff excepted.

Defendant's first exception: The plaintiff offered a plat of Font Hill, signed Cornelius Howard, May 1st, 1815, coupled with an offer to prove that it was the identical plat referred to in the several deeds put in evidence, as having [**7]  been exhibited at the sale of the property of Elizabeth Lawson by Charles C. Browne, executor. The defendants objected, but the Court overruled the objection and the defendants excepted.

Defendants' second exception: The defendants offered the following prayers beside the one which the Court granted:

1. If the jury shall find that the defendants purchased the property known as "Mount Olivet Cemetery," from Lancaster Ould and wife, in the year 1849, and proceeded at once to dedicate the same for burial purposes, and have ever since continued to use the said property for that purpose; and shall further find that the road in question would, if re-opened, pass over and through the graves actually occupied by the bodies of the dead, then, for considerations of public policy, the said road should not be re-opened, and the plaintiff is not entitled to recover in this action, although they should further find that the plaintiff, and those under whom he claims, were entitled to the use of said road before its closing.

3. If the jury shall find that the plaintiff's lands were held in trust for Sarah Browne during her lifetime, with remainder over to the plaintiff and others, then [**8]  it was the duty of the trustees holding the legal title of said property, to prevent the closing of the road in question, and from his failure to do so for more than twenty years, it may well be presumed that he has been prevented from objecting in consequence of the use of said road-bed by the defendants being rightful.

4. If the jury shall find that the defendants have been the owners' of the property known as "Mount Olivet Cemetery" since the year 1849, and have been since that time engaged in improving, and expending money thereon to fit it for burial purposes, with the full knowledge of the plaintiff, and without any intimation from him of a claim to a road through the property, then the plaintiff is not entitled to recover in this action.

These prayers the Court rejected, and the defendants excepted. The verdict and judgment being for the defendants, the plaintiff appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Right of Way -- Presumption of a Grant, how repelled -- How a Right of Way may be Extinguished -- Presumption of a Release of the Right of Way -- Evidence of a Presumptive Grant or Presumptive Release to be submitted to the Jury -- Adverse Possession to confer a Right of Way, &c. -- Construction of a Devise -- Evidence -- Estoppel.

The use and enjoyment of a road for twenty years adversely, and without qualification, affords sufficient ground for the presumption of a grant; but if the enjoyment can be referred to the license of the party over whose lands the right of way is claimed, or can be placed upon any other footing, than a claim or assertion of right, it will repel the presumption of a grant.

If the right to a road be acquired by adverse user for twenty years, its non-user for a like space of time, with the knowledge and acquiescence of the owner of the inheritance, will extinguish the right so acquired; because such cesser to use the road affords legitimate presumption of a release of the right.

Whilst a grant of the right of way may be presumed from its long use and enjoyment, the release of such acquired right may be inferred from its continued abandonment, or forbearance to use it. The presumptive grant, and the presumptive release, rest on the like basis, and the evidence to support either is not conclusive; but is a matter to be submitted to the jury, from which they may infer a grant or release as the case may be.

The adverse possession capable of conferring a right of way, or of supporting the presumption of a release, or abandonment, must be against the owner able in law to assert his rights, and to resist the adverse claim; and hence any non-user of the easement, while the land is in possession, occupation or control of the tenant for life, does not affect the owner of the inheritance, unless such non-user was by his acquiescence, knowledge or authority.

A dwelling-house with certain land and appurtenances was devised to C. and his heirs, in trust, to permit S. to take and receive the profits during her natural life, or to reside thereon if she should think proper; but if she should not reside thereon, the same was to remain in the hands of C., he paying over to S. the annual rents and profits thereof during her natural life; and at her death the said dwelling, with the appurtenances, was devised to the heirs of the body of S., lawfully begotten; and failing such heirs, to E. and her heirs forever. S. died intestate and without issue. HELD:

That S. had only the beneficial use of the property devised to her, during her natural life.

In certain conveyances of real estate, sold by an executor pursuant to the direction of his testatrix, reference was made to a plat of the property, as having been exhibited at the time of sale. On this plat a road was laid down. In an action, for obstructing the right of way over this road, against persons claiming title under the deeds of the executor, the plaintiff to maintain his claim to the easement, tendered in evidence a plat, coupled with an offer to prove that it was the identical plat referred to in the several deeds as having been exhibited at the sale of the property. HELD:

That this evidence was admissible.

Where one stands by and sees another laying out money upon property to which he has some claim or title, and does not give notice of it, he cannot afterward, in good conscience set up such claim or title, except where the encroachment is on land, the title to which is equally well known or equally open to the notice of both parties. Where the claim is under some trust, lien or other right, not equally open and apparent to the parties, the principle applies in favor of one who would be deceived by such want of notice. In such case the doctrine of estoppel in pais, affords a protection to the party misled by the conduct of the other party.  

COUNSEL:
Michael A. Mullin and Wm. Shepard Bryan, for the appellant.

Both parties claim title under the will of Elizabeth Lawson; the appellant to the dwelling house "Font Hill," and the ten acres adjoining directed to be laid off by the executor; and the [**9]  appellees to portions of the estate directed by the testatrix to be sold. The executor in pursuance of the powers vested in him laid off the estate according to the original plat offered in evidence and exhibited in the Appellate Court. The Mansion house and the ten acres adjoining were there shown, as well as the several lots sold to Guestier, under whom the appellees claim.

This plat made and exhibited under these circumstances, would be binding on both parties, even were it not referred to in the deeds under which the defendants claim. Wakeman vs. West, 7 Carr & P., 479; Doe d. Hughes vs. Lakin, 7 C. & P., 481; Bridgman vs. Jennings, 1 Ld. Raym., 734; Carroll vs. Smith, 4 H. & J., 128; Howard vs. Moale, 2 H. & J., 268.

But the plat being referred to in the deeds from Browne, Ex'r of Dawson, to Guestier, (under whom the defendants claim) is to be considered a part of the description contained in them, and the defendants cannot deny anything shown by it. 1 Phillips on Evidence, 282, (Edit. 1859;) Wakeman vs. West, 7 Carr & P., 479; Smiles vs. Hastings, 24 Barbour, 49; Carroll vs. Smith, 4 H. & J., 131.

There is no evidence of any grant or other positive act by which [**10]  the road was closed, but the appellees and the Court below have rested the entire cause upon an alleged adverse posssssion on the part of the appellees and those under whom they claim.

The defendants' second prayer which was granted by the Court below, assumes that adverse possession for twenty years is a complete bar to the plaintiff's action; that is, that after such possession the plaintiff "is estopped from setting up any claim." This ignores the distinction between the law of presumption upon which prescriptive titles are founded, and which existed prior to the Statute 21 James I, ch. 16, and the limitations established by that statute.

Adverse possession for more than twenty years will not bar a right of way. It might under proper circumstances authorize the question to be left to the jury whether there was a release of the right of way. The defendants were not willing that from their possession the jury should be permitted to presume a release. Wright vs. Freeman, 5 Har. & John., 467.

A release by the owner of the fee cannot be presumed from the acquiescence of the tenant for life, or her tenants, or even from their positive acts. 2 Greenleaf's Evidence, sec.  [**11]  545, note 6; Yard vs. Ford, 2 Wms' Saunders, 175d., Wood vs. Veal, 5 Barn. & Ald., 454; Glenn vs. Davis, 35 Md., 215.

Sarah Browne was only a tenant for life of an equitable estate, with an unexecuted legal estate in remainder to the devisees mentioned in Mrs. Lawson's Will. Ware vs. Richardson, 3 Md., 535, 541; Tongue's Lessee vs. Nutwell, 13 Md., 415.

The plaintiff's title vested in 1855, and he brought suit in 1871. The acts or laches of Sarah Browne, could not affect the plaintiff, as he did not claim under her, she being tenant for life and he having purchased the titles of the parties in remainder.

Frederick T. Baker and John M. Carter, for the appellees.

The evidence offered for the purpose of identifying the plat given in evidence by the plaintiff, was insufficient. But had the plat been properly identified as the one exhibited at the sale of Mrs. Lawson's property, it should not have been permitted to go to the jury; as there were no courses and distances on it to enable the Court and jury to determine that the lots there laid down were the same lots described in the various deeds from Chas. C. Browne, executor. Clary vs. Kimmell, 18 Md., 246; Budd vs.  [**12]  Brooke, et al., 3 Gill, 227.

But even were it conceded that the road in question was rightfully used by those under whom the plaintiff claims, the evidence in the cause fully justifies the presumption of a release in favor of the defendants, and those under whom they claim.

The clause in the will of Elizabeth Lawson which contains the devise of Font Hill, vests in Sarah Browne an estate in fee--the use having been executed by the Statute in her, and the rule in Shelly's case applying directly to the words of the devise. Broughton vs. Langley, 2 Ld. Raym., 873; Horne, et al., vs. Lyeth, 4 H. & J., 431; Hatton vs. Weems, 12 G. & J., 83.

In cases of trusts other than for the sole and separate use of married women, or where certain active duties are imposed upon the trustee, the use is executed in the cestui que trust. In this case the cestui que trust was a feme sole, and it would seem that no active functions devolved upon or were exercised by the trustee. Broughton vs. Langley, 2 Ld. Raym., 873; Ware, et al., vs. Richardson, 3 Md., 505; Williams vs. Waters, 14 Mees. & Wel., 136.

But even were this an active trust, a title by prescription might be acquired as well [**13]  against the trustee as the cestui que trust. Melling vs. Leak, 16 C. B., 652. (81 Eng. C. L.) The plaintiff's prayer was properly rejected. It contained propositions of law to be submitted to the jury to be ascertained as facts. It was complicated and multifarious. It was founded upon an hypothesis of fact which took from the jury the finding of other facts by which the right to recover might have been impaired or defeated. Handy & Tall vs. Johnson, 5 Md., 450; Cumb. Coal & Iron Co. vs. Scally, 27 Md., 589; Crawfurd's Admr. vs. Beall's Ex'r. 21 Md., 237; Adams vs. Capron, et al., 21 Md., 205.

The defendants' first and fourth prayers were improperly rejected. Tongue's Lessee vs. Nutwell, 17 Md., 212; Act of 1849, ch. 323; Act of 1852, ch. 278.  

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

OPINIONBY:
STEWART 

OPINION:

 [*118]  STEWART, J., delivered the opinion of the Court.
The appellant sued for obstruction to a right of way, alleged to belong to him, through the property of the appellees.
There is no dispute about the property respectively claimed by the parties, but the alleged right of way, has given rise to the contest. In the trial of the cause, the appellant [**14]  excepted to the refusal of his prayer, and the allowance of the appellees' second prayer.
We think the appellant's prayer was objectionable, upon several grounds. In blending propositions of law and fact, and proposing to submit mere assumption of both to the jury.
When the plat was offered by the appellant to be followed by evidence, that it was the same exhibited at the sale of Mrs. Lawson's property, objection was made by the appellees' which was overruled by the Court; (properly we think); but no question was afterwards raised as to the sufficiency of the testimony, in regard to it, submitted to the jury, to enable them to determine if it was the same plat used at the sale aforesaid.
If the objection had been made after all the evidence, in regard to it, we think it was properly left to the jury for the purpose proposed.
But the prayer ought not to have assumed, as a fact that there was a road marked out on the plat, and the same road connecting Font Hill with the turnpike, and that it was so used. The plat had no description of the 

 [*119]  courses of the lots marked out, or of any road--nor do the deeds offered in evidence which refer to a plat exhibited at the sale, describe [**15]  any road thereon running through the property, and it was for the jury, if they could, to determine the truth of these matters.
The prayer also assumed, that the mere use of the road, without reference to the extent and duration of its user and enjoyment, conferred the right on the appellant, as the holder of the inheritance, to use it, with the right to recover for its obstruction.
The proof as to the user of the road, was indefinite, that sometimes it was used--at other times closed; but the prayer assumes, if the road was used at all, the right of permanent enjoyment ensued. There is no doubt the use and enjoyment of the road for twenty years adversely, and without qualification, would afford sufficient ground for the presumption of a grant; but if the enjoyment can be referred to the license of the party over whose lands the right of way is claimed, or can be placed upon any other footing, than a claim or assertion of right, it will repel the presumption of a grant. If the right to the road had been acquired by the appellant, or by those under whom he claims, by adverse user, for twenty years; its non-user for a like space of time, would extinguish any right they [**16]  acquired, if with the knowledge and acquiescence of the proprietor of the inheritance; because such cesser to use the road, would afford legitimate presumption of a release of the right.  Wright vs. Freeman, 5 H. & J. 467; Pue vs. Pue, 4 Md. Ch. 386.
The prayer assumed that the use of the road was conclusive evidence of the right of way; whereas under any circumstances, it was but a matter of evidence, to be submitted to the jury, from which to infer a grant. It was obnoxious to the valid objection made by the appellant, to the second prayer of the appellees; besides the prayer ignored all reference to the cesser to use the road.

 [*120]  Whilst a grant of the right of way may be presumed, from its long use and enjoyment, the release of such acquired right may be inferred from its continued abandonment, or forbearance to use it. The presumptive grant, and the presumptive release, rest on the like basis, and the evidence to support either, is not conclusive, but is a matter to be submitted to the jury, from which they may infer a grant, or release, as the case may be.
The Statute of Limitations is a positive bar, in cases where it applies,  [**17]  but in all other cases, the length of time must be submitted to the jury, on the basis of presumption.  Wright vs. Freeman, 5 H. & J. 467, 476.
The appellees' prayer as presented, should not have been granted, as we have stated. It was obnoxious to one of the objections we have made to the appellant's.
The adverse possession of the bed of the road, for more than twenty years, did not necessarily preclude the appellant from claiming the re-opening of the road, but from such fact, as a matter of evidence, the jury might presume a release of the right to its use; besides the jury might have been misled from the general terms of the prayer, in undertaking to determine the extent and limitation of the "adverse possession;" and how far it might apply to the claim of the appellant.
The adverse possession capable of conferring the right, or supporting the presumption of release or abandonment, must be against the owner, able in law to assert his rights, and to resist the adverse claim; and therefore, the appellant as holding the inheritance, could not be affected by any non-user of the enjoyment, while the land was in the possession, occupation, or control of the tenant for life;  [**18]  unless where its abandonment, or non-user, was by his acquiescence, knowledge or authority.  Glenn vs. Davis, 35 Md. 208, 217; Washburn on Easements, &c., secs. 114, 124.
According to the provisions of Mrs. Lawson's will, we think Sarah Browne had but the beneficial use of the 

 [*121]  property devised to her, during her natural life. Without undertaking to reiterate reasons for this conclusion, we refer to Ware vs. Richardson, 3 Md. 505; Tongue's Lessee vs. Nutwell, 13 Md. 415; Hatton vs. Weems, 12 G. & J. 83.
If the right to use the road had been acquired by those under whom the appellant claims title, its non-user and abandonment by the tenant for life, for a sufficient time, to destroy or defeat that right, would not prejudice his claim, unless, as will be explained hereinafter, he has in some manner, by his own act or acquiescence, waived or abandoned his right.
This disposes of all the questions strictly before us, under the appeal taken, but as the case must be sent down for a new trial, it is proper to state our views, as to the appellant's exceptions, from which no appeal has [**19]  proceeded--as we have stated, we concur with the Court below, in overruling the objections of the appellees to the admission of the plat, coupled with the offer to prove its identity, in the appellees' first bill of exceptions.
No error was committed in the refusal of the appellees' first and third prayers, indeed the appellees have abandoned the third prayer.
But we think the fourth prayer of the appellees ought to have been granted.
It seems from the evidence, that the road in question, if it ever existed as a reservation, at the sale of Mrs. Lawson's property, or was otherwise acquired as a servitude on the property now claimed by the appellees, was closed by Patterson, who had purchased the lots, in the year 1829; and was then opened or closed by him, as it suited his convenience. Mr. Browne, the appellant, states, that when he visited the premises in the year 1842, the road was closed, and he was obliged to take another route to get to Font Hill. He told his aunt, holding the life interest, about it; and she said it had not been done by her 

 [*122]  consent. No steps, however, seem to have been taken by any of the parties to have the road opened. The appellees became entitled [**20]  to the property in the year 1849, at which time the road was closed; and there is no evidence that they were aware of any right or claim to the road.
It appears there was no record of the road, to which they could resort, for the purpose of ascertaining if there was such an easement on the property.
The appellant, according to his own statement, had some information, or belief, as to the right of way through the property of the appellees to Font Hill.
He states, he knew the property quite intimately since 1848. He knew that the road was closed in 1842, but don't recollect that he told his aunt the road was closed, until after his visit in 1848, when she resided in Baltimore, about 1849-50. He thinks he notified the appellees in 1858-9, of his intention to claim the road. Don't recollect of giving them written notice, or informing the Board officially of his intention.
It thus appears, that although the company had purchased the property in 1849, when the road was closed, and when they were ignorant (from any thing shewn) of any intention to assert a right to the road, or that there was any dormant right; and after the life tenancy had terminated in 1855, the appellant gave no formal [**21]  notice to the Board of his intention to claim the road. John Morrow, one of the trustees of the company and of the committee to take charge of the Cemetery, testifies, that many dead are buried on the property--most thickly in the centre, near the appellant's property; and that he never heard of a right of way, claimed by the appellant, prior to this suit.
If the property of the appellees ever was incumbered with the servitude of this road through it, enuring to the benefit of the appellant, as the proprietor of the dominant estate, he certainly has shown great remissness and want 

 [*123]  of due vigilance in the assertion of his rights; more especially, as against the appellees, who have been preparing and using the property, including the bed of the road, for a Cemetery, the receptacle of the dead, whose right of peaceable and quiet asylum has, incidentally, if not primarily, become involved in this question.
The company occupying and employing the property for such laudable purpose, and under the peculiar circumstances, so well calculated to arrest the attention of all parties having claims upon it, and to prompt them, if so inclined, to the earliest assertion and notice of [**22]  them, is certainly entitled to the most liberal construction of the sound doctrine of estoppel in pais, if applicable; because of the use to which the property was being devoted and dedicated.
The appellees have in charge the remains of the dead, whose right of sepulture should not be disturbed, except upon most unequivocal legal grounds; and the appellant, in undertaking to invade their domain, and to dispossess the trustees, ought to be able and prepared to vindicate his claim, and to show by clear and unmistakable proof, that he has been guilty of no laches.
Their possession and appropriation of the property, after their purchase in 1849, when the road had been long discontinued, and without notice of the claim of the appellant, was, certainly, not that sort of "encroachment on the soil, or rights of the appellant, as amounted to an acknowledged tort, equally known and open to the notice of both parties, which confers no right, until it has continued for such length of time, without interruption, as to give effect to the limitation of the right of action for the disturbance," to use the language adopted in Tongue's Lessee vs. Nutwell, 17 Md. 212, 230; [**23]  but comes within the principle, with its qualification, recognized in the above case, and also in the case of Casey's Lessee vs. Inloes, et al., 1 Gill 430.

 [*124]  The principle is this, where one stands by and sees another laying out money upon property, to which he has some claim or title, and does not give notice of it, he cannot afterwards, in good conscience, set up such claim or title; except where the encroachment is on land, the title to which is equally well known or equally open to the notice of both parties; where the claim is under some trust, lien or other right, not equally open and apparent to the parties, the principle applies in favor of one who would be deceived by such want of notice. In such case the doctrine of estoppel in pais affords a protection to the party misled by the conduct of the other party.
The prayer of the appellees assumes this theory of the facts, and if the circumstances of the parties, in regard to the road in question, sustain the proposition of the prayer, the appellant is precluded from recovery for the obstruction of the road, even if the evidence were sufficient to establish the easement through the property,  [**24]  by long antecedent user and enjoyment.
After the termination of the life tenancy in the property, if the appellant, as the proprietor of the inheritance of the alleged dominant estate, acquiesced in the abandonment of the road, and allowed the appellees to make the improvements suitable for the burial of the dead, without the earliest and amplest notice of his rights, he is precluded from the resumption of the easement; because, by his laches, he has induced others to expend their money; and in this case for a sacred purpose. It is just he should suffer loss, rather than those deceived and misled by his neglect. Under such circumstances he will be considered as waiving and abandoning his claim.
Judgment reversed and new trial ordered.
ALVEY, J., who was not present at the conference when the opinion filed in this case was submitted and approved, 

 [*125]  and did not see the opinion until after it was filed, desires to be considered as not participating in the decision.  

78 of 144 DOCUMENTS 

WILLIAM CORNELL and JOHN JOHNSON vs. DANIEL McCANN, WILLIAM H. DUNKINSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 89; 1872 Md. LEXIS 110 

December 13, 1872, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for St. Mary's County, in Equity.

On the 6th of June, 1870, William H. Dunkinson filed a bill in the Circuit Court for St. Mary's County, in Equity, against Lucien Birdseye of New York, to enforce an alleged vendor's lien upon the Point Lookout property, by sale of the property. An order of publication was granted, and the defendant having failed to appear and answer, a decree pro confesso was passed on the 8th of December, 1870, for the sale of the property, and B. G. Harris and J. Parran Crane, were appointed trustees for that purpose. Subsequently, Birdseye and a certain Delphine P. Baker filed petitions in the cause to have the decree for a sale rescinded; after hearing, the petitions were dismissed on the 28th March, 1871; and on the same day a decree was passed modifying somewhat the original decree. Under this decree the property was advertised for sale. On the sixth of May, 1871, a bill was filed in the same Court by Daniel McCann of Baltimore City, against Dunkinson, and the trustees appointed to make sale of the property; Birdseye, Baker, and the appellants, with others claiming to have an interest in the property, were likewise made parties.  [**2]  McCann's bill alleged that he was the holder of a vendor's lien upon the property, growing out of a sale of it to Birdseye, from a certain E. G. W. Hall, whose assignee he claimed to be. The bill prayed an injunction to restrain the sale under the decrees of the 8th of December, 1870, and the 28th of March, 1871, and that the property be sold, and the balance of the proceeds, after satisfying the vendor's lien, be distributed amongst the parties legally and equitably entitled thereto; and, further, that the rights, title, interest and estate of all said parties might be ascertained, adjusted and adjudicated by the Court, and their conflicting equities, claims and pretensions finally determined, and for general relief.

The bill alleged, as one of the grounds for the relief prayed "that owing to the many apparently conflicting claims to the property in question, and the various transfers, conveyances, contracts and pretensions set up in regard to the same, the title thereto had become so greatly clouded, that a sale of the same by the said trustees, under said decree, would tend still further to befog and embarrass the title, and be productive of great and irreparable injury to [**3]  the said McCann, and to other parties having or asserting claims thereto," "that the interests of all parties imperatively required that all persons having any right, title, interest, estate or claim therein or thereto should be brought before the Court." On the 8th of May, 1871, the injunction was issued as prayed, and an order of publication was issued against the non-resident defendants; including the appellants who were citizens and residents of New York, warning them to appear and answer on or before the third Monday in September, 1871.

On the 22nd of July, 1871, Dunkinson appeared and answered. On the 11th of August, 1871, McCann filed a petition stating the object of his bill; charging that the interests of all parties would be promoted by a sale, and that it manifestly appeared from the proceedings that a sale would be finally decreed. The petition further stated that with a view of affecting an early sale of said property, an arrangement between the litigating parties to the cases of Dunkinson vs. Birdseye, and McCann vs. Dunkinson, Birdseye et al. had been entered into by which it was proposed that the two cases should be consolidated; that a decree should be passed [**4]  by consent dissolving the injunction theretofore granted, and a new decree passed in the case of Dunkinson vs. Birdseye modifying the original decree passed therein, by the association of D. S. Briscoe Esq., as trustee with Messrs. Harris & Crane to make sale of said real estate. On the same day of the filing of the aforegoing petition, Dunkinson filed his answer thereto, expressing his willingness that a sale should be had under the decree theretofore passed in the case instituted by him against Birdseye. On the same day an order was passed consolidating the two cases and dissolving the injunction granted in the case of McCann vs. Dunkinson et al; and a decree or order was passed modifying the decree in the case of Dunkinson vs. Birdseye by the appointment of D. S. Briscoe, Esq., as an additional trustee, and directing that in all other respects, the said trustees should proceed according to the original decree. On the 15th of September, 1871, the appellants filed a petition asking that the order or decree of the 11th of August, 1871, modifying the original decree of sale, should be rescinded. On the same day they filed their answer to McCann's bill, alleging, among other things,  [**5]  that it would not be advantageous in any point of view, to the parties having claims against the property, for the same to be sold before the adjustment by the Court of their different priorities, and averring that any such sale would result in a great injury to many valid claims and especially to the claim of the respondents.

On the 20th of September, 1871, Delphine P. Baker and Lucien Birdseye likewise filed petitions praying that the order or decree of the 11th of August, 1871, might be rescinded. On the 21st of September, 1871, the Court, (MAGRUDER J.) passed an order dismissing the petitions, but modifying somewhat the terms of the decree of 11th of August, 1871, and directed the trustees to re-advertise and sell the property, giving notice of the terms of sale as thus modified.

From this order of the 21st of September, 1871, and from the orders of the 11th of August, 1871, the present appeal was taken.  

DISPOSITION:
Orders reversed and cause remanded.  

HEADNOTES:

Equity Practice -- When the power to order a Sale before Final decree, given by Article 16, section 129 of the Code, may be exercised.

The power to order a sale of real or personal property before final decree, conferred upon Courts of Equity by Article 16, section 129, of the Code, is one of an extraordinary character, and should never be exercised except in very plain and unexceptionable cases. It should plainly appear beyond reasonable doubt, either by proof, or from the very nature of the case itself, that a sale must inevitably be decreed on final hearing, to justify the passing of the interlocutory order; especially if applied for by the complainant only, and before the appearance and answer of the defendants, who may be affected by the sale.

In a case, where from the nature of the proceedings and the evidence disclosed by them, the Court can see with certainty that the final decree in the cause will require the property to be sold, and there exists a necessity for an immediate sale, the interlocutory order is proper even before the appearance and answer of the defendants.

In the most pressing cases, however, where it is practicable or possible, all parties who may be affected by the sale, should have an opportunity to be heard, and to shew cause against it, before the order is passed.  

COUNSEL:
T. Wallis Blakistone, for the appellants.

If the order passed by agreement of Dunkinson and McCann in the injunction case had been rendered in the original case, or the decree originally passed in that case had been left [**6]  untouched, the appellants would have been indifferent, not being parties to the proceeding, and not therefore affected by its result.

But the consolidation of that case with the second one, to which they were made parties defendants, made them practically parties to both, and a decree passed in the consolidated cause, of course binds them as to the property, though it should save their interests in the proceeds.

The Court, therefore, had no right in the consolidated cases to pass a decree binding the interests of the appellants, not only before they had answered but before the time had been reached for them to answer. McCann was not dominus litis, so far as to be entitled to agree for the appellants, because their rights and claims were an independent part of the equities on which he asked and was granted the injunction.

The decree rendered could only have been justified under Article 16, section 129, of the Code, provided a proper case had been made and the jurisdiction thereunder had been regularly and providently exercised. The Code does not, either in words or by implication, confer the power to sell before the party is summoned. Nor does it confer the power to sell [**7]  even after appearance, before the expiration of the time, within which an answer may be filed.

But although some averments to bring it within the statute are made in McCann's petition, the decree does not rely on them. It is simply the old final decree "modified by the appointment of D. S. Briscoe as additional trustee to make sale, &c." It does not profess to be under the section of the Code referred to, and no proof was taken or recited to have been taken in the exercise of the prescribed jurisdiction. No notice was given to the parties defendant, and the appellants were not, in fact, aware that any proceedings were pending against their interests in the property. No evidence that a sale must ultimately be decreed; none that a sale in advance of final decree would be beneficial to any body, although issue is directly taken on both of these points by the petition and answer of the appellants, as well as in the petitions of other parties to the litigation. Notwithstanding the positive averments by the appellants against the necessity or propriety of anticipating the final decree, the Court dismissed the petition without an opportunity of proof on the subject. In fact, the whole [**8]  action was taken upon the consent of two parties--one of whom, Dunkinson--not only the appellants, but McCann himself, charge to have no rights whatever in the premises.

Even if treated as the exercise of a power conferred upon the Court by the above section of the Code, although the decrees do not even pretend to rest upon that ground, there is none of the proof which the section requires, and which the case of Dorsey's Lessee vs. Gary, 30 Md., 489, 498, declares to be necessary and proper before such a power can be exercised.

The orders consolidating the cases, dissolving the injunction, and modifying the decree in Dunkinson vs. Birdseye, only to the extent of adding another trustee to those already appointed, have the effect of taking parties from a case not ripe for decree, to a case in which a final decree had been passed, when they were not parties to the proceeding. In other words, a final decree is passed, the appellants are made parties subsequently to its passage, and their interests sought to be bound by it. Clearly, the Court had no such power, and the orders of August 11th and September 21st, 1871, should be reversed.

John P. Poe, for the appellees, argued:  [**9]  

1st. That under section 129 of Article 16 of the Code of Public General Laws, the Court had the power in its discretion to decree a sale of the property before final decree.

2d. That it was manifest from the proceedings that a sale would inevitably be decreed finally, and that therefore, the decree of the 11th of August, 1871, and the 21st September, 1871, were both judicious and free from error. Dorsey's Lessee vs. Gary, 30 Md., 497.

3d. That even if the decree of August 11th, 1871, might be deemed premature, because passed before the day named in the order of publication for the appearance of the non-resident defendants, (the appellants,) still such error, if any, was subsequently altogether cured by the new decree of September 21st, 1871, passed after they had appeared, filed their answer and petition and been heard by counsel.

4th. That the rescission of the order of August 11, 1871, consolidating the two cases, was not asked for by the appellants in their petition, nor is this order now appealed from; but even if it be supposed that their prayer for appeal does embrace it, still there was no error in it, and certainly none of which appellants can complain.  [**10]  Virginia vs. Ches. & Ohio Canal Co., 32 Md., 551.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*96]  ALVEY, J., delivered the opinion of the Court.
While the order of the 11th of August, 1871, consolidating the two causes, Dunkinson vs. Birdseye, and McCann vs. Dunkinson et al., may be very proper and expedient with a view to the final determination of the many conflicting claims involved, it is quite improper that such consolidation should take place as an arrangement between the complainants in the two bills, to effect an object the result of which may and will likely be prejudicial to the rights and interests of some of the parties defendants.
The bill filed by Dunkinson against Birdseye had been taken pro confesso, and a decree passed thereon for the sale of the property in controversy. After this decree, but before the sale had taken place, McCann filed his bill, to which both Dunkinson and Birdseye are made defendants, and wherein is strongly controverted the claim set up by Dunkinson, and an injunction was prayed and granted, restraining the trustees, under the decree passed on Dunkinson's bill, from proceeding [**11]  to make the sale. To the bill filed by McCann, Dunkinson answered, and, by his answer, denies and controverts the claim set up by McCann. It is also shewn that there are other parties, who are made defendants to McCann's bill, asserting claims to and against the property, which may be found to be superior to the rights and claims, whatever they may be, of either Dunkinson or McCann.
It was in this condition of proceedings that the petition of McCann was filed on the 11th of August, 1871, stating that an arrangement had been entered into by the litigating parties, subject to the approval of the Court, whereby the two causes should be consolidated, the injunction dissolved, and a new decree passed in the case of Dunkinson vs. Birdseye, modifying the original decree passed therein, by associating another trustee with the two already appointed. On the same day of filing this 

 [*97]  petition, Dunkinson answered it, and, while altogether denying the claim of McCann, he assented to the arrangement stated in the petition. Thereupon, forthwith, without further inquiry, and without the assent of, or hearing from, the other parties interested, the orders of the 11th of August, 1871,  [**12]  were passed; the first, being entitled as in the case of McCann vs. Dunkinson et al., consolidating the two causes, and dissolving the injunction; and the second, entitled as in the case of Dunkinson vs. Birdseye, modifying the original decree as proposed. To this last order was added a clause to the effect that the sale to be made should pass the title of all the parties to the two causes, and that the purchaser should acquire a title to the estate sold, free, clear and discharged from all claim of any or all of the parties to both of the causes so consolidated.
These orders were passed without the knowledge or consent of the appellants, and being non-residents, before they were required by the terms of the order of publication against them, to appear and answer the bill to which they were defendants. They were therefore, without an opportunity of disclosing the nature of their claim and title, and of resisting the passage of the orders in question.
On filing their answer, which was in due time, the appellants, as did several of the other defendants, filed their petition, praying that the previous order or decree of the 11th of August, 1871, modifying the original decree [**13]  of sale, should, for the reasons therein stated, be rescinded; but that petition, and the petitions of the other defendants, were all by the order of the 21st of September, 1871, dismissed with costs; and the trustees were directed to proceed with the sale. From this last order, as well as from the two preceding orders of the 11th of August, 1871, an appeal has been taken, and consequently all those orders are before us for review.

 [*98]  It is contended, on the part of the appellees, that the modified decree of sale, of the 11th of August, 1871, was passed under and by virtue of the power given by the 129th section of the 16th Article, of the Code, authorizing the Court to pass an order of sale before final hearing; and though professing to be a modification of the final decree of sale passed on taking the bill of Dunkinson vs. Birdseye, pro confesso, yet it is but an interlocutory order of sale; such as is contemplated by the section of the Code referred to. There is some difficulty, however, in saying that such is its real character. It does not profess to have been passed under the particular section of the Code relied on, nor was there any proof taken to clearly satisfy [**14]  the Court that a sale would certainly have to be decreed on the final hearing of the cause, to which the appellants were parties; and if such sale has not been shewn to be the necessary result of the final hearing of that case, certainly the appellants have cause of complaint that they were without their knowledge and consent, by means of the consolidation thrust into another case, to be made subject to and bound by an existing decree, based upon the allegations of a bill taken pro confesso, and to which they were not parties. From the manner in which the original decree came to be modified, it is manifest that it was intended that such original decree should be preserved and made effectual, with the modification incorporated into it; and that the right and power of sale should rest rather on the allegations of Dunkinson's bill taken as confessed, than on any evidence that might be offered, that a decree of sale would certainly and necessarily be passed on final hearing of the case of McCann.
But even if the appellees were correct in contending that the order of sale was intended to be made in the exercise of the power and discretion given by the Code, 

 [*99]  Art. 16, sec.  [**15]  129, still we are very decidedly of the opinion that the circumstances of this case were not such as to justify the exercise of the power.
The power referred to, is one of an extraordinary character, and should never be exercised except in very plain and unquestionable cases. Indeed, it should plainly appear beyond reasonable doubt, either by proof or from the very nature of the case itself, that a sale must inevitably be decreed on final hearing, to justify the passing of the interlocutory order; especially if applied for by the complainant only, and before the appearance and answer of the defendants who may be affected by the sale. It is true, there may be cases where such an order would be proper even before the appearance and answer of the defendants; but this can only be the case where, from the nature of the proceedings and the evidence disclosed by them, the Court can see with certainty that the final decree in the cause will require the property to be sold; and not only that it will be required to be sold as the proper, direct or ultimate relief prayed, but there should exist a necessity for an immediate sale. And even in the most pressing cases, where it is practicable [**16]  or possible, all parties who may be affected by the sale, should have an opportunity to be heard, and to shew cause against it, before the order is passed. Otherwise, great injustice might frequently be done in the exercise of this power, which was intended to be exercised not for the benefit of one party only, but for the benefit and protection of all concerned.
As the appellants were not allowed a reasonable opportunity to resist the passage of the orders of the 11th of August, 1871, and the orders themselves, under the circumstances disclosed, not appearing to be proper as against the appellants; and as their application to have the order of sale rescinded was improperly dismissed, we shall 

 [*100]  reverse the several orders appealed from, with costs, and remand the cause for further proceedings.
Orders reversed, and cause remanded. 

79 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. SALLY E. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

37 Md. 19; 1872 Md. LEXIS 105 

December 4, 1872, Decided 

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

This was an action instituted by the appellee to recover for damage done her property by fire, alleged to have been caused by burning coals thrown from the engines of the appellant. The facts of the case are sufficiently presented in the opinion of the Court. An exception was taken by the defendant to the rejection by the Court (HAYDEN, J.) of its fifth, sixth and seventh prayers. The fifth prayer is set out in the opinion of the Court, the others are as follows:

Sixth. That there is no evidence in this case that any coals, ashes, cinders, or fire, were placed or thrown, by the fault or negligence of any of the defendant's servants, at the side of the defendant's railroad track, and at the distance of five or six feet therefrom.

Seventh. That the plaintiff cannot recover in this case, because there is no evidence legally sufficient to show that the damage complained of was caused by fire occasioned by the engines or carriages of the defendant, or through want of reasonable care and diligence on the part of the defendant or any of its servants.

A judgment having been rendered for the plaintiff, the defendant appealed.  [**2]  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Responsibility of a Railroad company for Injury done by Fire occasioned by its Engines, &c. -- Article 77, section 1, of the Code.

The 1st section of Article 77 of the Code of Public General Laws, which makes railroad companies responsible for injuries by fire occasioned by their engines upon any of their roads, applies not only to a case where a party has suffered damage by fire communicated by sparks flying from the smokestack, or by sparks, coals or fire dropping from, or flying out of the furnace or ash pan of the engine, but also to a case where the fire was communicated from coals or cinders thrown from the engine by the servants of the company having charge of it at the time; and if the party damaged establishes by sufficient proof that the fire thus originated, and that he suffered damage thereby, the onus is cast upon the company of proving that such damage was not the result of its negligence or carelessness, or that of its agents.  

COUNSEL:
Thomas Donaldson, for the appellant.

Levin Gale, for the appellee.  

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

OPINIONBY:
MILLER 

OPINION:

 [*20]  MILLER, J., delivered the opinion of the Court.
This is an action to recover for damage done to the plaintiff's property by fire, alleged to have been caused by burning coals thrown from the defendant's engines. The fire took place on the 9th of April, 1869, near the railroad track where it follows a bend of the Patapsco between Elysville and Dorsey's Run, not far from the foot of steep hills forming part of the plaintiff's farm. It appears to have commenced near the middle of the bend, and spread over about fifty acres of the plaintiff's land doing considerable damage, especially to growing wood and timber, and proof was offered on both sides as to the amount of loss.
With respect to the origin of the fire it was proved on the part of the plaintiff, by two witnesses, who, on the day in question, were at work near the railroad track, about four or five hundred yards from the west end of the bend, that between twelve and one o'clock, they saw a fire burning at a point on the bend near [**3]  the railroad, that they went immediately to the place, and when they reached it, the fire had burnt about ten feet up the hillside south of the railroad, and they found south of the track and about five or six feet therefrom, some coal cinders, 

 [*21]  of the same kind of coal as is used in locomotives, which they attempted to take up, but found they were too hot to be held; that they then attempted to put out the fire, but without success; that about five minutes before the fire was so discovered, a freight train had passed west, and about five minutes before that train, another freight train had also passed the same way; that there were no houses on this bend, nor any nearer than the west end of the west bridge over the Patapsco. On cross-examination they said there was but a single track on the bend, that when they first saw the fire, there was a smoke near the railroad, that they reached the place in three or four minutes after they saw the fire, and then leaves and old brush were burning on the bank of the railroad, that they did not see either of the freight trains spoken of, stop on the bend, that they were facing them when they came west, but did not see them when they were [**4]  on the bend. The plaintiff also proved on cross-examination of one of the defendant's witnesses, that the fire appeared to have commenced about the centre of the curve and was fiercest there, that there were no buildings on the curve, and the place is very wild and broken.
On the part of the defendant it was proved that all the engines at that time used with freight trains running west were properly constructed with the most approved appliances for arresting sparks, and well arranged fire or ash pans; that they were constantly and regularly inspected, and always kept in repair; that the mechanics employed in the duty were skilful and reliable men; that the engines all had apparatus for throwing water into their ash pans when they were to be raked out, and they could only be raked out when the engine was standing still, and then the ashes and cinders after being wet, would fall just at the side of, and next to the rail; that only four freight trains passed west over this bend between twelve and two o'clock on that day, and on each 

 [*22]  there was a conductor, engineer, fireman and brakeman, all of whom were selected and approved by a master mechanic, who had general charge of [**5]  the defendant's machinery at Mt. Clare, and were skilful and careful officers. Some of these parties were on the stand as witnesses. The conductor of the first train, and the only one on that train examined, says, he does not recollect whether we stopped on this bend on that day or not, that he was on the rear car, and did not observe any fire there, always rake out at water stations, that he does not know where the then engineer and fireman of the train now are, they are not in the company's service. The testimony of those on the other trains is to the effect, that it is customary to rake out at water stations, and to let water into the pans first; that they did not stop or do not remember to have stopped on this curve on that day, and certainly did not stop there to rake out; and they all concur in stating they had no recollection of seeing any fire there when they passed.
Eight instructions were asked for by the defendant, all of which were granted, except the fifth, sixth and seventh, and the only exception taken is to their rejection. The fifth is as follows:
"That if the jury shall believe from the evidence, that the damage complained of was incurred by reason of fire, and [**6]  that the said fire was not occasioned by any of the engines or carriages of the defendant, either by sparks flying from the smokestack, or by sparks, coals or fire dropping from or flying out the furnace or ash pan, but that said fire was caused by coals, ashes, cinders or fire, placed or thrown by some person or persons at the side of the defendant's railroad track, and at the distance of five or six feet therefrom, then the burden of proof is on the plaintiff to show that the said coals, ashes, cinders or fire, were so placed or thrown by the fault or negligence of some of the servants of the defendant."

 [*23]  We do not readily perceive what precise legal proposition this prayer announces or was intended to present. If it means to assert, that if the jury found the coals were put or thrown in the place stated, by servants or employees of the company, who had no concern with its engines or trains, or when not engaged in the management and control of them, that then the onus of proving negligence on the part of such parties was on the plaintiff, the defendant had the full benefit of that law by the granting of its eighth prayer, which embodies that very proposition. Again,  [**7]  if the fire originated from these coals by the side of the track, and the jury could have been allowed to find from the testimony, that they were placed there by some one not in the defendant's service, as might by possibility have been the case, then the conclusion of the prayer respecting the burden of proof, if not other parts of it, was wholly unnecessary and misleading. It should have said in plain terms, that if the jury so found, then the defendant was not responsible for the injury complained of, and the plaintiff could not recover; for there were no facts or circumstances proven or shown to exist tending to show that any servants of the company had any connection whatever with such an act on the part of one not in the defendant's employment. It was not proved that any one other than the company's servants was on either of the passing engines or trains, or that any other workmen or employees of the company were along that part of the road, at or about the time of the fire. If placing the coals there was the act of a stranger it must have been his own unaided act, for which he alone, and not the defendant was responsible, and if it was intended by this prayer to present [**8]  that view of the case, it should have been framed in plainer and more explicit terms, and for that single purpose. But if the intent was to assert the proposition, that the first section of Article 77 of the Code, when applied to 

 [*24]  this case relieved the plaintiff from the onus of proving that the fire resulted from the negligence of the defendant or its agents, only in case it was occasioned by sparks flying from the smokestack, or by sparks, coals or fire dropping from or flying out of the furnace or ash pan of the engine, and not if caused by burning or hot coals coming from the engine in any other way as by being cast or thrown therefrom, by those who at the time had the control and management of it when in use on the road, then we cannot yield our assent to that construction of the law. The section of the Code referred to, declares that a railroad company shall be responsible for injuries by fire occasioned by its engines or carriages upon its road, unless the company can prove to the satisfaction of the tribunal before which the suit is tried, that the injury complained of was committed without any negligence on the part of the company or its agents. Looking [**9]  to the obvious design of such legislation it would be a very narrow construction of this provision to hold that a fire is not occasioned by an engine, if it originates from coals thrown from it along the side of the road by those having charge of it when in use. It is not our purpose to enlarge further upon the construction and effect of this section of the Code. It has in other particulars, received the careful consideration of this Court in Woodruff's Case, 4 Md. 242, and in Lamborn's Case, 12 Md. 257. All that we mean now to decide is, that it applies to a case where a party suffers damage by fire communicated either directly from the engine itself in the modes stated in this prayer, or from coals or cinders thrown therefrom by the servants of the company having charge of it at the time. If the party establishes by sufficient proof the fact that the fire thus originated, and that he has suffered damage thereby, then the onus is cast upon the company of proving that such damage was not the result of its negligence or carelessness, or that of its 

 [*25]  agents. For these reasons, we find no error in the rejection of the defendant's [**10]  fifth prayer.
All that need be said upon the sixth and seventh prayers is that they were properly rejected, because in our opinion, the evidence we have already stated, was legally sufficient to authorize the jury to find therefrom, that the fire was occasioned by the defendant's engines, in one or other of the modes above specified, and in that case the law raises the presumption of negligence on the part of the company or its agents. Balto. & Susq. Railroad Co. vs. Woodruff, 4 Md. 242. There was no error in the ruling rejecting these prayers.
Judgment affirmed. 

80 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. THOMAS J. FITZPATRICK, by his next friend, THOMAS FITZPATRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 619; 1872 Md. LEXIS 102 

November 21, 1872, Decided 

PRIOR HISTORY:
 [**1]  MOTION to strike out the entry of "judgment satisfied."

On the 21st of June, 1871, Thomas J. Fitzpatrick, infant, by his next friend, obtained a judgment against the Baltimore and Ohio Railroad Company, in the Court of Common Pleas, for the sum of $ 8,000, which on appeal was affirmed on the 12th of January, 1872, (see 35 Md., 32.) Soon afterward the amount of the judgment was paid by the defendant to Robert J. Brent, the attorney of record, regularly employed by the next friend to conduct the action; and on the 30th of January, 1872, by order of Mr. Brent, in writing, the judgment was entered "satisfied." Of the amount of the judgment so received, the sum of $ 400 was paid by the attorney to the next friend, before the appointment of a guardian to the infant plaintiff. On the 27th of February, 1872, the next friend was, by the Orphans' Court of Baltimore city, duly appointed guardian of the infant, and qualified as such by giving bond as required by law. Subsequent to his appointment as guardian, Thomas Fitzpatrick received from the administrator of Mr. Brent, who had died, the sum of $ 500. On the 12th of June, 1872, a motion was made in behalf of the infant, to strike out the [**2]  entry of "judgment satisfied." 

DISPOSITION:
Motion overruled.  

HEADNOTES:

When the Act of the Attorney of a Prochein ami is binding on the Infant -- Prochein ami -- Infant -- Construction of section 14 of Article 18 of the Code.

An action was brought for and in the name of an infant, who sued by prochein ami, and judgment having been recovered by the plaintiff, the amount thereof was paid by the defendant to the attorney of record, who was regularly employed by the prochein ami to conduct the action; and by order of the attorney the judgment was entered, "satisfied;" at the time of the payment to the attorney, there was no regularly constituted guardian of the beneficial plaintiff, to receive and receipt for the money recovered. HELD:

That the payment by the defendant to the attorney of record, was a good discharge of the judgment; and his act in receiving the money and directing satisfaction of the judgment to be entered, was binding upon the infant plaintiff.

A prochein ami is no party to the suit in the technical sense of the term, although he is responsible for costs. He is considered as an officer of the Court specially appointed to look after the interest of the infant in whose behalf he acts; he may employ an attorney, and carry on the suit to judgment, and in the absence of a regularly constituted guardian for the infant, may receive the money recovered of the defendant, give a sufficient acquittance therefor, and enter satisfaction on the roll.

The right of a prochein ami, or of the attorney employed by him, to receive and receipt for money recovered by an infant, is subordinate to that of the regularly constituted guardian of the infant, and where such guardian exists, only he, or some person deriving authority from him, can legally receive and receipt for money due the ward.

Section 14 of Article 18 of the Code of Public General Laws, authorizing the clerk of any Court to enter any judgment or decree satisfied, upon the order in writing of the plaintiff, or his attorney, was not designed to conclude or in any manner affect the question of the attorney's authority to give such order; it was intended simply to direct and empower the clerk, upon the proper order of the plaintiff or his attorney, to enter judgments and decrees satisfied, without an order of Court.  

COUNSEL:
Robert D. Morrison and H. Clay Dallam, for Thomas J. Fitzpatrick, contended

That payment to the attorney of record was invalid, because:

1st. An attorney, after judgment, is a mere agent for the collection of the same, and the client has a perfect right to prevent the collection by notice to the defendant. Curran vs. Kaufman, unreported decision of the Court of Appeals.

In this case the Court say that the defendant having received written notice from the plaintiff not to pay the plaintiff's attorney, was bound to regard said notice, although the plaintiff's attorney still continued the attorney of record. The character of the suit in this case was made known to the defendant by the very terms of the summons. He had full notice constructively, which is as binding in law as if he had received notice in fact. Magruder vs. Peter, 11 G. & J., 217; Williamson vs. Morton, 2 Md. Ch. Dec., 94; Miller and Mayhew vs. Williamson, et al., 5 Md., 219; The River Clyde Trustees vs. Duncan, 25 Eng. L. & Eq., 19.

It is a rule that every one is bound to take notice, where no one is bound to give notice. 1 Mod., 237; Rundale vs.  [**3]  Eeley--Carter, 172.

2d. An infant cannot make an attorney nor an agent, therefore the attorney could not have been the agent for the purpose of collection. Deford vs. The State, use of Keyser, et al., 30 Md., 179; 1 Amer. Leading Cases, 305, (5th ed.;) Infants' Lawyer, 53.

An attorney cannot collect where there is no one to whom he can properly pay over. Trail, use of Buckey, vs. Snouffer, 6 Md., 315; Curran vs. Kaufman, unreported case.

Where a debtor has notice that the debt is due an infant, and improperly pays a third party, he does so at his peril. The River Clyde Trustees vs. Duncan, 25 Eng. L. & Eq., 19.

3d. The prochein ami could not have bound the infaut by receipt of the money. The prochein ami is not a party to the suit. He is a mere nominal party, a guardian ad litem, and his power does not extend to the doing of any act that may be to the prejudice of the infants. Deford vs. The State, &c., 30 Md., 199; Isaacs vs. Boyd, 5 Porter, 388; Smith vs. Redus and Wife, 9 Ala., 99; Turner vs. Partridge, 3 Pa., (Penrose & Watts,) 172; Allen vs. Roundtree, 1 Spear, (So. Car.) 80; 1 Am. Lead. Cases, (5th ed.) 326; Sinclair vs. Sinclair, 13 M. & W., 640; Reeves Dom.  [**4]  Rel., 265; McPherson on Infants, 41 Law Lib., 352; Genet vs. Tallmadge, 1 Johns. Ch. Rep., 2; Dagley vs. Tolferry, 1 Peere Wms., 285.

4th. A release by a party who sues merely as trustee, is not good against the real party in interest. Rawstorne vs. Gandell, 15 M. & W., 306.

If the next friend could not receive the money, his attorney could not. The infant could not have received the money; the attorney takes the place of his client, and can do no more than he could. Although the proposition is generally true that, as between competent parties, the acts of the attorney of record bind those who have employed him, and whatever is done by the attorney in the progress of the cause is considered as done by the authority of the client, yet this rule, even between parties competent, has exceptions. A compromise of the debt sued on, made by the attorney, does not bind the client. So a receipt in full by an attorney does not bar the principal, if a less sum than is due has been paid to the attorney for the principal. Gist vs. McGuire, 4 H. & J., 9; Curran vs. Kaufman, pp. 7 and 8 of Opinion of Court; Thornburg vs. Macauley, 2 Md. Chan. Dec., 425.

5th. The defendant could easily [**5]  have prevented all injury to the equitable plaintiff, by declining to pay the judgment to any but a legally appointed guardian, or he might have paid the money into Court, taking the receipt of the clerk, who is a bonded officer; and as between two innocent parties, he must bear the loss who could have prevented it. 5 Robinson's Practice, 891, note.

Both in the case in 3 Penrose & Watts, and in the case in this Court of Curran vs. Kaufman, the Court disregard any considerations growing out of the hardship of the rule of law, in making an innocent debtor pay the debt twice.

John H. B. Latrobe, for the Railroad Company.

In opposition to the motion to strike out the entry of satisfaction, the following authorities were cited as regards the authority of an attorney: Henck vs. Todhunter, 7 H. & J., 275; Farmers' Bank of Md. vs. Mackall, 3 Gill, 458; Jones & Waterbury vs. Horsey, 4 Md., 306; Peacock vs. Pembroke, 8 Md., 351; Farmers' Bank of Md. vs. Sprigg, 11 Md., 397; Ward vs. Hollins, 14 Md., 165; Thornburg vs. McCauley, 2 Md. Ch. Dec., 427; Kent vs. Ricards, 3 Md. Ch. Dec., 395; Pub. Gen. Laws, Art. 18, sec. 14; Pub. Gen. Laws, Art. 11, sec. 13.

And the following [**6]  as regards the authority of the prochien ami: Deford vs. The State, &c., 30 Md., 199; 3 Robinson's Practice, 329, 330.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*623]  ALVEY, J., delivered the opinion of the Court.
The motion in this case, to strike out the entry of satisfaction, authorized to be made by the attorney of record, presents a question of very considerable interest and importance, involving as it does an inquiry into the extent of the power of the attorney, authorizing the entry, as well as the right of the infant plaintiff, on whose behalf the motion is made.
The action was brought for and in the name of the infant, who sued by prochien ami; and judgment having been recovered by the plaintiff, and the amount thereof paid by the defendant to the attorney of record, who was regularly employed by the prochien ami to conduct the action, the question 

 [*624]  is, whether the payment by the defendant to such attorney is a good discharge of the judgment?--it being conceded that the beneficial plaintiff had, at the time, no regularly constituted guardian to receive and receipt for the [**7]  money so recovered.
The relation of a prochein ami to the action, and his powers and duties, are simple and well defined. He is no party to the suit, in the technical sense of the term, although he is responsible for costs. He is considered as an officer of the Court, specially appointed by it to look after the interest of the infant in whose behalf he acts. Sinclair vs. Sinclair, 13 M. & W. 640; Deford vs. State, use of Keyser, 30 Md. 179. One of the duties required of him is that of employing an attorney to conduct the suit, as he is not supposed to be a person learned in the law, and his intervention is by no means designed to dispense with the services of an attorney to carry on the proceedings, and to try the cause, if necessary. Collins vs. Brook, 4 H. & N. 270. He is not only authorised to employ an attorney, and carry on the suit to judgment, but, in the absence of a regularly constituted guardian for the infant, he may receive the money recovered of the defendant, give a sufficient acquittance therefor, and enter satisfaction on the roll. White vs. Hall, Moor, 852; Morgan vs. Thorne, 7 M. & W. 400; [**8]  Collins vs. Brook, 4 H. & N. 270; Same case, 5 H. & N. 700, in Exch. Chamber.
In the case of Morgan vs. Thorne, 7 M. & W. 400, the wife of a minor having committed adultery whilst her husband was abroad in the East Indies, the father of the husband procured himself to be appointed prochein ami, and commenced an action for crim. con. in his son's name, without his knowledge or authority, and recovered a verdict; and on motion by the defendant to set aside the proceedings, on the ground that there was no authority from the son to bring the action, it was held that no authority from the son was necessary to enable the father to sue as prochein ami, and that, as nothing appeared to the contrary, it was to be assumed that 

 [*625]  the latter had been properly appointed such prochein ami, and that the son was bound by the proceedings in the action. And in answer to the objection taken by the defendant, that if he paid the damages assessed by the jury, he might, on the plaintiff's coming of age, be compelled to pay them over again, on the ground that the discharge of the prochein ami would be by a person [**9]  who had no authority to give it, PARK, B., said: "It appeared perfectly clear that every prochein ami is to be considered as an officer of the Court, specially appointed by them to look after the interest of the infant, on whom the judgment in the action is consequently binding, and who cannot be allowed, on attaining his age, to commence fresh proceedings founded on the same cause of action; so that the defendant, in this and all similar cases, is perfectly safe in paying the damages recovered." And in that opinion the rest of the Court concurred.
Now, seeing that the prochein ami is thus authorized to receive and receipt for the money recovered, why is not the attorney retained by him equally authorized to receive and receipt for the money? as both are alike officers of the Court, both act for and in behalf of the infant, and both bear merely representative relations to the cause. The attorney is retained, not for the prochein ami, but for the infant, to whom he is liable for all neglects and malfeasance in the course of the employment. This latter proposition would seem to be clearly settled by undoubted authority.
In the case of Collins vs. Brook, 4 H. & N. 270, [**10]  an infant had, in a former action, sued by prochein ami and recovered judgment for damages and costs, which had been paid over to the attorney appointed by the prochein ami to conduct the suit, and it was held that the infant was entitled to maintain an action against the attorney to recover the amount so received by him, as money had and received to the infant's use. The right to recover as against the attorney was resisted on the ground that, as between himself and the infant, there was no privity of contract, and that his liability was to the prochein 

 [*626]  ami and not to the infant; that he, the attorney, had received the money as the agent and servant, not of the infant plaintiff, but of the prochein ami, and that it was to the latter alone that he was accountable, as a sub-agent is accountable to the superior agent who has employed him, and not generally to the principal. But this defence of the attorney was utterly repudiated by the Court. BRAMWELL, B., in delivering the opinion of the Court, said: "This was an action by an infant against an attorney to recover damages which had been awarded to him in an action. It was objected that the action ought to [**11]  have been brought against the defendant by the father, who was the prochein ami in that suit. The action for money had and received must arise out of a rightful receipt for the use of another, or out of some wrongful act. Here the defendant did nothing wrong. The father, who was competent to do so, empowered the defendant to receive the money. The question whether the action lies is not one of fact, but one of law, viz., what would be implied? It was said that the implication is that the defendant received the money to the use of the father. Reasons of equal cogency were urged on the other side. It was asked what was to become of the money if the prochein ami became insolvent or died. The fact is, that the money is the infant's. It seems to be the more reasonable view that the attorney received the money for the infant. That does not prevent a payment to the prochein ami from being a good payment. But it is the money of the infant. Therefore we think that the verdict was right, and the rule must be discharged."
The case seems to have been without any direct precedent, and being one of considerable interest, an appeal was taken from the judgment of the Court of Exchequer to the Exchequer Chamber, (5 H. & N. 700,) [**12]  where a most elaborate discussion was had, and all the reasons that could be made to bear upon the question, were brought to the view of the Court; but the decision appealed from was affirmed, and for very much the same reasons as those assigned by the Court 

 [*627]  of Exchequer. The Judges on appeal assigned their reasons seriatim; and from which, in view of the importance of the question, now for the first time presented to this Court, it may not be out of place to extract a few passages.
WILLIAMS, J., in delivering his opinion, said: "It has been suggested that it is difficult to say that the prochein ami is not the party who ought to receive this money--that he may have incurred some expenses, and ought to have a resort to this fund to reimburse himself; but the answer is, that before he undertakes such an office a prochein ami must take care to guard himself in some other manner against those liabilities. Any risk or liability which he may incur is a matter incident to his office, not to be remedied by preventing the infant, who has a legal right to the money, from bringing his action to recover it."
CROMPTON, J., in the course of his opinion, is very distinct [**13]  in defining the rights of the infant plaintiff, and the relation to him of both prochein ami and attorney in the action. He said: "It seems to me that the action is the action of the infant, that the attorney is the attorney of the infant, and the money now sought to be recovered is the money of the infant, which the defendant received for him. The prochein ami is appointed in order that the infant may have some one to appoint an attorney to prosecute the suit for him; and the attorney, when appointed, is the attorney in the suit." Again he says: "As soon as the prochein ami has appointed the attorney, the infant has the right to look to the attorney for the proper conduct of the cause; it would be monstrous to say that the prochein ami should be responsible for the conduct of an attorney who has been duly and properly appointed. Where an agent is appointed who must appoint a sub-agent, the act of the sub-agent is not necessarily the act of the agent." And so Mr. Justice BLACKBURN, said: "I perfectly agree with my brother CROMPTON, that the reasonable rule is, that the prochein ami being appointed as an officer of the Court, is not liable for anything but his own [**14]  

 [*628]  neglect. It would be very hard that he should be responsible for the attorney whom he was obliged to retain, and I think he is not, but only for the appointment of a proper person as attorney. Then, I do not think it follows, that because the prochein ami is liable to the attorney for his costs, he should alone be competent to sue the attorney for the proceeds of judgment and execution recovered by the attorney in the suit."
It is to be observed that, in this case of Collins vs. Brook, neither in the argument of counsel nor in the opinions of the Judges, is there the slightest intimation that the payment by the defendant in the original suit to the attorney was not a good and sufficient discharge of the judgment. On the contrary, it is assumed throughout that such payment was perfectly good and rightful. Indeed, the action against the attorney was founded and proceeded upon the theory that the money had been rightfully received by him, to the use of the infant, whom he represented as the attorney in the cause. The receipt in that case had been signed as the receipt in the present; the party receiving the money signing himself "plaintiff's attorney." It was fully [**15]  conceded that the prochein ami could receive the money and give a good acquittance therefor, and it was equally conceded that the payment to the attorney was good, but it was contended that he received the money to the use of the prochein ami to whom he was accountable, and not the infant plaintiff in the action. But this defence was fully refuted by the Court, as we have seen, and the action maintained for money rightfully received by the attorney to the use of the infant plaintiff.
The attorney receiving the money in this case, being the regular attorney of record, duly appointed by the prochein ami to act for the infant, it follows, upon the authorities referred to, that he was clothed with the ordinary powers pertaining to an attorney of record, and that his act, in receiving the money recovered of the defendant, and directing satisfaction of the judgment to be entered, is binding upon the infant plaintiff.

 [*629]  It must not be supposed, however, from what has been said, that the power of the prochein ami, or of the attorney employed by him, to receive and receipt for money recovered by an infant, can be exercised regardless of the right and power of a regularly [**16]  constituted guardian, having charge of the infant's estate. On the contrary, such right in the prochein ami, or the attorney, is subordinate to that of the guardian, and where such guardian exists, no person other than the guardian himself, or some person deriving authority from him, can legally receive and receipt for money due the ward. The money that may be received, either by the prochein ami, or the attorney appointed to prosecute the action, where there is no guardian of the infant's estate in existence, will be, of course, held by them for the infant, to be regularly accounted for; but whether the Court will, in any case, allow these officers to use its process to coerce payment into their hands, must depend upon the circumstances as they may be made to appear. The interest and protection of the infant being the reason for the appointment of both prochein ami and attorney, the same reason should control the Court in its exercise of authority over these officers.
It was supposed by the counsel for the defendant, that full authority was found for the order of the attorney directing the judgment to be entered satisfied, in the 14th section of the 18th Article of the [**17]  Code. But it is manifest that that section of the Code was not designed to conclude, or in any manner to affect the question of the attorney's authority. It was intended simply to direct and empower the clerk, upon the proper order of the plaintiff or his attorney, to enter judgments and decrees satisfied, without an order of Court. In this case, the order to enter the judgment satisfied having been given by competent authority, the entry is effectual, and the motion to strike it out must, therefore, be overruled.
Motion overruled. 

81 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 519; 1872 Md. LEXIS 97 

June 21, 1872, 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 judgment for the defendant.  

HEADNOTES:

Construction of the Act of 1835, ch. 395, known as "The Eight Million Loan Bill," and of the Act of 1838, ch. 386 -- Effect of the Legal Tender Laws upon a Contract for the payment of money made prior to their Enactment.

By the first section of the Act of 1835, ch. 395, the Legislature directed the Treasurer of the State to subscribe to the capital stock of the Baltimore and Ohio Railroad Company, the sum of three millions of dollars, to be paid in the manner and upon the conditions mentioned in the Act. By the ninth section, it was made a condition precedent to the subscription to the road, that the stockholders in general meeting should guarantee to the State the semi-annual payment out of the profits of the work, of six per cent. per annum, on the amount to be paid to the Company under the Act; such semi-annual payments to begin after the expiration of three years from the payment by the State of each successive instalment of its subscription, and to continue "until the clear annual profits of the railroad should be more than sufficient to discharge the interest which it should be so liable to pay to the State, and should be adequate to a dividend of six per centum per annum among its stockholders." After that period the State was "to have and receive a perpetual dividend of six per centum per annum out of the profits of the work, as declared from time to time, and no more;" and the surplus of profits over six per cent. was to be divided among the stockholders generally. The guarantee required by this section was given by the company and accepted by the State. By subsequent sections provision was made for the appointment of commissioners to proceed to Europe to negotiate loans, and for the issue of the bonds or certificates of stock of the State, to raise money for and on behalf of the State to gratify the purposes of the Act. These bonds or certificates were issued by the State, but the commissioners failed to negotiate the loan on the terms prescribed by the Act, and the company took the whole three millions from them at the minimum rate indicated by the Act, viz: twenty per cent. premium. This sale was ratified by the Legislature. The bonds, however, proved as unavailable in the hands of the company, as in those of the commissioners. As a measure of relief, the Act of 1838, ch. 386, was passed. Its first section provided that on the release by the company of its interest under the contract for the purchase of the six per cent. securities, and their delivery to the Treasurer, the Commissioners of Loan should deliver to the company in exchange, sterling bonds or certificates of stock, payable in London and bearing interest at five per cent., payable semi-annually, at the rate of three thousand two hundred of the five per cents for every three thousand of the six per cents; provided, however, that the company should secure by mortgage or lien on all its property and revenues, the payment for three years, of the five per cent. interest semi-annually, ninety days before it became payable in London, together with the cost of remittance and exchange. The company did not begin to sell or negotiate the sterling bonds till about 1849. As they were disposed of, it paid the interest, &c., upon them for three years, and then applied thereto, directly, the six per cent. interest or dividend due the State, rendering no account of the difference. This system continued to the 1st of July, 1865; from which time the company made no payments of interest in London, but simply paid into the Treasury six per cent. per annum in currency, leaving to the State to pay the premium on gold for remittance, as well the cost of exchange, &c., and the gold besides. The State claimed that it was entitled to be fully indemnified by the railroad company, and that as the sterling interest could only be paid in gold, or its equivalent, the six per cent. guaranteed dividend could only be paid in like currency. In an action by the State against the company to recover the amount so claimed to be due and payable in gold, it was HELD:

1st. That as the law stood at the date of the contract by which the subscription to the stock of the company was made, and the bonds of the State were furnished as means of payment for such stock, the State could have required the guaranteed dividend to be paid in gold.

2nd. That likewise, at the date of the institution of the action by the State, the railroad company was bound to pay the dividend in gold; but that by the operation and effect of the Legal Tender laws recently declared by the Supreme Court of the United States to be constitutional, and applicable, alike, to contracts for the payment of money made prior to, and since their enactment, the railroad company was exonerated from such obligation; it not appearing either by express stipulation, or by fair implication, that it was the intention of the parties to the contract, that the dividend should be paid in gold specifically.  

COUNSEL:
Charles J. M. Gwinn, John H. B. Latrobe and Reverdy Johnson, for the appellant.

Is the State a creditor entitled to interest, or a stockholder entitled to dividend, to be paid in the currency that is paid to other stockholders?

The Acts of 1835, ch. 395, 1836, ch. 261, and 1838, ch. 386, constitute, in this connection, a contract between the State and the company, the proper construction of which must turn upon the intention of the parties, apparent upon its face. Under the first of these Acts, the State, on making its subscription, became a stockholder, and nothing more. The mode provided, by the sale of currency bonds abroad, to enable the State to pay up its subscriptions, was independent of the subscription itself. The guarantee pledged the property of the company to pay the dividend of six per cent. out of the profits of the work, and without reference to the mode adopted by the State to procure the funds needed to meet its subscription.

The Act of 1836, ch. 281, made no alteration in this particular. Its [**2]  main object was to increase the company's tolls, so as to enhance the profits out of which the perpetual dividend was to be paid.

Under the Act of 1835, the dividend on the preferred stock was to be paid out of the profits from tolls, then authorized. If these were not sufficient, the dividend might not be paid, in whole or in part. To obviate any probable difficulty here, the increase of the tolls under the Act of 1836, ch. 261, was specifically pledged. At this time the State still relied upon obtaining money abroad wherewith to pay its several subscriptions to works of internal improvement.

Upon these two Acts, the liability of the company is for semi-annual dividends on stock, and not for interest on a debt.

It is true, that what is called a perpetual dividend in the Act of 1835, is called, in the Act of 1836, a payment of interest on account of money, if any, which shall be paid to the company under the Act of 1835. But any doubt, as to whether dividend or interest was meant by the Legislature, is removed by the declaration in the Act of 1835, that the payment is to be made "out of the profits of the work." Had interest been meant, these words would have been omitted--when [**3]  the charge would have been on the property generally, as well as on the income or profits of the road; whereas, the use of the words "out of the profits" restricts it to these alone.

Now, the Act of 1836, ch. 261, adds to these profits by an increase of tolls, which are pledged specifically to the guarantee of the interest--thus showing, beyond question, that, in the eye of the Legislature, interest was as inseparably connected with profits as dividends were; or, in other words, that wherever the word "interest" was used in any part of said Act, it was as a word equivalent to "dividends." No change having been made by the Act of 1836, ch. 261, was the Act of 1835, ch. 395, affected in this regard by the Act of 1838, ch. 386? This was the Act to provide the ways and means to meet the State's subscription of $ 3,000,000.

The State, in the first instance, had relied upon obtaining money abroad by the sale of its six per cent. currency bonds, issued under the Act of 1835, ch. 395. Failing in this, the company had purchased them from the State, and they were on deposit in the Union Bank of Maryland. If the company had sold them at the prescribed limit of $ 120 for $ 100, its connection [**4]  with them would have ceased altogether: the holders would have looked to the State, and it alone, for their interest; and all that would have been incumbent on the company would have been to pay the six per cent. preferred dividends, as they fell due, into the State's Treasury, to swell the means out of which this interest, in common with the State's other obligations, would have been paid in currency.

Nor is this view of the subject changed by the provision in the 9th section, that the company shall guarantee to pay six per cent., &c., "until the clear annual profits of the said railroad shall be more than sufficient to discharge the interest which it, (the company,) shall be liable to pay to the State of Maryland. The "interest" here is, of course, the "six per centum," previously mentioned, to be paid "out of the profits of the work;" and what these profits are, is placed beyond a doubt, as already said, by the subsequent reference to them as "the profits of the work, as declared from time to time."

Under no obligation, then, with regard to the interest on the currency bonds, and bound only to pay a dividend on the stock which the sale of the bonds was to enable the State [**5]  to pay for, what obligation was imposed by the Act of 1838, ch. 386, providing ways and means to meet the State's subscription? If there was nothing in the previous legislation which made the company responsible for the interest, why should it assume that responsibility now? Did it assume it? The Act speaks for itself. It was a new contract between the State and the company. What obligations did it impose? One only--that of paying the interest and attendant charges on the sterling bonds "for three years from their date"--giving security to that effect.

The company agreed to exchange their currency bonds for sterling ones in the proportions mentioned in the Act, and to pay the interest on the latter for three years, and no longer.

If the company was under no obligation to pay the interest upon the currency bonds when it received them from the commissioners, neither was it under any obligation to pay the interest on the bonds substituted for them, beyond the terms of the agreement under which the substitution took place.

So far as the payment of the interest on the sterling bonds and the attendant expenses for the three years, mentioned in the Act of 1838, is concerned,  [**6]  it may be admitted that it was to be irrespective of "the profits of the work;" and, for that time, the Act of 1838 superseded the provision which made the dividends or interest dependent upon that fund; but, at the expiration of the three years, the relations of the parties in this respect returned to what they were under the Act of 1835, ch. 395, sec. 9; nor have they since been changed.

So far from the subscription of the State, under the Act of 1835, chap. 395, being understood by the parties to be a loan, creating the relation in any manner of debtor and creditor, the 6th section authorizes the appointment of directors to represent this very stock--a stock which the State has since disposed of to numerous parties, who, without the right to a special representation, which was peculiar to the State, have now fallen into the body of stockholders represented by a general ticket. Further, in the 8th section, the State--presumed to use words understandingly--provides that no instalment shall be paid by the treasurer of the Western Shore on the State stock until an equal proportional payment shall be actually made by the "other stockholders on their shares of the capital stock of [**7]  the company." In the 9th section itself, the State speaks of the distribution of the profits after paying the six per cent. dividend "to the other stockholders;" and again, "the other stockholders" are spoken of in the same connection at the close of the section, where it is said, that "any excess of dividends on the capital stock" shall be distributed among them.

It may be admitted that "dividend" and "interest" are used in the several Acts of Assembly, here referred to, convertibly; still there is, in fact, a difference between them. In some cases, "dividends" would be peculiarly appropriate, as "dividends on stock;" and in another, "interest" would be the proper word, as "interest on a loan." There is but one way in which their proper meaning, in any particular case, can be settled, and that is, by reference to the subject-matter, in connection with which they are used. Henry vs. The Great Northern Railway Co., 1 De Gex & Jones, 637.

If a debt is created, "interest" describes its income. If a stock is subscribed for, "dividend" is the proper word for that purpose.

If a debt is created, it carries interest, which is chargeable on the estate of the debtor as well as [**8]  on his income. If a stock is subscribed for, its profits alone are chargeable. If then we find that, whether this income is called "interest" or "dividends," it is, in so many words, chargeable upon profits only by the instrument in which it is stipulated to be paid, the conclusion seems irresistible that a subscription to stock, and not a loan creating a debt, was intended by the contracting parties, and this conclusion is confirmed, if it needs confirmation, when we find the party claiming the "dividend" or the "interest," styling itself, again and again, a "stockholder," and ranking itself among "the other stockholders."

There being then no words, in any of the Acts, referring to the State's subscription as a loan; but, on the contrary, finding these Acts speaking of the State, reiteratedly, as "a stockholder," the fact that its "interest," or "dividends," call it as we may, was expressly confined to the only source from which income was to be looked for by a stockholder, proves to demonstration that it was the relation of a stockholder, and not that of a creditor, in any sense of the word, that the State was made to occupy under the Act of 1835, and the subsequent Acts in [**9]  pari materia.

If the State is to be regarded as a creditor, entitled to interest, is the company chargeable for it throughout the account, in gold; or had it not a right to pay it, and has it not still a right to pay whatever may be due in the legal currency of the United States?

The first question that arises here, is as to the nature of the contract between the State and the company, growing out of the Acts of 1835, ch. 395; 1836, ch. 261, and 1838, ch. 386. Was it a contract to keep the State harmless, or only a contract to pay six per cent. on a subscription to the capital stock of $ 3,000,000, regarding this as a debt carrying that rate of interest?

No such contract of indemnity can be inferred from the Acts of 1835 and 1836. The State subscribed to the stock; and undertook to procure, abroad, the money to pay its instalments. The idea of sterling bonds, out of which has grown the present complication, was not suggested, even. If the currency stock had been sold abroad, the purchaser must have received here, in America, the interest due to him in the legal currency of the country. His being a foreigner would have given him no peculiar claims on the State.

The [**10]  contract to indemnify, then, cannot be inferred even from the Acts of 1835 and 1836; because the necessity of an indemnity never could have arisen, and therefore cannot be supposed to have entered into the minds of the parties--the State and the company--when those Acts were passed. So far, indeed, from there being any intention to secure to the State what was necessary to enable it to pay its interest on the currency bonds, even--the State, in agreeing that the interest was to be paid "out of the profits of the work as they were declared from time to time," took upon itself the risk of these profits amounting to six per cent.--being willing to do so, apparently, in the conviction that, having once reached six per cent. they would not subsequently be diminished.

The contract to indemnify, then, if it is to be found at all, must be found in the Act of 1838, ch. 386, under which the sterling bonds, or bonds payable in gold, were issued by the State.

It is not to be found there. The only agreement between the State and the company, in regard to interest under this Act, was limited, in so many words, "to the term of three years from the date of the bonds, or certificates of stock.  [**11]  "

No one anticipated, at that time, the late war, or the rise in the price of gold that has made the present difficulty. It was in the power of the State to have provided for it in terms, however, had it been thought of; failing to do so, such a provision cannot be implied. City of Baltimore vs. The Balt. and Ohio R. R. Co., 10 Wall., 543.

There being then no agreement to indemnify, the remaining question is, whether the company, bound to pay interest on the $ 3,000,000 subscription as so much indebtedness, is bound, as the law now stands, to pay it in gold?

The State has not, by the Act of 1835, ch. 395, section 9, in express terms, required the company to pay the dividends there referred to in coin, and the company cannot, therefore, by intendment, be held bound to make such payment. Bronson vs. Rhodes, 7 Wallace, 229, 252; Trebilcock vs. Wilson, 12 Wallace, 695.

In construing this contract no intendments in favor of the State can be made. The Commonwealth appears before this tribunal as a shareholder, and not as a sovereign, and can claim the benefit of no other presumptions than are accorded to any other stockholder, or plaintiff having a like claim. The cases [**12]  of Bank of United States vs. Planters' Bank, 9 Wheat, 904, and of Curran vs. Arkansas, 15 Howard, 304, recognizing this principle, have been expressly adopted in the case of Brady vs. State, 26 Md., 302, 303.

The contract, created by the Act of 1835, ch. 395, section 9, was "to pay money generally." All contracts to pay money, made before the passage of the Legal Tender Acts were created in the same terms. In every one of these contracts circumstances existed from which as plain an inference could be drawn that the parties intended that the payments should be made in the equivalent of coin; for coin, before the passage of the Legal Tender Acts, was the only legal measure of the selling price of every commodity, and of the consideration of every contract; and such intent must, of necessity, have existed. But the Supreme Court has not permitted such inference to be drawn from the circumstances of any contract. A person who loaned gold, before the passage of the Legal Tender Acts, cannot recover gold from the borrower, unless it was expressly stipulated that the loan should be returned in gold.

It does not matter, therefore, what were the reasonable expectations of the State [**13]  in making its subscription, as to the precise value of the dividends it would receive under the guarantee made by the Act of 1835, ch. 395, section 9. Legal Tender Cases, 12 Wall., 548.

The law is now well settled, that no person can be held to pay any debt, or to discharge any obligation in gold, or silver coin, unless he has expressly contracted to make payment in such coin. Bronson vs. Rhodes, 7 Wallace, 229, 252; Trebilcock vs. Wilson, 12 Wallace, 695. The legal tender notes of the United States suffice to pay all debts, and to discharge all obligations "which are payable in money generally." Trebilcock vs. Wilson, 12 Wallace, 697.

Philip F. Thomas, S. Teackle Wallis and I. Nevett Steele, for the appellee, argued

That the statutes in question are to be construed, as a whole, in the light of the circumstances which induced their enactment, and the purposes which they were intended to accomplish. These were chiefly two: First, to establish and promote works of internal improvement by the aid of the State's credit; and, secondly, to protect the State and her citizens, as far as might be, against loss from so doing. It must be presumed to have been the intention of the [**14]  Legislature, by the language which it used, to carry out its policy and discharge its duty in the premises, and such construction must, as far as possible, be given to that language as will make the legislative expressions effectual for the end in contemplation. State vs. Boyd, 2 G. & J., 365; Blizzard vs. Jacobs, 3 G. & J., 66; Canal Co. vs. R. R. Co., 4 G. & J., 152; State vs. Milburn, 9 Gill, 105; Milburn vs. State, 1 Md., 17; Frazier vs. Warfield, 13 Md., 279; Mills vs. St. Clair County, 8 Howard, 581; Perrine vs. Ches. and Del. Canal Co., 9 How., 187, 192; Rice vs. R. R. Co., 1 Black, 380; Stourbridge Can. Co. vs. Wheeley, 2 Barn. & Ad., 792; Sedgwick on Stat. and Const. Law, 338 to 342; Brady vs. State, 26 Md., 303.

Construed according to these rules, the statutes in question, taken together, import substantially a contract and perpetual obligation on the part of the company to "secure the payment of the interest at the rate of five per centum" on the sterling bonds for the State's indemnification. The "interest" provided to be guaranteed after the first three years, and the "dividend" provided to be paid later, are but the different forms in which the road was to do in [**15]  effect, after the expiration of the first three years, precisely what it was to do before. The thing was to be done for three years, whether the road made profits or not. After three years, it was first to be done out of the gross profits, (State vs. Balt. and O. R. R. Co., 6 Gill, 383,) after that, out of the net profits, but it was the same thing, no matter how it was to be done, or out of what.

Nor is this construction at all affected, except favorably, by the fact that, after three years, the "interest" or "dividend" of the State was made payable out of the "profits." Under the decision in 6 Gill, 383, "the profits of the work" out of which the guaranteed interest was to be paid, were gross profits--the whole earnings of the road. The "clear annual profits," which supply the perpetual "dividend" are held to be "the clear annual profits under the charter," viz: "net profits," (Act of 1826, ch. 123.) Thus it will be seen that the road was not to be relieved from its absolute "guaranty," covering all its resources, until its net profits should be at least equal to the payment of a dividend of six per cent. to the stockholders as well as the State. And the perpetual "dividend,  [**16]  " then made payable to the State, though to come out of the "profits," was still to be subject to no contingency of profits, for the State did not agree to accept it in lieu of the guaranteed interest until it should first become a fixed and certain fact that the net profits would pay it.

The words "interest" and "dividend," mean one and the same thing, in all the laws in question, where the per centage to the State is provided for, and that is--taking the Acts of 1835 and 1838 together--interest to be paid to the State, to pay her sterling bonds. Lane County vs. Oregon, 7 Wallace, 74; Henry vs. Great N. R. W. Co., 1 De Gex & Jones, 637; Matthews vs. Great N. R. Co., 5 Jurist, N. S., 284; Crawford vs. N. Railw. Co., 3 Kay & Johns., 734, 735; 2 Shelford's Law of Railways, (Eng. Ed., 1869,) 161; Godefroi & Short's Law of R. R. Companies, 110, 111; 2 Redfield on Railways, 598; Bates vs. The Androscoggin & Kennebec R. R. Co., 49 Maine, 491; McLaughlin vs. R. R. Co., 8 Michigan, 103; Stevens vs. South Devon R. R. Co., 12 Engl. L. & Eq., 229, 234, 236; Sturge vs. E. Union R. W. Co., 31 Engl. L. & Eq., 406, 410, 416, 417.

If the foregoing points are well taken, it is not perceived [**17]  that the Legal Tender Laws of the United States are involved in this controversy. This Court, as the highest judicial tribunal of Maryland, determining that the statutes of the State import a contract of indemnity, and that its disbursements in gold are therefore recoverable in gold, the matter is outside of all Federal question. The Supreme Court, in the latest phase of its legal tender decisions, has varied its previous opinions in but a single point. It has simply reversed Hepburn vs. Griswold, (8 Wallace, 603,) to the extent of determining that the Legal Tender Laws are constitutional as to contracts prior, not less than contracts subsequent to their enactment, (see 12 Wallace, 553.) It guardedly confines this decision to contracts to pay money simply, leaving other contracts, depending upon additional stipulations, to the effect of its previous decisions, (see 12 Wallace, 548.) Nay, in the still later case of Trebilcock vs. Wilson, (12 Wallace, 687,) it expressly re-affirms Bronson vs. Rhodes, (7 Wallace, 229,) by which special contracts are left to depend on their special provisions and the intention of the parties. By that decision, a contract to pay in coin is declared to be [**18]  independent of the Legal Tender Acts, and enforcible according to its terms, notwithstanding their provisions, whether it be express or implied, (see 7 Wallace, 246, 252, 253, in the opinion of the Court, and p. 257, the dissenting opinion of Mr. Justice MILLER.) And in the case of Lane County vs. Oregon, (7 Wallace, 74,) the obligation to pay in gold was affirmed and enforced by the unanimous judgment of the Court, although the law of Oregon, under which it arose, contained not one word as to the medium in which the taxes involved were to be paid. The Court said (p. 74) that it was "a legitimate, if not a necessary inference, that the taxes were required to be collected in coin," inasmuch as the tax collector was required to pay them in coin. "Nothing short of express words," adds the Chief Justice, "would warrant us in saying that the laws authorized collection in one description of money from the people, and required payment over, of the same taxes, into the county and State treasuries, in another."

It would seem quite as difficult to say, in the case under discussion, that the laws in controversy, while they oblige the State to pay in gold, permit the appellant to discharge [**19]  its obligation of indemnity by paying the State's "dividend" in currency. 19 American Law Register, 79; Bowditch vs. Soltyk, 99 Mass., 136; Swain & Abell vs. Ches. Bank, 29 Md., 483.

The agreement under which this case was submitted to the Court concedes that the Legal Tender Laws are inapplicable, if the statutes import a promise to pay in gold. No question is submitted upon them by that agreement.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*531]  ALVEY, J., delivered the opinion of the Court.
This action has been brought by the State to recover of the defendant, the Baltimore and Ohio Railroad Company, a large sum of money claimed to be due on account, and payable in gold, growing out of the State's subscription to the stock of, or loan to the Company, of three millions of dollars, under the Act of 1835, ch. 395, entitled, "An Act for the Promotion of Internal Improvements," better known as the "Eight Million Loan Bill," passed on the 4th of June, 1836.
The defendant was incorporated by the Act of the Legislature of this State, at the December Session, 1826, ch. 123, for the purpose of constructing a railroad [**20]  from the City of Baltimore to the Ohio river, with a capital stock of three millions of dollars, in shares of one hundred dollars each, with power to the company to increase its capital stock 

 [*532]  from time to time, as it should be found necessary, in the progress of the work. Of this capital stock, the State reserved to itself the right to subscribe for ten thousand shares, being the one-third of the entire original stock of the company. To the city of Baltimore was also reserved the right to subscribe for five thousand shares--thus reserving to the State and the city the right to take one-half of the original capital stock. The State, however, authorized by Act of 1827, ch. 104, a subscription but for five thousand shares; and the city of Baltimore having subscribed for the five thousand shares reserved to it, the State and the city each became entitled to two directors in the company, to represent the stock so subscribed, according to the provisions of the Act of incorporation.
In the meantime, between these subscriptions and the passage of the "Eight Million Loan Bill," the Legislature of the State, by the Act of 1830, ch. 158, had authorized the defendant to embark in [**21]  the enterprize of making a branch road, to afford easy communication between the city of Baltimore and the city of Washington, in the District of Columbia. The stock of this branch road was required to be kept separate and distinct from that of the main road; and of the stock necessary to construct and equip this branch road, the defendant was authorized to subscribe for all such portion of it as might not be subscribed for by other parties; and to borrow money, from time to time, to enable it to pay such subscription, and to pledge all its property and funds as a security for the payment of the money so borrowed. The State authorized a subscription of a half a million of dollars to such branch stock, which was made, and thereupon became entitled to two additional directors in the company. (Act 1832, ch. 175.)
By the Act of 1835, ch. 127, passed February 25th, 1836, the city of Baltimore was authorised to make a further subscription of three millions of dollars, in addition to its former subscription, to the capital stock of the defendant, and which 

 [*533]  was made under resolution of the Mayor and City Council, No. 40, dated the 17th of March, 1836; and for every five thousand [**22]  shares of this last subscription, the city became entitled to an additional director.
Thus it appears that the State and the city of Baltimore, had become largely and most materially interested in the prosecution and completion of the works of the company; as upon their completion and success depended the only chances of reimbursement and profit to either the State or the city, for their large outlay of capital, to say nothing of the large amount of individual subscription that had been made by the people of the State to the stock of the company. Indeed, it was regarded as of the greatest importance, in a commercial point of view, looking to the interest of the entire State, and especially to the city of Baltimore, that the completion of the road to its destined point on the Ohio river, should be assured beyond all peradventure.
Such then, was the relation of the State and of the city of Baltimore to this railroad company, and their great interest in the completion of its works, when, at the time of the passage of the Act of 1835, ch. 395, it was found to be necessary to extend the aid of the State to this and other internal improvement companies of the State.
By the 1st section [**23]  of the Act just referred to, it was provided, that upon the assent and agreement to the several provisions of the Act, by the Chesapeake and Ohio Canal Company, and the Baltimore and Ohio Railroad Company, respectively, the Treasurer of the State should "subscribe to the capital stock of each of said corporations the sum of three millions of dollars, and pay for the same in the manner and upon the conditions thereinafter mentioned." As one of the conditions upon which the subscription to the stock of the defendant was authorized, it was required that a majority of the State's directors in the company should certify under oath, that, in their opinion and judgment, such subscription by the State would, in addition to all other subscriptions, be sufficient 

 [*534]  to complete the road to the Ohio river. It was further provided, that the State should have an additional director in the company for every five thousand shares of stock subscribed for under the Act.
The 9th section of the Act contains the provisions more immediately involved in this controversy, and, so far as they relate to the railroad company, are as follow: "That before any subscription shall be made to the capital [**24]  stock of the said Baltimore and Ohio Railroad Company, under and by virtue of this Act, the stockholders of said company shall, in general meeting assembled, stipulate, agree and bind the said company by a proper instrument of writing, signed by the president and under the corporate seal thereof, to be lodged with the Treasurer of the Western Shore, to guarantee to the State of Maryland, after the expiration of three years from the payment by the State of each of the instalments on the stock hereby authorized to be made to the stock of said company, the payment from that time, out of the profits of the work, of six per centum per annum, payable semi-annually, on the amount of money which shall be paid to the said company under and by virtue of this Act, until the clear annual profits of the said railroad shall be more than sufficient to discharge the interest, which it shall be liable so to pay to the State of Maryland, and shall be adequate to a dividend of six per centum per annum among its stockholders; and thereafter the State shall, in reference to the stock so subscribed for, and on so much thereof as the State may hold, be entitled to have and receive a perpetual dividend  [**25]   of six per centum per annum, out of the profits of the work, as declared from time to time, and no more, and all and so much of such annual profits as shall exceed six per centum, shall be distributed to the other stockholders according to their several interests in said company; and in consideration of the interest so to be secured to the State, the said Baltimore and Ohio Railroad Company shall be, and they are hereby authorized, in addition to the charge now authorized to be made by said company for the transportation 

 [*535]  of passengers, to increase the price or charge for such transportation, to any amount not exceeding one cent per mile, for each person passing on said road." The guarantee required by this section was given by the company and accepted by the State.
The Act then provides, in subsequent sections, for the appointment of Commissioners to proceed to Europe to negotiate loans, and for the issue of the bonds or certificates of stock of the State, to raise money for and on behalf of the State, to gratify the purposes of the Act. The certificates of stock or bonds of the State were to be issued, in the aggregate amount not to exceed $ 8,000,000, redeemable at [**26]  the pleasure of the State, after the expiration of fifty years from their date, and to bear interest at the rate of six per centum per annum, payable quarterly, either at the loan office in the city of Baltimore, or at some place in Europe, as might be arranged by contract. The certificates or bonds were not, however, to be sold at any rate or price which would yield to the State less than twenty per cent. net, above par. Of this premium, whatever part of it not required to pay the interest on the loan for three years after its negotiation, was, with its increment, directed to be invested, to constitute a sinking fund for the ultimate redemption of the debt incurred.
These bonds or certificates were issued by the State, but the Commissioners sent to Europe to negotiate the loan failed to negotiate it on the terms prescribed by the Act. After such failure to negotiate the loan by the Commissioners, they sold to the defendant, and to the Chesapeake and Ohio Canal Company, each, bonds amounting to $ 3,000,000. This disposition of the bonds by the Commissioners seems to have been regarded as without warrant of authority; but the State, by resolution of the Legislature, (Resolutions of [**27]  1837, No. 26,) ratified and adopted the contracts of sale, and declared the State's subscription to the stock binding, but declared at the same time that the bonds were to be rated to the companies at $ 120 for each hundred dollars of the bonds.

 [*536]  These six per cent. bonds, rated, as they had been by the State, at $ 120, appear to have been unsaleable by the companies to which they had been sold. In this state of things the State made further effort to facilitate these two companies in realizing money on its credit, and thus to aid and promote the accomplishment of what had been constantly in view from the beginning--the completion of its great works of internal improvements. To this end the Act of 1838, chap. 386, was passed. That Act is entitled, "An Act to provide ways and means to meet the subscriptions on the part of the State to works of internal improvements." By its 1st section, it provided, that upon the State being released by the railroad and canal companies from the contracts for the sale and purchase of the bonds issued under the Act of 1835, and the surrender of such bonds, the Commissioner of Loans should be authorized to deliver to the two companies, respectively,  [**28]  "an amount of sterling bonds or certificates of stock, to be redeemable in London at the pleasure of the State, at any time after fifty years from the date thereof, and to bear an interest of five per cent. per annum, payable semi-annually in London, on the first day of January and July in each and every year, equivalent to the amount of bonds or certificates of stock delivered up by the said companies respectively as aforesaid; and in thus changing the bonds or certificates of stock already issued under the Act aforesaid, for the bonds or certificates of stock hereby created, the said Commissioner of Loans shall give to the said companies respectively, in the proportion of three thousand two hundred dollars of the bonds or certificates of stock hereby created for every three thousand dollars of the bonds or certificates of stock so to be delivered up; provided, however, that the said companies respectively shall secure by mortgage, or other lien, on all the property and revenues of said companies respectively, to the satisfaction of the Treasurer, the payment of the interest, at the rate of five per centum per annum, on the stock created by this Act, semi-annually, at least ninety [**29]  days before the 

 [*537]  first day of January and July in every year, for the term of three years from the date of the bonds or certificates of stock, together with the cost of transmitting said interest to London to be there paid, and also the difference in the exchange of currency between London and the city of Baltimore." None of the State's liens and priorities then existing were to be in any way impaired or affected by any of the provisions of the Act. The only changes, therefore, effected by this Act of 1838, were the substitution of the five per cent. sterling securities for the six per cent. securities issued under the Act of 1835, and the requirement of security, by way of mortgage or other lien, or the retention of bonds, for the payment of interest for the first three years, instead of the twenty per cent. premium at which the bonds issued under the Act of 1835 were required to be sold, and which was supposed at the time to be sufficient to pay the interest for the first three years after the negotiation of the loan under the last named Act. In all other respects the rights of the parties remained as they were before the passage of the Act of 1838.
The special contract,  [**30]  then, that gives rise to the present controversy, is found in the terms of the 9th section of the Act of 1835, chap. 395, as modified and extended by the 1st section of the Act of 1838, chap. 386.
The bonds that were issued to the defendant by the State, under the Act of 1838, owing to difficulties in disposing of them to advantage, were not appropriated by the company until about the year 1849, when they were placed on the market in Europe, and sold. As they were disposed of, the defendant paid the interest on them as it accrued due, and all costs and difference in exchange, for the period of three years, and, after the expiration of that period, it continued to pay such interest, cost and exchange, by applying directly the State's guaranteed dividend of six per cent. on the stock subscribed under the Act of 1835, instead of paying it over to the Treasury. The defendant rendered no account, but treated the six per cent. dividend as equivalent to the five per 

 [*538]  cent. sterling interest, with the costs and exchange; and this continued to be its course of conduct to the 1st of July, 1865, from which time it ceased to apply the six per cent. dividend as formerly, but paid it [**31]  directly into the State Treasury in currency notes. The State has been, therefore, required, from the 1st of July, 1865, to the present time, to provide for the payment of the sterling interest in London, together with all costs and difference in exchange, which, of course, had to be adjusted to a gold standard, while it had been in the receipt of the six per cent. dividend in currency, the value of which has been very much less than gold.
The State claims that it is entitled to be fully indemnified by the defendant; and that, as the sterling interest could only be paid in gold, or its equivalent, the six per cent. guaranteed dividend could only be paid in like currency. This, of course, depends upon the true construction of the contract, by which the subscription to the stock of the defendant was made, and the bonds of the State were furnished as means of payment for such stock.
At the trial in the Court below, the cause, by agreement, was submitted to the Court without the intervention of a jury; and it was agreed that the cause should be referred to a special auditor to adjust the account between the parties; and that the Court should determine upon a proper construction of [**32]  the Acts of the Legislature of the State, relating to the subject-matter, whether the six per cent. dividend provided by the Act of 1835, ch. 395, to be guaranteed and perpetually paid to the State by the defendant, was and is, or was and is not due and payable in gold. If payable in gold, a judgment for the State to be entered for the amount ascertained to be due; and if not so payable, judgment to be entered for the defendant.
Upon the Auditor's Report, stating the account in various aspects, the Court below, upon determining the dividend to be payable in gold, found the sum due at the date of the judgment to be $ 281,489.39, for which judgment was entered, 

 [*539]  payable in gold, and from which judgment this appeal is taken.
Now, in order the more clearly to determine as to the rights of the parties under the contract in question, it is proper that we first advert to the law as to what currency was legal tender at the date of the subscription for the stock by the State, and what currency constitutes a legal tender at this time.
At the date of the subscription in question, nothing but gold and silver coin constituted a legal tender for the discharge of debts contracted to [**33]  be paid in dollars and cents generally. At that time the opinion prevailed everywhere, as well in the Senate as in the Courts, that gold and silver were the only legal tender that could be ordained, either by Congress or the Legislatures of the States. As evidence of this, Mr. Webster declared in 1836, in the Senate, himself no strict constructionist, that "Most unquestionably there is no legal tender, and there can be no legal tender in this country, under the authority of this Government, or any other, but gold and silver, either the coinage of our mints, or foreign coin, at rates regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly prohibited from making any thing but gold and silver a tender in payment of debts; and although no such express prohibition is applied to Congress, yet, as Congress has no power granted to it, in this respect, but to coin money and to regulate the value of foreign coins, it clearly has no power to substitute paper, or any thing else, for coin as a tender in payment of debts and in discharge of contracts." (4 Webster's Works, 265, 271.) This was the generally received [**34]  opinion, and the acts and conduct of parties were regulated accordingly. The Supreme Court of the United States had declared in 1819, by its then great Chief Justice MARSHALL, that "Nothing but gold and silver coin can be made a tender in payment of debts." Sturges vs. Crowninshield, 17 U.S. 122, 4 Wheat. 122, 205, 4 L. Ed. 529. And in the subsequent case of 

 [*540]  Gwin vs. Breedlove, 43 U.S. 29, 2 How. 29, 38, 11 L. Ed. 167, it was said, in confirmation of what had been previously declared, that "By the Constitution of the United States, gold and silver coin made current by law, can only be tendered in payment of debts."
Relying, then, upon what was regarded as the settled law, beyond dispute or alteration, parties the most careful for the protection of their rights, at the period of the making the contract here involved, could well proceed in making their contracts upon the assumption that no other currency than gold and silver coin would ever be attempted to be made a legal tender.
Former opinions, however, of Judges and statesmen, however well founded, are no longer the received law upon this subject. The Congress of the Union,  [**35]  by several Acts, commencing with that of the 25th of February, 1862, known as the "Legal Tender Acts," have declared that the notes thereby authorized to be issued shall be a legal tender in payment of debts, public and private. The constitutionality of these Acts has been brought into question before the highest Judicial Tribunal of the country, and their constitutionality finally sustained, though with much division of opinion. The first case in which the question came directly under adjudication, was that of Hepburn vs. Griswold, 75 U.S. 603, 8 Wall. 603, 19 L. Ed. 513. In that case it was decided, by a divided Court of five to three Judges, that the legal tender clause in the Acts referred to was, so far as it applied to debts contracted before their passage, unwarranted by the Constitution of the Union. It was also decided that all contracts made prior to the 25th of February, 1862, for the payment of money, not expressly stipulating otherwise, were, in legal effect and contemplation, contracts for the payment of coin, and, under the Constitution, the parties to such contracts were respectively entitled to demand and bound to pay the sums due, according [**36]  to their terms, in coin, notwithstanding the legal tender Acts. But this decision was allowed to prevail but for a short season. It was brought under review in the recent cases of Knox vs. 

 [*541]  Lee and Parker vs. Davis, 79 U.S. 457, 12 Wall. 457, 20 L. Ed. 287, and the conclusion last arrived at, also by a divided Court of five to four Judges, is, that the legal tender clause in the Acts referred to is constitutional, as well when applied to contracts made before as to those made since the passage of the Acts.
This last decision is now the law, binding alike upon this Court and all the other Courts of the country; and, so far as it is applicable to the case now before us, must guide and control our judgment.
It is settled, however, that the Legal Tender Acts only apply to debts which are payable in money generally, and not to contracts payable in coin specifically, nor to contracts payable in commodities; and that when a contract for money is by its terms made payable in specie or coin, judgment may be entered thereon for coined dollars. This has been recently ruled by the Supreme Court, in the case of Trebilcock vs. Wilson, 79 U.S. 687, 12 Wall. 687, 20 L. Ed. 460, [**37]  in conformity to previous decisions.
In view of the law as it now stands, it is plain, that, to enable the State to recover in this case, it must be shewn, either by express stipulation or fair implication, that the obligation of the defendant was to pay the six per cent. guaranteed dividend in gold; or otherwise it could be, and has been, paid and discharged as it accrued due, by legal tender notes.
The preliminary question much discussed in the arguments at bar, whether the relation of the State to the defendant, as to the subject-matter involved in this case, is that of creditor, or stockholder merely, is one, in our view, not very material to be decided. It is certainly true, however, that the State, by virtue of its subscription of the three millions of dollars to the stock of the company, did, in some sense, and to many purposes, become a stockholder; but, at the same time, it may be conceded that it became something more; and as its stock was preferred, and a six per cent. dividend perpetually guaranteed, out of the gross profits of the company, a quasi relation of creditor was created, as well as that 

 [*542]  of stockholder. But whether we call the six per cent. dividend [**38]  interest on a loan, or dividend on stock as such, is quite unimportant--as, let it be the one or the other, the claim to have it paid in gold depends upon the terms of the contract--it being perfectly competent to the parties to stipulate for the payment of either interest or dividends in gold.
This, then, brings us directly to the question: Was the obligation of the contract by its terms to pay the six per cent. dividend in gold, and nothing else? It is conceded that it is not required by any express terms of the contract; and if required at all, it can only be by implication--taking all the terms and conditions of the contract together. And while it is readily conceded that the real intention and obligation of the parties may be arrived at by implication in the absence of express stipulation, still, that implication must be the result of a fair and reasonable construction of the contract itself. It must not be founded upon conjecture, mere probabilities, nor upon what now appears to have been reasonable and proper for the parties to have done in order to accomplish the object in view. The question is, were the particular means contemplated to the end, and provided for by the [**39]  contract itself, in such manner as to be fairly discoverable by the application of just rules of construction? And here it is proper to note a well recognized distinction between the mere expectation of parties, founded upon extrinsic circumstances, and the duty imposed by the contract itself. "The expectation of the creditor," said the Supreme Court in the legal tender cases before referred to, (79 U.S. 457, 12 Wall. 457, 548, 20 L. Ed. 287,) "and the anticipation of the debtors may have been that the contract would be discharged by the payment of coined metals, but neither the expectation of the one party to the contract respecting its fruits, nor the anticipation of the other, constitutes its obligation. There is a well recognized distinction between the expectation of the parties to a contract, and the duty imposed by it. Were it not so, the expectation of results would be always equivalent to a binding engagement that they should follow. But the 

 [*543]  obligation of a contract to pay money, is to pay that which the law shall recognize as money when the payment is to be made. If there is anything settled by decision, it is this, and we do not understand [**40]  it to be controverted."
Now, applying these plain and well settled rules, upon what reasonable ground are we to infer and conclude that it was the intention of the parties to the contract in question, to make it the legal obligation of the defendant, to pay the six per cent. dividend in gold specifically, instead of money generally? We have not been able to discover any sufficient ground to justify such a conclusion, and think none exists. The terms of the contract in reference to the payment of the dividend, are, that the State should receive payment "out of the profits of the work, of six per centum per annum, payable semi-annually on the amount of money which shall be paid to the said company, under and by virtue of this Act, until the clear annual profits of the said railroad shall be more than sufficient to discharge the interest, which it shall be liable so to pay to the State of Maryland," and to pay a dividend of six per cent. per annum amongst its stockholders; after which the State shall be entitled "to have and receive a perpetual dividend of six per centum per annum, out of the profits of the work, as declared from time to time, and no more." It will be observed that [**41]  there is nothing in the language here used, to indicate, in the slightest degree, the intention of the contracting parties to make the dividend on the stock subscribed by the State, payable in gold, or in any other currency than money generally.
It has been ably and earnestly contended, however, on behalf of the State, that it was the intention at the time that full indemnity should be furnished by the defendant for all outlay in defraying the five per cent. sterling interest in London, together with all costs and exchange; and as to do which the State has been required to purchase gold at large premium rates, nothing of less value should be received in payment of the six per cent. dividend; that it was the intention 

 [*544]  that the dividend should be equivalent, and always adequate to pay, the sterling interest and all incidental expenses. This, in one sense, may be conceded, as it was doubtless the supposition at the time that such would be the effect and operation of the arrangement between the State and the defendant. But, as we have seen, it is not what was expected or anticipated as the result of the arrangement, but the legal obligation of the contract, that binds the [**42]  parties. The defect in the contract now under consideration, tried by the law as it now exists, is, that it did not contemplate and provide for the present state of the Legal Tender Law. At the period when this contract was made, it is not likely that it ever entered into the thoughts of the parties concerned, that any thing but gold and silver coin could ever be made a legal tender for the discharge of contracts. It was, therefore, futile and utterly useless, viewing the matter from that period, and in the light of opinions then prevailing, to incorporate into the contract any such special obligation as that the dividend should be paid in gold. As the law then stood, it could be paid in that currency and none other, if the State thought proper to insist upon it. It is only by the operation and effect of the Legal Tender Acts, recently declared constitutional by the Supreme Court, that the defendant is now exonerated from the liability supposed, at the date of the contract, to be immutable, to pay the guaranteed dividend in gold. If the law had been allowed to remain as it was declared to be by the decision in Hepburn vs. Griswold, 75 U.S. 603, 8 Wall. 603, 19 L. Ed. 513, [**43]  which was the law of the land at the time of the institution of this action, the defendant would have been bound to pay the dividend in gold. But this last mentioned decision having been in part overruled, and the Legal Tender Acts given an application to contracts made prior to as well as to those made since the passage of those Acts, the contract involved in the present case falls within their operation.
In addition to the foregoing considerations, there are others, suggested by the very nature of the contract itself, its objects 

 [*545]  and purposes, and the relation of the parties at the time, that resist the conclusion that it was intended to make the dividend payable in gold specifically, rather than in money generally. Apart from the then want of reason for incorporating such a provision in the contract, it must be borne in mind, that the State was contracting not with a stranger and a party alien to its interest, but with a creature of its own creation, endowed by its sovereign will with powers and capabilities to accomplish what was most anxiously desired and expected--the development of the State's great resources of wealth, and the promotion of its commercial prosperity.  [**44]  The State and the city of Baltimore had, at the time of the subscription in question, become largely identified in interest and expectation with the enterprise itself; and it was in aid and support of the work, as a great State scheme of improvement, that the subscription was made. Why, then, should we suppose that the contract of subscription was intended to be one of peculiar strictness as to the currency in which the dividend should be paid, dependent as it was made, upon the gross profits of the works? Indeed, at the time of this contract, it was a thing of rare occurrence for parties to stipulate specially for payment in gold--the general rule being to make contracts payable in money generally, the law designating with certainty in what currency they could be paid.
The case of Lane County vs. The State of Oregon, 74 U.S. 71, 7 Wall. 71, 19 L. Ed. 101, was much relied on in the argument for the State, as furnishing an instance where the obligation to pay gold was implied from the nature of the case itself. But we think the analogy between that case and the present is very imperfect. In that case the taxes, by the express terms of the law, were required to [**45]  be paid over by the receivers of them, in gold and silver coin; and the State Courts having held that the statute of the State of Oregon required, either directly or by clear implication, the collection of the taxes in gold and silver, the Supreme Court said that such construction had nothing strained or unreasonable in it. Of course, if the taxes were 

 [*546]  collectible in gold and silver coin, and it was made the duty of the State's agents to collect them in that currency, it was the State's right to have them accounted for in that currency and none other. And such was the point of the decision in that case.
It appearing to this Court that the six per cent. guaranteed dividend was and is payable by the defendant in money generally, and not in gold specifically, the judgment of the Court below must be reversed, and, under the agreement of the parties, judgment will be entered for the defendant.
Judgment reversed, and judgment for the defendant. 

DISSENTBY:
STEWART 

DISSENT:

STEWART, J., delivered the following dissenting opinion:
This Court, in the opinion delivered by Judge ALVEY, has rested the reversal of the judgment of the Superior Court of Baltimore City and the determination [**46]  of the case, upon the authority of the recent decisions of the Supreme Court of the United States in regard to the operation and effect of the Legal Tender Acts of Congress, upon the theory that the case comes within the federal jurisdiction.
The learned Judge of the Superior Court, in pronouncing his judgment with the same decisions before him, had reached a different conclusion, and adjudged that the contract here in question, authorized the State to demand the debt incurred thereby, to be paid in gold, and was not within the scope of the Legal Tender Acts as expounded by the Supreme Court.
With great respect for the opinions of the majority of my brethren, it seems to me the judgment below ought to be affirmed; and it is proper and due to the magnitude of the case and the importance of the principles involved, as well as to my brethren, that I should state the reasons as they occur to me for this conclusion.

 [*547]  The suit was instituted by the State against the company, to recover the amount of interest paid by the State in gold on the sterling bonds of the State issued under the authority of the Act of 1838, ch. 386.
The bonds having been passed to the company by [**47]  virtue of said Act, the company had paid the interest thereon from the time of their negotiation in 1849, until July, 1865, when it declined further to pay the interest; and the State, to maintain her credit, having paid the interest in gold from that time, claimed that the company was bound in good faith, and according to the provisions of law authorizing the issue of the said bonds for the use of the company, to indemnify the State. The company, on the other side, insisted that it was only bound to pay the six per cent. provided by the Act of 1835, ch. 395, and that this it could pay in currency since the passage of the Legal Tender Acts by Congress.
Under an agreement of the parties, the case was submitted to the Court to determine from the interpretation of the Acts of 1835, ch. 395, 1836, ch. 261, 1838, ch. 386, and the other legislation of the State creating the contract between the parties, whether the company was bound to pay to the State the six per cent. provided by the Act of 1835, ch. 395, in gold.
As I understand the question in issue, it is substantially whether the company is bound, by the relations between the parties created by the said Acts, to pay back to the State [**48]  in gold, the money the State has paid on the sterling bonds issued under the authority of the Act of 1838, ch. 386.
There could be no difficulty about the case if what constituted a legal tender at the time of the creation of the dealings between the parties by the Acts in question, was unaffected by the Legal Tender Acts and the decisions of the Supreme Court thereon, which are now considered by a majority of this Court conclusive of the case. Although I consider the said Acts and decisions as not applicable to this case, still it is proper I should at least advert to this aspect of it, as my brethren have rested their decision upon them.

 [*548]  It is a sound and well settled rule of interpretation respected by all judicial tribunals, that the established law should not be held repealed or modified by subsequent statutory provisions, unless they are clear and explicit to that effect. The same principle is applicable to all adjudications of the Courts. It is due to the good faith and integrity of contracts and the honesty of all human transactions affected thereby, that the firmly recognized law should not be considered as overturned by judicial rulings, unless such is their [**49]  plain effect beyond question.
According to these canons of judicial construction, I have not been able to discover in the Legal Tender Acts and the decisions of the Supreme Court thereon, clear authority for the reversal of the decision of the Superior Court.
It had become an established maxim of constitutional law, and so regarded by all the authorities of the Federal Government and the States, and as such recognized by all judicial tribunals throughout the country, that nothing but gold and silver could constitute a legal tender in the payment of debts or discharge of contracts. The States were prohibited from making any other tender, and the Federal Government was clothed with no power under the constitution to substitute paper, or anything else as a legal tender. Every body understood this to be the established constitutional law upon the subject, and contracts and dealings were regulated by parties according to this standard.
But during the late civil war--when expedients were adopted of questionable character in times of peace, and when the federal authority was stretched to the utmost extent, and unusual and extraordinary powers were assumed and exercised, upon the ground [**50]  of military necessity, under the urgent circumstances existing, the Congress of the United States, in undertaking to meet the exigencies of the occasion, passed, after considerable opposition, the Legal Tender Acts of February 25th, 1862, July 11th, 1862, March 3d, 1863, June 30th, 1864, and the joint resolutions of January 17th, 

 [*549]  1863, declaring the notes thereby authorized to be issued, to be a legal tender in payment of debts, public or private.
These proceedings were regarded by the Congress of the United States at the time as justified, more as war measures than as strictly and truly within its constitutional authority. It is certainly not the safest rule to place implicit reliance upon acts done or precedents adopted in the critical exigencies or extraordinary circumstances of a wide-spread civil commotion, threatening in its results fundamental dismemberment and disorganization of the government and its various departments. Accordingly it was found that when the constitutionality of these acts of Congress was first brought in question before the Supreme Court of the United States, in the celebrated case of Hepburn vs. Griswold, 75 U.S. 603, 8 Wall. 603, 19 L. Ed. 513, [**51]  that Court decided by five judges to three that the Act was in violation of the Constitution so far as applicable to contracts antecedent thereto, and that all contracts prior to the passage of the Act for the payment of money, without express stipulation to the contrary, were payable in gold and silver.
In the later cases of Knox vs. Lee and Parker vs. Davis, 79 U.S. 457, 12 Wall. 457, 20 L. Ed. 287, when the two additional judges that had been appointed subsequent to the decisions in the former case, sat, the Court, by five judges against four, (the two new judges concurring with the previous minority,) thus making a bare majority, overruled the doctrine held in the case of Hepburn vs. Griswold, and decided that the Legal Tender Acts are constitutional, and apply equally to debts contracted before or after their passage.
But the Court, as at present constituted, in the case of Trebilcock vs. Wilson, 79 U.S. 687, 12 Wall. 687, 20 L. Ed. 460, in accordance with previous decisions, has determined that the Legal Tender Acts only apply to debts payable in money generally, and not to special contracts which require payment in [**52]  coin, and sanctions the law asserted in Bronson vs. Rodes, 74 U.S. 229, 7 Wall. 229, 19 L. Ed. 141, leaving special contracts to be construed by their particular terms, so as to effectuate the intention of the parties, of course, 

 [*550]  in regard to the medium of the payment as to other constituents of the contract.
In the case of Lane County vs. Oregon, 74 U.S. 71, 7 Wall. 71, 19 L. Ed. 101, the whole Court affirmed the obligation to pay the taxes in gold from mere implication.
From a careful examination of all these cases, together with Butler vs. Horwitz, 7 Wall., and the Legal Tender Cases, 79 U.S. 457, 12 Wall. 457, 553, 20 L. Ed. 287, it is apparent that although the Supreme Court has reversed the decision of Hepburn vs. Griswold, thereby affirming the constitutionality of the Legal Tender Acts, when applied to debts contracted before their passage, as to those afterwards; that Court has not decided that those Acts are applicable to all contracts indiscriminately. But as to contracts with special provisions, express or implied, requiring a different medium of payment, that Court, I think, has made [**53]  a distinction, that they are beyond the operation of the Legal Tender Acts. When the medium of payment is provided for expressly or impliedly, and is made an ingredient of the contract, or when its terms and provisions fairly require, in order to carry out the intention of the parties, that the payment shall be in gold--how could the integrity of the contract be held unimpaired by a different construction, &c.?
The States are restricted from the enactment of laws impairing the obligation of contracts, and certainly no authority is conferred on the Federal Government, or any department thereof, to exercise such power. No construction should be given to any decision of the Supreme Court that can be consistently avoided, that would operate to trench upon the inviolability of contracts, or in effect repudiate their integrity.
At the time the cause of action accrued in this case, and when the trial was first had, as the unquestioned law and rulings of the Supreme Court then stood, the claim of the State was recoverable in gold. The late decisions having intervened, it is insisted, have deprived the State of the right to demand payment in gold. I submit, with due deference, 

 [*551]   [**54]  that the law of tender, since the passage of the Legal Tender Acts, and the decisions of the Supreme Court thereon, is uncertain and unsettled in many respects, and that the last decision of the Supreme Court, changing the law of legal tender as understood before, is liable to be reviewed and reversed by their successors, and that the example of reversing the rulings of their predecessors may be followed with quite as much facility as their rulings, and the ancient and well-established law as recognized by the founders of the republic and the illustrious jurists and statesmen of former times, as well as their contemporaries, may be restored. See opinion of Chief Justice MARSHALL, in Sturges vs. Crowninshield, 17 U.S. 122, 4 Wheat. 122, 205, 4 L. Ed. 529, and the judgment in Gwin vs. Breedlove, 43 U.S. 29, 11 L. Ed. 167, 2 How. 29, and 4 Webster's Works, 265, 271, referred to in the opinion of the Court in this case.
The former decisions of that Court have been reversed to a qualified extent only, and this has been by a bare majority of the Judges. Under these circumstances, whilst recognizing the authority of these decisions in regard [**55]  to the constitutionality of the Legal Tender Acts, and with every disposition to treat them with the respect due to our highest judicial tribunal, whenever their views are clearly announced; it is at the same time due to that Court, where their rulings are doubtful, and the antecedent law so clearly settled, that they should not be misunderstood, and effect given to their decisions to an extent not contemplated by them. Every reasonable effort should be made to give such construction to their decisions as will reconcile them, if practicable, with the antecedent law, and thus administer substantial justice between litigants, and maintain the integrity of their contracts.
From the obscurity and uncertainty of the law of legal tender now upon the subject, to make the most of it towards sustaining the views of the company, upon the assumption that the contract in this case is not one of indemnity to the State for its disbursement in gold for the company; and that it can be brought within the range of federal jurisdiction, I 

 [*552]  do not think the case ought to be decided on the ground taken by the majority of this Court, to wit: that the question involved here has been authoritatively [**56]  adjudicated by the Supreme Court.
On the contrary, according to my apprehension, the Supreme Court has not settled any such principle; and it seems to me, under the circumstances, the decision of the Superior Court ought to be affirmed, and the option given to the company to have the case reviewed by the Supreme Court, when that Court can authoritatively decide whether, according to their views, the provisions of the contract here in question, are reached by the Legal Tender Acts.
Much of the able and ingenious argument of the learned counsel of the company was directed to show that the State was a mere preferred stockholder in the company, and not a creditor, which latter capacity might entitle her claim to greater consideration.
I concur with the majority of the Court, that whether the State was the one or the other, or both, in a qualified sense, does not materially affect the question involved, because in either character the State was entitled to be paid in gold, as the law of tender stood at the time of the contract.
But the rights of the State are not precisely and fully stated, or certainly not to their equitable extent, by considering the State as claiming simply in [**57]  either of these capacities as ordinarily understood, because the State has equities beyond those of a mere stockholder or creditor. The State may in some sense be described in her relations with the company, as a creditor or stockholder; but in truth, as I understand the transaction made by the statutes in question, the State, by the issue of her bonds, merely intended to facilitate and aid the company, by enabling it to effect a loan through the credit of the State; and the company to indemnify and secure the State from loss, undertook, in the mode and form prescribed by the Acts of the Legislature authorizing the loans, to furnish that security or indemnity. In order that the State might 

 [*553]  the better accomplish this result and have the corresponding power to protect her interests in the matter, she was constituted a quasi stockholder in the company, with proportional authority in the board of directors of the company--The State consenting to take stock under the limitations prescribed by the statutes, with the guarantee of the company to pay six per cent. from the profits of the work, for the purpose of securing herself in that way.
The enterprise being one [**58]  of great promised public utility, and calculated largely to develop the resources of the State, had claims upon the State, as the sovereign authority, to lend its assistance to promote the success of the company. Such considerations and inducements undoubtedly prompted the State to lend her credit to the company and to incur the risk of the security upon the guaranteed payment of the six per cent. from its profits, which were for that purpose and to that extent sacredly dedicated and pledged by the contract. The substantial import of the transaction between the State and the company, shows very conclusively to my mind, that it was a contract to secure the State, on account of the State becoming responsible for the company on the loan made to the company; that the company, for the purpose of indemnifying and securing the State on account thereof, gave the lien of six per cent. per annum interest on the debt upon the profits of the company.
This is the substance of the arrangement between the parties, disclosed by the provisions of the statutes relating to the transaction as between the State and the company. The former stands rather as the surety or guarantor of the latter on the sterling [**59]  bonds; and in good faith, the company, the true debtor, has bound itself in effect by the stipulations of the contract, to pay the interest of this debt in gold, in order to relieve and indemnify the State, which duty it punctually performed until July, 1865, after which, failing to do so, and the State to maintain her credit, having been compelled to pay the interest for the company, now has a just and valid 

 [*554]  claim to be fully indemnified for her disbursements on that account.
This I take to be the true and legal theory of the contract. But if it is not in legal effect a contract of indemnity, and it is simply an ordinary contract on the part of the company to pay the State the six per cent. interest on the amount of the loan, or substituted stock as the creditor, or preferred stockholder of the company; in that event the nature of the contract requires that the company shall pay its debt to the State in the same medium of payment the State has to discharge the debt contracted for the company--the State being obliged to pay in gold--the company, by virtue and in pursuance of the contract, is under a legal obligation to discharge its debt to the State in gold.
I hold that [**60]  no rulings of the Supreme Court, under the Legal Tender Acts, authorize a different medium of discharge.
A brief examination of the stipulations between the State and the company, as indicated by the legislation of the State, referred to in the agreement, will clearly show, according to my judgment, that it was a contract of indemnity by which the State was to be secured and kept harmless by the company, under the arrangement made by the various provisions and stipulations found in the statutes upon the subject.
The Act of 1835, ch. 395, provided for currency six per cent. bonds of the State, to be met and discharged by the six per cent. interest or dividend to be paid by the company. The terms of that Act were modified by the Act of 1838, ch. 386, by substituting in the place of the six per cent. currency bonds, the five per cent. sterling bonds, and the contract was changed by the consent of the parties accordingly.
The company could have paid the six per cent. interest in currency to meet the interest upon the bonds of the State, payable in like medium, (currency,) as authorized by the Act of 1835, ch. 395, so long as the provisions of that Act continued to embrace the [**61]  terms of the contract, and currency might be the medium of payment of both; but, by the 

 [*555]  acceptance of the provisions of the Act of 1838, ch. 386, and the modifications made in the previous contract thereby, the company became bound to pay the six per cent. on the debt or stock in gold, because of the five per cent. interest in gold to be paid by the State on the sterling bonds authorized by the Act of 1838, ch. 386.
The contract of the parties was converted by that Act into mutual stipulations for payment in gold. This was the effect of the Act of 1838, ch. 386, changing the currency bonds of the State into sterling bonds, affecting alike each party in regard to the medium of payment. These statutes created the contract between the State and company, by which the State practically authorized the company to use the sterling bonds in effecting a loan for her own accommodation; the company agreeing to secure the payment of the interest thereon for the State's indemnification.
It was to all intents and purposes, when reduced to its plain elements, free from the mass of verbiage used in the statutes, the debt of the company itself. It was neither an investment by the State [**62]  in the stock of the company, nor a subscription to its stock simply as an ordinary creditor or stockholder, but a form adopted by the parties to secure the State for the loan of the bonds to the company.
What is there in the whole proceeding reduced to its natural dimensions, to show it to be any other thing than the debt of the company contracted by it through the agency of the State, and upon the guaranty of the State; the interest of the debt secured to be paid to the State by the lien of six per cent. on the profits of the work?
This seems to me to be the plain and simple analysis of the 9th section of the Act of 1835, ch. 395, and the 1st section of the Act of 1838, ch. 386; the material provisions creating the contract between the parties. By the said 9th section the State was entitled to secure a perpetual dividend of six per cent. per annum from the profits of the work, and no more, on account of the loan contracted by or for the company, for 

 [*556]  which the State agreed to become responsible. The transaction assumed this form to secure the State for the advance to the company of the six per cent. bonds thereby authorized. The State was restricted to the receipt of [**63]  six per cent., whilst the stockholders generally might receive more or less, according to the profits of the enterprise.
This fact, per se, is sufficient to show that the State was not a mere stockholder. Besides, this Court has decided (State vs. Baltimore and Ohio R. R., 6 Gill 363, 384,) that the guarantee to the State of the six per cent. under the Act of 1835, ch. 395, is from the gross profits of the work, and in no manner impaired by the Act of 1838, ch. 386; shewing very clearly the State was not an ordinary stockholder. Under the 1st section of the Act of 1838, ch. 386, upon the acceptance of the provisions of that Act by the company, and the execution of the required guarantee, sterling bonds redeemable in London at any time after fifty years, bearing interest at five per cent., payable semi-annually in London, on the 1st of January and July in each year, were authorized to be issued for the use of the company in lieu of the previous securities authorized by the Act of 1835, ch. 395; and equivalent to the amount of the bonds delivered up by the company. The Commissioner of Loans was required to give to the company in the proportion of $ 3,200 [**64]  of the sterling bonds for every $ 3,000 of the prior securities delivered up--the company paying the interest at five per cent. on the stock created by the Act semi-annually, at least ninety days before the 1st of January and July, for the term of three years from the date of the bonds, together with the costs of transmitting the interest to London to be there paid, and also the difference in exchange of currency between London and Baltimore. In brief, under the Act of 1835, ch. 395, the interest on the loan of the currency bonds authorized by that Act was to be met for three years from the expected premium on the sales of the bonds; after that time the company guaranteed six per cent. to the State.

 [*557]  Under the Act of 1838, ch. 386, the five per cent. sterling bonds were substituted for the former bonds, and the company agreed to pay the interest eo nomine for three years, in lieu of the premium on the currency bonds, to be secured by reservation of bonds. There was no occasion for further provision in this last Act as to the payment of the interest, because that was already secured by the Act of 1835, ch. 395, in the guarantee of the six per cent. interest. By these [**65]  several provisions the payment of the interest on the sterling bonds, as well for the specified three years as afterwards, was secured to the State for its indemnification. The express obligation to pay for three years was for that purpose. The perpetual guarantee of the six per cent. was of like import; otherwise the State must be considered as only stipulating for her indemnification for three years; whereas the whole arrangement shows it to have been the design not only to indemnify the State temporarily, but perpetually. The payment of the five per cent. for three years provided by the Act of 1838, ch. 386, without reference to the profits of the work; and the six per cent. by the Act of 1835, ch. 395, guaranteed upon the profits, were both intended for a similar purpose, to wit: to provide the fund by which to discharge the liabilities of the State on account of the bonds. The six per cent. provided by the Act of 1835, ch. 395, could have no other object, after the currency bonds which that Act authorized, and the interest upon which was to be therewith met, had been superseded by the sterling bonds of the Act of 1838, ch. 386. The company was obliged to pay the five per cent.  [**66]  on the sterling bonds for three years, for the State's indemnification; the six per cent. in question must by intendment be for a like purpose, without the Act in so many words expressly so providing. If the one was to indemnify the State, so was the other unquestionably. After the expiration of the three years, the payment of the six per cent. was provided by the parties to meet the State's obligation for interest on the sterling bonds used by the company, and the costs and charges incident to 

 [*558]  the foreign payment. By the express provisions of these Acts and their fair construction, the State authorized the company to borrow the money in Europe for its own use upon the credit and authority of the sterling bonds, to be paid in gold. The company, with a view of indemnifying the State, and to enable the State to meet the indebtedness, obliged itself to pay to the State six per cent. annually after the three years specified in the Act of 1838, ch. 386. The clear and necessary import of the stipulations between the parties, to my mind, shows the contract to be one of indemnity and equivalents; and that the company contracted to pay to the State sufficient to cover the State's [**67]  disbursements on its account either in currency or gold.
But if the statutes in question do not make the contract one of indemnity, and the State is merely a creditor or stockholder, the special provisions of the contract will not be gratified if the company is permitted to discharge its part of the contract in currency, whilst the State is required to meet her obligations in gold. The mutual obligations of the same contract require the same medium of payment to be applied to both parties. Neither party, as the terms of the contract show, intended that the State should be a loser by the accommodation, and any construction so resulting, must be erroneous.
Parties may expressly or constructively contract to pay in gold or paper, in meal or malt, or other commodity; and in the same contract there may be stipulations for respective payments in different mediums; but when the contract is silent as to the one, and express as to the other, I know of no analogy, or any inductive process, by which an inference can be deduced, that the payment is to be made in two different mediums--the one in gold, the other in paper. Without some express provision to that effect, I am not able to perceive [**68]  upon what principle of just construction such a result can be reached. I cannot believe that the Supreme Court ever intended to sanction such an application of the Legal Tender Laws of Congress.

 [*559]  The debt contracted by the State for the use of the company was to be paid in gold. The only source provided in the contract for such payment, was the stipulated amount to be paid by the company to the State, and designed by the contracting parties to be the equivalent of the interest payable by the State, which could not be the case unless paid in gold. The obligations of the same contract as to the parties and subject-matter, contracted on the one side with corresponding liabilities on the other, predicated upon the theory of their discharge, on either or both sides in gold, cannot be gratified by requiring one party to meet his in gold and allowing the other party to discharge his in a depreciated medium.
The majority of this Court has treated the contract between the State and company as if it were an ordinary one for the payment of money, that is, that the company was simply bound to pay the six per cent. as so much money generally, without other purpose or object (whether [**69]  considered as interest or dividend was immaterial,) and viewed in that light, that it was embraced by the rulings of the Supreme Court upon the Legal Tender Acts.
If that were the true interpretation of the contract, and it contained but the simple obligation to pay the six per cent. upon the stock or loan, as such, disconnected from the other consideration, that the six per cent. so to be paid was to enable the State to pay the interest on the debt contracted by the company, or by the State on her account, there might be ground for resting the case upon the decisions of the Supreme Court, and permitting the company to discharge its obligations in the currency provided by the Legal Tender Acts.
But with deference to their views, I submit that the contract is a special one, and for a specific purpose, to wit: In consideration of the State having agreed to deliver the sterling bonds to the company to enable it to realize the money thereon, the company contracted to pay to the State five per cent. per annum on the sterling debt or stock, as it is called 

 [*560]  in the Act, for the term of three years, to be secured by a lien on all its property and revenues, or by reservation of [**70]  bonds, and ever afterwards six per cent. per annum, secured by a pledge of stock guaranteed to pay six per cent. from the gross profits of the company. Construed with all its stipulations, it was not a mere obligation on the part of the company to pay money generally, but specifically to pay money to meet the interest on the debt contracted by the State for the company. The payments were made sufficient for that purpose by the tenor and effect of the contract between the parties, and it was not the mere "supposition or expectation of the State" that this would be so, but the imperative obligation of the company and the corresponding right of the State, according to the contract, that it should be so; and nothing short of a positive or constructive violation of the contract in this particular, can enable the company to be discharged by paying a less amount than the State has to pay on the debt, according to my judgment.
It seems to me, much of the fallacy of the view taken in defence of the company, proceeds from considering the case as if there were two several and distinct contracts between the State and the company.
By the one, that the State simply agreed to advance the sterling [**71]  bonds, the company to pay the State interest thereon, as creditor or stockholder of the company. By the other, that the company agreed to pay the six per cent. to the State for the loan of the sterling bonds. Whereas, in legal contemplation, the Acts referred to, constitute but a single contract between the parties, with mutual stipulations and obligations as stated.
Where there are relative and dependent rights and obligations, and mutual stipulations between the parties, well defined and prescribed by the one contract, and making a part thereof, and provided for in the creation of the contract, all the elements of the transaction, and the considerations governing the contracting parties must be regarded, in order to 

 [*561]  give to the contract such interpretation as will measure out equal and exact justice to each party alike, according to the terms and stipulations of the contract. It certainly does not seem to me to be a just rule to apply to the transactions of these parties in regard to the same contract and subject-matter, to wit: The medium of payment, which compels the one party to pay the debt contracted for the other in gold, and suffer the other party to discharge [**72]  its indebtedness on account thereof in a depreciated medium.
It is a well settled rule in the construction of contracts that the intention of the parties must be regarded, and this applies as well to the medium of payment as to any other provision, if that be one of the elements of the contract.
If parties contract to pay money generally, although gold may be understood to be the only legal tender, and consequently gold may be in the contemplation of the parties, yet, as I understand the decisions of the Supreme Court, such contract must be taken with the understanding that the law may change the character of the tender of payment.
But if there is a special contract stipulating for payment in gold, from its nature express or implied, gold must be the medium of payment. That stipulation being part and parcel of the contract, must be carried into effect as such in good faith. If a contract provides, by express or implied terms, that whatever should be the medium of payment, gold, silver, paper, or other commodity, of the one, the same should be applied to the other; and the one has to pay in gold, can there be any question that the other is required, under the obligations of the contract,  [**73]  to meet his in gold? Certainly it was, and still is competent for parties so to contract, and the Courts must enforce their contracts accordingly. The provisions of the contract may be express or contingent as to the character of the medium of payment, either in gold, paper, or other commodity; or it may be but a matter of inference, to be deduced from the nature of the obligations of the contract.

 [*562]  The collector in Oregon being required to pay the taxes into the State treasury in gold, therefore as a correspondent obligation the taxpayer could not discharge his indebtedness for the taxes in currency, but must pay them in gold.
The State, in this instance, is obliged by the contract between the parties to pay in gold in Europe on her sterling bonds, issued for the use of the company; and the company agrees and obliges itself to furnish the money in the payment of the six per cent. interest on the correspondent debt it owes to the State on account thereof, which must be in the same kind of money--there being no provision of the contract to discharge the company by any reduced medium of payment. The Supreme Court, in none of its decisions, as I apprehend them, has ever intended [**74]  to sanction an application of the Legal Tender Acts, capable of accomplishing such unjust and unequal results, in the adjustment of the respective rights of the parties under the same solemn and bona fide contract, as inferred by the opposite theory.
According to my apprehension, the six per cent. provided by the Act of 1835, ch. 395, to be paid to the State, was and still is due and payable in gold, and the State is justly and legally entitled to the $ 289,489 claimed by her.
Judge DOBBIN, of the Superior Court, in my judgment, was right in holding the company bound under the contract, and the mutual stipulations thereof, to pay the claim of the State in gold, and that the Legal Tender Acts and the decision of the Supreme Court thereon, have not relieved the company from that obligation. The judgment below should accordingly be affirmed.  

82 of 144 DOCUMENTS 

JAMES COOPER vs. MICHAEL ROCHE. Effect of a Judgment by Default--Practice.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 563; 1872 Md. LEXIS 98 

June 21, 1872, Decided 

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

The appellant sued the appellee to recover $ 200, "for broker's commission in finding a purchaser for four ground rents of $ 165 per annum, each, as per agreement." The suit was brought under the provisions of the Act of 1864, ch. 6. The cause of action was filed with the declaration, and verified by affidavit, as required by that Act. The defendant appeared to the suit, but failing to plead to the declaration, the Court entered a judgment by default against him. The defendant then asked for a jury of inquiry, which was sworn, and assessed the plaintiff's damages at $ 50. The plaintiff moved to have the inquisition set aside as being against the law and the evidence; this motion the Court overruled, and entered a judgment of non pros. for want of jurisdiction--the damages awarded by the jury not exceeding or amounting to the sum of $ 100--and awarded the defendant his costs.

From the order overruling the motion to set aside the inquisition of the jury, and from the judgment of non. pros., the plaintiff appealed.

On the petition of the defendant, a writ of diminution was ordered by the Court, and issued.  

DISPOSITION:
Judgment of [**2]  non pros. reversed and judgment for appellant.  

HEADNOTES:

When a judgment by default has been entered, it is error in the Court to enter a judgment of non pros., because the verdict or inquisition of the jury was for a sum below the jurisdiction of the Court. The judgment by default is conclusive of the question of jurisdiction.

But a judgment by default does not settle the right of the plaintiff to recover the amount stated in his cause of action. The defendant is entitled to have an inquisition by the jury.  

COUNSEL:
Benjamin F. Horwitz, for the appellant.

The judgment by default, regularly entered, was conclusive as to the jurisdiction of the Court, and also as to the plaintiff's right to recover the sum claimed in the cause of action to be due, "as per agreement." Green vs. Hamilton, 16 Md., 329; Mailhouse vs. Inloes, 18 Md., 333; Davidson vs. Myers, et al., 24 Md., 554. If, therefore, the judgment by default, regularly entered, in this case was conclusive as to the jurisdiction of the Court and the plaintiff's right to recover, does it not follow that all jurisdictional requirements necessary for the purposes of such recovery and the entering of a final judgment, are conclusively determined thereby? As the Constitution of this State fixes the minimum jurisdiction of the Superior Court at $ 100, the judgment by default conclusively settled the jurisdictional fact that the plaintiff was entitled to recover $ 100, and consequently any inquisition assessing the plaintiff's damages after a judgment by default, regularly entered by the Superior Court at less than $ 100 is a nullity, and should be set aside. The Superior Court, therefore, committed [**3]  error in overruling the plaintiff's motion to set aside the inquisition as void in law.

The judgment by default in this case settled the law of the case, or, in other words, was a confession of the plaintiff's right to recover $ 200, the amount stated in the cause of action to be due him "as per agreement." Kiersted vs. Rogers & Garland, 6 H. & J., 285; Davidson vs. Myers, et al., 24 Md., 554; Mailhouse vs. Inloes, et al., 18 Md., 333.

The Superior Court not only overruled the plaintiff's motion to set aside the inquisition, but it went a step further, and actually entered a judgment of non pros. against the plaintiff, and thus put itself in the remarkable attitude of entering two judgments in the same case, having a precisely opposite legal effect, and permitting both to stand on its docket at the same time. First, declaring as its solemn, (and in the language of the authorities) "conclusive" judgment, that the plaintiff is entitled to recover on the confessed cause of action, and then, with that judgment standing and in full force on its records, again declaring as its solemn judgment, that the plaintiff is not entitled to recover, but that the defendant is entitled to [**4]  recover his costs from the plaintiff. Can any such legal contradiction stand? Davidson vs. Myers, et al., 24 Md., 555; see the case of Heffner vs. Lynch, 21 Md., 552.

The Supreme Court of the United States, in the case of The Mayor vs. Cooper, 6 Wallace, 250, decide that the judgment of the Superior Court is "clearly erroneous" in another particular, interesting and important as a question of practice, that is, in entering a judgment in favor of the defendant for costs, with power to issue execution in a case in which it decides it has no jurisdiction.

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

JUDGES:
The cause was submitted to BARTOL, C. J., BRENT, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*565]  BARTOL, C. J., delivered the opinion of the Court.
It appearing to the Court, that the writ of diminution heretofore ordered in this case, was ordered improvidently and without sufficient cause; the record in the same being full and complete, and in no respect diminished; an order will be passed quashing the writ.
The appeal is from the order of the Superior Court, overruling the motion of the appellant (plaintiff below) to set aside the inquisition of the [**5]  jury, and also from the judgment of non pros.
It was decided in Heffner vs. Lynch, 21 Md. 552, that a judgment by default is conclusive of the question of jurisdiction, and of the power of the Court to enter final judgment for the amount ascertained to be due by the inquisition.
That decision did not proceed upon the idea that parties can confer jurisdiction by consent, but that after judgment by default, the question of jurisdiction is not open, and the defendant is estopped and precluded from disputing it. It was error, therefore, for the Court below to enter a judgment of 

 [*566]  non pros., because the verdict or inquisition of the jury was for a sum below the jurisdiction of the Court.
The case as presented by the narr. was one within the jurisdiction of the Court, and the judgment by default for want of plea, was properly entered, and its binding force and effect could not afterwards be questioned, so far as respected "the power and jurisdiction of the Court in declaring that the plaintiff was entitled to recover." Green vs. Hamilton, 16 Md. 317.
But the appellant is in error in supposing that the judgment by default [**6]  settled the right of the plaintiff to recover the amount stated in his cause of action. On this ground alone the appellant has sought to maintain his appeal from the order overruling his motion to set aside the inquisition. But there is no authority for giving to the judgment by default any such force or effect. If that were so, it would deny to the defendant the right to have the damages ascertained by a jury, and would make such a proceeding idle and nugatory. The defendant was entitled to have an inquisition by a jury; their verdict is not open for examination on this appeal; and it settled the amount which the plaintiff was entitled to recover.
The judgment of non pros. will be reversed and judgment entered for appellant for the sum ascertained by the jury and costs.
Judgment of non pros. reversed and judgment for appellant. 

83 of 144 DOCUMENTS 

JOSEPH OSBORN DUGAN vs. ROBERT S. ANDERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 567; 1872 Md. LEXIS 99 

June 21, 1872, Decided 

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

This was an action brought by the appellee against the appellant for the breach of a contract. The facts of the case are stated with sufficient fullness in the prayers of the respective parties and in the opinion of the Court.

First Exception: After evidence had been offered on both sides, the plaintiff further proved by J. Edward Bird, that he had been for many years a dry goods merchant in Baltimore, and the plaintiff had been in his employment as a clerk, salesman and superintendent for sixteen or seventeen years, down to 1861, when he went to Neale's. The plaintiff's counsel then proposed to ask the witness the following question:

Please state what you know of his habits of punctuality, attention to his duties and efficiency, while in your employment. The defendant's counsel objected to the question as not applicable by way of rebuttal to any of the defendant's proof, and because it was irrelevant, and related to a time anterior to that covered by the defendant's proof.

The Court (DOBBIN, J.) overruled the objection, on the ground that according to the recollection of the Court, the testimony of the defendant's [**2]  witness, Fisher, had impugned the character of the plaintiff in the particulars inquired of, while at Neale's. Thereupon the question being put, the witness testified, that while in his employment, the plaintiff was a capable and efficient salesman, attentive to business and of unexceptionable habits. The defendant excepted to both the question and the answer.

Second Exception: The plaintiff offered the three following prayers:

1st. If the jury shall find from the evidence that the plaintiff was employed by the witness, Neale, at a salary of $ 2,000 a year, and that at that time there was a firm composed of the defendant and the witnesses Bowen and McCabe, existing under the articles of co-partnership offered in evidence; and if they shall further find, that while the plaintiff was so employed by said Neale, the defendant agreed with the plaintiff, without any condition as to plaintiff being taken on trial, that if the plaintiff would give up his employment under said Neale, the defendant would take the plaintiff into the employment of himself and said Bowen, as remaining members of said firm, after the retirement therefrom of said McCabe, until the 1st of March, 1871, and [**3]  would allow the plaintiff for his services until said time, the share of the profits of said business which would have accrued to said McCabe as a member thereof to said time, had said McCabe remained in said firm, and in case said share of said McCabe of said profits should be less than at the rate of $ 1,500 per annum, the plaintiff should receive compensation for his services to March 1st, 1871, at the rate of $ 1,500 per year; and if they shall further find that the defendant, at the same time, also promised and agreed with the plaintiff as aforesaid, that the plaintiff should, on the 1st of March, 1871, become a partner with the defendant and said Bowen in their business for one year certain, and receive one-third of the profits of said business; and if they shall further find, that in consideration of the said promises of the defendant to employ the plaintiff until the 1st of March, 1871, and at that time to admit him as a partner, the plaintiff did give up his employment under said Neale, and did enter the service of said defendant and said Bowen as proposed; and if they shall further find that the plaintiff continued in the service of the defendant and Bowen until he was discharged [**4]  and removed therefrom by the defendant, and that the plaintiff, before the institution of this suit, offered and tendered to continue to serve said defendant and Bowen until the 1st of March, 1871, and then to become a partner in said business under the agreement aforesaid, but that the defendant, before the institution of this suit, denied that there was any such agreement between himself and the plaintiff, as is above set forth, and refused to permit the plaintiff to continue in the services of defendant and Bowen until the 1st of March, 1871, and then become a partner in said business as aforesaid, and required the plaintiff to leave the employment of said defendant and Bowen, and forbade him to be and remain in the store in which said business was conducted, and denied that the plaintiff was entitled to become a partner in said business from March 1st, 1871, and refused to receive him as such when that time should arrive; and if they shall further find that the defendant did not, at any time before March 1st, 1871, retract his said action towards the plaintiff, and offer to receive him again into the employment of himself and said Bowen until the 1st of March, 1871, and then to [**5]  admit him as a partner in said business as aforesaid, then the plaintiff was entitled to institute this suit at the time it was brought, to recover as for a breach of the entire contract above required to be found.

2d. If the jury find the facts in the first prayer, then the plaintiff is entitled to recover, unless the jury shall find that the acts of the defendant towards the plaintiff, therein set forth, were occasioned by some substantial incompetency or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant, after the inception of the contract, acquiring a knowledge of some unfitness or disqualification of the plaintiff to perform said contract on his part, unknown to the defendant at the inception of the contract.

3d. If the jury find the facts in the plaintiff's first prayer, the defendant had no right to terminate said contract without compensation to plaintiff, merely because the defendant believed that said contract would not be profitable.

The defendant offered the eight prayers following:

1. The writ in this action having been issued prior to the 1st of March, 1871, the question [**6]  of damages for the alleged refusal of the defendant to take the plaintiff into partnership on that day, under the contract to that effect alleged and sought to be set up, is not before the jury for consideration.

(2. Prayer withdrawn.)

3. If the jury shall find from the evidence that the plaintiff was employed by the defendant on trial, the defendant had a right to discharge him at pleasure, and the plaintiff can recover no damages for such discharge.

4. If the jury shall find from the evidence that the defendant's taking the plaintiff into partnership was to depend upon its being satisfactory to him to do so, on the 1st of March, 1871, the plaintiff is not entitled to recover any damages for the refusal of the defendant so to take him.

5. Even if the jury shall find that the defendant employed the plaintiff until the 1st of March, 1871, to act as superintendent and otherwise in the store on Gay street, without any stipulation that the defendant might discharge him for incapacity, misconduct or inattention, the defendant still had the lawful right to discharge him, if the jury shall find that he was incapable of discharging the duties so prescribed, or was inattentive [**7]  thereto, or negligent thereof, or failed otherwise suitably and faithfully to comply with his obligations.

6. Even if the jury shall find that the defendant agreed to take the plaintiff into partnership on the 1st of March, 1871, as alleged and sought to be proven by the plaintiff, the defendant had still the lawful right to refuse to do so, if the jury shall find that the conduct of the defendant in the intermediate time was such as to shew that he was incapable of discharging the duties which he was to perform in such partnership, or was so neglectful or careless, or of such habits and conduct as, in the opinion of the jury, would have rendered such partnership a failure for the purposes in contemplation of the parties in its formation.

7. That there is no evidence in the cause of any request or demand addressed by the plaintiff to the defendant to take him into partnership on the 1st of March, 1871, or of any tender of his readiness to enter into such partnership, or any refusal of the plaintiff to take him into the same, and the plaintiff cannot therefore recover any damages on account of any alleged failure or refusal of the defendant so to do.

8. That even if the [**8]  jury should find for the plaintiff under the Court's instruction, and should deem it proper under said instructions to find damages for the plaintiff for breach of the alleged contract to take the plaintiff into partnership on the 1st of March, 1871, the jury are nevertheless not authorized to give any greater damages for the breach of said contract than one-third of the net profits of the business for one year from that period, less such amount as the jury may find that the plaintiff has otherwise earned, or might or ought, by due and reasonable industry and diligence, to have earned during such part of said year, as has already elapsed, and may and ought so to earn during the remainder thereof, in the judgment of the jury.

The defendant excepted to the first prayer of the plaintiff, because there was no evidence to support it in several particulars:

1st. There is no evidence in the cause that the withdrawal of the plaintiff from the service of Neale was any part of the consideration of the agreement or understanding between the plaintiff and defendant, or was involved in the same in any other way than that the plaintiff could not possibly go into Dugan's service without [**9]  going out of Neale's--the only consideration proven being the engagement of Anderson on the one side to render certain services, and the agreement of Dugan on the other side to take him into his service, at a certain salary, till March 1st, 1871, and admit him into partnership on that day.

2d. There is no evidence whatever in the cause that the plaintiff, at any time before the institution of this suit, tendered himself ready to the defendant to become a partner in business with him on the 1st of March, 1871, or that the defendant denied, before the institution of this suit, that the plaintiff was entitled to become a partner in said business from March 1st, 1871, or refused to receive him as such when that time should arrive.

The Court granted the first and third prayers of the plaintiff, and rejected his second prayer as offered, but granted it subject to the qualification contained in the defendant's third, fourth, fifth and sixth prayers, provided the jury should find the hypothesis of facts contained in said prayers of the defendant.

The Court granted all the prayers of the defendant but the first and seventh, which it refused, and the second, which was withdrawn.  [**10]  To the rejection of his first and seventh prayers, and to the granting of the plaintiff's prayers, the defendant excepted.

A verdict was rendered in favor of the plaintiff for $ 2,000, and judgment was entered accordingly. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Separable Agreement -- Contract Indivisible -- Breach of Contract -- Immediate right of Action -- Damages -- Evidence.

Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, the general rule is that it shall be taken distributively, and each subject be considered as forming the matter of a separate agreement after it is so closed.

In the summer of 1870, a contract was entered into between the plaintiff and defendant, by which the latter agreed to employ the former as clerk in his store, at a salary of not less than $ 1,500 per annum, until the 1st of March, 1871, and then to receive him as partner in his business for one year, certain, and allow him one-third of the profits; in pursuance of this promise and agreement by the defendant, the plaintiff gave up a situation and employment in which he was receiving $ 2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by the defendant; the plaintiff before instituting a suit against the defendant, offered to continue to serve him until the 1st of March, 1871, and then to become a partner in the business under their agreement, but the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to continue in his service until the 1st of March, 1871, and required him to leave his employment, and forbade him to remain in the store in which the business was conducted, and denied he was entitled to become a partner therein from that date, and refused to receive him as such, when that time should arrive. The defendant did not at any time before the 1st of March, 1871, retract his action towards the plaintiff, and offer to receive him again into his employment until that time, and then to admit him as partner in the business as aforesaid. On the 5th of January, 1871, the plaintiff instituted suit against the defendant for a breach of the contract. HELD:

That while in one sense, the contract between the parties was in its nature and terms, separable and apportionable -- the services as clerk and the partnership being capable of separate execution -- it was in respect to the intention of the parties, to be entire and indivisible. The consideration for the plaintiff's action in entering into it, was not merely that he should be employed until the 1st of March, 1871, at a salary, but that he should be so employed and be taken as a partner at that time for a year, certain; and the conduct of the defendant constituted a breach of the contract, which gave an immediate right of action, and entitled the plaintiff to recover damages as for a breach of the entire contract.

The plaintiff, after offering evidence tending to establish the contract entered into between the defendant and himself, proved that he faithfully and efficiently in all particulars, discharged his duties under it, as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute, and not in any way dependent upon the defendant's wanting him or not, or of his being satisfactory to the defendant; that he was not taken on trial, and his being taken into partnership was not to be a matter of contingency; that the defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer, was, and what salary he was receiving from Neale, and what Neale's opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership, dependent upon his being found satisfactory. He further proved he was in every way competent for the duties he assumed to discharge, and discharged them faithfully and fully. HELD:

That this testimony, coming from the plaintiff himself, as a witness, did not amount to such anticipation of the proof to be offered in evidence on the ground of his bad habits and incompetency, as ought, in the exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant, to wit: that while he (the plaintiff) was in the employ of Neale, where he had been since 1861, he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintive having been properly allowed to reply to this, by offering evidence tending to show that while he was at Neale's he attended to his duties diligently and faithfully, he was further entitled to prove, in reply to the evidence of bad conduct, bad habits, and incompetency, that all the while he was at Bird's, where he had been employed for many years, and up to the very day he went into the service of Neale, that he was capable, efficient, attentive to his business, and of unexceptionable habits.

And this proof in its entirety, coming down as it did to the very day the plaintiff left Bird and went to Neale, did not relate to a period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible.  

COUNSEL:
T. Wallis Blakistone and S. Teackle Wallis, for the appellant.

The question proposed to Mr. Bird should not have been allowed, and his answer to it was not proper to go to the jury.

The testimony, if proper in itself, was not admissible at the stage of the cause when it was offered, and after the course which the proof had taken. It is perfectly clear law, now, that if the plaintiff, instead of waiting till the defendant has closed, to produce evidence in reply, thinks proper to anticipate the defence and repel it in advance, he must exhaust his proof on the point anticipated, and will not be permitted to return to the same subject after the defence has been heard. 1 Sharswood's Starkie, 552, (top;) 1 Taylor on Ev., sec. 357.

In the present controversy, the appellee might have contented himself, if he had chosen, with proof of the contract and his fulfilment of it, followed up by proof of breach [**11]  and damages. This was his case. He was under no obligation to prove his character, capacity or efficiency till the defence had assailed them. He chose to do otherwise. He proved in chief that he was a person of large experience and much skill in his business, and that his conduct and attention to duty had commanded the approbation of his employer, Mr. Neale. He further proved that he was in every way competent for the duties he assumed to discharge, and that the appellant knew his qualifications and habits perfectly. He might then have proved, with equal propriety, and in like manner, (if it were admissible at all,) that his qualifications and habits had been as satisfactory to Mr. Bird as to Mr. Neale. But he did not. He finished his general evidence on that point without calling Mr. Bird, and he left himself no right to rebut any general proof to the contrary on the part of the defence. He retained only the right to rebut particular facts which the defence might set up de novo. The defence proceeded to set up no new particular facts, (pertinent to the present question,) except those of actual misconduct. These the appellee had the right to rebut, and he did give evidence tending [**12]  to rebut the testimony of the appellant's witness, Fisher, by which his (appellee's) proof of his deportment at Neale's had been contradicted. But that testimony was itself responsive proof on the part of the appellant, and it was confined to the appellee's conduct at Neale's, and nowhere else. Proof of the appellee's behavior at Bird's was, therefore, simply nothing in the way of rebuttal, and the Court's adjudication that it was competent to show that the appellee had been a faithful and efficient clerk at Bird's, because his character in the same particulars while at Neale's had been impugned, was, with great respect, a plain non sequitur.

But the testimony, in itself, was altogether inapplicable to the issue. It was not proof of general character or reputation, but of particular facts occurring or existing ten years before the facts in controversy. The appellant had not attempted to assail the appellee's fitness or habits by general proof, nor by proof of facts anterior to the period in controversy, except in the single point touched by Fisher's testimony, and that was in contradiction of facts set up affirmatively in chief by the appellee. Whether the appellee was sober or [**13]  drunken, capable or incapable, at Bird's, before the war, had nothing to do with the case, and was applicable to no issue that had been raised in it. The proof should have been excluded therefore as, per se, irrelevant and inadmissible.

The appellee's first prayer, which was granted, allowed the jury to make two assumptions, viz:

First: That it was part of the agreement between the parties that "the plaintiff would give up his employment with Neale," and that he did so.

Second: That the plaintiff, before suit brought, tendered himself to the defendant to become his partner from March 1st, 1871, but the defendant refused to permit him to become his partner from that time, and refused to receive him as such when that time should arrive.

The appellant insisted that there was no evidence to support the said assumptions, or either of them, and filed his several objections to the prayer on that ground:

1st. There was no proof in the cause that the appellee's leaving Neale was any part of the contract in controversy, or had any connexion with it further than arose from the impossibility of the appellee's being in two places at once. He could not go to Dugan without [**14]  going from Neale. The evidence, it is believed, will clearly maintain this objection. Nor could the appellee's leaving Neale have been properly put in proof. It had nothing to do with the issue. The appellee agreed to go to the appellant on certain terms, and he sued because those terms, as he alleged, were not complied with. He did not sue for his loss from leaving Neale, but for what he was to have had and ought to have received from Dugan. The eighth prayer of the appellant, which was granted without dispute, defined properly the limit and measure of his damages. The matter of leaving Neale, as introduced into the first prayer of the appellee, was consequently irrelevant, calculated to mislead the jury and withdraw their attention from the true points in issue and to set up a matter of aggravation which was aside from the merits of the controversy. Its introduction, in itself, should have caused the prayer to be rejected, even if otherwise unobjectionable.

2d. There was no proof that the appellee tendered himself as partner, &c., or was refused, as the prayer assumes. This point is raised by the appellant's seventh prayer, as well as by the objection heretofore referred to.  [**15]  

The Court will observe that the contract set up by the appellee was to employ the appellant as clerk till March 1st, 1871, and then take him for a year into the partnership existing between himself and Bowen. The suit was brought on the 5th of January, 1871, three months before the time for the contemplated partnership arrived, and of course before the appellee could possibly tender himself ready to enter into it in fact. The parties quarrelled in December, 1870, while the employment of the appellee continued as clerk, and the appellee swore that the appellant then notified him that he "desired no further business relations with him." Matters becoming aggravated, the appellee swore that by the advice of counsel he visited the appellant about the 31st of December, 1870, and told him he was ready to perform his part of the contract, and wanted to know whether the appellant was ready to perform his. The appellant swore he had no contract with him. The appellee replied that he had, and that he (appellee) was prepared honorably to carry it out.

There is not a particle of proof on either side, that the appellee at any time signified his readiness to enter into the proposed partnership;  [**16]  that appellant himself alluded to it; or that anything was the subject of discussion between them except the determination of the appellant to discharge the appellee from his service as clerk, and the determination of the appellee not to be discharged.

The prayer is further believed to be vicious in its instruction that the plaintiff, upon its hypothesis of facts, was entitled to institute the suit at the time it was brought, to recover as for a breach of the entire contract, &c. The proposition intended to be put, it is presumed, was, that on the theory of the prayer, the suit on the entire contract was not premature. As the prayer stands, however, it asserts the right to sue to recover for breach of a contract, without requiring the jury to find that the plaintiff had damage from its being broken. The prayer should have concluded "then the plaintiff is not precluded by the fact that this suit was instituted before the 1st of March, 1871, from recovering as for a breach of the entire contract above required to be found, if the jury shall find that the plaintiff was injured by such breach."

The second and third prayers of the appellee must fall with his first, if the latter [**17]  be found erroneous, inasmuch as they rest on the same faulty assumption of facts.

The appellant's first prayer asserts, in direct antagonism to the proposition intended to be set up by the appellee's first prayer, that as the action was brought prior to March 1st, 1871, the question of damages for refusing to take the appellee into partnership on that day, was not before the jury.

The contract in controversy was from its terms and its nature separable and apportionable, and not entire, and whether it was entire or separable, it was not competent for the appellee to recover any damages for an alleged breach of that part of it which was not to be performed, and could not be performed, until after action brought. A repudiation of one part of it was not necessarily, nor in law, a repudiation of the whole of it, and furnished no ground of suit as for an entire breach. It would have been carrying the doctrine of the English cases far enough to have allowed the appellee to sue after the 1st of March, 1871, and before the expiration of the year, for damages which could only be ascertained when the year was over. But a contract for a future personal association, such as a partnership,  [**18]  the performance of which would have been rendered impossible by the death or personal disqualification of either party before the period named, can hardly be held enforcible or broken until that period has been reached. Otherwise we have the anomaly of damages given for the non-formation of a partnership which might never have come to be formed, and which, if formed, might have resulted in loss rather than in profit. 2 Parsons on Contracts, 517, 521; 2 Smith's Lead. Cases, 55, et seq.; Rodemer vs. Hazlehurst, 9 Gill, 294; Kercheral vs. King, 44 Missouri, 401; Taylor vs. Laird, 25 L. J., (Exch.,) 329; Sedgwick on Dam., 258, (marg. 229;) Philpotts vs. Evans, 5 M. & W., 475; Ripley vs. McClure, 4 Exch., 359; Frost vs. Knight, 5 Exch., (L. R.) 322; Greenway vs. Gaither, Campbell's C. C. Rep., 227.

Charles Marshall, for the appellee.

Under the contract set forth, and upon such a rescission of it as is alleged in the first prayer of the plaintiff, and supported by the evidence on the part of the plaintiff, the right of action as for an entire breach accrued at once, and the plaintiff was not bound to wait until March 1st, 1871, to bring suit.

The contract was one and indivisible.  [**19]  The consideration for the plaintiff's action was not merely that he should be employed, until the 1st of March, 1871, at a salary, but that he should be so employed, and be taken as a partner at that time, the latter being as much a part of the consideration promised him for entering the service of the defendant as the former. Under such a contract as that alleged in the prayer, the conduct of the defendant was a breach which gave a right to an immediate action.

In such a case the plaintiff had an inchoate right to the performance of the bargain, at the time stipulated, and a right in the meantime to have the contract kept open as a subsisting contract. He could deal with the rights acquired under it in various ways for his advantage. On the other hand, if it be held that he cannot sue until the time fixed for taking him into partnership has passed, he can do nothing in the interval between his removal by the defendant and the 1st of March, which would disable him from tendering himself ready to form the partnership at that time. He would remain bound under a contract which the defendant claims the right to repudiate. Hochster vs. De la Tour, 20 E. L. & Eq. Rep. 157, 160; The [**20]  Danube and Black Sea Company vs. Xenos, 11 C. B. Reps., 152, (103 E. C. L. R. 151;) Avery vs. Bowden, 5 Ellis & B. 714, 728, (85 E. C. L. R.;) Goodman vs. Pocock, 15 Q. B. 576, (69 E. C. L. R.;) Emmens vs. Elderton, 4 House of L. Cases, 624; Frost vs. Knight, 20 Weekly Reporter, 471.

This is a decision of the Court of Exchequer Chamber, reversing a decision of the Court of Exchequer, found in 5 Court of Exchequer, 322 (Law Reports,) and distinctly adopting the law as laid down in Hochster vs. De la Tour. Crabtree vs. Messersmith, 19 Iowa, 180; Addison on Contracts, 974; United States vs. Speed, 8 Wallace, 84; Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill, 62.

There is a special exception to the plaintiff's first prayer, upon the ground that there was no evidence that the withdrawal of the plaintiff from the service of Neale, was any part of the consideration of the agreement between plaintiff and defendant. In reply to this it may be said, that, so far as the plaintiff's first prayer is concerned, it would make no difference if there had been no evidence that the fact of the plaintiff leaving Neale was part of the consideration of his contract.

That prayer requires [**21]  the jury to find all the elements of a contract, of which, it is conceded, that there was evidence, namely, the engagement of the plaintiff on the one hand to render certain services, and of the defendant on the other to employ him at a salary, and take him into partnership on the 1st of March. If the jury found such a contract, and also found the refusal of the defendant to be bound by it, as set forth in the prayer, the right of action accrued immediately on such refusal, and all that the prayer states about plaintiff leaving Neale's employment is surplusage.

But there was positive proof that the fact that the plaintiff was to give up his place at Neale's, was part of the consideration on his part, for the promises of the defendant to him.

The plaintiff's second prayer was granted, but subject to the qualifications imposed upon it by the third, fourth, fifth, and sixth prayers of the defendant, all of which were granted. The effect of these prayers combined, gave the defendant every thing he could ask.  

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

OPINIONBY:
MILLER 

OPINION:

 [*581]  MILLER, J., delivered the opinion of the Court.
We have to [**22]  deal in this case simply with the questions of law presented by the two exceptions contained in the record. The jury have passed upon the conflicting testimony.
The suit was instituted by the appellee against the appellant on the 5th of January, 1871, and was tried in October of that year. No question arises upon the pleadings. The plaintiff's ground of action as presented by his first prayer is, in substance, that in the summer of 1870 a contract was entered into between the parties, by which the defendant agreed to employ the plaintiff as clerk in his store at a salary of not less than $ 1,500 per annum until the 1st of March, 1871, and then to receive him as partner in his business for one year certain, and allow him one-third of the profits; that in pursuance of this promise and agreement by the defendant, the plaintiff gave up his then situation and employment, in which he was receiving $ 2,000 per annum, and entered into the service of the defendant as proposed, and continued therein until discharged and removed therefrom by the defendant; that the plaintiff, before the institution of this suit, offered to continue to serve the defendant until the 1st of March, 1871,  [**23]  and then to become a partner in the business under the agreement aforesaid, but the defendant, before suit brought, denied there was any such agreement between himself and the plaintiff, and refused to permit the plaintiff to 

 [*582]  continue in his service until the 1st of March, 1871, and required him to leave his employment, and forbade him to be and remain in the store in which said business was conducted, and denied he was entitled to become a partner therein from that date, and refused to receive him as such when that time should arrive. The prayer, after leaving to the jury to find these facts, and also that the defendant did not at any time before the 1st of March, 1871, retract his action towards the plaintiff and offer to receive him again into his employment until that period, and then to admit him as partner in the business as aforesaid, asserts, as a legal proposition resulting therefrom, that the plaintiff was entitled to institute the suit at the time it was brought, and to recover as for a breach of the entire contract above required to be found.
The defendant's first prayer denies the right of the plaintiff to recover damages for the alleged refusal of the [**24]  defendant to take the plaintiff into partnership on the 1st of March, 1871, under the contract alleged and sought to be set up, because the action was instituted prior to that time. The proposition thus announced by the defendant's prayer is a denial of the law of Hochster vs. De la Tour, 20 English L. and Eq. Rep., 157, and of the English cases that have followed and sanctioned that decision. That case was decided in 1853, and gave rise to a controversy in the English Courts in which their most eminent Judges have participated. It may be doubted whether the controversy is yet ended and the law of England in respect thereto finally settled. No decision upon the subject has yet been made by the House of Lords. The latest decision in the highest Court to which the question has been taken, is that of Frost vs. Knight, decided in the Exchequer Chamber on the 8th of February of the present year. That case was heard before and decided by Chief Justice COCKBURN and BYLES, KEATING and LUSH, Judges, who, without dissent, reversed the judgment of the Court of Exchequer by Chief Baron KELLY and CHANNELL, B., and sustained and affirmed the law of Hochster vs. De la Tour.

 [*583]   [**25]  The principle of this decision in cases to which it has been held applicable, is, that there is a breach of the contract when the promissor repudiates it and declares he will no longer be bound by it. It is said the promissee has an inchoate right to the performance of the bargain which becomes complete when the time for performance has arrived. In the meantime he has a right to have the contract kept open as a subsisting and effective contract. Its unimpaired and unimpeached efficacy may be essential to his interests. His rights acquired under it may be dealt with in various ways for his benefit and advantage. Of all such advantages the repudiation of the contract by the other party, and the announcement that it never will be fulfilled, must of course deprive him. It is therefore quite right to hold that such an announcement amounts to a violation of the contract in omnibus, and that upon it the promissee, if so minded, may at once treat it as a breach of the entire contract and bring his action accordingly. The contract having been thus broken by the promissor, and treated as broken by the promissee, performance at the appointed time becomes excluded, and the breach, by reason [**26]  of the future non-performance, becomes virtually involved in the action as one of the consequences of the repudiation of the contract; and the eventual non-performance may therefore, by anticipation, be treated as a cause of action, and damages be assessed and recovered in respect of it, though the time for the performance may yet be remote. It is obvious that such a course must lead to the convenience of both parties, and though decisions ought not to be founded on grounds of convenience alone, they yet tend strongly to support the view that such an action ought to be admitted and upheld. By acting on such a notice of the intention of the promissor, the promissee may in many cases avert, or at all events materially lesson the injurious effects which would otherwise flow from the non-fulfilment of the contract; and in assessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done or has had the 

 [*584]  means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished.
This in substance is the reasoning upon which such actions have been sustained by the English [**27]  Courts. Most masterly arguments have been made at bar in this case, founded both in reason and authority, urging us on the one hand to adopt, and on the other to repudiate this as the law of Maryland. All the authorities discoverable by the research of eminent counsel, have been presented, reviewed and pressed upon our attention. But we do not feel ourselves justified in deciding a question of this importance, unless it be clearly presented by the record, and becomes essential to the determination of the very case before us. When so presented we shall be prepared, as it will be our duty, to determine it. But in the present record there is a question beyond and outside of Hochster vs. De la Tour, that is decisive of this case, and upon which in our opinion its decision must rest. The law of Hochster vs. De la Tour, relates simply to cases where there is a pre-contract for future services, or the performance of some act or duty at a future period, and where performance cannot be commenced, and was not by the contract contemplated, until that period arrives, and where the promissor prior to that time announces his intention not to abide by the contract. But in this case performance [**28]  of the contract had been commenced and the plaintiff was discharged by the defendant and prevented from further executing it; and suit was not brought until after this discharge, though before the time for performance of that part of the contract relating to the partnership had arrived. The defendant broke up the contract while it was being performed by the plaintiff, and the action was not commenced until after this breach. In this respect there is a broad distinction between the case before us and that of Hochster vs. De la Tour. It is an ancient and familiar rule of law that only one action can be maintained for the breach of an entire contract, and the judgment 

 [*585]  obtained by the plaintiff in one suit may be pleaded in bar of any second proceeding. Sedgwick on Damages, 224. But the difficulty is to determine in what cases the contract is entire. In determining this question the Courts must be guided by a respect to general convenience, and by the good sense and reasonableness of the particular case. Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, the general rule is that it shall be taken distributively,  [**29]  and each subject be considered as forming the matter of a separate agreement after it is so closed. In one sense the contract before us was in its nature and terms separable and apportionable, that is, its separate parts, the services as clerk, and the partnership, were capable of separate execution, and must have been performed consecutively in order of time. But in respect to the intention of the parties gathered from the facts presented by the plaintiff's prayer, it was in our opinion to be entire and indivisible. The consideration for the plaintiff's action in entering into it was not merely that he should be employed until the 1st of March, 1871, at a salary, but that he should be so employed and be taken as a partner at that time for a year certain. The latter was as much a part of the consideration promised him for entering the service of the defendant as the former, and the conduct of the defendant as stated in the prayer, in our judgment, constituted a breach which gave an immediate right of action and entitled the plaintiff to recover damages, in the language of his prayer, as for a breach of the entire contract.
Such, in our opinion, is the true construction of this [**30]  contract and the right of the plaintiff ensuing upon its alleged breach. The case bears a close analogy to that of Masterton & Smith vs. Mayor, &c., of Brooklyn, 7 Hill 61, where the plaintiffs contracted, in January, 1836, with the defendants to furnish all the marble necessary for a certain public building then about to be erected by the defendants for which they were to pay a specified sum in instalments as the work progressed. 

 [*586]  The plaintiffs entered into the performance of this contract and furnished marble thereunder until July, 1837, when the defendants suspended operations on the building and refused further to perform on their part. The contract could not have been fulfilled by the plaintiffs, even if they had been allowed to prosecute the work without interruption, before 1842. In 1840 they brought an action against the defendants founding it upon the breach which occurred in 1837. The action was not only sustained as well brought at that time, but the plaintiffs were allowed to recover in respect to so much of the contract as remained wholly unperformed at the time of the breach, the difference between what the performance would have cost [**31]  them and the price the defendants had agreed to pay, estimating the former by the price of labor and materials at the time of the breach. All the Judges held that the contract being broken before the time of full performance the plaintiffs might elect to consider it in that light, and were not bound to wait till the period had elapsed for the complete performance of the agreement nor to make successive efforts of performance in order to recover all their damages, but might regard the contract as broken up so far as to absolve them from making further efforts to perform and recover full damages as for a total breach. So in Clossman vs. Lacoste, 28 Eng. L. & Eq. Rep. 140, where an agreement was made that the plaintiff should enter into the employment of the defendant for the sale of wines on commission, the agreement to continue for five years, and the defendant guaranteeing the plaintiff £  600 per annum as a minimum revenue from the business during the continuance of the agreement, it was held that the plaintiff might sue in any one year during the continuance of the agreement for breaches in any former year, but if there was an entire dismissal from [**32]  the service before the expiration of the agreement, the plaintiff ought to include in one action the whole gravamen he would suffer by such breach of contract. The present case, in our judgment, falls within the rule of these 

 [*587]  decisions and others of similar import, and the law of Hochster vs. De la Tour is not necessarily involved in its determination. It follows there was no error in the rulings rejecting the defendant's first prayer and granting the first prayer of the plaintiff, in so far as the legal propositions they contain are concerned.
The record shows two special objections were taken in the Court below to the plaintiff's first prayer, on the ground there was no evidence to support certain facts thereby left to the finding of the jury. In reference to these, it suffices to say that we have examined the testimony embodied in the exceptions, and are satisfied there is proof from which the jury might have found, or legitimately inferred, the facts of which it is thus objected there was no evidence. What has already been said, also demonstrates the correctness of the ruling rejecting the defendant's seventh prayer. No objection was made in argument to [**33]  the granting of the plaintiff's third prayer, that the defendant had no right to terminate the contract merely because he believed it would not be profitable; and this ruling is undoubtedly correct. The plaintiff's second prayer, that if the jury found the facts stated in his first prayer, then he is entitled to recover, unless the jury shall find that the acts of the defendant towards him therein set forth, were occasioned by some substantial incompetency or unfitness or misconduct on the part of the plaintiff, occurring after the inception of the contract, or by reason of the defendant's acquiring after that time, knowledge of some unfitness or disqualification of the plaintiff to perform the contract on his part, unknown to the defendant at its inception, was granted, but with the qualifications contained in the defendant's third, fourth, fifth and sixth prayers, which were also granted. The defendant's eighth prayer, as to the measure of damages for the breach of the contract in refusing to take the plaintiff into partnership on the 1st of March, 1871, was likewise granted. In respect to the law of the case, save in regard to the disputed questions already decided, 

 [*588]   [**34]  it was stated as favorably for the defendant as he could have asked. We find no error in the rulings in this particular; and this disposes of the second exception.
The first exception was taken to the ruling allowing a question to be asked the witness Bird, and the admission of his answer thereto as evidence to go to the jury. Whether this ruling, as stated in the record, was matter of pure discretion in the Court below, irreviewable here, is a question we do not propose to decide. If the revisory power belongs to this Court, still in matters of this kind it must appear the ruling was manifestly wrong, and has occasioned substantial injustice. The general rule is that the plaintiff first adduces evidence to support the issue which he is bound to prove, reserving his right to rebut his adversary's proof if he establishes a prima facie case with respect to the issues which lie upon him. If however, the plaintiff at the outset thinks fit to call any evidence to repel the defendant's case, he will not in general be permitted to give further evidence in reply, for if such a privilege were allowed to the plaintiff, the defendant in common justice might claim the same, and the proceedings [**35]  would run the risk of being extended to a very inconvenient length. 1 Taylor on Evidence, sec. 357; Sharswood's Starkie on Evidence, 552. But in deciding upon the admissibility of evidence called in reply, regard must be had to the circumstances of the individual case, and considerable latitude will necessarily be granted to the judge in the exercise of his discretion. 1 Taylor on Evidence, sec. 359.
It appears that the plaintiff after offering evidence tending to establish the contract alleged, proved that he faithfully and efficiently, in all particulars, discharged his duties under it as long as he was allowed to execute it. He also proved that the engagement of the defendant to take him into his employment, first at a salary, and then to receive him as a partner, was absolute and not in any way dependent upon defendant's wanting him or not, or of his being satisfactory to the defendant, that he was not taken on trial, and his being 

 [*589]  taken into partnership was not to be a matter of contingency; that defendant knew his qualifications and habits perfectly, having been intimate with him for many years, and knew what his position with Neale, his former employer,  [**36]  was, and what salary he was receiving from Neale and what Neale's opinion of him was, and expressly waived in advance all claim to make the continuance of his employment and the taking him into partnership dependent upon his being found satisfactory. He further proved he was in every way competent for the duties he assumed to discharge, and discharged them faithfully and fully. All this testimony came from the plaintiff himself as a witness, and in our opinion it does not amount to such anticipation of the proof to be offered in defence on the ground of his bad habits and incompetency, as ought, in the proper exercise of a sound discretion by the Court, to preclude him from replying to the specific proof adduced by the defendant in that particular. That proof was in substance, that while the plaintiff was in the employ of Neale (where he had been since 1861) he was in the habit of drinking, and was more or less under the influence of liquor much of his time during that period, so as to render him unfit for business, and incapable of discharging his duties, and was negligent and inattentive. The plaintiff was allowed without objection (and properly so) to reply to this by offering [**37]  evidence tending to show that while he was at Neale's, he attended to his duties diligently and faithfully. Up to the time he left Neale he had been for many years in the employment of the witness Bird. We see no good reason why he should not be allowed to prove in reply to this proof of bad conduct, bad habits and incompetency, that all the while he was in Bird's employ, where he continued up to the very day he went into the employment of Neale, that he was capable, efficient, attentive to his business and of unexceptionable habits. No stringent rule of evidence or practice forbids it. Nor did this proof in its entirety, coming down as it does to the very day he left Bird and went to Neale, relate to a 

 [*590]  period so distant and remote from that in respect to which the defendant had offered proof of incompetency and bad habits, as to make it altogether irrelevant and therefore inadmissible on that ground. We cannot therefore reverse the ruling in this exception.
Judgment affirmed. 

84 of 144 DOCUMENTS 

FREDERICK SCHUCHARDT and LAWRENCE WELLS, Surviving Partners of FRED'K G. SCHUCHARDT, Trading as FREDERICK SCHUCHARDT & SONS, vs. WILLIAM TAYLOR HALL and THOMAS D. LONEY, Trading as HALL & LONEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 590; 1872 Md. LEXIS 100 

June 21, 1872, Decided 

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

This suit was instituted in the Superior Court of Baltimore City, and, upon the suggestion and affidavit of the defendants, was removed to the Circuit Court for Howard County. The facts of the case sufficiently appear in the opinion of the Court.

Exception: The plaintiffs offered the following prayer:

If the jury find, from the evidence, that the defendants were not authorized by Joseph and Charles Sturge to draw on them the bill of exchange, given in evidence, without delivering to them the bill of lading of the cargo of wheat shipped by the "Ocean Belle," referred to in the bill of exchange, and that the bill of exchange was drawn against said cargo, and that the defendants executed and delivered to the plaintiffs the letter of hypothecation of said cargo given in evidence, then the defendants are not entitled to demand notice of the due presentment of said bill of exchange to Joseph and Charles Sturge, and of protest thereof for non-acceptance.

The Court (MILLER, J.) rejected the prayer of the plaintiffs, and gave the following instruction to the jury:

That there is no sufficient evidence in the case from which [**2]  the jury can find due presentment for acceptance of the bill of exchange offered in evidence, and the plaintiffs are not entitled to recover.

To the rejection of their prayer, and to 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 ordered.  

HEADNOTES:

When the Drawer of a Bill of Exchange is not entitled to require formal Presentment for acceptance, and Notice of its non-acceptance.

The defendants drew a bill of exchange, payable in London, dated the 22d of May, 1868, at sixty days sight, on Joseph and Charles Sturge, Birmingham; the bill, on its face, was drawn against a cargo of wheat per the "Ocean Belle;" on the day of the date of the bill, the drawers sold and endorsed it to the plaintiffs, and on the same day, by letter of hypothecation, lodged the bill of lading for the cargo with them, as collateral security for the acceptance and payment of the bill, and authorized them, in case they thought it necessary, to place said wheat on its arrival, in the hands of their brokers for immediate sale, and to apply the proceeds towards the payment of the bill. The drawees declined to accept the bill, unless they were put in possession of the bill of lading of the cargo against which it was drawn. On the non-acceptance of the bill, the cargo was sold by the London agents of the plaintiffs, and the net proceeds were applied towards the payment of the bill, but being insufficient, suit was brought against the defendants to recover the deficiency and statutory damages, after notice to them of all the facts, and demand of payment. HELD:

That the drawees were not bound to accept the bill of exchange, without the delivery to them of the bill of lading; that the defendants gave the plaintiffs the legal right to retain the bill of lading until the maturity of the bill of exchange; and the defendants were not entitled to require formal presentment of the bill of exchange for acceptance, and notice of its non-acceptance. 

COUNSEL:
Stewart Brown and Geo. Wm. Brown, for the appellants.

Two questions of interest arise on this appeal:

1st. Whether the appellees, the drawers of the bill of exchange, under the circumstances stated in the testimony, were entitled to require formal presentment for acceptance and notice of non-acceptance?

2d. If they were so entitled, whether there was not "sufficient evidence from which the jury could find due presentment for acceptance" of said bill?

Upon the first of these points the question is: Do the facts in the case bring it within the rule laid down in Eichelberger vs. Findley, 7 H. & J., 386? That the drawer is not entitled to presentment and notice, "where, at the time when presentment should be made, he had no effects in the hands of the drawee, or, having such effects, should withdraw them before [**3]  presentment is made, and in neither case should have any reasonable ground to expect that his bill should be honored." Cathell vs. Goodwin, 1 Har. & G., 471; Orear & Berkley vs. McDonald, et al., 9 Gill, 350, 357; Rhett vs. Poe, 2 Howard, 457; 1 Parsons on Notes and Bills, 548, 549, and cases cited; Valk vs. Simmons, 4 Mason, 113.

Applying the rule of law laid down in these authorities to the facts of this case, we find:

1st. That it is not merely strongly implied throughout, but is expressly stated, that the drawers had no funds, entitling them to draw, in the hands of Messrs. Sturge from the time when the bill was drawn, to the time when it was presented--and

2d. That it is equally clear that the only authority to draw at all, arose out of the contemplated shipment of grain, per "Ocean Belle," to the drawees.

For the letter of hypothecation states that the bill is drawn against the shipment.

Without an explicit understanding to that effect between drawers and drawees, (and any such understanding is expressly denied by Messrs. Sturge, nor is there the slightest evidence thereof in the record,) the shipment of the grain "to order" of third parties, was not [**4]  such a compliance with the contract of shipment as entitled the drawers to entertain a reasonable expectation that the bill would be accepted without surrender of the bill of lading, (after the drawers had parted with the bill of lading, that is the very title to the grain, and put it in the power of any holder thereof to sell the same.)

It would also appear, that notwithstanding the express pledge of the cargo to the appellants to secure payment as well as acceptance, the drawers themselves never did, in point of fact, expect that the draft would be accepted without such surrender on acceptance. For in their letter of 23d June, 1868, to the appellants, they complain of the separation of the bill of lading and collateral documents from the bill, as destroying the unity and entirety of the transaction, and likewise complain that the appellants had no right to present a naked bill of exchange, and thus force the honor of their name into question; and again in their letter of same date, June 23d, 1868, to Messrs. Sturge, they say: "we do not clearly understand why you do not accept, &c., and why, as you say, you cannot obtain the bill of lading upon your accepting," and likewise [**5]  appeal to Messrs. Sturge to accept "for their (the drawers) sake," and likewise excuse themselves for the hypothecation of the bill of lading "upon the ground that they could not otherwise negotiate the bill." This might be sufficient excuse for pledging the bill of lading to secure acceptance, but certainly was not sufficient, without express authority, for pledging it to secure payment likewise.

The drawees therefore authorizing a draft only against a shipment, would not be bound to accept unless the contract of shipment had been complied with, and no reasonable expectation that the bill would be honored when presented, could arise in any case, where, as between the drawers and drawees of a bill, the latter would not be bound to accept.

To hold that the Messrs. Sturge were bound to accept after the bill of lading was in the hands of third parties, would make them (the drawees) liable in any event; would even make them take the risk of the solvency of the holders of the bill and of all the intermediate collecting agents during the period between acceptance and maturity, (60 days,) because the transfer and delivery for value by any such holder of the bill of lading, would [**6]  deprive the drawees of the very cargo on the faith of which acceptance was based, and after acceptance they could not escape payment.

As to the effect on the rights of the drawees of the hypothecation of the bill of lading, the following cases were referred to: Shepherd vs. Harrison, 4 Law Reports, (Queen's Bench,) 496; Byles on Bills, 193; Craig vs. Sibbett, 15 Penna., 238; The Bank of Rochester vs. Jones, 4 Comstock, 497; Allen vs. Williams, 12 Pick., 297.

The prayer of the appellants should have been granted, and if the facts therein were found by the jury, and there was no conflicting evidence on that point, the appellees were not entitled to demand notice of the due presentment of the bill of exchange to the drawees, and of protest thereof for non-acceptance.

But if the Court should consider that under the circumstances, the drawers were entitled to have due presentment made and notice thereof, it is shown that notice of dishonor and protest was transmitted in due time, and there was sufficient evidence to go to the jury to establish the fact of due presentment.

Upon this point objection may perhaps be made by appellees, that there was evidence that any demand [**7]  that was made was made by the notary's clerk. But that a notary's clerk is competent to make demand, is conceded by all the text books, 1 Parson's Notes and Bills, 360, and is settled in Maryland as the universal practice by the cases of Munroe vs. Woodruff, 17 Md., 159; Fulton vs. Maccracken, 18 Md., 528.

But another objection, was the fact that it appeared in the protest that the formal demand by the notary was made to a clerk in the employ of Messrs. Joseph and Charles Sturge. All the authorities agree that such a presentment is good if it appears that such clerk was the authorized agent to accept or refuse. 2 Robinson's Practice, 147; 1 Parson's Notes and Bills, 347, 349, 350. And it is laid down that proof of such agency may, as in other cases of agency, be circumstantial and indirect. Nelson vs. Fotterall, 7 Leigh, 179; Stainback vs. The Bank of Virginia, 11 Grattan, 260.

The question then is, had the clerk authority to make the answer he did make? On this point the record is sufficiently full and explicit. The answer of the clerk was in substance, that the firm declined to accept the bill of exchange unless the bill of lading of the cargo of wheat per "Ocean Bell,  [**8]  " against which it was drawn, was given up to them, as per their contract with the shipper. I assumed, said he, to answer for the Messrs. Sturge, on my knowledge that it was not their custom to accept drafts unless bills of lading were given up in exchange; I had no authority in writing to act in the matter on behalf of the firm; I had the authority to do what I did by the knowledge of the course of dealing of the Messrs. Sturge. The notary or his clerk went to the place where the business of the Messrs. Sturge was carried on; he found a general clerk there who was in charge of their general business, who assumed to act and answer, who, took the bill, (just as his principal might have done to compare it with the books and invoices of the shipment,) and after a brief absence, returned precisely the same answer that had been given on the same day by his principals, to the bank, and in conformity with their written determination.

Wilson Sturge also, in his testimony, when speaking of this very presentation to his clerk, Mr. Derry, says, "that if the bill of lading had been tendered with the bill of exchange, the bill of exchange would have been accepted by my firm." On the next day,  [**9]  June 6th, Messrs. Sturge wrote and telegraphed their refusal to accept to Hall & Loney. And when the notice of protest was sent to the appellees, they complained not that due presentment was not made, but that presentment of a naked bill was made.

The testimony, cumulative in its character, coming from legal sources and tending to prove, and in the judgments of the appellants establishing the point in controversy, should have been submitted to the jury. McAndrew vs. Radway, 34 New York, 511; Wetherall & Mickle vs. Garrett, 28 Md., 450; Wetherall vs. Claggett, 28 Md., 465; 1 Parsons' Notes and Bills, 639, (note;) Whaley vs. Houston, 12 La. An., 585; Phillips vs. Poindexter, 18 Ala., 579; 2 Greenleaf's Evidence, secs. 67, 178.

Alexander H. Hobbs, for the appellees.

The plaintiffs' prayer was properly rejected:

1st. Because it submits to the finding of the jury absolutely that there were no funds in the hands of the drawees of the bill of exchange; whereas the question of "reasonable expectation" on the part of the drawers, that their bill would be accepted, was the proper inquiry. The right of notice of the dishonor turns not upon the fact whether the drawers of a [**10]  bill of exchange actually had funds in the hands of the drawees, but whether they had reason to believe it would be accepted on due presentation. Orear & Berkley vs. McDonald, et al., 9 Gill, 356; Chitty on Bills, 359, (9th Am. ed.;) Story on Bills, sec. 311 and note, (4th ed.;) Byles on Bills, 234 and n. 1, (3d Am. ed.)

2d. The burthen of proof is on the holder of a bill, to show that the drawer had no funds in the drawee's hands, in order to excuse want of notice. Baxter vs. Graves, 2 Marshall, 152; Ralston vs. Bullitts, 3 Bibb, 261; Thompson vs. Stewart, 3 Conn., 172.

3d. The plaintiffs' prayer was radically defective, because, as there was no conflict of testimony, it was the legitimate sphere and province of the Court and not of the jury to determine the question as to whether the defendants had "reasonable expectations" that their bill of exchange would, on due presentation, be accepted. Orear & Berkley vs. McDonald, et al., 9 Gill 355.

Assuming the law to be well settled respecting this question, what is the evidence, which is all on one side, the defendants having offered none?

The defendants, on the 11th of May, 1868, offered, by telegraph, to sell a certain [**11]  quantity of wheat to Joseph and Charles Sturge, of Birmingham, England, who answered on the following day, "accepted; draw direct."

Wilson Sturge, whose evidence was taken by the plaintiffs, testified that the defendants were authorized by his firm to draw the bill of exchange against the bill of lading of the cargo, on acceptance of the draft; and further "that if the bill of lading had been tendered with the bill of exchange, the bill of exchange would have been accepted by my (his) firm." At or about the time of the shipment by the "Ocean Belle," there was another shipment by the brig "Hermelin;" the draft against the cargo of the latter on presentation, with bill of lading, was accepted, and the Messrs. Sturge say they were prepared to do the same by the cargo of the "Ocean Belle."

And they further say, in their letter of the 12th of June, 1868, that they informed the holders of the bill that on the delivery of the bill of lading of the cargo of the "Ocean Belle," they would accept the bill of exchange; that they had no desire to escape payment, but they objected to accepting against nothing. And, commenting on this matter, they say, "the very fact of their (the holders)  [**12]  charging you (the defendants) an extra rate of exchange, proves that it was not contemplated that the bank should hold the documents until they were paid in cash."

The plaintiffs' prayer was, for these reasons, objectionable.

The bill of exchange is drawn expressly against the cargo of the "Ocean Belle;" and the paper called a letter of hypothecation says, that it is "the understanding that the bill of lading is lodged as collateral security for the acceptance and payment of the bill of exchange. Who then had the right to hold the bill of lading? Surely not the plaintiffs.

It is clear that it was the right and duty of the Court to pass upon and determine the legal operation and effect of the bill of exchange, and the paper called a letter of hypothecation.

The second question relates to the instruction of the Court to the jury, to the effect that the plaintiffs were not entitled to recover.

The protest states that the bill was presented for acceptance "unto a clerk in the employ of Messrs. Joseph and Charles Sturge, the persons upon whom the same is drawn, and demanded acceptance thereof, and he answered that he had no orders."

It is necessary, in making [**13]  the presentation of a bill of exchange for acceptance, that it should be made to the drawer or to his duly authorized agent. In all matters of agency, before the acts or declarations of a supposed agent can be given in evidence against his principal, the factum of the agency must be clearly established. Marshall vs. Haney, 4 Md., 499. So also in the case of a partnership, which is but a mutual agency; before the acts or declarations of a supposed partner can be used as evidence, the co-partnership must be established. Byles on Bills, 141, 142; 2 Greenl. on Ev., sec. 181; 1 Parsons on Bills, 349; Story on Bills, sec. 229, (5th ed.;) Farmers and Mechanics' Bank of Carroll County vs. Allen, 18 Md., 478; Chitty on Bills, 301, 306, 307, 400; Wiseman vs. Chiappella, 23 Howard, 377-379.

It is clear, on authority as well as on principle, that a greater degree of diligence is required in the presentation of a bill of exchange for acceptance than there is in the demand for payment, for the obvious reason where, as in this case, the bill is made payable a certain number of days after sight. How is the drawee to know when presentation will be made? The holder is not bound, ordinarily, to [**14]  present for acceptance. But when the drawee accepts the bill, he thereby fixes the day of payment, and is held to his legal obligation to perform his contract at the appointed time.

In this case the notary was extremely negligent. He says he presented the bill to a clerk of Joseph and Charles Sturge, the drawees. He did not even know the clerk's name; did not know what position he held under the firm; was informed by the clerk that neither of the partners was at home. Whereupon he proceeded to protest the bill for non-acceptance, without any further effort to make due and proper presentation. It is the duty of the notary, under such circumstances, to use such care and diligence as a prudent business man would use in his own case. Whitridge vs. Rider, 22 Md., 558. What business man would have contented himself with the efforts of this notary? The judgment ought to be affirmed.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*599]  BARTOL, C. J., delivered the opinion of the Court.
This suit was brought by the appellants, bankers of New York, against the appellees, as drawers of a bill of exchange, dated May 22d,  [**15]  1868, at sixty days sight, on Joseph and Charles Sturge, Birmingham, England; drawn against a cargo of red wheat, per brig "Ocean Belle," and payable in London.
Upon the day of the date of the bill, the appellees sold and endorsed the same to the appellants, and on the same day, by letter of hypothecation, "lodged the bill of lading for the cargo with the appellants as collateral security for the acceptance and payment of the bill, and authorized the appellants, in case they thought it necessary, to place said red wheat on arrival in the hands of the appellants' brokers for immediate sale, and to apply the proceeds in or towards payment of the bill."
The bill of exchange was sent by the plaintiffs in due course of mail, together with the collateral documents, to the Union Bank of London, and was by it transmitted to the "Birmingham and Midland Bank," Birmingham, to procure 

 [*600]  acceptance. The drawees, Joseph and Charles Sturge, declined to accept the bill, considering themselves not bound to do so by their contract with Hall & Loney, the drawers, unless they were put in possession of the bill of lading of the cargo against which it was drawn. The Union Bank of London,  [**16]  the agent of the plaintiffs, considering that by the letter of hypothecation, it was entitled to hold the bill of lading as "collateral security for the payment of the draft," retained possession of the same.
The bill was protested for non-acceptance, and notice thereof was transmitted to the defendants, the drawers.
Upon the dishonor of the bill, the cargo was sold under the direction of the London agents of the appellants, and the net proceeds applied towards payment of the amount of the bill; but being insufficient, this suit was brought to recover the deficiency and statutory damages; after notice of all the facts to the appellees, and demand of payment from them.
At the trial of the case, one prayer was offered by the plaintiffs which was rejected, and an instruction was given to the jury "that there was no sufficient evidence in the case, from which they could find due presentment for acceptance of the bill of exchange offered in evidence, and that the plaintiffs were not entitled to recover."
It appears from the proof that the presentment was made by the notary's clerk to a clerk in the employ of Messrs. Joseph and Charles Sturge, at their counting house or place [**17]  of business. The clerk of the notary was competent to act, as was decided in Munroe vs. Woodruff & Robinson, 17 Md. 159, and Fulton vs. Maccracken, 18 Md. 528. But it is objected that the presentment ought to have been made to the Messrs. Sturge, and that a presentment to their clerk was not sufficient. But this depends upon whether the clerk was their agent in the premises duly authorized to accept or refuse. Such authority may be proved by parol; and "the proof may, as in other cases of agency, be circumstantial and indirect." 1 Parsons on Bills and Notes, 349; Nelson vs. 

 [*601]  Fotterall, 34 Va. 179, 7 Leigh 179; Stainback vs. The Bank of Va., 11 Gratt. 260.
We think that in this case there was evidence, competent and sufficient to be submitted to the jury to prove, that the clerk of the drawees was authorized to refuse acceptance of the bill; and therefore the instruction given to the jury was erroneous.
But in the view we have taken of this case, it is not important to discuss this question further, because we are of opinion that under the circumstances stated in the testimony,  [**18]  the defendants were not entitled to require formal presentment for acceptance and notice of non-acceptance of the bill of exchange.
There can be no doubt of the correctness of the appellants' position, that the effect of the delivery of the bill of lading to them, together with the letter of hypothecation as collateral security, both for the acceptance and payment of the bill of exchange, was to entitle them to hold the same till the bill should be paid; they were not legally bound to surrender the security, upon the acceptance of the bill, and to trust to the personal liability of the acceptors, for its payment. This exonerated the drawees from their obligation to accept; because under their contract with the defendants, the latter were authorized to draw, only against the cargo of wheat to be shipped by the "Ocean Belle," and they were therefore not bound to accept without the delivery to them of the bill of lading. Allen vs. Williams, 29 Mass. 297, 12 Pick. 297; Bank of Rochester vs. Jones, 4 Coms. 497; Craig vs. Sibbett, 15 Pa. 238; Shepherd vs. Harrison, 4 L. R., (Q. B.,) 496.
Thus it is clear that [**19]  the defendants, after drawing the bill of exchange, placed it in the power of the plaintiffs, and gave them the legal right, to retain in their own hands until the maturity of the bill, and to withhold from the drawees, the muniment of title to the shipment, without the receipt of which the latter were under no obligations to accept the bill.

 [*602]  The question is whether this state of facts is sufficient to dispense with the necessity of a due presentment and notice of non-acceptance.
In Rhett vs. Poe, 43 U.S. 457, 2 How. 457, 11 L. Ed. 338, it was held that "where a drawer of a bill has no right to expect the payment of it by the acceptor; where, for instance, the drawer has withdrawn, or intercepted funds which were destined to meet the bill, or its payment was dependent upon conditions which he must have known he had not performed, such drawer cannot claim to be entitled to notice of the non-payment of the bill."
The same rule applies to the non-acceptance of a bill. Eichelberger vs. Finley, 7 H. & J. 381.
The rule of law applicable to this subject has been laid down by this Court in Orear & Berkley vs. McDonald, et al., 9 Gill 350. [**20]  
The result of the decisions is, that the right of notice of dishonor does not turn absolutely upon the fact, whether the drawers of the bill of exchange actually had funds in the hands of the drawees; but whether they had a reasonable expectation that the bill would be accepted and paid. To quote the language of the Court in the case last cited: "If the drawers, at the time when the bill should have been presented, had the right to expect, reasoning upon the state of facts connected with the transactions as they then existed between the drawees and themselves, that their bill would be honored, they were entitled to demand and notice." We refer also to Claridge vs. Dalton, 4 M. & S. 226, 230; Kinsley vs. Robinson, 38 Mass. 327, 21 Pick. 327, and Dickens vs. Beal, 10 Pet. 577.
Applying the rule deduced from these cases to the one before us, we are of opinion that by the course pursued by the appellees, in parting with the bill of lading and pledging it as collateral security to the appellants, both for the acceptance of the bill of exchange and for its payment at maturity, they violated their contract with the drawees, [**21]  and had no reasonable ground to expect that they would accept the bill. Such a proceeding was equivalent to intercepting the fund 

 [*603]  upon which the bill was drawn, and brings the case within the principle of Rhett vs. Poe, 43 U.S. 457, 2 How. 457, 11 L. Ed. 338.
There is no doubt that in this case the appellees acted in good faith, and that they honestly expected or hoped that the bill would be accepted; but the rule of law requires that they should have had a reasonable ground for their expectation; that is, that it should have been based upon a promise or engagement of the drawees to accept, or an authority derived from them to draw the bill; and a performance of the contract or condition on the part of the defendants upon the performance of which the acceptance of the bill depended.
They must be charged with knowledge of the legal consequences of their own acts, and cannot be heard to say that they were ignorant of the construction and effect of their contract of hypothecation. And having thus failed to comply with their contract by transmitting to the drawees the muniment of title to the cargo, against which alone the bill was drawn, they cannot [**22]  be said to have had such reasonable grounds to expect that the bill would be honored, as to entitle them to insist upon due presentment and notice of its non-acceptance.
Being of opinion that the Circuit Court erred in its instruction given to the jury, and that the appellants are entitled to have an instruction given to the jury in conformity with the views herein expressed, we reverse the judgment and order a new trial.
Judgment reversed and new trial ordered.
STEWART, J., dissented.  

85 of 144 DOCUMENTS 

SAMUEL BARTH vs. SIMON ROSENFELD and MOSES OETTINGER, Trading as ROSENFELD & Co. and JAMES T. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 604; 1872 Md. LEXIS 101 

June 21, 1872, Decided 

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

A statement of the case is contained in the opinion of the Court.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

Construction of section 58, Article 29, of the Code of Public General Laws -- Appeals from Courts of Equity -- Trial of issues by a Jury in virtue of section 58, Article 29, of the Code -- Interlocutory Decree -- Practice in Equity -- Practice in the Court of Appeals -- Right of the Circuit Court of Baltimore City to assemble where its convenience dictates -- Issues in Equity tried by a Jury.

The language, "when proceedings shall be had in such case as is usual in like cases in Equity," in section 58 of Article 29 of the Code of Public General Laws, does not import any change in the organic character of the Circuit Court of Baltimore city, as a Court of Equity, nor imply any material change in the proceedings and practice in Equity, in pleadings or evidence; it relates to the incidents of the trial and effect of the verdict, as a means of informing the mind of the Court.

In the execution of the special power vested in the Circuit Court of Baltimore City, by the 58th section of Article 29 of the Code, is included, as means necessary to the end, the right of framing the issues, and directing the position of the parties litigant, as plaintiffs or defendants; and the Court would have the right to instruct the jury, and to admit or exclude the evidence offered.

The right of appeal from Courts of Equity is a statutory right, and does not exist except where expressly given.

Upon the trial of issues by a jury ordered by the Circuit Court of Baltimore City, in virtue of section 58 of Article 29 of the Code of Public General Laws, bills of exception to the rulings of the Court will not lie.

A decree requiring money to be paid into Court, enjoining the defendants from further proceedings at law, and requiring them to interplead and answer, is interlocutory, and at all times, prior to a final decree, subject to revision and alteration, being merely ancillary to further proceedings; and may with propriety be rescinded, as having been improvidently and prematurely passed.

A jury having been ordered by the Circuit Court of Baltimore City, in virtue of the provisions of section 58, Article 29, and the sheriff having made return that he had summoned twenty lawful jurors, the Court of Appeals cannot inquire whether they were a part of the panel summoned to attend some other Court, from which they were taken, or whether they were in attendance on some other Court, or not.

The jurisdiction of the Circuit Court of Baltimore City is co-extensive with the limits of the city, and unless restrained by law, it may assemble, within such limits, wherever its convenience dictates.

When issues are framed in a Court of Equity, they are so condensed as to present some proposition, the affirmative or negative of which cannot be affirmed or denied, without finding all other facts necessary to the conclusion.

Where no objection is made to the form of the issues before the trial in the Court below, such objection will not be considered in the Court of Appeals.

Upon the rendition of the verdict upon issues submitted to a jury by the Circuit Court of Baltimore City, in virtue of section 58, Article 29, the party against whom it is given, if he thinks it is contrary to evidence, has the right to move for a new trial, or to proceed to take further testimony.  

COUNSEL:
John Henry Keene, Jr., for the appellant.

A decree requiring the payment over of funds, enjoining defendants from proceedings at law, and requiring them to interplead, (which was passed on 14th April, 1870) is both in personam and in rem; after the lapse of a term it became enrolled. Such a decree could be vacated only through a bill of review filed within nine months from the date of its passage. Wood vs. Fulton & Starck, 2 Harris & Gill, 72; Barroll's Ch. Prac., 57, 195; Pfeltz vs. Pfeltz, 1 Md. Ch. Dec., 455; Lovejoy vs. Irelan, 19 Md., 56; Williams, et al. vs. Banks, et al., 19 Md., 524; Noland vs. Glenn, 2 Md. Ch. Dec., 368; Alex. Ch. Prac., 177, 179; McClellan vs. Crook, 7 Gill, 333; Tabler vs. Castle, 12 Md., 144.

The same law applies to an interlocutory decree. Alex. Ch. Prac., 177.

The decree of the 14th of April, 1870, stands for what it purported to be until regularly revised. Estep vs. Watkins, 1 Bland., 486; Pfeltz vs. Pfeltz, 1 Md. Ch. Dec., 455. It was so far final that an appeal would lie therefrom [**2]  under the Act of 1841, ch. 11.

The order of the 25th of February, 1871, rescinding this decree in so far as it required the defendants to interplead, passed after the lapse of nine months, was erroneous, without authority of law, precedent or sanction in Chancery Practice; and all subsequent proceedings under said order were without color of equitable warrant, and coram non judice; because, the decree of the 14th of April, could only have been rescinded upon bill of review, if at all. It could not be vacated upon a simple petition.

The subsequent order of March 4th, 1871, requiring the defendants to interplead was erroneous. If the answer of the appellant and the appellees were filed in obedience to the decree of April 14th, it was manifest error to direct a repleading. The bill and answer should have been set down for hearing, and in the meantime, in accordance with the practice, a commission issued to take testimony.

The order for the writ of summons for a jury, passed also on the 4th of March, was erroneous, because no time had been afforded the appellants or appellees to comply with the requirements of the order passed a few breaths prior to that for the summons,  [**3]  requiring them "to come into Court and interplead as asked for in said bill." If the order of the 25th of February, vacated the decree of the 14th of April, the answers interpleading were of no effect, and could not have any status in the eye of the chancellor as interpleaders. There being then no interpleading on the 4th day of March, there was nothing for trial, no issue of law or fact before the chancellor upon which to predicate the writ of summons. If the decree of the 14th of April was valid, and the proceedings under it regular, then there was no issue, for the appellees had not denied by their answers the material facts alleged by the appellant, nor had they filed any replication thereto which operated to confess the facts averred by the appellant.

By the uniform practice in chancery, the trial of issues of fact will only be directed where the evidence taken involves so grave a doubt that the chancellor is unwilling to assume the burden of deciding it; and for his own relief refers it to a jury in order that their verdict may inform and satisfy the conscience of the Court; and even then their verdict is not binding upon the chancellor. Alex. Ch. Prac., 174; Hoffman vs.  [**4]  Smith, 1 Md., 478, 489; Barroll's Ch. Prac., 167; Le Guen vs. Gouverneur & Kemble, 1 Johns. Cas., 498; Hilleary vs. Crow, 1 H. & J., 542; Baker vs. Williamson, 2 Penna. State Rep., 116; Adam's Equity, Amer. Notes, (Ed. 59) 237, sec. 376, (2) p. 768, Notes P. I., No. 1.

To warrant the sending of an issue the facts must be strongly controverted. Townsend vs. Graves, 3 Paige, 453; 2 Story's Equity Juris., 1479, p. 936; 2 Daniel Ch. Plead. and Prac., (Perkins' Ed.) 1085, 1087, Note 7, 1093, 1096; 1 Hoffman's Ch. Prac., 502; Hampson vs. Hampson, 3 Ves. & Bea., 42.

Section 58, Article 29 of the Code, vests in the Circuit Court of Baltimore City the power, hitherto unknown to chancery, of summoning a jury. The power of trying issues before as well as after the adoption of the Code, belonged to the practice rather than to the peculiar jurisdiction of the Court. 2 Story's Eq. Juris., sec. 1489; 3 Green. Ev., 261.

Section 12, Article 4 of the Constitution of 1851, provided for the organization of another Court; and the Act of 1853, ch. 112, organized the Circuit Court of Baltimore City, and its provisions are re-enacted in section 55 to 58 of Article 29 of the Code.

Even [**5]  where equitable and legal functions are united in the same tribunal, the principles of each remain distinct and undisturbed. New York & New Haven R. R. Co. vs. Schuyler, et al., 34 New York, 46.

The proper construction of the language of section 58, "whenever in any case instituted in the Circuit Court, a jury is asked for and allowed, or is desired by the judge thereof," is not to enlarge or limit the authority heretofore exercised by chancellors, of trying issues of fact by jury, except by conferring the new power of summoning juries, in such and only such cases where, by the practice heretofore established, issues were properly triable. The object of this Act was to remedy the sending issues to a Common Law Court. It was not to confer a power hitherto unknown to chancellors, of trying any fact by jury.

M. R. Walter and S. Teackle Wallis, for the appellees.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*608]  BOWIE, J., delivered the opinion of the Court.
This case originated in a bill of interpleader, filed in the Circuit Court of Baltimore City on the 14th of April, 1870, by Samuel H. Gover, against Samuel [**6]  Barth, the appellant, James T. Smith, and Rosenfeld & Oettinger, the appellees, charging that the complainant held, as auctioneer, certain funds in which he had no interest, which were claimed by the defendants adversely to each other, for which he had been sued by the appellant, and which had been attached by the appellees as creditors of one McDowell, and which he, the complainant, prayed leave to pay into Court, and that the 

 [*609]  defendants be ordered to interplead, to establish their respective claims, and in the meantime be enjoined from further proceedings at law against the complainant, etc., and that the defendants be required to answer the bill, etc.
The Court, on the same day, ordered the complainant to pay the money into Court, and required the defendants to interplead and answer, setting forth their respective claims to the fund, and enjoined further proceedings at law, until further order.
The appellant, Barth, filed his answer on the 29th of April, 1870, admitting that Gover held the money as auctioneer, he having employed him to sell the goods of which it was the proceeds, and claiming that the goods had been conveyed to him by one McDowell by bill of sale,  [**7]  for a valuable and bona fide consideration. He denied the alleged co-partnership with McDowell, and insisted that Smith, Rosenfeld & Oettinger had no legal claim to said proceeds, and that they were not liable to the attachments laid on them. He submits to the jurisdiction of the Court in the premises, concurs in the prayer for interpleader, and consents that the money be paid into Court and there remain until the final adjudication of the claims, and that the injunction be made perpetual. On the 18th of October, 1870, Messrs. Rosenfeld & Oettinger filed their answer, admitting the fund to be in possession of the complainant, and that they had issued an attachment on a judgment obtained by them against Francis McDowell for a debt still due them, which they had caused to be laid on the fund in complainant's hands, claiming they were entitled thereto, because the goods were McDowell's and not Barth's, and alleging that Barth's claim was false and fraudulent.
On the 11th of January, 1871, James T. Smith filed his answer, admitting that the complainant held the funds mentioned in his bill, and had no interest therein; that the respondent had caused an attachment to be issued on a [**8]  judgment, obtained by him against Francis McDowell, to be laid in the hands of the complainant to affect said proceeds of sale, 

 [*610]  and averring he is entitled to have his claim satisfied out of said funds, because they are the proceeds of property belonging to McDowell, and not the property of Barth, whose claim to the same he pronounces false and fraudulent. He does not admit the right of the complainant to call upon him to interplead, and reserves his right to object to a decree of interpleader in the premises.
Messrs. Rosenfeld & Oettinger, on the 13th of February, 1871, moved the Court to dissolve the injunction and to rescind the order of the 14th of April, 1870, so far as the same required the defendant to interplead, as premature and inadvertent.
On the 25th of February, 1871, the motion to rescind the order to interplead was granted.
On the 4th of March, the motion to dissolve the injunction was withdrawn.
On the same day a motion was made in open Court that the matters of fact in this case be submitted to a jury, to be summoned under section 58, Article 29, of the Code.
On the same day it was ordered by the Court that the defendants, Samuel Barth, James T. Smith,  [**9]  and Rosenfeld & Oettinger, co-partners, come into Court and interplead as asked for in said bill of complaint, and establish their claims against the funds deposited to the credit of this cause by Samuel H. Gover, complainant; and it is further ordered that the said complainant be and he is hereby discharged from any further liability in said cause, with his proper costs in this behalf sustained.
The Court, by its order of the 4th of March, 1871, reciting that a jury having been desired, and ordered by the Court, for the hearing and determination of the matters of fact pending in the cause, concerning which the several defendants have answered and impleaded each other, and setting out the claims of the respective defendants, ordered and directed that the jury so summoned should adjudge and try the two issues following:

 [*611]  1. Were the said moneys, which have been so brought into Court by the complainant, the moneys of Francis McDowell, or of Samuel Barth, on the 23d of February, 1870, at the time of the service of the attachment of James T. Smith?
2. Were the said moneys, which have been so brought into Court by the complainant, the moneys of Francis McDowell or [**10]  of Samuel Barth, on the 23d of February, 1870, at the time of the service of the attachment of Rosenfeld & Oettinger?
The defendant, James T. Smith, will stand and proceed as plaintiff on the first issue, and the said Samuel Barth as defendant. The defendants, Simon Rosenfeld and Moses Oettinger, will stand and proceed as plaintiffs on the second issue, and the said Samuel Barth as defendant. The verdict of the jury shall be for the plaintiff or defendant on each issue, if they shall find that at the time therein set forth, the whole of the said moneys belonged to either said McDowell or said Barth; but if the jury shall find that at the time of the service of the attachments, or either of them, any part of the said moneys belonged to said McDowell, and any other part to the said Barth, they shall specify and declare the amounts they shall severally so find in their verdict, upon each of said issues respectively.
A jury having been impanelled and sworn on the 15th of April, 1871, a verdict was found for the plaintiffs on the first and second issue. The defendant thereupon moved to quash the verdict, for sundry reasons, involving the regularity of the jury process, the conduct of [**11]  the trial, and the legality of the whole proceedings.
A series of prayers were offered by the appellant and appellees in the course of the trial, some of which were granted, others conceded, and a number rejected.
In the course of the trial, the defendant took eight bills of exception to the rulings of the Court on the prayers and the testimony offered.
On the 14th of October, 1871, the Circuit Court, by its decree, reciting, "A jury having been desired by the Court in 

 [*612]  this case, and having been ordered and summoned accordingly therein, in conformity with the law, and issues therein framed, and by the Court directed to be tried by the jury, having been so tried in the presence and under the direction of the Court, and the said jury having rendered a verdict thereupon in favor of the plaintiffs upon both issues, which verdict is satisfactory to and approved by this Court, it is therefore, by the Court, this 14th of October, 1871, adjudged, ordered and decreed, that the clerk of this Court, out of the moneys deposited in the Court by the complainant, Gover, shall first pay to said Gover his costs in this case incurred, and the sum of $ 100 for his solicitor's fees [**12]  in the same, and after such payment shall next pay to the respondent, James T. Smith, the sum of $ 153.90, with interest thereon, from the 8th of October, 1868, until paid, together with the costs of his judgment and attachment, as shall appear, with his costs in this proceeding, and out of the residue of said fund, if sufficient therefor, shall pay to the respondents, Simon Rosenfeld and Moses Oettinger, the sum of $ 1,194.25, with interest," etc., etc.
From which decree and entire proceedings, "ab initio," the respondent, Barth, appealed.
The first inquiry presented by the appeal is, what is submitted by the record for review?
The judicial power of this State is vested in a Court of Appeals, Circuit Courts, Orphans' Courts, and such Courts for the city of Baltimore as are provided for in the 4th Article of the Constitution of the State.
By the 29th section of Part IV, of Article 4, of the Constitution, it is declared "The Circuit Court of Baltimore City, shall have exclusive jurisdiction in equity within the limits of said city, and all such jurisdiction as the present Circuit Court of Baltimore City has."
Referring to the Code of Public Laws, title "Courts," subtitle "Circuit [**13]  Court of Baltimore," Article 29, section 56, to find what powers it had, we find it is enacted, that "The said 

 [*613]  Circuit Court shall have concurrent jurisdiction with the Superior Court of Baltimore City in all cases in equity, and generally such as have heretofore been conferred on the Chancellor of this State, so far as regards the fifth judicial circuit."
By section 58, it is further enacted, "Whenever in any case instituted in the Circuit Court, a jury is asked for and allowed, or is desired by the Judge thereof, the Judge shall issue an order to the sheriff of Baltimore city, requiring him to summon twenty jurors to attend the Court, when proceedings shall be had in such case as is usual in like cases in equity."
By this section, a special power is conferred upon the Circuit Court of Baltimore City, not exercised by any Court of Equity in the State, and not known to, or exercised by Courts of Equity in England, prior to the organization of our State government.
Courts of Equity had, by their original organization, inherent power and authority to award issues of fact or law, to be sent to Courts of Law for trial, to inform the mind of the Court, but never exercised [**14]  the power of summoning juries to try questions of fact under their own direction upon testimony taken "ore tenus." It is difficult therefore to determine what was meant by the Legislature in the last sentence of the section quoted, viz: "When proceedings shall be had in such case as is usual in like cases in equity."
It cannot be supposed that they import any change in the organic character of the Court as a Court of Equity, since such a construction would conflict with the jurisdiction conferred on the Court by the Constitution, nor can they imply any material change in the proceedings and practice in equity in pleadings or evidence, but must relate to the incidents of the trial and effect of the verdict as a means of informing the mind of the Court. As Courts of Equity exercised originally the right of framing the issues and directing the position of the parties litigant, as plaintiffs or defendants, it is presumed 

 [*614]  in the execution of the special powers vested by the Code in the Circuit Court for Baltimore City, these were included as means necessary to the end. Upon the same principle as the intervention of a jury would be nugatory unless the Court summoning them [**15]  had the power to decide all questions of law arising upon the facts offered in evidence, and the competency of the evidence offered to prove any fact involved in the issues, it results that the Court would have the right to instruct the jury, and to admit or exclude the evidence offered.
The meaning of the terms in the 58th section of the 29th Article of the Code, "When proceedings shall be had in such case as is usual in like cases in equity," may be illustrated by reference to English authority, describing the proceedings upon issues of fact, sent by Courts of Equity to a Court of Law to be tried. In Gresley's Equity Evidence, they are thus described:
"As the whole proceeding takes place solely for the purpose of informing the conscience of the Court, and is not conclusive, the Court, in directing it, is not strictly bound down to the forms and incidents of a regular trial. Sometimes it insists on more than the common law tribunal would have been satisfied with, as in the issue 'devisavit vel non,' where the examination of all the three witnesses is indispensable. Sometimes it is satisfied with less, as we have just seen with respect to the admissibility of evidence.  [**16]  ****
"When the verdict is returned, the equity Judge does not look barely at the wording of it as he would if a verdict on a former trial were produced in evidence, but he inquires into all that passed during the proceedings. For this purpose he listens to the statements of counsel, detailing what occurred at the trial; and if he sees sufficient reason for it, he sends to the Judge who tried the issue, for his notes. After all, he may, if he thinks fit, make no use whatever of the verdict, but treat it as a mere nullity." Gresley's Eq. Ev., 527.
"He will often pay no heed to the most flagrant misdirections of the Judge, or mistakes as to the admission of 

 [*615]  evidence, if he can satisfy himself what the verdict ought to have been, on the admitted and tendered evidence which was sound." Gresley's Eq. Ev., 527.
In 2 Daniels' Chancery Practice, 1106, it is said: "It may be mentioned here, that upon the trial of an issue, a bill of exceptions for an alleged misdirection of the Judge will not lie, but the regular course is to apply to the Court which directed the issue for a new trial. In Armstrong vs. Armstrong, however, a bill of exceptions was tendered and [**17]  signed by the Judge, and the objection to its regularity having been waived, it was argued and decided upon in the Exchequer Chamber."
These citations are sufficient to show that, independently of reason and the fitness of things, bills of exceptions are not allowed in England upon issues sent from Courts of Equity to Courts of Law.
There is a contrary practice existing in some of the States, but no authority or precedent for such practice in this State, except in Courts of Law, in pursuance of express provisions of the Code.
Article 5 of the Code of Public Laws, title "Appeals," sub-title, "Appeals from Courts of Law," section 5, enacts: "In cases of issues sent from the Orphans' Court or a Court of Equity to a Court of Law, to be tried, exceptions may be taken to any opinion given by the Court before whom such issues shall be tried, and an appeal taken on such exceptions."
It need hardly be said, that provisions for appeals from Courts of Law, do not extend to appeals from decrees of Courts of Equity. The right of appeal from Courts of Equity is a statutory right, and does not exist, except where expressly given. So the right to take exceptions was conferred by the Statute [**18]  of Westminister, 2 Edw'd I, ch. 31, and was confined to Courts of Common Law. Mayhew vs. Soper, 10 G. & J. 366.
If we are correct in these conclusions, the bills of exceptions in this case form no part of the record, and are not before us for review.

 [*616]  The motion to quash the verdict being an incident of the jury trial, the reasons in support of that motion, are not subject to the same objection, and will be considered in their appropriate order. The appeal from the final decree brings before us all the interlocutory orders and proceedings pertaining to a Court of Equity, and necessarily involved in the jury process.
The first objection to the proceedings on the bill of interpleader is, that the decree of interpleader passed on the 14th of April, 1870, on the filing of the bill, and before answers filed, was afterwards, on motion of the defendants, on the 25th of February, 1871, rescinded. Such a decree, it is said, could be vacated only through a bill of review filed within nine mouths from the date of its passage.
There is no doubt of the correctness of the general rule as established by the authorities cited by the appellant, applied to [**19]  final decrees; but the decree in this case was clearly interlocutory, settled the rights of no party; on the contrary, called on the parties to interplead, and was evidently passed prematurely and improvidently. The decree was at all times prior to a final decree, subject to revision and alteration, being merely ancillary to further proceedings, and it is apparent, its being rescinded, to be renewed again after the answers were filed, was intended to correct the record; by amending which, no party was prejudiced, and from which, of course, no one could appeal. All the proceedings intermediate to the issues, being matters of detail preliminary to the time, are presumed to be rite acta, unless the contrary appears. Whatever anomalies appear, such as motions not in writing, on the equity side of the Court, being mere defects in form and not of substance, are not subjects of appeal.
The record, the verity of which cannot be impeached, shows that an order was passed on the 4th of March, 1871, requiring a jury to be summoned in the cause, to appear in the Circuit Court on the 5th of April--in accordance with which the sheriff returns that he has summoned twenty 

 [*617]  lawful jurors. [**20]  This Court cannot inquire whether they were a part of the panel summoned to attend some other Court, from which they were taken, or whether they were in attendance on some other Court or not. So, with regard to the locus in quo, in which the Circuit Court for the City of Baltimore, held its session, we are not authorized in this collateral way to decide whether the validity of the acts of a Court depends upon the room they occupy. This Court does not officially know where the Circuit Court for the City of Baltimore convenes. Its jurisdiction is co-extensive with the limits of the city, and unless restrained by law, which has not been produced, may assemble wherever its convenience dictates.
We have before intimated that the power to summon a special jury being expressly conferred on the Circuit Court of the City of Baltimore by the Code, all the incidental powers were necessarily included, and these embraced the formation of the issues and the direction of the position the claimants should occupy in trying the same.
It does not appear to us that the issues are liable to exception on the ground that they present issues of law and not issues of fact "An issue is a single, certain,  [**21]  and material point, issuing out of the allegations or pleadings of the plaintiff and defendant." Chitty's Plead's, 653. When framed in a Court of Equity, they are so condensed as to present some proposition, the affirmative or negative of which cannot be affirmed or denied without finding all other facts necessary to the conclusion. Thus in the feigned issue, "the pretended plaintiff declares that he laid a wager of £  5.00 with the defendant, that A was heir-at-law to B; and then avers that he is so; and brings his action for the £  5.00. The defendant allows the wager, but avers that A is not the heir at law to B; and thereupon the issue is joined, which is directed out of chancery to be tried; and thus the verdict of the jurors at law, determines the fact in the Court of Equity." 2 Story's Eq. Jur., 1479.

 [*618]  In our practice feigned issues are dispensed with, but some general question, as 'devisavit vel non," "was the will obtained by fraud," etc., is substituted, all of which involve law and fact, as much as the issues presented in the present case. Whether the party should be plaintiff or defendant depends in a great measure on the form of the proceeding;  [**22]  in this instance, the burden of proof was on the parties attaching; the position of the defendant was that of one pleading "nulla bona," if the plaintiffs failed to establish the property of McDowell in the fund, the verdict must have necessarily been for the defendant.
It does not appear, however, from the record, that the defendant at any time before the trial moved the Court to make himself plaintiff in either of said issues, or tendered any other issue to the Court, or objected to the issues as framed, and such objection cannot now be considered.
The verdict of the jury having been in favor of the plaintiffs on both issues, the Court below was satisfied that the fund in controversy was the property of McDowell and not of Barth, and upon this evidence proceeded to decree that the moneys should be applied in manner and form as set out in the decree.
The appellant had the right to move for a new trial, if he thought the verdict was contrary to evidence, or to proceed to take further testimony. "When a Court orders an issue of fact, and a verdict is founded upon the issue in favor of either party, it is not necessarily conclusive upon either party; and notwithstanding the verdict,  [**23]  the party against whom it is given has a right to proceed in the cause, and to go into evidence in support of his case, notwithstanding the Court, upon a motion for a new trial, (which the Court is at full liberty to entertain,) refuses to disturb the verdict. Generally speaking, such a verdict is treated as conclusive between the parties, for persons who have had an ample opportunity of bringing before a jury such evidence as they think proper and material to the case, are generally satisfied 

 [*619]  with the result, at least, if the result of the investigation be such as not to lead to an order for a new trial." 2 Story's Eq. Jur., sec. 1479, a.
The only controverted fact being settled by the verdict on the issues, it was the right and duty of the Court to decree according to the evidence and the equity and right of the matter. The evidence being sufficient to sustain the decree, we find no error in the decree and proceedings appealed from, and therefore the same will be affirmed.
Decree affirmed and cause remanded. 

86 of 144 DOCUMENTS 

SAMUEL JARDEN AND WIFE vs. EBENEZER PUMPHREY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 361; 1872 Md. LEXIS 85 

June 20, 1872, Decided 

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

The facts of the case, together with the exceptions taken by the defendants, are sufficiently stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Mechanics' Lien -- Husband as Agent for his Wife -- Construction of secs. 10 and 11 of the Mechanics' Lien law -- Inadmissible Evidence -- Ratification of a Contract.

In a proceeding by scire facias, to enforce a mechanics' lien for materials furnished and work done in the erection of a house, it was proved that the plaintiff was employed by the builder and contractor, for a stated sum, to paint the house which he had contracted to build and complete by the 1st of January, 1869, for a married woman: that the husband, as the authorized agent of his wife, made the contract for building the house; that the plaintiff was engaged on the painting at intervals till April, 1869, when on the 19th of the month he served a written notice of his intention to claim the benefit of his lien under the mechans' lien law, on the husband. HELD:

1st. That the service of notice upon the husband, the authorized agent of his wife to make the contract on her behalf, for the purchase of materials to be used in the erection of the house, was a valid and legal notice to her.

2d. That the tenth section of the mechanics' lien law (Article 61 of the Code) which requires a personal notice in writing to be given to the wife, when a house is erected upon ground belonging to her, relates to cases where such building is erected by the husband, or some person employed by him, acting in his character as husband, and undertaking to make the improvement in the exercise of his own authority as such. It does not apply to a case where the husband acts as the agent of his wife and by her authority.

3d. That the case of a husband who, in contracting for the building of a house to be erected upon ground belonging to his wife, acts as her agent and by her authority, falls within the eleventh section of the mechanics' lien law, which provides that the notice shall be given to the owner or owners, or agents.

A married man, as the authorized agent of his wife, made a contract with a builder and contractor to build and complete, by the 1st of January, 1869, a house on a lot of ground belonging to the wife. The builder employed a painter, for a stated sum, to paint the house, who, having completed his work in April, 1869, on the 19th of the month served a written notice of his intention to claim the benefit of his lien under the mechanics' lien law, on the husband. In a proceeding by the painter to enforce his lien, the defendants, the husband and wife, offered to prove that the contract for building the house had been terminated by mutual consent about the 1st of January, 1869, on account of the builder's default; that the last work done by the plaintiff, under his employment by the builder, was about the same time; but that the plaintiff visited the defendants in March following, and asked to be permitted to finish the painting on the house, and obtained an advance of $ 50 for such undertaking. The object of this testimony was to prove that the notice of lien had not been given within the time required by the Code. HELD:

That the evidence was inadmissible for such purpose; that the act of the defendants, in authorizing the plaintiff to go on and finish the painting, amounted to a ratification, on their part, of his original contract with the builder, and estopped them from denying that the completion of his work was done under and in pursuance of the same contract.  

COUNSEL:
R. Emmett Jones, for the appellants.

John C. King, for the appellee.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., GRASON, MILLER and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*362]  BARTOL, C. J., delivered the opinion of the Court.
The questions in this case arise upon a scire facias, on a claim of lien, filed by the appellee against the appellants.
It was proved at the trial that the appellee was employed on or about August, 1868, by a certain Edward D. Preston, a builder and contractor, for a stated sum, to paint a certain house on Barre street, mentioned in the proceedings, which Preston had contracted to build and complete by January 1st, 1869, for Amelia Jarden, wife of Samuel Jarden; that Samuel 

 [*363]  was the agent of his wife in the premises, and, as such agent, made the contract with Preston for building the house; that the appellee was engaged on said painting, on and off, till April, 1869, when, on the 19th of that month, he served a written notice [**2]  of his intention to claim the benefit of the lien under the statute, upon Samuel Jarden.
Evidence was offered on the part of the appellants to prove that the lot of ground on which the house was built was the separate property of Mrs. Amelia Jarden, and that she was having the house built with money she had inherited from her parents; that the notice given by the appellee of his intention to claim a lien was served upon Samuel; but no such notice was served personally upon Amelia Jarden, his wife, nor did he inform her of the fact of its service upon him. But the Court below refused to admit this evidence, and was of opinion that the service of notice upon Samuel Jarden, agent of Amelia, his wife, was valid and legal notice to her. This ruling forms the subject of the first bill of exceptions.
The appellants contend that, under the Code, it was necessary to serve the notice upon Mrs. Jarden personally, and that notice to her husband was not sufficient.
The provisions of the Code relating to notice are as follows, Art. 61, sec. 10: Where a building shall be erected on a lot of ground, belonging to a married woman, by her husband or some person by him employed, the [**3]  said lien shall not attach unless notice thereof be given to such married woman in writing within sixty days after doing such work, or furnishing such materials, or both, as the case may be.
Sec. 11: If the contract for furnishing such work or materials, or both, shall have been made with any architect or builder, or any other person except the owner or owners of the lot on which the building may be erected, or his or their agent, the person or persons so doing work, or furnishing materials, or both, shall not be entitled to a lien, unless within sixty days after furnishing the same, he or they, or his or 

 [*364]  their agent, shall give notice in writing to such owner, or owners or agents, if resident within the city or county, of his or their intention to claim such lien.
Construing both these sections together, we think it is quite clear that the Legislature did not intend to alter or change the general and familiar principle of the law, that notice to an agent in relation to the subject matter embraced within his agency, is equivalent to notice to the principal. In this case it was proved that Samuel Jarden was the authorized agent for his wife to make the contract on [**4]  her behalf, for the purchase of materials and the erection of the house. That being so, it must follow that a notice of an intention to claim a lien for the work done, given to him, the authorized agent in the premises, is equivalent to a notice given to his wife, for whom he is acting.
The 10th section, by which personal notice to the married woman is required, relates to cases where the building upon her lot of ground is erected by the husband, or some person employed by him, acting in his character as husband, and undertaking to make the improvement in the exercise of his own authority as such; it does not apply to a case like this, where the husband acts as her agent and by her authority. The case falls rather within the 11th section, in which it is provided that the notice shall be given to the owner or owners, or agents.
We think the Court below was right in its ruling upon the first bill of exceptions.
In our opinion the Court below was correct in disallowing the evidence offered by the appellants in the second bill of exceptions. The object of the testimony was to prove that the notice of lien had not been given within the time required by the Code. But it clearly could [**5]  have no such legal effect, and was inadmissible for that purpose.
The contract of the appellee to paint the house for a certain sum, had been made with Preston, the contractor or builder.

 [*365]  The evidence offered by the appellants in the second bill of exceptions, was that the contract of Jarden with Preston had been terminated by mutual consent about January 1st, 1869, on account of Preston's default; that the work under him, Preston, had been generally suspended, and the last work done by the appellee under his employment by Preston, was about the same time, but that the appellee visited the appellants in March thereafter, and asked to be permitted to finish the painting on the house, and obtained an advance of $ 50 for such undertaking.
It was proved in the first bill of exceptions that the work of the appellee was completed in April, 1869. The notice was given on the 19th day of that month.
The argument of the appellants is that the termination of Preston's contract put an end to the contract of the appellee, and that the work subsequently done by him in finishing the painting of the house, was done under a new and distinct contract, and was not a completion of his [**6]  original contract, so as to entitle him to claim a lien for the whole work as done under one contract.
But this is not a sound argument. Whatever may have been the effect upon the rights of the appellee of terminating the contract with Preston, the builder, on the first of January, under whom the appellee was employed, the subsequent act of the appellants in authorizing him to go on "and finish the painting" amounted to a ratification on their part of his original contract with Preston, and estops them from denying that the completion of his work was done under and in pursuance of the same contract.
Judgment affirmed. 

87 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. THE STATE OF MARYLAND, use of HANNAH DOUGHERTY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 366; 1872 Md. LEXIS 86 

June 20, 1872, Decided 

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

This was an action brought against the appellant by the State, for the use of the widow and children of James Dougherty, to recover damages for his death. The deceased, on Sunday night, the 18th of October, 1868, while walking on the track of the Baltimore and Ohio Railroad, at Sykesville, was run over by an engine in the use of the agents of the railroad company, and in consequence of the injuries he then sustained, died on the following Tuesday. At the date of the accident, the county road, which runs between a high bluff on the north, and the railroad on the south, through the village, was covered for several hundred yards with gravel, which the appellant had carted from the Howard county side of Sykesville and dumped in the county road, while engaged in repairing damages to the railroad, caused by a recent flood. At the time of the accident, the deceased, with one John Sullivan, was walking along the north track of the railroad, having a lighted lantern in his hand. When about a hundred yards from where the county road crossed the railroad, Sullivan heard the noise of an engine and remarked a train was coming; the deceased replied,  [**2]  "I seen a train running up and down the other track this evening." Sullivan stepped off the track and the engine shot by. The head light of the engine was not lighted. After the engine passed, Sullivan turned and saw the deceased lying on the pile of gravel on the side of the county road, his feet down on the rails. The engine was one which the appellant's agents had been using with the ballast train at Sykesville. On the evening of the accident a watchman in the employ of the appellant, finding the engine required water, with the fireman, the engineer being absent, got on the engine and backed it eastwardly to the main track, and then back to the water station; then started it along the north track of the main line, to run it up and down that track, for the purpose of pumping water into the boiler. While thus running, between eight and ten miles an hour, the engine struck the deceased. The appellant offered evidence to show that on the day of the accident the county road was in a passible condition.

Exception: The plaintiff offered the four following prayers:

1st. If the jury shall find from the evidence in the case that Dougherty was killed by the engine of the defendant [**3]  whilst being driven by its agents, and that the said killing was occasioned by the want of ordinary care on the part of the said agents, then the plaintiff is entitled to recover, unless the jury shall find that Dougherty contributed to the accident by the want of ordinary care on his part; and in considering the want of ordinary care on his part, the jury are entitled to consider the condition, at the time of the accident, of the county road alongside of the railroad, and whether, under all the evidence in the case, it was a want of ordinary care in him to have been on the track of the railroad at the time of the accident.

2d. Even though the jury believe that James Dougherty was guilty of a want of ordinary care and prudence in walking on the track of the defendant, under the circumstances testified to before them; yet, if they further find, that if the agents of the defendant had used, in and about the running of the train which injured him, ordinary prudence and care, in giving reasonable and usual signals of its approach, and in keeping a reasonable lookout, that said accident would not have occurred, then the plaintiff is entitled to recover; provided they find the other [**4]  facts set out in the first instruction of the plaintiff.

3d. That in considering the question of ordinary care and prudence on the part of the deceased, James Dougherty, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of men to guard themselves against danger.

4th. Even if the jury shall find that the deceased, James Dougherty, was guilty of a want of ordinary care and prudence, tending, in a remote degree, to cause the injury which resulted in his death; yet, if they shall further find that there was negligence on the part of the defendant's agents, which was the proximate and immediate cause of the injury which caused the death of James Dougherty, the action is maintainable notwithstanding the deceased may not have been entirely without fault in the first instance.

And the defendant offered seven prayers, as follows:

1st. That the burden of proof is upon the plaintiff to show that the accident complained of was altogether owing to the negligence or want of care and skill on the part of the defendant or its agents; and if the jury shall find from the evidence in the cause that the accident [**5]  which caused the death of said Dougherty, was in any degree owing to the want of due care and caution, at the time of accident, on the part of said Dougherty, then the plaintiff is not entitled to recover in this action, and the jury must find a verdict for the defendant.

2d. If the jury shall believe from the evidence that the deceased, Dougherty, was walking upon the track of the defendant's railroad, away from any public crossing, in company with the witness, Sullivan, and that before the happening of the accident complained of, the said Sullivan heard the noise of the engine, and told Dougherty that it was coming, and that Dougherty answered, "I seen a train running up and down the other track this evening," and remained upon the track when Sullivan stepped off the track and escaped from all injury; and if the jury shall further believe from the evidence that said deceased, at the time of such warning from his companion, might also have stepped off the track, and would so have escaped injury, then his remaining upon the track, after such warning, was such a want of due care and caution on his part as to debar the equitable plaintiffs in this case from recovery, even if the [**6]  jury shall further find that there was negligence on the part of the defendant's agents.

3d. Though the jury may believe there was carelessness on the part of the defendant, yet, if there was at the same time such carelessness on the part of the decedent as proximately caused the accident, then the plaintiff is not entitled to recover, and the failure of the decedent to get off the track after notice was brought to him by the warning of the witness Sullivan, was such negligence as proximately caused the injury.

4th. If the jury believe that the decedent was on the defendant's road, not at a public crossing, and that he was not there by any necessity put upon him by the defendant's act, in the alleged obstruction of the county road, then his being there is conclusive evidence of contributory negligence on his part, and the equitable plaintiffs cannot recover in this action.

5th. If the jury shall believe from the evidence, that at the time of the happening of the accident, the county road, running alongside of the railroad track, was in such a condition that the man Dougherty could have passed along it without any danger to himself, and that if he had used said road instead [**7]  of walking down the track, the accident would not have happened, then the fact of his walking on said track was the proximate cause of the accident, and the plaintiff cannot recover.

6th. That should the jury find for the plaintiff, the amount of damages must be limited to the actual pecuniary loss which the equitable plaintiffs have sustained by the accident.

7th. 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, Dougherty, 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 consequences of the death of the said Dougherty; 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 first prayer of the plaintiff was conceded by the defendant, and the first and seventh prayers of the defendant were conceded by the plaintiff.

The Court (HAYDEN and HAMMOND,  [**8]  J.) then granted the second, third and fourth prayers of the plaintiff, and rejected the second, third, fourth, fifth and sixth prayers of the defendant, and gave the following instructions to the jury, in lieu of the defendant's second prayer:

If the jury shall believe from the evidence that the deceased, Dougherty, was walking on the track of the defendant's railroad, away from any public crossing, in company with the witness, Sullivan, and that before the happening of the accident complained of, the said Sullivan heard the noise of the engine and told Dougherty that it was coming, and that Dougherty answered, "I seen a train running up and down the other track this evening;" and if the jury shall further believe from the evidence, that said deceased, at the time of such warning from his companion, could have left the track of said railroad, and under all the circumstances and surroundings of his situation, as shown by the evidence, he had sufficient time to do so, and that he would, by so doing, have escaped injury, then his remaining upon the track of the railroad, after such warning, was such a want of due care and caution on his part as to debar the equitable plaintiffs [**9]  in this case from recovery, even if the jury shall further find that there was negligence on the part of the defendant's agents.

The defendant objected to the granting of the plaintiff's prayers and to the rejection of its own, and to the instruction given by the Court. The jury gave a verdict for the plaintiffs and assessed the damages at $ 6,000, which were apportioned among the widow and the six children of the deceased. Judgment on verdict. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Action for Damages -- Ordinary Care and Prudence -- Proximate Cause -- Want of due Care and Caution.

Where a person walking on a railroad track is run over and killed by an engine belonging to the railroad company, the company is responsible in damages for such killing, though the deceased was guilty of a want of ordinary care and prudence in so walking on the track, provided it appear that the accident would not have occurred if the agents of the railroad company had used in running the engine which occasioned the killing, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonable look-out.

In considering the question of ordinary care and prudence on the part of a person killed by being run over on a railroad track, the jury have a right to take into consideration, together with the other facts of the case, the known and ordinary disposition of men to guard themselves against danger.

Where a person walking on a railroad track is run over by an engine belonging to the railroad company and operated by its agents, and in consequence of the injury thus received, dies shortly afterward, an action for damages for the use of his widow and children, is maintainable against the railroad company, if it appear that there was negligence on the part of its agents, which was the proximate and immediate cause of the injury, notwithstanding the deceased may have been guilty of a want of ordinary care and prudence, tending in a remote degree to cause the injury which resulted in his death.

A person walking on a railroad track, away from any public crossing, was told by his companion, who heard the noise, that an engine was coming, and he replied, "I seen a train running up and down the other track this evening," and was immediately run over by the approaching engine, and died in consequence of the injury which he received. In an action against the railroad company by the State, in behalf of the widow and children of the deceased, it was HELD:

That if the deceased at the time he received the warning from his companion, could have left the railroad track, and under all the circumstances and surroundings of his situation had sufficient time to do so, and would by doing so have escaped injury, then his remaining upon the track of the railroad after such warning, was such a want of due care and caution on his part as to debar the equitable plaintiffs from recovery, though there was negligence on the part of the defendant's agents.  

COUNSEL:
Ferdinand C. Latrobe and Thomas Donaldson, for the appellant.

While the Court of Appeals of Maryland has said, that, in most cases, the question of negligence is for the jury to decide and not for the Court,--yet the Court has also said, that there are cases where the acts of the injured party are so glaringly careless and negligent, that the Court will declare them to constitute negligence in law. B. & O. R. R. Co. vs. State, use of Miller, 29 Md., 262; B. & O. R. R. Co. vs. Shipley, 31 Md., 368; Northern Central R. R. Co. vs. State, use of Geis, 31 Md., 358; Baltimore City Passenger Railway Co. vs. Wilkinson, 30 Md., 225; B. & O. R. R. Co. vs. Fitzpatrick, 35 Md., 32.

The tendency [**10]  of juries to be governed by feelings of sympathy in favor of plaintiffs, naturally causes them to ignore carelessness or negligence on the part of a decedent, whereby the accident was the proximate result, especially when a widow and children are upon one side, and a powerful corporation on the other.

Thus, such a defendant is compelled to seek protection for its rights in an appeal to the Court to say, that some glaring act of carelessness on the part of an injured party proximately caused the accident, and constitutes negligence in law, notwithstanding that, at the same time, the defendant may have been guilty of a want of ordinary care.

When a traveller approaches a railroad track, or is walking thereon, he is bound to use his eyes and ears, so far as there is an opportunity. Negligence in the railroad company, in the giving of signals, or in omitting precautions of any kind, should not excuse his omission to be diligent, in such use of his own means of avoiding danger. The track of a railroad, upon which trains are liable to run at any moment, is certainly a place of danger,--it should not be used as a foot-path, save at an actual crossing, and then with caution, by any [**11]  careful person, where there is no actual necessity for his so doing, merely to gratify his own convenience, and if so used, without such caution, it certainly exhibits a decided want of ordinary care.

In Europe, so dangerous are railroad tracks considered, that persons or vehicles are not allowed to use them even at public crossings, the road or foot-path invariably being required to pass over or under the track of the railroad.

This theory of the law in regard to these cases of negligence is certainly sustained by the decisions of many tribunals. Haslan, et al. vs. Morris & Essex R. R. Co., 33 New Jersey L. R., 147; Langhoff vs. Milwaukee & Prairie du Chien R. Co., 23 Wis. 44; New Jersey Exp. Co. vs. Nichols, 33 New Jersey L. R., 434.

Nor is it altogether inconsistent with the opinion of this Court in the case of the Baltimore & Ohio Railroad Company vs. State, use of Trainor, et al., 33 Md., 554.

Although the Court has said in Trainor's case, that even if a person goes on the track, imprudently and incautiously and is killed, the railroad company is responsible, unless it has used reasonable care and caution to avert it, thus apparently denying that such imprudent [**12]  and incautious going upon the track, should he be killed, would not be such want of ordinary care as would constitute the proximate cause of his death, should the company not use reasonable care. Yet the Court has qualified its ruling, by saying, "Provided that being on the track he did nothing positive or negative to contribute to the immediate injury."

The failure of Dougherty to get off the railroad track when told by the witness, Sullivan, that a train was approaching, and that he made no effort to do so, is shown positively by his answer to Sullivan's warning, "I seen a train running up and down the other track this evening," indicating that he relied upon his own judgment of what he had seen early in the evening, and took upon himself the risk of remaining upon the track, instead of following the example of Sullivan who got out of the way of danger, was not only a want of ordinary care, but a positive contribution to his injury and the proximate cause thereof.

For these reasons the rejection of the defendant's second and third prayers was erroneous.

If the jury believed there was no necessity for the decedent being upon the railroad track, that he could have walked [**13]  upon the county road without any danger to himself, that he merely consulted his convenience in walking upon the railroad track, then he was on the track imprudently and incautiously, that his being there was not in accordance with "the known and ordinary disposition of men to guard themselves against danger," and that this was one of those cases where the acts of the decedent were so careless and negligent that the Court should declare them to be negligence in law.

For these reasons the rejection of the defendant's fourth and fifth prayers was erroneous.

The sixth prayer of the defendant was wrongfully rejected, for the reason that it was only the actual pecuniary loss resulting from the death of Dougherty, that the equitable plaintiffs could recover, and the defendant was entitled to such an explicit declaration by the Court. The seventh prayer of the defendant apparently limits the plaintiff to the recovery of actual damages only, yet there was no reason why the sixth prayer should not have been granted in connection with the seventh, and its rejection was calculated to injure the defendant by denying to it the explicit declaration by the Court, that only actual damages [**14]  could be recovered.

If the second prayer of the defendant was law, as believed to be, the Court erred in rejecting it, and substituting for it the instruction which it gave. If the principle of law embraced in the second prayer was sound, any modification thereof was unnecessary, and was only calculated to injure the defendant by misleading the jury. Ginsberg & Oppenheim vs. Pohl., 35 Md., 505.

Henry V. D. Johns and Wm. M. Merrick, for the appellees.

The cases of Price against the Northern Central Railway Company, and many others in this Court, and especially the case of the Baltimore and Ohio Railroad Company against Trainor, 33 Md., 542, from which the prayers of the plaintiff below are taken almost verbatim, are decisive of the present appeal. Every fact was left to the jury for them to determine whether there was any contributory negligence on the part of the deceased, and whether the exercise of ordinary care on the part of the defendant would have prevented the accident.

This is especially exemplified in the attempt of the defendant, so to shape his second instruction, as to make the question of negligence a question of law for the Court, and by the Court's [**15]  substituted instruction therefor, which put all the facts and circumstances surrounding the situation of the party deceased, to the jury, for them to draw therefrom the conclusion, as matter of fact, whether there was or was not contributory negligence in the deceased.

The sixth prayer of the defendant, which was rejected, limited the damages to the past, and excluded from view the prospective pecuniary damage of the equitable plaintiffs. It was properly rejected for that reason, and the rule of damages as laid down in the very words of Trainor's case, was prescribed instead thereof.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*375]  BOWIE, J., delivered the opinion of the Court.
After obtaining from the Court in their first prayer (which was conceded) the declaration of the general rule, that to enable the appellees to recover, the burden of proof was on them to show that the accident complained of was altogether owing to the negligence, or want of care and skill on the part of the 

 [*376]  appellant or its agents; and if the jury should find from the evidence that the accident which caused the death of Dougherty [**16]  was in any degree owing to the want of due care and caution, at the time of the accident, on the part of Dougherty, the appellee was not entitled to recover. The appellant, by its second, third, fourth and fifth prayers, sought to obtain from the Court instructions to the jury, that certain conduct and acts of the deceased of omission and commission, particularly set forth in the prayers, constituted such "a want of due care and caution" on his part, as to debar the equitable plaintiffs from recovery," or "was such negligence as proximately caused the injury," or "is conclusive evidence of contributory negligence on his part," or "was the proximate cause of the accident, and the plaintiff cannot recover."
The appellant's theory is, that although according to the previous decisions of this Court in similar cases, it has been held that generally it was the province of the jury, and not of the Court, to decide what constitutes negligence, or want of due care and diligence; yet the Court had said there are cases where the acts of the injured party are so glaringly careless and negligent, that the Court will declare them to constitute negligence in law.
It is submitted that this is [**17]  one of the exceptional cases in which the appellant was entitled to the interposition of the Court, to restrain the tendency of juries to ignore the carelessness of the decedent, through their sympathy with the loss of the bereaved, by defining clearly what acts amounted to negligence; what the proximate cause of the injury, and what contributory negligence.
In the case of the Northern Central R. R. Co. vs. The State, use of Price, et al., 29 Md. 420, a case of peculiar interest, both from the character of the catastrophe and the learning and ability displayed in its argument, it was objected that "the appellee's first and second prayers were both erroneous in the manner in which each submitted the question of gross negligence to the jury."

 [*377]  Commenting on which this Court said: "The next proposition is whether the question of negligence was properly referred to the jury by the plaintiff's prayers. And this, we think, cannot now be regarded as an open question in our Courts in the trial of causes like the present. Worthington vs. Baltimore and Ohio R. R. Co., 21 Md. 275; Merchants' Bank vs. Bank of Commerce, 24 Md. 12. [**18]  Negligence, in a case like this, is not so much a question of law as it is a question of fact, depending for its determination upon a consideration of all the attending facts and circumstances, in connection with the ordinary habits, conduct and motives of men. For the trial and determination of such a question, a jury of experienced and intelligent men are peculiarly adapted."
"It is very true, negligence may, in many cases, become a mere question of law, to be determined by the Court upon a given state of facts, either admitted or to be found by the jury."
"It is not however the duty of the Court to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury, that Courts should ever be careful not to invade."
"Where the facts attending the transaction are at all complex or unusual in their character, the existence of negligence must be deduced as an inference from all the facts and circumstances disclosed, after tracing their relation to the matter in issue and considering their force and effect." Beers vs. Housatonuc Railroad Co., 19 Conn. 566.
The case in which these views were expressed had many features [**19]  in common with that before us. The accident occurred at night, the scene was the vicinity of a village or hamlet, at the intersection of the highway, with the railroad, and the negligence (if any) consisted in the decedent's being on the track of the railroad, whether he was properly or improperly there, depended on many collateral circumstances, from which inferences must have been deduced, to arrive at 

 [*378]  the correct conclusion, which it was held was the province of the jury, and not of the Court, to draw.
The case of the Baltimore City Passenger Railway vs. Wilkinson, 30 Md. 224, presents an example of those cases in which negligence is a question of law for the Court. In that case it was shown that one of the regulations of the City Passenger Railway prohibited persons from getting on or off at the front end of the car, and required all persons to enter and descend by the rear platform. The plaintiff was proved to have had notice, and in violation of the regulation got on the front of the car, in getting off of which he was injured.
This Court, on the question whether the appellant's sixth prayer, which declared "if the plaintiff knowingly violated [**20]  said regulation, it was conclusive evidence of negligence on his part, and if he were injured in consequence thereof he was not entitled to recover," should be granted, held that "In such case the question of negligence, on the part of the passenger, is a legal question for the Court to decide, and the defendant below was entitled to ask an instruction to the jury exempting it from liability upon their finding the facts in the third and sixth prayers. Unlike the case where the facts from which negligence is to be inferred, are controverted, or are numerous and complicated, and when no certain legal rule or standard can be laid down, and in which the question of negligence is necessarily one to be submitted to the jury." Balto. City Pas. Railway Co. vs. Wilkinson, 30 Md. 224, 232, 233.
In the case of the Balto. and Ohio R. R. Co. vs. The State, use of Miller, 29 Md. 252-263, it is laid down generally that what constitutes negligence on the part of the deceased to bar a recovery, or what facts constituted due diligence, on the part of the defendant, to exempt it from liability, were questions for the jury, and the Court were right in rejecting [**21]  prayers which proposed to instruct the jury as to those points. 29 Md., 263.
No question was raised in the case of the Northern Central R. Co. vs. The State, use of Geis, et al., 31 Md. 357, as to the 

 [*379]  respective province of the Court and jury, in deciding what constituted negligence on the one part, or due diligence and care on the other. But in the case of the Balto. and Ohio R. R. Co. vs. Shipley, 31 Md. 368, the same propositions were announced as in the case of the North. Cen. R. R. Co. vs. The State, use of Price, 29 Md. 420.
After stating the general rule, "that negligence is a question for the jury to decide upon all the facts and circumstances of each case," the Court said, "But while this is the general rule, cases may and do sometimes occur, where the Court is required to declare some glaring act of carelessness on the plaintiff's part to be, in law, such contributing negligence as will prevent are covery, or, on the other hand, where the proof of negligence on the part of the defendant is so slight and inconclusive in its nature, as to demand from the Court an instruction as to [**22]  its legal insufficiency to prove negligence, in order to prevent the jury from indulging in wild speculation or irrational conjecture."
The circumstances of that case were not, however, thought such as to warrant the interposition of the Court. After reviewing the evidence, this Court was of opinion that the Court below properly refused to instruct the jury on the question of contributing negligence, as required in the appellant's prayers.
In Trainor's case, 33 Md. 542, the relative duties of the Court and jury in this respect were not adverted to.
In the very recent case of Fitzpatrick vs. The Baltimore and Ohio R R. Co., 35 Md. 32, the defendant sought, by its first, second, fourth and fifth prayers, to obtain from the Court instructions that if the jury found the accident did not occur at a regular crossing of the street where openings had been left by the defendant for passengers, but occurred at other openings left in the train of cars, in consequence of the plaintiff's attempt to pass between them whilst they were being prepared for service, such attempt of the plaintiff was a want of ordinary care on his part, and being the proximate [**23]  cause of the injury, the plaintiff could not recover.

 [*380]  These instructions were refused by the Court below, and upon appeal their rejection was affirmed by this Court in very emphatic language.
Referring to these prayers, it was said: "This Court has too often decided, to be required again to repeat, that the question of negligence, or the want of ordinary care, in cases like the present, is one of fact for the consideration of the jury. The most the Court can do, in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned, with what would be the natural and ordinary course of prudent and discreet men under similar circumstances."
"To attempt to do more than this, in the great majority of cases that occur, would require of the Court to multiply distinctions and to indulge refinement to suit the particular circumstances of each case to an extent that would tend rather to embarrass than [**24]  promote the fair and liberal administration of justice." They reiterate the dogma, "What will amount to ordinary care, or the absence of it in any given case, must always be determined by the standard of common prudence and experience in view of the special circumstances." *** "And such questions have, both in this country and in England, been generally referred to the jury as matters of fact; and the decisions of this Court have been uniform upon the subject."
Having laid down these general rules, the Court proceeds to say, they do not mean to say, "there are no cases where the question of negligence could not properly be one of law for the Court; far from it; but such cases always present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ. Where such is the case, and the act in question is not dependent 

 [*381]  upon surrounding circumstances for its quality, the Court should not hesitate to characterize it according to its true nature, and allow at once the legal consequences to follow. But this cannot be done where the nature and quality of the act can only be correctly determined by considering all [**25]  the circumstances as in this case."
We have examined the cases in New Jersey L. Rep. and Wisconsin, referred to in the appellant's brief; in two of these, the question was presented on a motion for a new trial, in which the Court was exercising its legitimate function of reviewing the action of the jury upon the evidence offered, and might very properly set aside a verdict if in their opinion the jury reached improper conclusions; an exercise of discretionary power in this respect, is very different from withdrawing the consideration of the facts entirely from them, and deciding their effect as a question of law.
In the case of the New Jersey Express Co. vs. Nichols, 33 N.J.L. 434, although it was held, as with us, that if the plaintiff was negligent, and his negligence contributed to his own injury in such a manner that if he had not been negligent he would not have been injured, he could not recover, yet it does not appear that any question was raised, as to the point whether it was the province of the Court or jury to decide the question of negligence.
After carefully comparing the main facts of the case now before us, with those of the preceding [**26]  cases cited, which are at all similar, we cannot discover any such distinct prominent fact, about which ordinary minds would not differ, which distinguishes the present from those cited, so as to justify the Court below, to pronounce the conduct of the deceased such negligence in law as would, if found by the jury, preclude the plaintiff from recovery. The facts from which negligence was to be inferred were complex and controverted, subject to various constructions as viewed from different stand points, and governed by no fixed legal rules upon which the Court could assume to determine, without, in our 

 [*382]  judgment, departing from a series of well considered decisions, and violating the cardinal legal maxim "ad questions facti respondent juratores."
Finding no error in the rulings of the Court below the judgment will be affirmed.
Judgment affirmed.
BARTOL, C. J., and ROBINSON, J.
It appears from the evidence that James Dougherty was walking at night on the railroad track of the appellant, and was killed by a locomotive. The night was dark, and the place where the accident happened was not at a public crossing of the railroad.
By the side of the track, and parallel [**27]  with it, there was a county road, which had been obstructed by sand and gravel placed there by the employees of the railroad company in making repairs.
There is a conflict in the testimony as to the actual condition of the county road at the time of the accident. Some of the witnesses testified that the obstructions remained, and that the county road was not safe, or fit to be travelled; while others testified that the obstructions had been removed, and the road left in a passable condition.
In this state of the proof, the appellant asked the instruction contained in its fifth prayer, which we think ought to have been granted. The facts stated in this prayer, if found by the jury, would, in our opinion, constitute such negligence on the part of the deceased, directly contributing to the accident, as to deprive the appellees of the right to recover.
In Balt. and Ohio R. R. Co. vs. Shipley, 31 Md. 368, this Court, after stating that in most cases "the rule is that negligence is a question for the jury to decide, upon all the facts and circumstances of each case," said: "But while this is the general rule, cases may and do sometimes occur, where the Court is [**28]  required to declare some glaring act of carelessness 

 [*383]  on the plaintiff's part to be, in law, such contributing negligence as will prevent a recovery." ****
And in Balto. and Ohio R. R. Co. vs. Fitzpatrick, 35 Md. 32, 46, this Court said: "We do not desire it to be understood that, in our opinion, there are no cases where the question of negligence could be properly one for the Court; far from it. Many such could be suggested, though they are not of frequent occurrence; but such cases always present some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ. Where such is the case, and the act in question is not dependent upon surrounding circumstances for its quality, the Court should not hesitate to characterize it according to its true nature, and allow at once the legal consequences to follow."
Such, in our opinion, is the case presented by the fifth prayer of the appellant, and we think there was error in refusing it.  

88 of 144 DOCUMENTS 

DAVID R. SHANNON vs. THE HOWARD MUTUAL BUILDING ASSOCIATION OF THE CITY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 383; 1872 Md. LEXIS 87 

June 20, 1872, Decided 

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

On the 1st of June, 1868, the appellant executed to the appellee, a mortgage of a leasehold interest in a lot of ground situated on the north side of Hollins street in the city of Baltimore. The mortgage stated that: "Whereas the said mortgagor being a member of the said body corporate, has received therefrom an advance of thirteen hundred and fifty dollars on his nine shares of its stock. Now, therefore, this mortgage witnesseth, that in consideration of the premises and of one dollar, the said David R. Shannon doth grant unto the Howard Mutual Building Association of the city of Baltimore, and its assigns, all that lot of ground situate and lying in the city of Baltimore, and described particularly in a mortgage deed executed in favor of the Mechanics' Mutual Building Association of the city of Baltimore, by said David R. Shannon, &c. ****

"And the said David R. Shannon, for himself, his heirs, executors, administrators and assigns, covenants with the said association and its assigns to pay and perform as follows--that is to say: To pay the mortgagee or its assigns the weekly sum of four dollars and fifty cents ($ 4.50)  [**2]  on every Thursday, until the time arrives when the said body corporate shall have sufficient funds on hand to pay the holders of every unredeemed share of its stock the sum of $ 250, clear of all losses and liabilities; to pay all ground-rents and taxes for which the property hereby mortgaged may become liable, when payable; to pay the interest on the said sum of $ 1,350 weekly from the day of the date of these presents; and also to pay the tax on the mortgage debt hereby created; also to pay all fines that may be imposed on him by the said mortgagee, in accordance with its acts of incorporation, and to keep the improvements on the said ground fully insured from loss by fire, for the use of the mortgagee; all of which payments and covenants shall continue in force until the said body corporate shall have sufficient funds on hand to pay the holders of every unredeemed share, above all losses and liabilities, the sum of $ 250, and the said corporation shall, by the terms of its act of incorporation, have become extinct."

"And the mortgagor consents that a decree may be passed for the sale of said property, (the sale to take place after a default in any of the conditions of this [**3]  mortgage shall have continued three months,) under the provisions of the sections 782 to 792, inclusive, of Article 4 of the Public Local Laws of the Maryland Code, or any supplement thereto; or this mortgage may be foreclosed under any law or laws of said State of Maryland, intended to facilitate the regular or extrajudicial proceedings on mortgages, as fully and in the same manner as if special assent and powers were hereby given and granted."

On the 12th of March, 1869, the appellee filed its petition in the Court below, praying a decree for the sale of the mortgaged property, pursuant to the assent given in the mortgage, and the Acts of Assembly in such cases made and provided--the mortgagor having failed to comply with the conditions and agreements contained in the mortgage. With this petition was filed the mortgage and the following statement of the claim of the mortgagee, with the affidavit annexed, of the financial secretary of the association, "that the above account is just and true as stated, and that the said association hath not received, directly or indirectly, any security or satisfaction for the same, or any part thereof, excepting the mortgage aforesaid and the [**4]  credits given in said account."

BALTIMORE, March 11th, 1869.

MR. DAVID R. SHANNON,

________________________________________________________________________________

To the Howard Mut'l Building Association,	DR.	
To 290 weeks' dues under his mortgage to the Association,	
 (on 9 shares,) a. 4.50	$ 1,305 00	
To 290 weeks' interest, 1.56	452 40	
	$ 1,757 40	
Rebate 145 weeks' interest	292 90	
	$ 1,464 50	
To arrearages for dues, interest and fines on same	557 56	
	$ 2,022 06	
________________________________________________________________________________

The Association estimated to run 7 years.

The Court, (PINKNEY, J.) on the same day passed a decree for the sale of the mortgaged premises. On the 23d of April, following, the appellant filed his petition, stating that he had offered to pay to the appellee his back dues in arrear, and any reasonable fines thereon, which the appellee refused to take, requiring him to pay dues and fines as stated in its account, amounting to $ 557.56; that the amount of his dues in arrear did not exceed $ 150, even with any reasonable fines added thereto, and that it was unconscionable that he should be required to pay upon so small an arrear of indebtedness, the large sum of $ 400, and more, as a penalty; he therefore prayed that the matter might be referred to the auditor [**5]  to state an account, and that he might be allowed to bring into Court such amount as the Court should determine to be due to the appellee, and that the appellee be required to take the same, &c., and that the decree be stayed until then. An order was passed assigning a particular day for the hearing of the petition, with leave to either party to take testimony, &c. A commission was issued and testimony was taken, and on the 13th of April, 1870, the Court referred the cause to the auditor to state an account of the indebtedness of the appellant to the appellee, from the evidence in the cause, and such other proof as might be adduced before him upon proper notice. On the 9th of July, 1870, the auditor filed his report and two statements, marked No. 1 and No. 2, respectively, showing the views of the complainant and the defendant.

Statement No. 1 represented the views of the complainant and agreed with the statement which it filed on the 12th of March, 1869, except that interest was allowed the defendant on the two payments made by him from the times they were respectively made, thus reducing the sum claimed by the association to $ 2,021.48.

Statement No. 2, gave the defendant [**6]  the benefit of his just payment by applying so much of it as would pay the dues of the 15th of October, 1868, and the fines which had been incurred on that amount, and also on the interest to the time of that payment, to wit: on the 5th of November, 1868; and also excluding from the weekly dues the weekly interest charged from the 15th of October, 1868, to the 11th of March, 1869, assuming that it had already been charged for all the time for which the defendant was liable.

The defendant excepted to the auditor's statements for the following reasons:

1st. Because of the allowance of costs against the defendant.

2d. Because of the allowance of interest against the defendant.

3d. Because of the allowance of fines against the defendant as being unconscionable and not covered by the mortgage.

The following sections of Article 2 of the By-Laws of the appellee, referred to in the argument below, will contribute to an understanding of the questions decided.

Sec. 2. Every stockholder, for every share of stock that is held in this association, shall pay the sum of fifty cents on subscribing, and fifty cents weekly thereafter, to the treasurer, or such other person [**7]  or persons as shall, from time to time, by the laws or regulations of the association, be authorized to receive the same, until each unredeemed share of said stock shall be worth, in cash, $ 250, and there shall be funds enough in the association to pay that amount to the holders of said unredeemed shares, after paying all debts of the association. The directory shall then proceed to pay, satisfy and discharge, first, debts and liabilities of the association, and then pay over to the owner of each unredeemed share an equal dividend of all sums on hand, and which shall afterwards be received, until the whole shall be divided; and from the time of the commencement of the payments of such dividends, no further weekly dues or interest shall be payable, except that all arrears shall be fully paid up; and the association shall deliver to each morgagor who has fully complied with the conditions of his mortgage, a discharge thereof, and all papers connected therewith. After the performance of the foregoing duties, this association shall cease to exist, and it shall not be sooner dissolved; nor shall this Article be altered, amended or repealed, without the consent of four-fifths of the voting [**8]  shares belonging to this association.

Sec. 3. If any stockholder shall neglect or refuse to pay his weekly dues as often as the same shall be payable as aforesaid, every stockholder so neglecting or refusing, shall forfeit and pay the additional sum of ten cents for every share of stock by him held, for every such weekly neglect or refusal, to be charged with the weekly dues.

Sec. 5. If any member of this association, having taken a loan, shall neglect or refuse to pay his weekly interest, he shall forfeit the additional sum of ten cents on each share of stock redeemed, to be charged and collected with the weekly dues.

On the 25th of September, 1871, the Court passed an order overruling the exceptions of the defendant, and ratifying Statement No. 1 of the auditor, and directing the defendant to pay to the complainant its costs incurred in the proceedings. From this order the defendant appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Homestead or Building Association -- Fines for the Non-payment of Dues.

Where a mortgage given to a Homestead or Building Association by one of its members, recognizes the obligation of the fines which may be imposed upon him by the association, and stipulates for their payment, a Court of Equity, when called upon to foreclose the mortgage ex parte or otherwise, ought to allow in the ascertainment of the indebtedness of the mortgagor, such reasonable and legal fines as may have been incurred by him, by his own consent, when he has been in default.

Such fines do not come within the principle which forbids a Court of Equity to lend its assistance to enforce the payment of fines, penalties or forfeitures.

A member of a Building Association having received an advance of $ 1,350, on his nine shares of stock, executed to the association a mortgage, in which he covenanted to pay the association or its assigns the weekly sum of $ 4.50, until the association should have sufficient funds on hand to pay the holders of any unredeemed share of its stock the sum of $ 250, clear of all losses and liabilities; to pay the interest on the said sum of $ 1,350 weekly, from the date of the mortgage; and also to pay all fines that might be imposed on him by the mortgagee, in accordance with its Act of incorporation. Section 3, of Article 2, of the by-laws of the association provided as follows: "If any stockholder shall neglect or refuse to pay his weekly dues as often as the same shall be payable as aforesaid, every stockholder so neglecting or refusing, shall forfeit and pay the additional sum of ten cents for every share of stock by him held, for every such weekly neglect or refusal, to be charged with the weekly dues." Upon petition by the association alleging default in the mortgagor to comply with the conditions in the mortgage, an ex parte decree for the sale of the mortgaged premises was passed. In determining the amount properly due by the mortgagor, it was HELD:

1st. That the weekly instalments and weekly interest constituted but one debt; and the weekly interest ought to be included in the weekly dues.

2d. That under the foregoing by-law of the association, only one fine was authorized for the non-payment of each instalment of the weekly dues -- that is upon the default of the mortgagor in the payment of the weekly due, he owed as a fine, ninety cents, ten cents on each of his nine shares.

3d. That because the weekly instalment remained unpaid for sundry weeks, the by-law did not authorize an additional fine of ninety cents for every week it remained unpaid. 

COUNSEL:
Samuel Snowden, for the appellant, argued

That the order of the Circuit Court ought to be reversed, for the following reasons:

1st. That no corporation can impose a penalty for violation of a by-law without express power to do [**9]  so. Kirk vs. Nevill, 1 Tenn., 118.

The appellee was incorporated in August, 1867, and therefore comes under the provisions of Article 26 of the Code of Public General Laws. By section 35, such corporations are authorized to redeem their stock in advance, and to receive from such redeemer security for the payment "by such member, of the unpaid instalments to be paid on the share or shares of its stock so sold or redeemed, together with interest at the rate of six per cent. per annum, and subject to such fines and penalties for the non-payment thereof as may be prescribed in the articles of association." Evidently meaning, that there should be but one fine for the non-payment of the instalment which included dues and interest. The by-law marked section 5 is therefore unauthorized by the law under which the appellee is incorporated, and is consequently void, as it inflicts a penalty for its violation.

The true construction of the by-law marked section 3 is that only one fine can be levied for the default in the payment of the weekly instalment, but the association have construed it to authorize a fine for each week, so long as the default might continue. By this method of calculation,  [**10]  assuming that section 5 is a valid by-law, the fines on a loan of $ 1,350 is made to amount to the enormous sum of $ 425.24 in the short space of five months. Such a rule cannot be sustained by any reasonable construction of the by-law.

2d. That even if such fines are authorized by the by-laws, they cannot be enforced in a Court of Equity, which will not lend its aid to enforce forfeitures or penalties. McKim vs. The Whitehall Co., 2 Md. Ch. Dec., 516; Story's Eq. Pl., sec. 521; Story's Eq. Jur., sec. 1319.

3d. That there is not a sufficient reference in the mortgage to the by-laws, so as to authorize the Court to look to them in the construction of the mortgage, and therefore no fines can be allowed. Robertson vs. The American Homestead Association, 10 Md., 409.

4th. That the rule laid down in Robertson's case is only applicable to cases where there is a sale of the property, and it was therefore improperly adopted as the basis of the statement of the account in this case. Oak Cottage Building Asso. vs. Eastman & Rogers, 31 Md., 556.

John Small, Jr., for the appellee.  

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

OPINIONBY:
STEWART 

OPINION:

 [**11]  
 [*390]  STEWART, J., delivered the opinion of the Court.
An ex parte decree had been passed by the Circuit Court of Baltimore City, at the instance of the appellee, The Howard Mutual Building Association, for the foreclosure of the mortgage 

 [*391]  of the appellant, a member of the society, by reason of his alleged default.
The appellant filed a petition, representing that the account exhibited with the application for the decree was erroneous, and that he had offered to pay the true amount due, and praying to have the matter referred to the auditor to state an account of his indebtedness, and to be allowed to bring the amount he owed into Court, and that the decree be stayed.
The Court ordered a day for the hearing, with leave to the parties to take testimony. Upon the return of the commission, with the testimony taken, the cause was referred to the auditor to state an account of the indebtedness of the appellant. The account was accordingly made out, and excepted to by the appellant; his exceptions were overruled, and the account ratified, and he has appealed from that decision.
He complains that he is overcharged, and the main question in dispute is, as to the correctness [**12]  of the auditor's account. He also alleges that he has made a sufficient offer to pay what was due, either upon his application to be released from the mortgage; or from the payment of the amount of the weekly dues, interest and fines remaining unpaid, and claims the benefit of having tendered himself ready to pay each on different occasions. A point is also made in the argument of the case, that a Court of Equity ought not to afford relief to the appellee in the collection of any fines that may have been imposed.
By the 16th Article, 1st and 2d sections, of the association, it is provided that any member may obtain a release of his mortgage by paying back the difference between the dues paid and the amount borrowed, together with a bonus, graduated by the number of years it has run, and before the unredeemed shares are worth $ 250; and upon the release being effected, he ceases to be any longer a member.
The mode of settling the indebtedness under such circumstances is explained in the law of the Oak Cottage Building Association vs. Eastman & Rogers, 31 Md. 556.

 [*392]  It is alleged by the appellant that he made application to be released, and tendered [**13]  himself ready to comply with the required terms, and was refused by the appellee.
This is denied by the company. The proof is so conflicting, that the tender cannot be considered as made out; whilst, in actions at law, to constitute a legal tender, considerable formality is required, and the money must be actually produced, unless the claimant dispense with its production, by express declaration or other equivalent act, as if a party declare beforehand, that if tender is made, it will not be accepted, that will dispense with a formal tender; Buel vs. Pumphrey, 2 Md. 261; yet such strictness is not necessary, in cases of this sort, to be determined by the principles of equity and good conscience.
The application to be released, and an offer to comply in good faith, with the ability to pay whatever might be due, where the party did not know the precise amount, and sought to ascertain in a reasonable way from the company, and the officer of the company, in charge of the books and entries, shewing the state of the account, could furnish the proper information, and refuses or omits to do so, without justifiable excuse, would have constituted a sufficient tender, if [**14]  such a state of things had been clearly proved. See Smoot, et al. vs. Rea & Andrews, 19 Md. 398.
The inexcusable refusal or omission of the officer, in cases where he could furnish the desired information sought by an applicant in good faith, would excuse the formal tender, and subject the company to the consequences of a rejection of the proposition to settle. It seems, however, that the appellant waived his offer to be released from the mortgage entirely, according to the 16th Article, and afterwards proposed merely to settle the balance due on account of the weekly instalments, the interest, and all legitimate fines incurred by his default, but in regard to this offer there is the same contrariety of testimony as in the former application, and the same construction as to the matter of tender is applicable, and it is not satisfactorily proved.

 [*393]  In regard to the question that a Court of Equity does not enforce the payment of penalties and forfeitures, according to the principle regulating its jurisdiction, this is true in cases where the doctrine is applicable. Where, in strictness, nothing but forfeitures and penalties are sought to be claimed and [**15]  enforced in a Court of Equity, it will not lend its aid for their collection, but the parties must resort to the Courts of Law for the purpose.
The sum stipulated to be paid by a member of a building association, under by-laws or regulations authorized by its charter, for a default in settling his weekly dues, is not such a forfeiture, but is simply an amount conventionally due upon the accruing of the weekly instalment, and the failure to pay it accordingly. It is in the nature of liquidated damages, agreed to be paid for the non-performance of a promise or covenant; and where they are not unconscionable or disproportioned to the exigency of the case, a Court of Equity will award their payment, more especially when incidentally involved in a matter confided to its peculiar jurisdiction and control.
From the character of these building associations, the imposition of adequate fines, as agreed upon by the by-laws, is justified in order to prevent default in the punctual payment of the weekly dues, upon which the success of the company depends; or in case of default, that some reasonable equivalent for the consequent damage sustained, may be provided.
The law authorizing the formation [**16]  of the company, expressly provides for the imposition of such fines, and the mortgage given by the appellant recognizes their obligation, and stipulates for their payment; and the Court of Equity is required, where a case occurs justifying its interposition, to foreclose the mortgage ex parte or otherwise, to allow in the ascertainment of the indebtedness of the party, such reasonable and legal fines incurred by the party, by his own consent, where he has been in default. See 2 Story's Eq. Juris., sec. 1318.

 [*394]  We see no difficulty in a Court of Equity compelling a party, under such circumstances, to meet all his engagements, where it is authorized to exercise its jurisdiction over the subject matter of the mortgage. Without the power to collect such fines through a Court of Equity, where the mortgage is enforcible, the anomaly would be presented of compelling the company also to resort to a Court of Law for the recovery of the fines.
The successful management of such building associations, chartered by the laws of the State, and intended for useful purposes, would in a great measure be defeated or seriously jeopardized, if a Court of Equity should refuse to entertain [**17]  jurisdiction and give relief in such cases. Such fines do not come within the principle forbidding a Court of Equity to lend its assistance for the simple purpose of the recovery of fines, penalties and forfeitures.
Mortgages of the character of the one in question are peculiar, in not being for the re-payment of the sum advanced with interest, but for the payment of weekly instalments, including weekly interest and fines, for the omission to make such payment; and a rule was laid down in Robertson vs. The American Homestead Association, 10 Md. 397, for the ascertainment of the sum due upon such a mortgage, in the event of a sale of the property, for the purpose of foreclosing the mortgage, and terminating the engagement of the member to the association. Upon its accomplishment, all relations between the association and the member are as effectually dissolved, as if he had made application to be released under the 16th Article, 1st and 2d sections--and compliance therewith. The 35th and 36th sections of the 26th Article of the Code recognize the power thus to terminate the relations of the parties, and a contract accordingly between the member and the association [**18]  is fully authorized.
The immediate question in that case, as well as in this, was not to ascertain the amount due upon the mortgage, regarding its final and complete foreclosure by a sale of the mortgaged 

 [*395]  property and the dissolution of the relation between the member and the association; but upon the basis of their further continuance, notwithstanding his existing default, by his paying up his indebtedness for the weekly instalments, interest and fines, in which he had been delinquent, and to ascertain the true amount thereof, before any sale, so that he might have the opportunity to pay the same and save the necessity of a sale of the property--the decree merely standing, in the meantime, as a security for future instalments and liabilities.
This indebtedness is made up partly by the weekly dues, and the interest and the fines, if any, imposed by the society, in accordance with its by-laws and Act of incorporation.
The only dispute, in this case, so far as the indebtedness of the appellant is concerned, is in regard to the amount of the fines imposed, and claimed by the company, the mortgagee, and whether they are authorized by its by-laws and Act of incorporation. [**19]  
Its solution depends upon the legal force and effect of the by-laws of the company and their conformity with the law authorizing the incorporation, together with the provisions and stipulations of the mortgage in question.
By the 35th sec. of Art. 26 of the Code, under which the company was chartered, it is authorized to advance to any member the sum which he would be entitled to receive upon the dissolution of the company, or it may purchase the shares of the stock of any member, and on payment of the sum agreed upon, receive from the member, security for the payment of the future instalments on the shares sold or redeemed, together with interest on the sum, at such times and subject to such fines and penalties for the non-payment thereof, as may be prescribed in the articles of association.
The 36th sec. provides that the payment of the instalments, with interest, and all fines and penalties incurred in respect thereof, shall be secured by mortgage, &c.
It is under the authority of these sections, the mortgage in this case was taken, and the money thereupon advanced to 

 [*396]  the appellant, and the mortgage can only be operative to the extent of its conformity therewith.  [**20]  
We discover no departure from the requirements of the law in the mortgage, but there is nothing in the sections of the law aforesaid to warrant the corporation in the enactment of the 5th sec. of Art. 2, and the imposition of a distinct fine for the non-payment of the weekly interest.
The weekly instalments and weekly interest constitute but one debt, and the weekly interest, according to our construction of the terms of the law, ought to be included in the weekly dues, in sec. 3 of same Art. if a fine is to be imposed or paid, for its non-payment, as well as the weekly instalment of the principal debt--that is, the portion of the principal, properly so called, payable weekly, and the proportional interest, weekly payable, constitute the weekly instalment, and make up the weekly indebtedness, which, if not paid punctually, subjects the party to a fine, if the company think proper so to determine by its by-laws.
There is no reason nor authority, under the law, for the sub-division of the principal and interest, and separate and independent by-laws, imposing distinct fines for the non-payment of each.
The fines, therefore, undertaken to be imposed upon the appellant under the 5th [**21]  by-law, in regard to default in the payment of the weekly interest, and charged to the appellant in the account of the auditor, and confirmed by the order of the Court, are unauthorized and erroneous, and ought not to have been charged and allowed.
Upon a fair construction of by-law, sec. 3 of Art. 2, we think but one fine is authorized for the non-payment of each instalment of the weekly dues--that is, upon the nine shares, upon his default in the weekly payment, the appellant owed ninety cents, equivalent to ten cents on each share as a fine. Because that weekly instalment remained unpaid for sundry weeks, the by-law does not authorize an additional fine of ninety cents for every week it may remain unpaid.

 [*397]  The appellant was answerable for so many fines of ninety cents or ten cents on each share, as there were weeks, each weekly instalment accrued, and was not paid up to the time of the decree.
The order below must be reversed and the cause remanded in order that the account against the appellant may be corrected conformably with this view.
Upon the payment, of whatever amount may be so ascertained, by the appellant, and the costs of the decree, as he was in default [**22]  (all other costs to be paid by the appellee,) the sale of his property mortgaged, will be prevented, and the decree rendered will stand as a security for his future liabilities.
Failing to do this, and the property has to be sold in pursuance of the decree, the rule prescribed by this Court in the case of Robertson vs. The American Homestead Asso., 10 Md. 397, must govern; the indebtedness of the appellant under the default in the payment of the weekly instalment, to be computed according to the views we have expressed in regard thereto.
Order reversed and cause remanded. 

89 of 144 DOCUMENTS 

BERNARD HOUGH, WILLIAM CLENDENING, and THOMAS R. CLENDENING, trading as HOUGH, CLENDENING & CO., for the use of their Assignee, THE BALTIMORE WAREHOUSE COMPANY vs. THE PRESIDENT AND DIRECTORS OF THE PEOPLE'S FIRE INSURANCE COMPANY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 398; 1872 Md. LEXIS 88 

June 20, 1872, Decided 

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

Two actions of covenant, consolidated by consent, were instituted by the appellants, Hough, Clendening & Co., for the use of their assignee, the Baltimore Warehouse Company, against the appellees: the first to recover on a policy issued by the appellees, dated the 21st of June, 1870, whereby the company insured Hough, Clendening & Co., during thirty-five days, from the date of the policy, against loss or damage by fire to the amount of $ 1,400, on fifteen bales of cotton stored in Tobacco Warehouse No. 2, O'Donnell's wharf, then occupied by the Baltimore Warehouse Company; the second to recover on a policy dated the 27th of June, 1870, whereby the appellees insured the appellants in exactly similar words of description, during thirty-four days, to the amount of $ 1,100 on thirteen bales of cotton. The defendants pleaded:

1st. That they were not indebted as alleged.

2d. That they did not promise and covenant as alleged.

3d. That the plaintiffs did not furnish preliminary proofs of loss to the defendants according to the terms of the policy sued on, and the defendants had not waived their rights to except to the insufficiency [**2]  of the same.

4th. That during the time when said cotton was alleged to have been insured by the said policy of insurance, there were other insurances thereon, and by the terms of said policy the defendants were only responsible for such proportion of such alleged losses, as the amount of its insurance should bear to the whole amount of such other insurance. The plaintiffs joined issue on the first, second and third pleas, and replied to the fourth as follows:

That during the time when said cotton was insured by the said policy of insurance, there were not other insurances thereon; such that by the terms of said policy, the defendants were only responsible for such proportion of the losses as the amount of their insurance bore to the whole amount of such insurance. Issue was joined on the replication.

First Exception: At the trial of this cause, the plaintiffs, to maintain the issues on their part, proved, by the introduction of the Act of Assembly of 1867, ch. 232, in the printed volume, the incorporation of the defendant, and adduced two policies of insurance against fire, issued by the defendant under its corporate seal, the execution of each of which by the defendant,  [**3]  was admitted.

The particulars of these policies, material to the issues, are these:

In the one dated June 21st, 1870: "The President and Directors of The People's Fire Insurance Company of Baltimore, in consideration of one 64/100 dollars, to them paid by the insured hereinafter named, the receipt of which is hereby acknowledged, do insure Hough, Clendening & Co., against loss or damage by fire, to the amount of fourteen hundred dollars, on fifteen bales of cotton stored in Tobacco Warehouse No. 2, O'Donnell's wharf, now occupied by the Baltimore Warehouse Company; other insurance permitted without notice until required. Loss, if any, payable to the Baltimore Warehouse Company."

"And the said company do hereby promise and agree to make good unto the said insured, their executors, administrators or assigns, all such loss or damage, not exceeding in amount the sum hereby insured, as shall happen by fire to the property as above specified, during thirty-five days, to wit, from the 21st day of June, 1870, (at 12 o'clock at noon,) until the 26th day of July, 1870, (at 12 o'clock at noon)--the said loss or damage to be estimated according to the actual cash value of the said [**4]  property at the time the same shall happen." On this policy there is endorsed in pencil the number in figures, "1221."

In the other policy, dated June 27th, 1870, the corresponding portion of the contract is the same, except that the premium is "one 25/100 dollars;" the amount of insurance is "eleven hundred dollars;" the number of bales is "thirteen;" the time "thirty-four days," from 27th day of June, 1870, (at 12 o'clock at noon,) until the 31st day of July, 1870, (at 12 o'clock at noon.)

On this policy there is endorsed in pencil then umber in figures, "1238."

In the body of the contract in each policy is this stipulation: "In case of loss the insured shall not be entitled to recover on this policy any greater proportion of the loss or damage sustained to the subject insured, than the amount hereby insured shall bear to the whole amount insured thereon, whether such insurance be by specific or by general or floating policies." And also this: "If any other insurance has been or shall hereafter be made upon the said property, and not consented to by this company in writing hereon, then this policy shall be null and void."

Among the "conditions of this insurance,  [**5]  " annexed to each policy, are the following, to wit:

III. "If the property to be insured be held in trust or on commission, or be a leasehold interest or equity of redemption, or if the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the insured, it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void," &c.

IV. "Goods held on storage must be separately and specifically insured."

X. "In case of any loss or damage to the property insured, it shall be optional with the company" "to take the goods at their appraised value," "giving notice of their intention to do so within thirty days after having received the preliminary proofs of loss," &c.

The plaintiffs further proved by James Godwin: That he was in the employment of the plaintiffs during the years 1869 and 1870; the business of the plaintiffs was that of cotton factors chiefly; that the cotton sent to them was from a large number of different persons, and in lots of various sizes, from one bale upwards, and was to be sold at a time limited, or [**6]  at the discretion of the factors, or at such time as should be afterwards directed by the shipper, as the instructions happened to be; that the cotton market was declining in the summer of 1870; that the plaintiffs had six hundred and seventy-five bales of cotton in the warehouse described in the policies sued on--which warehouse was destroyed by fire on July 18th, 1870; none of it was returned to them after the fire; that Albert Rhett had weighed the cotton, lot by lot, before it was stored; that samples of each lot had been taken out and retained in the office of the plaintiffs; at the time of the fire there was there a sample of each bale that was in the warehouse; that the plaintiffs had, at the time of the fire, insurance on six hundred and seventy-six bales of cotton in this warehouse--one more than the number in store there; that in each of the policies held by them the insurance was on a specific number of bales.

On cross-examination, the witness said: He spoke from the books of the house, not from his own knowledge, as to the number of bales; he saw the fire and knew that the cotton of the plaintiffs was there; the loss on this was not total; some bales were burned, some [**7]  saved; how many were saved witness does not know, nor how many absolutely lost.

The plaintiffs further proved by William B. Hooper: That he was the storekeeper of the Baltimore Warehouse Company in July, 1870; that this warehouse was burned on the 18th July, 1870; the plaintiffs had therein six hundred and seventy-five bales of cotton; there were in all, 1,452 bales of cotton in the warehouse at the time of the fire; also some tobacco and bark; the other cotton belonged to different parties.

They further proved by Albert Rhett, that he was a public weigher; that he weighed nearly all Hough, Clendening & Co.'s cotton; was under the impression he weighed every bale of their cotton that went into this warehouse; he gave certificates of these weights; identified certificates shown to him as his, from which it appeared that the fifteen bales of the plaintiffs, embraced in the policy of the 21st of June, weighed six thousand two hundred and sixty-one pounds, and the thirteen bales, covered by the policy of the 27th of June, weighed five thousand four hundred and eighty-two pounds.

The plaintiffs further proved by Charles Rhett, that he was a cotton-broker in 1870; it was very [**8]  often part of his business to determine the grade of cotton; was called upon by Hough, Clendening & Co. after this fire; went to their office, examined a number of bundles of samples; there were six hundred and seventy-five samples; his partner, Mr. Smith, assisted him; examined them minutely; graded from "good middling" to "low middling" and "ordinary;" made an average of the various bundles; the whole averaged a fair class of "low middling" cotton; estimated its value, at the time of the fire, at 18 3/4 cents per pound.

They proved further by James Hooper, that he was President of "The Baltimore Warehouse Company;" gave receipts for cotton deposited on storage; for this purpose a printed blank was used--the date, subject matter and particular place of deposit, and the name of the depositor being filled in, and the mark inserted in an appropriate place in the margin, in manuscript. In every instance of deposit by the plaintiffs, between the 5th of February, 1870, and the 15th of July, 1870, the mark in the margin of the corresponding certificate was X. Q. The witness produced the receipts given to the plaintiffs for cotton stored, which were put in evidence. The receipt issued [**9]  to the plaintiffs on each deposit of cotton contained the printed notice that "the property mentioned therein was held by the corporation as bailees only, and was not insured by the corporation.

They further proved by this witness, that the cotton that was saved from the fire was sold at auction, by instruction of a committee of the insurance companies; Hough, Clendening & Co. had insurance on six hundred and seventy-five bales of cotton in this warehouse, to the amount of about $ 60,000. The warehouse company had advanced Hough, Clendening & Co., on the whole number of bales, to about $ 48,720.

On cross-examination this witness said, the warehouse company did not insure all the cotton in their warehouse; kept $ 30,000 insurance to cover, in case insurance by the depositors was not sufficient; did not insure except where advances had been made. It was the course of business of the warehouse company, on receiving cotton, to give a warehouse receipt, such as those already introduced in evidence; and if advances were asked, one of the conditions of the advance was, that the depositor should insure in the form adopted in the policy sued on, and deliver such policy to the company,  [**10]  together with the warehouse receipt; the insurance to be for an amount sufficient to cover the advance. The defendant proved by this witness, and put in evidence two policies of insurance held by "the Baltimore Warehouse Company," and outstanding at the time of the fire, as follows:

1st. Policy No. 1542, Home Insurance Company of the city of New York, for $ 20,000, bearing date December 7th, 1869, of which the parts material to this issue are contained in the following extracts, to wit; in the body of the contract it is stipulated thus:

"By this policy the Home Insurance Company, in consideration of one hundred dollars to them paid by the insured, hereinafter named, the receipt whereof is hereby acknowledged, do insure The Baltimore Warehouse Company against loss or damage by fire, to the amount of twenty thousand dollars, on merchandize, hazardous or extra hazardous, their own, or held by them in trust, or in which they have an interest or liability, contained in that part of State Tobacco Warehouse, No. 2, used by them, lying between Frederick Street Dock and Long Dock, separated by a street from the south end of the Maryland Sugar Refinery; other insurance permitted without [**11]  notice, unless required; to cover whilst on the street and pavement around said warehouse, as per application. And the Home Insurance Company, above named, for the consideration aforesaid, do hereby promise and agree to make good unto the said assured, their executors, administrators or assigns, all such loss or damage not exceeding in amount the sum insured, as shall happen by fire to the property as above specified during one year, to wit: from the 7th day of December, 1869, (at 12 o'clock at noon,) until the 7th day of December, 1870, (at 12 o'clock at noon)--the loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen," &c.

"If any other insurance has been, or shall hereafter be made upon the said property, and not consented to by this company in writing hereon," "this policy shall be null and void. In case of loss, the insured shall not be entitled to demand or recover on this policy any greater proportion of the loss or damage sustained to the subject insured, than the amount hereby insured shall bear to the whole amount insured on the said property."

And among the "conditions of insurance" annexed were [**12]  the following:

4. "If the property to be insured be held in trust, or on commission, or be a leasehold or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance as to such property shall be void," &c. "Goods held on storage must be separately and specifically insured."

9. "Persons sustaining loss or damage by fire, shall forthwith give notice thereof," &c., "and as soon after as possible they shall deliver in as particular an account of their loss," &c. "And they shall accompany the same with their oath," &c., "declaring what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company," &c., "and until such proof, declaration," &c., "are produced," &c., "the loss shall not be payable."

2d. Policy No. 11,898, Associated Firemen's Insurance Company, for $ 10,000, dated October 29th, 1869, of which the parts material to the issues here joined, are contained in the following extracts. In the body of the contract, which is under the seal of the company, it is covenanted thus:

"This instrument, or policy of insurance, witnesseth,  [**13]  that the president and directors of the Associated Firemen's Insurance Company of Baltimore, in consideration of the sum of fifty dollars to the said corporation paid, the receipt whereof is hereby acknowledged, have agreed to insure, and do hereby insure, the Baltimore Warehouse Company against loss or damage by fire, to the amount of ten thousand dollars, on merchandize generally, hazardous and extra hazardous, held by them or in trust, contained in that part of No. 2 Warehouse used by them, lying between Frederick Street Dock and Long Dock, opposite side of a small street running by south side of Maryland Sugar Refinery; to cover whilst on the street or pavement around said warehouse; other insurance permitted without notice until required, per application. In consideration thereof or of the premises, the president and directors of the Associated Firemen's Insurance Company of Baltimore, do hereby covenant, promise and agree to, and with the said assured, their executors, administrators and assigns, to pay and satisfy all loss or damage which the assured or their assigns may or shall sustain by fire upon the property hereby insured, not exceeding in amount the said sum of ten thousand [**14]  dollars, if such loss or damage shall be sustained within the terms of one year from the day of the date of these presents, which shall be deemed to expire at noon on the 29th day of October, 1870." "In case the assured shall have already any other insurance made on the hereby insured premises, he shall notify the same to this corporation before or at the time of executing this policy, and cause the same to be endorsed thereon, otherwise this insurance shall be void and of non-effect; and if the assured or their assigns shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation, and have the same endorsed on this policy, or otherwise acknowledged in writing by this corporation; or in default thereof, this policy shall cease and be of non-effect. And it is further declared and agreed, that in case of any other insurance being made upon the premises hereby insured, either prior or subsequent to the date of these presents, the assured shall not, in case of loss or damage, be entitled to demand or recover on this policy any greater proportion of the loss sustained than the amount hereby insured shall [**15]  bear to the whole amount of the several insurances made, or to be made, on the premises insured by this policy."

And among the "conditions of insuring," accompanying the policy, are the following, to wit:

"3. Goods held in trust or on commission are to be declared as such, otherwise the policy will not extend to cover such property."

"4. Every policy of insurance made by this company shall be sealed with its seal, signed by its president and attested by the secretary, and the person for whose interest the insurance is made, must be declared and named therein," &c.

"8. All persons insured by this company, sustaining any loss or damage by fire, are forthwith to give notice," &c., "and as soon after as possible to deliver in as particular account of their loss or damage," &c., "and shall make oath," &c., "whether any and what other insurance is made on the same property."

This witness, on his cross-examination, further said, that the Warehouse Company did not insure goods deposited by customers, except for amount of goods not insured by party; the notice in the receipt was intended to notify depositors that their goods were not to be insured by the company, nor [**16]  was the company to get insurance. (The witness referred to the charter of the company, Act of 1867, ch. 268, sec. 10, last paragraph: "Every such receipt, warrant or warehouse certificate shall contain on its face, a notice that the property mentioned therein is held by this corporation as bailees only, and is not insured by this corporation.")

Any statement of the witness as to the intention or purpose of the papers offered in evidence, and other than that shown by the papers themselves, was objected to by the counsel for the defendant, as not inquired after by their question, but volunteered by the witness. Two warehouse receipts, to wit, one of June 21st, 1870, numbered "1221," for fifteen bales of cotton, and the other, of June 27th, 1870, numbered "1238," for thirteen bales of cotton, being shown to witness, he said he could not say whether these lots, or either of them, was among the cotton saved or lost; the value of the whole goods in the warehouse, at the time of the fire, was from $ 120,000 to $ 130,000.

Upon proceeding to examine this witness in reply, the question was propounded: "You have stated, in your answer to a question by the counsel for the defendant,  [**17]  that you did not insure all the cotton in the warehouse of the Baltimore Warehouse Company, but only to cover advances made by the company, in so far as they were not covered by specific insurance of the parties owning the cotton, will you say whose and what interest was it your intention to cover by the policies of insurance taken out by the Baltimore Warehouse Company in 'The Home,' of New York, and in the Associated Firemen's Insurance Company?"

The defendant's counsel objected to the admissibility of the evidence sought by the question, and the Court sustained the objection and refused to permit the witness to answer the question.

The plaintiffs then offered to prove, that at the time of applying for and taking out the two policies taken by the Warehouse Company in its own name, the president of the Warehouse Company stated to the agents of the insurance companies applied to, that he desired to obtain insurance to protect the Warehouse Company against any loss or damage not covered by policies taken out by the depositors of cotton or other merchandize in their warehouse, in which the Warehouse Company was interested; and upon objection made the Court refused to admit [**18]  the evidence proposed. The plaintiffs excepted.

Second Exception: The plaintiffs' counsel then propounded to this witness the question: "Did you or not, before the issuing of the policies sued on in this case, and before the deposit of the cotton destroyed by fire on July 18th, 1870, notify Hough, Clendening & Co. that the Warehouse Company would not effect insurance on their cotton deposited in its warehouse, and that they must insure it themselves?" Upon objection made on the part of the defendant, the Court refused to permit the witness to answer this question; and the plaintiffs then offered to prove, that before the issuing of the policies sued on in this case, and before the deposit of the cotton destroyed by the fire of July 18th, 1870, the president of the Warehouse Company notified the plaintiffs that the Warehouse Company would not insure their cotton, and that they must insure for themselves, and that this notice was acquiesced in and not objected to by the plaintiffs, and that the plaintiffs did thereupon for themselves insure all their cotton; which proof, upon objection made on the part of the defendant, the Court refused to allow to be admitted. The plaintiffs excepted.  [**19]  

Third Exception: The plaintiffs further proved by George B. Coale, a statement, having a certificate appended, signed by witness as for the committee, showing the conditions and expenses of the rescuing and assorting, &c., of the cotton after the fire, the disposition of it and the mode of distribution of the net proceeds. They further proved by this witness that the statement was made up by the direction of the committee, consisting of Snowden, White, Hartman, Andrews and the witness; there were two hundred and eighty-nine bales of cotton in all, identified as belonging to particular owners, less expenses on them; of these, seventy-five belonged to Hough, Clendening & Co.; these brought, at the auction sale, $ 4,823.35, subject to deduction of $ 297.25 for special expenses; their missing, and not identified cotton, (six hundred bales,) was entitled, as their proportion of the proceeds of sale, to $ 8,636.63, subject to deduction of $ 3,734.75, their proportion of the expenses on the un-identified; the net proceeds of their cotton of both classes, was $ 9,427.98 or $ 13.94, (13.96 2/3,) salvage to each bale of Hough, Clendening & Co.

They further proved by Bernard Hough,  [**20]  one of the plaintiffs, that the plaintiffs had policies covering six hundred and seventy-six bales of cotton in this warehouse; each policy covered a specific number of bales; the Warehouse Company was in the habit of advancing to Hough, Clendening & Co., from time to time, as they made deposits.

On the cross-examination, the witness said, each policy contained the number of bales insured, as they were specifically insured. The Warehouse Company was in the habit of advancing Hough, Clendening & Co., on the various lots deposited from time to time, and Hough, Clendening & Co. insured the various lots as they were deposited.

On re-examination by the plaintiffs, the witness stated, it was their habit to take out policies on each additional lot of cotton as it came in; they took out policies whenever they added additional cotton.

Thereupon the plaintiffs' counsel asked the witness to explain whether he meant to say that it was his habit to effect insurance on each specific lot of cotton, or to effect insurance generally on an additional number of bales equal to the lot deposited; the witness said, that while the receipt of the cotton was the occasion of taking out the new [**21]  policy, it was not meant to cover cotton only.

This testimony was objected to by the defendant, as explaining by parol the intention of the party in a written contract, the terms whereof were clear, and it was excluded by the Court; and to this refusal of the Court to admit this testimony, the plaintiffs excepted.

Fourth Exception: The defendant, to maintain on its part the issues joined, proved by a witness, whose business in part was to adjust losses in insurance matters, that he was employed by the companies to ascertain the loss, and protect their rights in salvage. He produced two papers containing the results of his adjustment, and said the general policies were divided up into contributing insurances, in the ratio of the sound value of the property covered by specific insurances, to that covered by general policies; the general insurance should have contributed at the rate of $ 17.50 per bale to specific insurance. On twenty-eight bales the general insurance would contribute $ 490; the result would be affected by insurance on the tobacco which was in the warehouse; the salvage is to be credited to the defendant; its proportion of saved cotton--some $ 400--to be credited.  [**22]  Witness first applied the general insurance to the cotton not insured; amount of this application, $ 2,183.32.

On cross-examination the witness said the right of contribution arose from the fact that the Warehouse Company had made advances on lots of cotton covered by the specific policies, and by assignment of specific policies to the Warehouse Company had made the general insurance contributory; if there were cotton there not advanced on, it was not included in the assignment; $ 8,536.71 were allowed to Hough, Clendening & Co. for difference of insurance, to cover one hundred and nine bales not considered as specifically insured. There was cotton not covered, but no claim was made by any company or person. If general policies contribute to pay Warehouse Company's advances, they would be entitled, in witness' view, to subrogation.

The plaintiffs thereupon submitted to the Court the following prayers:

1. If the jury shall find that the plaintiffs are entitled to recover, then, in ascertaining the amount which the plaintiffs are to recover, the jury are not to make any abatement therefrom on account of the two policies of insurance issued by "The Home Insurance Company"  [**23]  and "The Associated Firemen's Insurance Company" to the Baltimore Warehouse Company, and offered in evidence by the defendant.

2. That by the true construction of the policy of insurance issued by the defendant to the plaintiffs, bearing date the 27th of June, 1870, and offered in evidence by the plaintiffs, it covered not thirteen specific bales of cotton, but any thirteen bales of cotton which were stored by the plaintiffs in Tobacco Warehouse No. 2, on O'Donnell's wharf, and were there remaining on the 18th July, 1870.

4. If the jury find from the evidence that the plaintiffs are entitled to recover, then, in ascertaining the amount of loss or damage which the plaintiffs are to recover, the jury ought to deduct such sum as from the evidence in the cause they may find is the proportion due to twenty-eight bales of cotton, in the distribution of the proceeds of sale of the rescued and saved cotton.

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

That the plaintiffs have offered no proof upon which the jury can allow damages for any injury by fire to the cotton insured by either of the policies of the defendant which are in suit.

The Court (DOBBIN,  [**24]  J.) refused the prayers of the plaintiffs and granted the prayer of the defendant. The plaintiffs excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Parol testimony inadmissible to Explain the terms of a Policy of Insurance -- Specific Policies -- Measure of Damages in an Action on a Policy of Insurance -- Double Insurances -- Contribution -- Right of a Consignee of goods, or Factor to Insure in his own name -- Meaning of the words, "Held in Trust," used in a Policy of Insurance.

Where a policy of insurance states that "the company insures the Baltimore Warehouse Company against loss or damage by fire to the amount of $ 20,000 on merchandise their own, or held by them in trust, or in which they have an interest or liability," parol proof is not admissible to show that the policy does not cover "merchandise their own," &c., as therein stated; but was intended to cover the merchandise only under certain circumstances; and if the said merchandise was insured by the owners thereof in other companies, that the interest of the warehouse company in said policy was not insured at all.

Where a policy of insurance is couched in plain and unambiguous language, resort to it alone must be had to determine the intention and meaning of the parties thereto; parol proof is inadmissible for such purpose.

Between the 5th of February, 1870, and the 15th of July, 1870, both days inclusive, the appellants deposited on storage in a certain warehouse, occupied by the Baltimore Warehouse Company, sundry lots of cotton in bales. For each lot deposited, the appellants received from the Warehouse Company a receipt, warrant or certificate which specified the number of bales, and the date of the deposit, and also the mark on the bales, the letters X. Q. being marked on each bale so deposited. These receipts or certificates were all numbered. On the 20th of June, 1870, the appellants deposited fifteen bales and took a receipt therefor, numbered 1221, and on the following day a policy of insurance was taken out to cover the particular number of bales thus deposited. On the 27th of June, the appellants deposited thirteen bales, and took a like receipt therefor, numbered 1238, and on the same day effected an insurance for the particular number of bales thus deposited. On the face of each policy the loss, if any, was made payable to the Warehouse Company; and the policies and receipts were delivered to the Warehouse Company, to secure advances made by it. On the policy on the fifteen bales there was endorsed in pencil in figures the number 1221, corresponding with the number of the warehouse receipt given therefor; and on the policy on the thirteen bales there was endorsed also in pencil 1238, corresponding with the number of the receipt for the cotton. At the time of each deposit, the depositor reserved a sample of the particular lot deposited. HELD:

That the policies were specific and not general; that each covered and was intended to cover the specific number of bales in each deposit, and the insurance on which was effected at the time of the deposit; the policy of the 21st of June, 1870, covering only the fifteen bales deposited on the day previous, and the policy of the 27th of June the thirteen bales deposited on that day.

H, having deposited a large amount of cotton on storage with the Baltimore Warehouse Company, effected, among others, an insurance against fire on two particular lots; at one time on fifteen bales, and at another on thirteen bales. The warehouse containing the cotton of H, with that of others, was destroyed by fire. A portion of the cotton was saved and sold at auction by instruction of a committee of the insurance companies interested. The net proceeds of sale were distributed under the direction of the committee among the assured. In an action by H, to recover on his two policies, it was HELD:

That in ascertaining the amount of loss or damage which the plaintiff should recover, the jury ought to deduct such sum as they might find from the evidence was the proportion due to twenty-eight bales, in the distribution of the proceeds of sale of the cotton saved.

The Baltimore Warehouse Company, which received goods on storage, and issued receipts or certificates therefor to the depositors, effected an insurance in the Associated Fireman's Company for $ 10,000, against loss by fire for one year, "on merchandize generally, hazardous or extra hazardous, held by them, or in trust, contained" in a particular warehouse; they also took out a policy in the Home Insurance Company, to the amount of $ 20,000, "on merchandise, hazardous or extra hazardous, their own, or held by them in trust, or in which they had an interest or liability," contained in the same warehouse. The appellants, on the 20th of June, 1870, deposited fifteen bales of cotton in the same warehouse, and received a receipt or certificate therefor from the Warehouse Company, and on the same day procured a policy of insurance on the cotton so deposited from the appellee. On the 27th of June they deposited thirteen bales, for which a like receipt was given, and on the same day they effected an insurance for the cotton with the appellee. Under the policies issued to the appellants, the loss, if any, was payable to the Baltimore Warehouse Company. The appellants had other cotton to a large amount stored with the Warehouse Company. The Warehouse Company advanced to the appellants over $ 48,000 upon the cotton belonging to them, and stored in the warehouse. In the policies to the appellants, as well as in those to the Warehouse Company, it was stipulated that in case of loss the assured should not be entitled to recover on such policy any greater proportion of the loss or damage sustained to the subject insured, than the amount thereby insured should bear to the whole amount of the several insurances thereon. On the 18th of July, 1870, the warehouse was burned, and of the cotton stored therein, some of the bales were saved, some were partially destroyed, and others totally destroyed. In an action by the appellants, for the use of the Warehouse Company, on the policies of insurance issued by the appellee, it was HELD:

That the policies sued on having been made payable to the Warehouse Company, inured to the benefit of the company, and may be considered as in favor of the same assured, on the same interest, in the same subject, and against the same risks as the policies which were issued directly to the Warehouse Company; and with the latter policies constituted a double insurance; and the companies therefore issuing the policies were bound to contribute their respective proportions of the loss.

A person having goods in his possession as consignee, or on commission, may insure them in his own name, and, in the event of loss, recover the full amount of the insurance, and, after satisfying his own claim, hold the balance as trustee for the owner.

The words "held in trust," applied to goods insured, mean goods with which the assured is intrusted; not goods held in trust in the strict technical sense, so held that there is only an equitable obligation in the assured, enforcible by subpoena in chancery, but goods with which they are intrusted in the ordinary sense of the word.  

COUNSEL:
John A. Inglis and I. Nevett Steele, for the appellants.

I. The policies sued on may be taken in combination, as constituting a promise of the appellee, to make good to the appellants any loss by fire that should happen during a period of time, embracing the 18th of July, 1870, (the day of the fire,) to any cotton in bales of the appellants, stored as in these policies is described--the pecuniary extent of the risk being, however, not absolute to make good the loss, whatever that may be, but restrained by two limitations--first: a specified sum of money, say $ 2,500; and, second, the value of a specified number of bales, say twenty-eight. The liability of the appellee can never, in any event, exceed whichever of these two sums shall, in the event, prove to be the smaller. The same was true of all the other policies held by the appellants on cotton in bales so stored and outstanding at the fire. And all these policies together, covering a number of bales, in the [**25]  aggregate exactly corresponding to the whole number in store at the time of the fire, there was in the actual event, as among them, no double insurance, and the appellants are entitled to recover from the appellee in this action, prima facie, the market value on the day of the fire, as proved, of twenty-eight bales. The ratable proportion of the "salvage," or proceeds of the cotton rescued and sold, apportioned to the appellee's credit, being already in the hands of the assignee of the policies, operates as a payment, pro tanto, towards the satisfaction of the appellee's liability as thus ascertained, and to that extent should reduce the recovery.

If this view of the proper construction of the contract be correct, there was in the evidence abundant proof of loss to the appellants within the risk assumed by the appellee in the contracts sued on, upon which the jury could and ought to have allowed damages--and the instructions asked for by the appellants in their second, third and fourth prayers, ought to have been granted, and that asked by the defendant ought to have been refused.

Was the contract, for the insurance of twenty-eight specific bales of cotton, distinguished [**26]  from all others, or of any bales not exceeding twenty-eight in number? The language of the contract itself imports indefiniteness, not specification as the intention of the parties. An indefinite expression shall be understood universally, unless there be some reason to restrain it. Chitty's Contr., 83. Specification, if intended, would have been very easy of accomplishment. The analogy of insurance on a "stock of goods." Flander's Fire Ins., 421; Hooper vs. Hudson River Ins. Co., 17 N. Y., 424; Hoffman vs. AEtna Ins. Co., 32 N. Y., 405; West Branch Ins. Co. vs. Helfenstein, 40 Penn. St., 289; Wolfe vs. Security F. Ins. Co., 39 N. Y., 49; Walton vs. La. M. & F. Ins. Co., 2 Rob. La. 563.

If there is, in the language itself, any room for doubt that it imports indefiniteness as the intention, yet, unless it clearly imports specification, it is to be taken most strongly in favor of the assured--that one of the two possible constructions will be adopted which most advances the indemnification of the assured. Flander's Fire Ins., 72; Franklin Ins. Co. vs. Brock, 57 Penn. St., 74; Balt. F. Ins. Co. vs. Loney, 20 Md., 20.

Being the language of the insurer, and in the written portion [**27]  of the contract, and so specially employed for the occasion, it will have that of the two possible constructions, which is the more favorable to the assured, rather than that which is more favorable to the insurer, who ought to have made it clear. Broom's Leg. Max., 459; Carroll's Lessee vs. Granite Manuf. Co., 11 Md., 411; Stockham vs. Stockham, 32 Md., 209.

The surrounding circumstances may be resorted to, to shed light upon the sense in which the language of the contract was used. Evidence of them was introduced on both sides, and relied upon as aiding in the interpretation of the language--the pencil marks on the policies; the nature of the appellants' business as factors. And if this aid be needed, the evidence of such circumstances ought to be passed upon by the jury. They were presented to, and may have influenced the judgment of the Court below. Neilson vs. Harford, 8 M. & W., 806; Shore vs. Wilson, 9 Clarke & Fin., 355; Goldshede vs. Swan, 1 Exchq. 154; Simpson vs. Margitson, 11 Q. B. 23.

The appellants' third exception does not claim that the witness, Hough, could testify to his intention in making the contract,--as a fact, independent of the writing, but that he [**28]  was entitled to explain the language on this point brought out from him on his cross-examination according to the fact, and prevent a wrong effect being given to that language. Schwarz vs. Yearly, 31 Md., 275.

II. Even if the contracts are to be construed as the Court below has construed them, as constituting only an insurance on certain specific bales of cotton, twenty-eight in number, stored as described, distinguished from all others so stored, still there is evidence of loss to the appellants, within the risk assumed by the appellee, on the force and effect of which the jury ought to have been allowed to pass their judgment, and the prayer of the appellee ought not to have been granted.

All the lots of cotton stored by the appellants in this warehouse, and remaining there at the fire, were marked in the same way: the mark, therefore, furnished no means of distinguishing any particular lot from all the others, or any particular bales as belonging to any distinct lot, or of identifying it even as deposited on a particular day. There was nothing in the description in the policy that could aid the identification of any specific cotton as intended to be covered by the insurance [**29]  therein. It was not possible, therefore, to distinguish any particular bales of those saved, as belonging to any particular or distinct lot, or embraced within the risk of any particular insurer. Under such circumstances, inasmuch as of six hundred and seventy-five bales of cotton all insured in like manner as in the present case, all were destroyed but seventy-five, the jury had a right to pass on the probabilities arising out of the facts proved, aided by the concessions which the appellee's subsequent conduct might seem to them to imply, as to whether the particular cotton intended to be covered by the appellee's contract, or any part of it, was saved or lost, and apportion to the appellee its ratable share of the loss.

III. If, upon a proper construction of the contract, there was evidence of a loss to the appellants, within the risk assumed by the appellee, the proper measure of the appellee's liability, and of the appellants' recovery in the action, is the market value, on the day of the fire, as this appeared in proof, of twenty-eight bales of cotton of the average weight and quality as proved, reduced by the application, as a payment pro tanto thereon, of the ratable proportion [**30]  of the "salvage," or proceeds of the cotton saved and sold which had been apportioned to the appellee or its credit, in the distribution thereof, and retained by the assignee of the policies, not subject to any abatement or reduction, on the ground of any liability of "The Home Insurance Company of New York," and "The Associated Firemen's Insurance Company of Baltimore," or either of them, by reason of the policy issued by each to the Baltimore Warehouse Company, and outstanding at the time of the fire, to contribute to the appellants' indemnification against the loss of the said cotton or otherwise, and the prayer of the appellants, for instruction to this effect, ought to have been granted.

A liability among several insurers to contribute, exists only where they have insured the same subject-matter against the same risk,--and the loss has happened to this common subject-matter and within this common risk. Flanders F. Ins., 36; Angell on F. & L. Ins., 88; Adams' Eq., 267.

Where nothing to the contrary appears in the terms of the policy, the subject of insurance is the interest of the person with whom the contract is in terms made, and especially where he, in fact, has an [**31]  interest. Angell on F. & L. Ins., 80, 81. In "The Home" and "Associated Firemen's" policies, the contract is in terms, with "The Baltimore Warehouse Company," and the Warehouse Company had an interest as lien creditor. Act of 1870, ch. 125; Act of 1867, ch. 268.

Where the party effecting the insurance has an insurable interest personal to himself in the thing, which interest he is intending to cover, if any other would, also, in addition, entitle himself to the protection on the ground that the contract was made also for his benefit, he must show: 1. That the party effecting the insurance was his agent to effect insurance for him. 2. That he was executing his agency in the fact of insuring; and 3. That, by apt words for the purpose, he advertised the insurer that other interests besides his own were intended to be protected, such as "for self and others," "for whom it may concern," &c.

That the Baltimore Warehouse Company had an interest in the "merchandise," described as the subject of insurance in the two policies of "The Home," and "The Associated," has been seen. That the protection of this interest was intended in the insurance effected by those policies is manifest [**32]  from the language employed, all the terms of which carefully distinguish a personal interest of the Warehouse Company. "Held by them, or in trust," in the policy of "The Associated Firemen's." "Their own, or held by them in trust, or in which they have any interest or liability," in the policy of "The Home." "Their own," "held by them," describes the interest which an absolute owner has. "In which they have any interest or liability," describes any beneficial interest less than absolute ownership which the assured has in the thing, or any liability for its safety, &c. "Held in trust"--the legal estate and interest which one has as trustee; and this is an insurable interest. Insurance Co. vs. Chase, 5 Wall., 509. That "goods held in storage" are not meant, especially in the policies of "The Home" and "The People's," is clear from the separate provision as to such stored goods in these policies.

In order that these warehouse policies should be available for the protection of any interests other than and in addition to their own:

1. There must be, in the language and terms of the contract, sufficient advertisement to the insurer of an intention to effect insurance for others [**33]  also; to put him on inquiry, if he choose to make this, to ascertain who such others are. Plahto vs. Mer. and Man. Ins. Co., 38 Mo., 248; Graves vs. Boston Mar. Ins. Co., 2 Cranch, 419; Finney vs. Bedford Com. Ins. Co., 8 Metcf., 348; Wise vs. Mar. Ins. Co., 23 Mo., 80; Newson's Adm'r. vs. Douglass, 7 H. & J., 417; DeForrest vs. Fulton Ins. Co., 1 Hall, 84. Are there any such apt words of advertisement in these policies? On the contrary, they studiously confine the protection to the peculiar interest of the Warehouse Company.

2. Even then, where there are such words, the contract will not cover the interest of every person who is within the letter of the description which the words of such advertisement import, but only of those for whose protection it was in fact intended by the party effecting or procuring the insurance. The intention in fact, at the time, of this party comes directly in question. Flanders' Fire Ins., 375-377 and notes; Garrett vs. Hanna, 5 H. & J., 412; Newson's Adm'r. vs. Douglass, 7 H. & J., 417; The Augusta Insur. Co. vs. Abbott, 12 Md., 373; Steele vs. Franklin Insur. Co., 17 Penn. St., 291; DeBolle vs. Penna. Ins. Co., 4 Whart., 68; Lee vs. Adsit, 37 N.  [**34]  Y., 78; Parks vs. The Gen'l. Int. Assur. Co., 5 Pick, 34; Angell on Fire and Life Ins., sec. 81.

This intention of the party procuring the insurance is a question of fact which can only be solved by extrinsic evidence; the proof of it may be by parol; and where the declarations and representations of the party procuring, to the agent of the insurer, in the act of procuring the insurance, demonstrate this intention either way, it is competent to prove these. The testimony, the exclusion of which is the ground of the appellants' first exception, ought to have been admitted. Newson's Adm'r. vs. Douglass, 7 H. & J., 417; Plahto vs. Mer. and Man. Ins. Co., 38 Mo., 248; Lee vs. Adsit, 37 N. Y., 78; Parks vs. Gen'l. Int. Ass. Co., 5 Pick, 34.

3. But further, it must appear that the party procuring the insurance had authority to insure for the party claiming the benefit. Newson's Adm'r. vs. Douglass, 7 H. & J., 417.

This authority may, of course, be by previous direction or request. There is not only no evidence of such previous authority, but it is expressly shown by the evidence that the understanding between the Warehouse Company and the appellants was, that the company would [**35]  not effect such insurance. The notice in the warehouse certificate and charter.

The authority may be by subsequent adoption, even after the loss. Garrett vs. Hanna, 5 H. & J., 412; Newson's Adm'r. vs. Douglass, 7 H. & J., 417; Augusta Ins. Co. vs. Abbott, 12 Md., 373.

There is no evidence in the cause of any such adoption. It does not appear that the appellants have ever paid or been charged with any premium, or admitted any liability therefor, or claimed any benefit of these policies. Their position on the pleadings and in the proof repudiates such a claim.

A mere bailee has not, as such, any authority to insure generally, and on the bailor's account, the goods bailed to him, and his act of effecting such insurance is ultra vires and inoperative, without proof of previous authority or subsequent adoption. Flanders' F. Ins., 161.

The notice in the warehouse certificate, that the property was held by the corporation as bailees only, can only mean that the company would not, as an agent for its depositors, effect insurance elsewhere for them, and is intended to advertise them that they must do it for themselves.

The evidence of a special personal notice to the [**36]  appellants by the president of the Warehouse Company, before the deposit by them of any of the cotton burned, that the Warehouse Company would not effect insurance on their cotton, and that they must insure it for themselves, the exclusion of which is the subject of the appellants' second exception, was competent as well to disprove the fact of agency, as to disprove any intention on the part of the Warehouse Company to cover the interest of the appellants in merchandise stored with it, in the policies it was holding, and ought to have been admitted.

The requirement in the charter that this notice shall be inserted in every certificate is equivalent to a prohibition of any such transaction as the Warehouse Company's effecting insurance.

Because the policy, issued by the appellee, on its face and at its execution provides that "the loss, if any, shall be payable to the Baltimore Warehouse Company," it is supposed that this makes the same interest of the same party in the cotton the common subject of insurance in all these policies, and lays a foundation for the liability to contribution. What is the effect of the entry, "Loss, if any, payable to the Baltimore Warehouse Company?  [**37]  " It is precisely the same as if the appellants had instantly, after the execution of the policy, with the consent of the insurer, and in pursuance of a previous agreement with the Warehouse Company, assigned the policy by endorsement to the company. Nat. Fire Insur. Co. vs. Crane, 16 Md., 260; Brown vs. The Roger Williams' Ins. Co., 5 R. I., 394; Grosvenor vs. The Atlantic Fire Ins. Co., 5 Duer, 517, and 17 N. Y., 391; Flanders' F. Ins., 441.

Let it be granted for the present that the object of this assignment was to protect the same interest which the warehouse policies protected, that is, the interest of the company, as lien creditors, in the appellants' cotton, yet the insurance by the appellee was not of that interest, but of the whole interest of the appellants which was larger, in fact, than the former, direct and primary, while that was collateral and secondary, and continuing, though the former were extinguished, as by payment of the advances, &c. Flanders' Fire Ins., 441; Nat. Fire Ins. Co. vs. Crane, 16 Md., 260.

The contract of the appellee with the appellants was for the indemnification of the latter against loss by fire on twenty-eight bales of cotton, and the [**38]  appellants are entitled to be fully indemnified, unless the loss on the twenty-eight bales exceed the sum insured on them, and then to the extent of that sum, and no construction will be given to this contribution clause, which will deprive the appellants of this full indemnity. Balt. Fire Ins. Co. vs. Loney, 20 Md., 37.

Whatever sum "The Home" and "The Associated" shall have to pay the Warehouse Company for their indemnification as lien creditors against loss on the appellants' cotton, they would have a right in equity, on the principle of subrogation, to recover back from the appellants, as the debtors, the security for whose debt they had insured. If the appellee's liability to the appellants is reduced or abated by reason of such contribution from these warehouse policies, the indemnification of the appellants is to that extent impaired--since he cannot recover what he would be compelled to refund. Flanders' F. Ins. Co., 361; 2 Am. Leading Cases, 571, (the note;) AEtna Insur. Co. vs. Tyler, 12 Wend., 547; Sussex Mut. Ins. Co. vs. Woodruff, 2 Dutch., 541; Carpenter vs. The Prov. Wash. Ins. Co., 16 Pet., 495; 2 Phillips' Ins., 419; see Kernochan vs. N. Y. Bowery Ins. Co., 17 [**39]  N. Y., 428; 1 Leading Cases Eq., 153, (top page.)

But, in truth, the assignment was not intended to protect the same interest which the warehouse policies protected. The latter were designed to cover any deficiency in the depositor's insurance, to protect the company's interest as lien creditor. Stover vs. Elliott Fire Ins. Co., 45 Me., 175.

Fielder C. Slingluff and S. Teackle Wallis, for the appellee.

The policies in the "Home" and "Associated Firemen's" Insurance companies were taken out in the name of the Baltimore Warehouse Company, while the policies of the appellee were taken out in the name of the appellants, "loss, if any, payable to Baltimore Warehouse Company."

The provision for the payment of the loss, if any, under the policies of the appellee at the time they were effected, and on their face to the Baltimore Warehouse Company makes the transaction at its inception one between the appellee and the Warehouse Company, and we therefore have the Warehouse Company as the proper legal contracting party to both the specific and the general or floating policies, it being the holder of both at the time of loss. This is more apparent from the testimony, which [**40]  shows that at the time of the fire the Warehouse Company had actually advanced $ 48,720 upon the cotton of the appellants, included in which were the fifteen and thirteen bales in controversy, and the amounts insured in the appellee's policies actually belonged to the Warehouse Company. Nat. Fire Ins. Co. vs. Crane, 16 Md., 261; Brown vs. Roger Williams Ins. Co., 5 Rhode Island, 394.

The floating and specific policies constitute a double insurance on the interest of the Warehouse Company in the cotton of Hough, Clendening & Co., and by their terms and effect, the policies are all in "favor of the same assured, on the same interest, in the same subject, against the same risks." 1 Phillips on Insurance, sec. 359; AEtna Fire Ins. Co. vs. Tyler, 16 Wend. 396; Merricks vs. Germania Fire Ins. Co., 54 Pa. State R. 277; Baltimore Fire Ins. Co. vs. Loney, 20 Md., 33; London and North Western R. W. vs. Glyn, 102 E. C. L. R., 652; Sloat vs. Royal Ins. Co., 49 Penn., 18; Angelrodt vs. Delaware Mut. Ins. Co., 31 Mo., 593.

A consignee having property of his principal in his possession and responsible for it, may, particularly if he have an interest in it for advances, &c., insure the property [**41]  in his own name, and in case of loss, recover its full value, and hold the balance after paying his own claim, in trust for the owners of the property. Story on Agency, sec. 111; AEtna Ins. Co. vs. Jackson, 16 B. Munroe, 258; De Forest vs. Fulton Fire Ins. Co., 1 Hall, 84; Allen vs. Mutual Fire Ins. Co., 2 Md., 111; Franklin Fire Ins. Co. vs. Coates & Glenn, 14 Md., 285.

If, under the proposition above established, the Warehouse Company, under its general policies, could recover the interest of the appellants over and above their advances, &c., to them, can it be said that such a policy does not cover the interest of the appellants so as to make it a double insurance with the specific policies?

A policy taken out in the name of the consignee of goods, to cover goods, held by them in trust, or on consignment, covers the goods of a third party on the premises, and such third party has the right to recover his proportionate share of the insurance money received under such policy. Siter vs. Morrs, 13 Penn. St., 218; Waters vs. Monarch Fire and Life Assurance Co., 85, E. C. L. Rep., 868; Stillwell et al., vs. Staples, 19 N. Y., 401.

The point raised by the first bill of exceptions [**42]  is one well settled by the law of evidence. The written portion of the policies, effected by the Warehouse Company in the "Home" and the "Associated Firemen's," are direct and explicit. The "Home" policy, says "the said Company do insure the Baltimore Warehouse Company against loss or damage by fire to the amount of twenty thousand dollars, on merchandize, their own, or held by them in trust, or in which they have an interest or liability." And the policy of the "Associated" is in like terms. The appellants sought to show by parol testimony that the policies did not cover "merchandize their own, &c.," as therein stated; but was intended to cover the merchandize only under certain circumstances; and, if the said merchandize was insured by the owners thereof in other companies, that the interest of the Warehouse Company in these policies was not insured at all. This is a plain violation of the well established principle of the law of evidence "that parol evidence is inadmissible to prove the intention of a contract under seal," and "that it is inadmissible to charge or contradict the terms of a written instrument." And especially as against strangers to the instrument. Young vs. Frost,  [**43]  5 Gill, 287; Henderson vs. Mayhew, 2 Gill, 393; McElroy vs. Shipley, et al., 2 Md., 25; Hamilton's Lessee vs. Cawood, 3 H. & McH., 437; Helm's Lessee vs. Howard, 2 H. & McH., 57.

The same principle precisely, is involved in the second bill of exceptions. The appellants there sought in effect to show by parol testimony that the floating policies of the "Home" and "Associated" were intended to cover the merchandise therein mentioned only under certain circumstances.

If such is not the effect of the evidence sought to be introduced, how can it be material to the question of contribution, whether or not the Warehouse Company notified the appellants, they would not insure their cotton? The fact is they did so insure, and this fact is established by the policies themselves. Could parol evidence be introduced to show that more was intended to be covered by the policy of insurance than was therein expressed? Clearly not. Helm's Lessee vs. Howard, 2 H. & McH., 57.

Does not the same principle prevent parol evidence from showing that less was intended to be insured, than the policies called for? and that too, as against third parties whose rights depend upon the policy thus sought [**44]  to be varied?

Another point strongly relied upon by the appellants, is that the warehouse receipts themselves contained a notice to the effect that the Warehouse Company did not insure goods stored with them.

This is in accordance with the charter of the Warehouse Company, section 10, ch. 268 of the laws of 1867, which says, every receipt shall contain on its face a notice that the property mentioned therein, is held by this corporation as bailees only, and is not insured by this corporation.

The construction sought to be placed by the appellants upon this section is erroneous. It was intended to prohibit the Warehouse Company from becoming an insurance company itself, and to protect them from liability as such, but was no restraint upon their power to insure for themselves or their bailees in other companies. It was a prohibition suggested by wise legislation in the interest of the bailees.  

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

OPINIONBY:
GRASON 

OPINION:

 [*426]  GRASON, J., delivered the opinion of the Court.
At the trial of this cause in the Court below, the appellants, for the purpose of showing what goods and merchandize were intended [**45]  to be covered by the policies issued to the Warehouse Company by the Associated Firemen's Insurance Company and the Home Insurance Company, offered to prove by the president of the Warehouse Company that, at the time he applied for the insurances, he informed the agents of the insurance companies that he desired to obtain insurance to protect his company from loss or damage, not covered by policies taken out by those who had deposited cotton or other merchandize in the warehouse, and in which the Warehouse Company had an interest. Upon objection made by the appellees, the evidence was ruled to be inadmissible, and to this ruling the first exception was taken. When a contract 

 [*427]  is reduced to writing and is couched in plain and unambiguous language, Courts must look to it alone to find the intention and meaning of the parties, and parol proof is inadmissible. Balto. Fire Ins. Co. vs. Loney, 20 Md. 20; Henderson vs. Mayhew, 2 Gill 393, 409. There was therefore no error in the ruling of the Court below in this respect.
The appellants then offered to prove, that before the issuing of the policies sued on in this case, and before the deposit [**46]  of their cotton in the warehouse, they were informed by the Warehouse Company that the latter would not insure the cotton so deposited, but that the appellants must insure for themselves, and that said notice was acquiesced in and not objected to by them, and that they did, thereupon, insure for themselves. This proof was objected to and ruled out by the Court, and this forms the ground of the second exception. We concur in this ruling as the evidence offered was totally irrelevant. Notice from the Warehouse Company that it would not insure cotton, stored in its warehouse and belonging to the appellants, was unnecessary, and could not, in any manner, affect the rights or liabilities of the parties to this suit.
The third exception was taken to the rejection of evidence offered for the purpose of showing what was meant by the insurances of the respective lots of cotton procured by the appellants.
Bernard Hough had testified that it was the habit of the appellants to take out policies on each additional lot of cotton as it came in. He was then asked to explain whether he meant to say that it was the habit of the appellants to effect insurance on each specific lot of cotton, or to effect [**47]  insurance generally on an additional number of bales equal to the lot deposited. The evidence, sought to be elicited by this question, was intended to show what was the intention and purpose of the appellants in taking insurance, and the effect of the policies taken out by them; and, as we have already stated in considering the first exception, this could only be 

 [*428]  shown by the terms of the policies which were issued. They constituted the contracts between the parties, and being free from ambiguity, parol evidence was not admissible to explain them.
The appellees' prayer, which was granted, instructed the jury that there was no proof upon which they could allow damages for any injury by fire to the cotton insured by either of the policies sued on. This prayer assumed that the policies sued on were specific as to the fifteen and thirteen bales respectively, as well as an absence of evidence to show whether the two specific lots so insured were included in the seventy-five bales, which sustained partial injury only, and were identified as belonging to the appellants, or whether they were included in the mass which was destroyed. We have no doubt that the policies are specific [**48]  and not general. The appellants began to deposit cotton in the warehouse mentioned, on the 5th day of February, and continued to deposit, at intervals, until the 15th of July, 1870, only three days before the fire occurred, and for each lot deposited, received from the Warehouse Company a receipt, warrant or certificate therefor, which specified the number of bales and the date of the deposit, and also the mark on the bales, the letters X. Q. being marked on each bale deposited by the appellants. These receipts or certificates were all numbered, and that for the fifteen bales deposited on the 20th of June was numbered "1221" and the one for the thirteen bales deposited on the 27th June, was numbered "1238." Policies of insurance were at once taken out to cover the particular number of bales deposited, and on their face the loss, if any, is made payable to the Warehouse Company, and the policies and warehouse receipts were delivered to the Warehouse Company to secure advances made by it. On the policy on the fifteen bales, dated 21st of June, there is endorsed in pencil the number in figures, "1221," and on that on the thirteen bales dated 27th of June, also in pencil, "1238." It does [**49]  not appear in proof by whom these numbers on the policies were endorsed, 

 [*429]  but it seems clear that they were endorsed thereon for the purpose of corresponding with the number of the Warehouse receipts given for the particular cotton insured, so that the same might be more readily identified.
It is also shown that at the time of each deposit, the depositor reserved a sample of the particular lot deposited. All these facts go to show that the intention of the contracting parties was to effect a specific insurance on each particular lot of cotton as it was deposited in the warehouse. But independently of these facts, and looking to the terms of the policies alone, it is manifest that each policy is specific and covers no cotton but the specific bales to which it refers. The amount of the liability of the insurance company is limited in each policy to a specific sum, and the policies bear date on the day, or the day after, the cotton is deposited. Can it be pretended that a policy issued on the 27th of June, to cover thirteen bales deposited on that day, is to be held to cover thirteen other bales deposited long before, and which had been previously insured, or that the policy [**50]  issued the 5th of February on thirty-eight bales can be said to apply to the same number of bales deposited in July thereafter, when, for aught we know to the contrary, the appellants had not on the 5th of February a bale beyond the thirty-eight bales first deposited? The true construction of each policy issued is that it covers, and was intended to cover only the specific number of bales in each deposit, and the insurance on which was effected at the time of the deposit; the policy of the 21st of June, 1870, covering only the fifteen bales deposited on the 20th of June, and the policy of the 27th of June the thirteen bales deposited on that day. But while we are of opinion that the policies sued on are specific and not general, we think that there was evidence in the cause to show damage to the cotton deposited in the warehouse on the 20th and 27th of June respectively, and covered by the policies sued on. It is true there is no evidence to show whether this particular cotton was among the seventy-five bales which were 

 [*430]  identified after the fire, as belonging to the appellants, or was among that which was destroyed; but the proof leaves no room for doubt that it was included [**51]  in one or the other class, and was damaged, if not destroyed.
It was incumbent upon the appellants, in order to recover for a total loss, to show that the cotton insured was wholly destroyed, and having failed to show this, it must be assumed that it was only partially damaged. Proof was offered that these two lots of cotton were weighed at the time they were stored in the warehouse, the fifteen bales weighing six thousand two hundred and sixty-one pounds, and the thirteen bales five thousand four hundred and eighty-two pounds, making in the aggregate eleven thousand seven hundred and forty-three pounds, and that a fair class of "low middling" cotton was worth in the market eighteen and three-quarter cents per pound. It was also proved by Mr. Rhett, that he had examined the several samples of the cotton stored by the appellants in the warehouse, and that they graded from "good middling" to "low middling" and "ordinary," the whole averaging a fair class of "low middling," thus showing that the market value of the cotton insured, and injured by the fire, was eighteen and three-quarter cents per pound. Proof of the extent of the damage was also furnished by the list of the sales of the [**52]  cotton which was partially damaged and identified, so that the extent of the loss of the appellants could have been easily ascertained by the jury. It was therefore error to grant the prayer of the appellees and thus to take the case wholly from the jury.
As we have shown that the policies sued on were specific and not general, it follows that the second and third prayers of the appellants were erroneous, and were properly rejected.
The Court below, having granted the appellees' prayer, refused the fourth prayer of the appellants as unnecessary. But as we have shown that the appellees' prayer ought not to have been granted, because there was evidence of loss upon which the jury should have been permitted to pass, the appellants' 

 [*431]  fourth prayer ought to have been granted, as it states the correct measure of damages to be recovered.
The appellants' first prayer asked an instruction that the jury are not to make any abatement from the damages, (if the verdict should be for the plaintiffs) on account of the two policies of insurance by the Home Insurance Company, and the Associated Firemens' Insurance Company, to the Baltimore Warehouse Company.
The policies in the "Home"  [**53]  and "Associated Firemen's" companies were taken out by the Baltimore Warehouse Company, while the policies in the company of the appellees were issued to Hough, Clendening & Co., loss, if any, payable to the Baltimore Warehouse Company. In the case of The Nat'l Fire Ins. Co. vs. Crane, 16 Md. 260, a policy had been issued to James L. Gray & Bro. against damage by fire to property in Baltimore city, "the loss, if any, payable to William Crane & Co.," and the Court of Appeals held that this language was an admission that Crane & Co. had an interest in the contract and were to receive the benefit of it, and that the policy might be regarded as having been, at its inception, assigned to them with the assent of the company. See also Brown vs. The Roger Williams Ins. Co., 5 R.I. 394. In the case before us, the proof shows that the Warehouse Company had advanced to Hough, Clendening & Co. over forty-eight thousand dollars upon the cotton belonging to them and stored in the warehouse, and the Warehouse Company had therefore a lien upon it for such advances, as well as for storage, which constituted an insurable interest in the cotton. The policy in [**54]  the Associated Firemen's Company was for ten thousand dollars, and insured the Warehouse Company against loss by fire for one year "on merchandize generally, hazardous or extra-hazardous, held by them or in trust, contained in that part of No. 2 Warehouse, used by them, &c., to cover whilst on the street or pavement around said warehouse." The policy in the "Home" Company is nearly in the same language, but is for twenty thousand dollars, and "on merchandize, hazardous or extrahazardous, 

 [*432]  their own, held by them in trust, or in which they have an interest or liability." In the policies to the appellants, as well as to the Warehouse Company, are stipulations that, in case of loss, the insured shall not recover any greater proportion of the loss or damage sustained to the subject insured, than the amount thereby insured shall bear to the whole amount insured.
The law seems to be well settled that a person having goods in his possession as consignee, or on commission, may insure them in his own name, and, in the event of loss, recover the full amount of the insurance, and, after satisfying his own claim, hold the balance as trustee for the owner. Story on Ag., sec. 111;  [**55]  AEtna Insur. Co. vs. Jackson & Co., 16 B. Mon. 242, 258; DeForrest vs. Fulton Insur. Co., 1 Hall 126; Lee vs. Adsit, 37 N.Y. 78; Waters vs. Assur. Co. 85 E. C. L. Rep. 879; London and North West. R. W. Co. vs. Glyn, 102 E. C. L. Rep. 660; North British Insur. Co. vs. Moffitt, Law Rep. for Jan., 1872, p. 31; Siter, et al. vs. Morrs, 13 Pa. 218.
The policies issued to the Warehouse Company by the "Home" and "Associated Firemen's," cover not only the property belonging to the Warehouse Company, but also all which was held by it in trust or in which it had an interest. By goods "held in trust" are meant goods with which the assured is intrusted; "not goods held in trust in the strict technical sense--so held that there was only an equitable obligation in the assured, enforcible by a subpoena in chancery--but goods with which they were intrusted, in the ordinary sense of the word." Waters vs. Assur. Co., 85 Eng. C. L. Rep. 879. It seems clear therefore that the cotton of the appellants was insured by the two policies issued to the Warehouse Company, and that [**56]  it can recover not only to the extent of its interest in the property insured, but to the extent of the loss, unless the right of recovery to that extent is limited by some provision or condition of the policies. The policies sued on having on their face been made payable to the Warehouse 

 [*433]  Company, they inured to the benefit of that company, and may be considered as in favor of the same assured, on the same interest in the same subject, and against the same risks, as the policies which were issued directly to the Warehouse Company by the "Home" and "Associated Firemen's" companies. They are therefore what are termed double policies, ( Sloat vs. Royal Ins. Co., 49 Pa. 14,) and the insurance companies issuing them are bound to contribute their respective proportions of the loss.  Merrick vs. Germania Fire Insurance Company, 54 Pa. 277, 282; Flanders on Fire Insurance, 40; AEtna Fire Insurance Co. vs. Tyler, 16 Wend. 396, 400; Baltimore Fire Insurance Co. vs. Loney, 20 Md. 20. The appellants' first prayer was therefore properly refused.
As the Court below erred in granting the appellee's [**57]  prayer, and in rejecting the fourth prayer of the appellants, the judgment appealed from must be reversed, and a new trial awarded.
Judgment reversed and new trial awarded. 

90 of 144 DOCUMENTS 

JOHN A. HAMBLETON, MARY E. HAMBLETON, his Wife, JACOB R. WOOLLEN AND RICHARD H. WOOLLEN vs. MARY ANN DARRINGTON, widow of W. H. DARRINGTON, deceased, HELEN A. CRAIG, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 434; 1872 Md. LEXIS 89 

June 20, 1872, Decided 

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

To the statement of the case as presented in the opinion of the Court, the following is added: In 1842, after the death of Zachariah Woollen, a bill was filed in Chancery by William Rogers (one of the trustees under the will of said Woollen,) Edward T. Myers and Rebecca, his wife, formerly widow of said Woollen, Mary E. Woollen, now Hambleton, then an infant, by her next friend, and others, against the administrators de bonis non of Rachel Watson, and Henry Watson, for the appointment of a trustee in the place of Woollen, deceased. The Chancellor appointed Nathaniel Williams, Esq., and after his death Henry Watson was appointed trustee. After the death of Henry Watson, which occurred in April, 1871, a petition was filed in the cause by John A. Hambleton and Mary E. Hambleton, formerly Woollen, his wife, Jacob R. Woollen and Richard H. Woollen, the children of Zachariah Woollen, asking for the appointment of a trustee in place of Henry Watson, deceased, and in accordance with the prayer of the petition, Richard H. Woollen was appointed trustee.

Afterwards on the 10th of October, 1871, Mary Ann Darrington, sister [**2]  of Zachariah Woollen, and others, filed their petition in the cause against the appellants, Hambleton and others, in which they claimed that the interest of Zachariah Woollen in the property, real and personal, of Rachel Watson, passed under his will to his children and the petitioners in equal moieties. The prayer of the petition was for the appointment of a trustee in the place of Henry Watson, and that distribution of the trust estate of Rachel Watson should be made under the direction of the Court, and that one-half thereof should be allowed to the petitioners as claimants of the one-half of the residue and remainder of the estate of the said Zachariah Woollen. To this petition, the appellants, Hambleton and others, filed their answer, in which they denied that the appellees, Mary Ann Darrington, and others, had any interest whatever in the trust estate of Rachel Woollen, and insisted that it did not pass under the will of Zachariah Woollen, but was vested in the respondents as the sole heirs-at-law and next of kin to Zachariah Woollen, and in Richard H. Woollen as administrator of their deceased mother, Rebecca Woollen; and they further averred that even if the pretensions of [**3]  the petitioners could be sustained to any extent, still one-third of the personalty would go to Richard H. Woollen as administrator, and only the remaining two-thirds would be divided between the petitioners and the respondents.

The Court, (DOBBIN, J.,) on the 27th of March, 1872, passed a decree which will be found sufficiently set out in the opinion of this Court. From this decree both parties appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

MARY ANN DARRINGTON, and others, vs. JOHN A. HAMBLETON, and others.

Descendible and Devisable Estate -- When a mere Possibility, coupled with an Interest, will not pass under the Residuary clause of a Will.

Rachel Watson, by her will, dated the 27th of December, 1834, devised and bequeathed all the residue of her estate to her friend Zachariah Woollen, in trust, to pay to her mother, sister and brothers certain annuities, and the residue of her income (to be increased by the falling in of the annuities) to her son Henry Watson for life, and upon certain contingencies, (among others, his living after her sister ceased to be single, or leaving issue,) she devised to him, his heirs, executors, administrators and assigns absolutely, not only the income, but also the entire principal of the rest, residue and remainder of her estate, with this proviso: "But in case of the decease of my son Henry before my said sister ceases to be single, or if my two brothers above named, or either of them, survives him, then in case my said son shall not have issue or descendants, I give, devise and bequeath to my said friend Zachariah Woollen, his heirs, executors, &c., absolutely, not only the income of my estate above intended for my said son, but also the entire principal of said rest, residue and remainder of my estate." Zachariah Woollen, by his will, dated the 30th of June, 1836, after directing the payment of his debts out of his estate, directed and empowered his executors, as soon as practicable after his decease, to sell and dispose of all his real, leasehold and personal estate, (his household and kitchen furniture excepted,) the proceeds arising from which sale or sales, with all the residue and remainder of his estate generally, he devised and disposed of in moieties, as follows: One moiety, including his household and kitchen furniture, he devised and bequeathed to his friends, William Rogers and James Tracey, and the survivor of them, &c., in trust, to be invested in some productive stock, &c., and that his wife Rebecca, during her widowhood, be permitted to have the dividends, &c., arising therefrom, to the support of herself and their children during their minority; and from and immediately after the intermarriage of his wife, then in trust, that the one-third of the principal of said moiety should become the property of his wife absolutely, and the remaining two-thirds should be equally divided between their children, equally, as tenants in common; but if his wife died unmarried, the principal of said moiety should be equally divided among their children, as tenants in common -- the issue of any deceased child to take the share to which the parent, if living, would be entitled; and in the event of the death of any child under age and without issue, the part or share of him or her so dying, should descend to the survivors. The remaining moiety of his estate he devised, in trust, to be invested for five years from the time of his decease; and directed that during that period the income from such investments should be paid to his sister Mary Ann Darrington and her children, and his nieces and nephews, in equal proportions. And at the expiration of five years, one-thirteenth of the principal should go absolutely to Mary Ann Darrington, and one-thirteenth to his nephew W. Lovell; and the remaining eleven-thirteenths to be held in trust, that each of his nephews named, until he attained the age of twenty-five years, and each of his nieces named, during her life, should receive one-eleventh part of the income. And as the nephews severally attained the age of twenty-five years, one-eleventh of the principal estate should then be conveyed, assigned, transferred and paid over to each one of them absolutely. The testator died in 1837, before Henry Watson. At the date of his will he was between forty-five and fifty years of age; Henry Watson was not then twenty-one; the sister of Rachel Watson was under thirty, and her brothers were over that age. The widow of the testator renounced the will and claimed her thirds, and died; letters of administration were taken out on her estate. Henry Watson died in April, 1871, without issue. Upon a petition asking for a distribution of the trust estate of Rachel Watson, it was HELD:

That Zachariah Woollen took a descendible and devisable estate under the will of Rachel Watson, but that such estate or interest was not devised or bequeathed by his will, but descended or devolved upon his heirs-at-law, or personal representatives, according to the nature of the estate, whether real or personal; and in distributing so much of the estate as was personal, one-third thereof should be assigned to the administrator of Rebecca Woollen, and the residue to the next of kin of Zachariah Woollen, as in cases of intestacy.

Whenever it is apparent from the whole will, that the testator was dealing with property in possession, specifically, the general residuary clause should be confined to property in which he had a present interest, and should not include a mere possibility, coupled with an interest, which might never be realized, particularly when the broader construction would operate to the prejudice of children and next of kin, and in favor of persons standing in a remoter degree of relationship.  

COUNSEL:
Charles Marshall, for Hambleton and others, contended

That the context of the will of Zachariah Woollen showed that it was not his intention to devise the interest which he had under the will of Rachel Watson, but that he made his will entirely with reference to other property.

It was obvious from the provision which he made for an immediate sale of all the property, real and personal, which he devised and bequeathed, that he could not have intended to include in it the interest in the estate of Rachel Watson. Henry Watson was then not twenty-one years of age, and all chances were in favor of the estate of said Henry being enlarged into a complete fee simple estate; and the probabilities of any beneficial interest in Woollen [**4]  or his estate, were very remote. The first clause of the will defines what Mr. Woollen devised, by showing that it was only that which was immediately saleable.

By the second clause of his will, he provided for a distribution of that part of his estate devised to the appellees, Darrington and others, among them at the expiration of five years from his decease; in view of the age of Henry Watson, and of the contingencies provided for by the will of Rachel Watson, it was apparent that Zachariah Woollen could not have contemplated or intended that there could be any distribution of his interest in the estate of Rachel Watson at the end of five years from his death, and he meant to devise only what was so distributable.

The context has defined what the testator meant by the use of the word "Estate," and independently of such context, the interest which Zachariah Woollen took under the will of Rachel Watson, was not properly described as an estate.

General expressions will be restrained by their association with terms, showing that the testator made use of them in a more limited sense. Wilkinson vs. Merryland, Cro. Car. 447, 449; Markant vs. Twisden, Gilbert's Eq. Cas. 30;  [**5]  Doe d. Bunny vs. Rout, 7 Taunt, 79; Woollam vs. Kenworthy, 9 Ves. 137; Bebb vs. Penoyre, 11 East. 160; Timewell vs. Perkins, 2 Atk. 102; Reade vs. Reade, 8 Term, 118; Sanderson vs. Dobson, 1 Exchequer, 141; Shaw vs. Bull, 12 Mod. 592; Doe d. Hurrell vs. Hurrell, 5 Barn. & Ald. 18; Cook vs. Oakley, 1 Peere Wms., 302.

William F. Frick, for Mary Ann Darrington and others.

The executory devise in Rachel Watson's will to Z. Woollen, his heirs, executors, &c., in the event of Henry Watson not having issue or descendants, is clearly good as to her personalty. And whether too remote, under the construction of her entire will as to her realty, it is not necessary to inquire, as the trust fund in controversy is made up of personal estate.

The estate of Woollen was not a mere possibility; but such a vested present interest, that it was both transmissible by descent and devisable; although the contingency upon which it was to take effect in possession, had not happened at the time of his death. Redfield on Wills, Part I., 388-9-90, and notes; Redfield on Wills, Part II., p. 627, sec. 51, et seq. and cases referred to in the notes; Spence vs. Robins, 6 G. & J., 507; 1 Jarman on Wills,  [**6]  40; 4 Kent's Comm., 262, 284, margin; Fearne on Contingent Remainders, 1--definition of estates.

The contingent interest in Rachel Watson's estate, held by Woollen at the time of his death, passed under his will to the devisees therein named. He devised not only the proceeds of sale of all his real, leasehold and personal estate, but included in that devise, "all the rest and remainder of his estate generally."

These words are amply sufficient, ex vi termini to carry the interest in controversy; and must be so construed unless it is manifest from the context of the will, that it was the intention of the testator to die intestate as to the estate devised to him by Rachel Watson.

Upon a thorough examination of his entire will, no such intention appears--but a contrary intention is fairly to be inferred. Redfield on Wills, Part II., 688, sec. 67; p. 616, sec. 34; p. 728, sec. 34; p. 693, 694, secs. 13, 14; p. 448, sec. 10, and Ld. Eldon's Opinion in note 40; p. 442, sec. 5; p. 691, sec. 11; 1 Jarman on Wills, 681, 686, 687; see especially case of Gover vs. Davis, vol. 7, Part I, Jurist, 1861, p. 399; Ram on Wills, 35, 36 (top,) (8 Law Library.)

The allowance of one-third [**7]  of the trust fund to the administrator of the deceased widow, would defeat the clear intention of the testator; which was, that his wife and children should take one-half of his entire estate, and his nephews and nieces the other one-half.

As the children are entitled to take from the mother, through her administrator, the practical effect of the allowance made by the decree is to give two-thirds of the trust fund, at this time, to the children, and one-third only to the nephews and nieces.

It was not the intention of the testator that the children should be put even upon an equal footing with the nephews and nieces; certainly not in a better position. In case the widow married again--the nephews and nieces were still to retain their one-half, while the children were to receive only two-thirds of one-half; showing the testator's intention, that the widow's claims were to be made good against the one-half devised in trust for her and the children. The children's share was exclusively charged by the life estate, devised to the wife, and by the one-third given her in case of a second marriage. There is no principle of natural justice involved in the inquiry--but simply a question [**8]  of intention. That the testator was possessed by some potent and controlling motive, which induced him to give the entire one-half of his estate away from his wife and own children, to his sister's children, is clearly apparent; and also that he meant to charge upon the children's share, the provision for the mother, whether she married again or not. It would defeat that intention to allow the widow's renunciation to have the effect of charging the nephews and nieces to the same extent as the children. The destruction of the entire provisions of the will by this decree is made more glaring, when we consider that it was the clear intention of the testator, that the children, after the mother's death, were to have no more than one-half the estate, while this distribution as regards this particular fund, gives them virtually two-thirds.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*440]  BOWIE, J., delivered the opinion of the Court.
The question presented by the cross appeals in this case is, whether the estate or interest devised or bequeathed by Rachel Watson to Zachariah Woollen, passed by the will of the latter,  [**9]  to the trustees therein named, to be distributed under its provisions, or devolved upon his heirs and next of 

 [*441]  kin; in other words, whether Zachariah Woollen died testate or intestate, as to the property bequeathed by Mrs. Watson.
Mary Ann Darrington and her co-petitioners claim, under the will of Z. Woollen, one-half of the fund devised by Mrs. Watson. Hambleton and wife and their co-defendants are children and representatives of Z. Woollen and Rebecca, his widow, and as such claim that the fund in question was not disposed of by their father's will, but is to be distributed as in cases of intestacy.
Mrs. Rachel Watson, by her will, dated the 27th of December, 1834, devised and bequeathed all the residue of her estate to her friend Z. Woollen, in trust, to pay to her mother, sister and brothers certain annuities, and the residue of her income (to be increased by the falling in of the annuities) to her son Henry Watson for life, and upon certain contingencies (among others, his living after her sister ceased to be single, or leaving issue,) she devised to him, his heirs, executors and administrators absolutely, not only the income, but also the entire principal of the [**10]  rest, residue and remainder of her estate, with this proviso: "But in case of the decease of my son Henry, before my said sister ceases to be single, or if my two brothers above named, or either of them survives him, then in case my said son shall not have issue or descendants, I give, devise and bequeath to my said friend Zachariah Woollen, his heirs, executors, administrators and assigns absolutely, not only the income of my estate, above intended for my said son, but also the entire principal of said rest, residue and remainder of my estate."
Z. Woollen, by his will, dated the 30th of June, 1836, and proved the 16th of August, 1837, after directing the payment of his debts out of his estate, directed, authorized and empowered his executors, as soon as practicable after his decease, to sell and dispose of all his real, leasehold and personal estate, (except his household and kitchen furniture;) the proceeds arising from or by which sale or sales, with all the residue 

 [*442]  and remainder of his estate generally, he devised and disposed of in moieties, viz:
1st. One moiety, or equal half part thereof, (in which is to be included all his household and kitchen furniture,  [**11]  ) he devised and bequeathed to his friends, William Rogers and James Tracey, and the survivor of them, etc., in trust, to be invested in some productive stock, etc., and that his wife Rebecca, during her widowhood, be permitted to have the dividends, rents, profits, interest and income arising therefrom to the support and maintenance of herself and their children during their minority; and from and immediately after the intermarriage of his wife with any person, then in trust, that the one-third of the principal of the said moiety, or half part of his estate, shall become the property of and be forthwith conveyed and transferred to his said wife Rebecca, her heirs, etc., absolutely, and the remaining two-thirds thereof shall become the property of and be equally divided between the children he then had, or might thereafter have, their heirs, etc., absolutely, as tenants in common, share and share alike; but in case his wife should not intermarry, then immediately after her decease, the principal of said entire moiety, or half part of his estate, should become the property of and be equally divided between the children he then had and those he might thereafter have, their heirs, executors, [**12]  etc., as tenants in common, etc.--the issue of any deceased child (if any such) to take the share to which the parent would, if living, be entitled; and in the event of the death of any child under age and without issue, the part or share of him or her so dying, should descend to the survivors.
2d. The remaining or equal half part of his estate he devised to the same trustees, in trust, to be invested in some productive stock, etc., for the period of five years from the time of his decease; and during that period his sister Mary Ann Darrington and her children, and his nieces and nephews, be permitted and suffered, in equal proportions, to take, receive and have applied for their separate use and sole benefit the 

 [*443]  dividends, etc., arising therefrom, etc. And at the expiration of said five years, then in trust, that one-thirteenth part of the principal be conveyed and assigned to Mary Ann Darrington; one-thirteenth of the principal to his nephew William Lovell, absolutely, and the remaining eleven-thirteenths to be held in trust for his nephews and nieces; for his nephews until they attained twenty-five years, and for his nieces during their respective natural [**13]  lives, etc.
Z. Woollen died before Henry Watson, in the year 1837. It is admitted that he (Woollen) was between forty-five and fifty years of age at the date of his will; that Henry Watson was not then twenty-one; and Caroline Price, Thomas J. Price and Nicholas Price, the sister and brothers of Mrs. Rachel Watson, were all of mature age, and all but Caroline over thirty years of age.
Rebecca, widow of Z. Woollen, renounced the will and claimed her thirds, and is since dead, and Richard H. Woollen is her administrator. It is further admitted that Henry Watson is deceased, and has left no issue or descendants. The Court below decided that Z. Woollen took a descendible and devisable estate, under the will of Rachel Watson, and that the said Z. Woollen did devise the said estate, under his last will and testament, and decreed that, in distributing the same, the auditor should allow one-third of the fund, so far as it is personalty, to the administrator of Rebecca Woollen, deceased, widow of Z. Woollen, and the balance of the fund to be distributed according to the provisions of the will of Z. Woollen, to the parties entitled thereunder--from which decree both parties appealed.
As the [**14]  petitioners and respondents claim under Z. Woollen, the uncle of the one class and father of the other, it might be assumed that the interest of their testator, or intestate, was descendible and devisable. A few authorities, however, will be referred to.
"All estates which are transmissible, either by operation of law or by act of the owner, are held devisable. This, it has 

 [*444]  been long held, extends to a possibility, if it is not a mere naked expectancy, but be coupled with an interest." Redfield on Wills, part 1, p. 388, 389; Fearne on Con. Rem., 371.
"All contingent estates of inheritance, as well as springing and executory uses and possibilities, coupled with an interest, where the person to take is certain, are transmissible by descent, and are devisable." 4 Kent's Com's., 261.
"Where the testator bequeaths his personal estate to A, and if he shall die without issue to B, there is such a vested in terest in B, if he survive the testator, that although he should die in the life time of A, the estate will pass under a devise from him, or will go to his personal representatives, in the event of A dying without issue." Barnes vs. Allen, 1 Brown's  [**15]   C. C., 181; Perry vs. Woods, 3 Ves. 204, 208; 2 Redfield on Wills, p. 627, sec. 51.
The Court below is fully sustained in the position, that Z. Woollen took a descendible and devisable estate. The next inquiry is, whether he did devise or bequeath the said estate under his last will and testament. This is purely a question of intention, to be determined by the construction to be placed upon the initial clause of the deceased testator's (Woollen's) will, elucidated by the subsequent provisions of the trust, and interpreted by the light of surrounding circumstances.
The meaning of words depends essentially upon the condition and situation of those using them, whether written or spoken; they are limited by the horizon of the mind, and we must try to ascertain its scope at the moment of writing.
If we recur to the language of the clause describing the property to be disposed of by his executors, we find it is confined to "all my (his) real, leasehold and personal estate," the proceeds arising from which sales, "with all the residue and remainder of my (his) estate generally," he devises and disposes of in manner following. (See clauses previously cited.  [**16]  )
The fund is to be divided in equal moieties.
How could a possibility coupled with an interest, dependent upon the contingency of Henry Watson's death without issue, be divided?

 [*445]  The fund was also to be invested in some safe stock, one moiety for the support and maintenance of his widow and children during their minority; the other moiety, for the period of five years, for the use of nephews and nieces, and then to be divided into thirteen parts--and two-elevenths absolutely paid over and assigned. Such an interest as that conferred by the Watson will, was not susceptible of valuation, investment or division, and therefore could not be included "ex vi termini" in its provisions. But when we recall the relative ages of the legatee for life, with a contingent remainder absolutely in himself, and of the legatee in remainder, depending on the death of the legatee for life without issue, it is almost impossible to conceive so remote a contingency could have entered the testator's mind, in the disposition of his affairs.
The terms of the trust indicate that the property to be invested was in possession, not in reversion; that in five years at farthest, there was to be [**17]  a division of one moiety into thirteen parts, and an absolute conveyance of two-thirteenths, without any provision for a prospective or future distribution. The authorities abundantly show that although the tendency of the Courts is, to include the whole estate in the word "residue," when there is no other residuary clause, and in the words of Lord ELDON, "the safest course is to abide by the words unless upon the whole will there is something amounting almost to demonstration, that the plain meaning of the word is not the meaning of the testator," (Crooke vs. DeVandes, 9 Ves. 197; 2 Redfield on Wills, 448,) yet the converse of the proposition is true, where the provisions of the will preclude the possibility of giving such a construction. It does not appear from the record, whether the subject-matter of the devise was real or personal estate, or consisted of both.
After acquired real estate would not pass by a residuary clause. Kemp's Ex'x vs. McPherson, 7 H. & J. 320.
The effect of the words "all the rest and residue of my estate" was held to be limited by the words "chattels, real 

 [*446]  and personal" succeeding, in the case of Markant vs.  [**18]   Twisden, 1 Equity Cases 211; the latter confining the former to things of a like kind, and therefore a reversion in lands was excluded. So in Doe, dem. Bunny, vs. Rout, 7 Taunt. 79, the words "all my stock in trade and every other thing, my property of what nature or kind soever, to and for her own proper use" were held not to convey land.
In Walters vs. Walters, 3 H. & J. 201, it was held the words "all the remainder of my estate" were limited by preceding words to the personal estate, and the reversion in fee, not being disposed of, descended to the heir-at-law.
In McChesney vs. Bruce, 1 Md. 344, the words "all the residue of my estate" were confined to personalty, because the preceding bequests were altogether personal, upon the principle of "noscitur a sociis;" which is but a modification of the rule, that the meaning of the words is governed by the intention apparent in the whole will.
"In the first case," Ch. J. CHASE says, "In deciding on the operation and effect of these words, the Court must consider the whole will for the purpose of ascertaining the intention of the testator."
The same reason will apply, not [**19]  only to the kinds of property whether real or personal, but to the nature of the estate, whether in possession or expectancy.
The case of Cook vs. Oakley, 1 Peere Wms. 302, shows that the will made at sea, by a man not aware that he had succeeded to a leasehold estate, by the death of his father, would not pass the leasehold to the legatee under the words, "and all things not before bequeathed," but should be confined to things "ejusdem generis."
We think it is a fair deduction from these cases, that whenever it is apparent from the whole will, the testator was dealing with property in possession specifically, the general residuary clause should be confined to property in which he had a present interest, and not include a mere possibility, coupled with an interest, which might never be realized; 

 [*447]  particularly when the broader construction would operate to the prejudice of children and next of kin, and in favor of persons standing in a remoter degree of relationship.
We are therefore of opinion that the estate or interest devised and bequeathed by Rachel Watson to Zach. Woollen, was not devised or bequeathed by his will, but descended or devolved [**20]  upon his heirs-at-law, or personal representatives respectively, according to the nature of said estate, whether real or personal; and in distributing so much of said estate as is personal, the auditor should assign to the administrator of Rebecca Woollen, deceased, one-third, and the residue to the next of kin of Zachariah Woollen, as in cases of intestacy.
Decree reversed and cause remanded. 

91 of 144 DOCUMENTS 

FRANCES JONES, Administratrix of ANDREW D. JONES, deceased, vs. GEORGE W. JONES, JOSHUA A. JONES, SARAH ANN ROBINSON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 447; 1872 Md. LEXIS 90 

June 20, 1872, Decided 

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

On the 21st of September, 1871, George W. Jones, Joshua A. Jones, Sarah Ann Robinson, Ellen McComas and Georgeanna Russell, filed their petition in the Orphans' Court of Baltimore City, alleging that they were the only children of David Jones, deceased, who was the brother of Andrew D. Jones, who departed this life on or about the 10th of August, 1870, intestate, leaving a widow but no child, nor brother or sister, nor the child of a brother or sister, except the petitioners. The petition averred the granting of letters of administration upon the estate of the intestate on the 2nd of September, 1870, to Frances Jones, his widow, and that more than a year had since elapsed and she had neglected to render her account of administration. The petitioners prayed that the administratrix should be cited to settle her accounts, and be required, after the payment of debts, to distribute to them their proportion of the intestate's estate according to their respective interest therein. By agreement, the petition was considered as amended, so far as to state that Ellen McComas and Georgeanna Russell, sued by their next friend, George W. Jones,  [**2]  they being married women. The administratrix rendered her account, having previously filed an answer in her personal capacity as widow of the deceased, denying the relationship of the petitioners to him, and putting them to the proof. A general replication was filed. A large amount of testimony was taken, and after argument, a majority of the Court decided that the petitioners were the legitimate issue of David Jones, and as such entitled to their proportion of the estate of the intestate, Andrew D. Jones, and passed a decree directing the administratrix to distribute one-half of said estate to the petitioners and the other half to herself as widow. From this decree the administratrix appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Distribution of the Estate of an Intestate, who had been a Slave -- Marriage between Slaves -- Practice -- Evidence as to Pedigree -- Act of 1868, ch. 116, relating to the competency of Witnesses.

David Jones, a slave, intermarried with a free woman; subsequently, in 1819, he became free by deed of manumission; the parties lived together as man and wife, and acknowledged and treated each other as such, and were so recognized by all who knew them, long after his emancipation, and up to the time of his wife's death. They had children. A brother of David who became free by manumission in 1815, died in August, 1870, intestate, possessed of a large personal estate, leaving a widow but no child, and no relatives other than the children of his brother David, who had died some years previously. On a petition filed by the children of David Jones, claiming a distributive share of the intestate's estate, it was HELD:

That the marriage of David Jones was valid, and his children were entitled to one-half of their uncle's estate, his wife being entitled to the other half.

A marriage between slaves is made valid by the ratification of the parties after they become free.

An objection to an interrogatory to a witness on the ground that it is "leading," being merely to the form of the question, should be made at the time the question is propounded, that the party may have an opportunity of remodelling it; and if not then made, it cannot be made afterward.

Declarations of deceased members of a family as to pedigree, are always admissible in evidence.

On a petition by the nephews and nieces of an intestate, claiming to be his next of kin and heirs at law, and asking to share in the distribution of his estate, the whole of which was claimed by his wife to whom letters of administration had been granted, the petitioners are not incompetent as witnesses under the Act of 1868, ch. 116.  

COUNSEL:
William H. Dawson and George H. Williams, for the appellant, argued

That the decree below should be reversed for the following reasons:

First.--Because the testimony upon which the appellees relied to prove their relationship to Andrew, consists of mere admissions and declarations pretended to have been made by Andrew, and as to the time of which all the witnesses (with one exception) are unable to specify, and the testimony being of a kind always discountenanced [**3]  by Courts because of the ease with which it is fabricated, and the impossibility of its contradiction. Malin vs. Malin, 1 Wendell, 652; Law vs. Merrills, 6 Wendell, 277; Williams vs. Williams, 4 Eng. Ecc. Rep., 417; Myers vs. Baker, etc., Hardin's (Ky.) Rep., 549; 1 Sharswood's Black., 374.

Second.--Because the appellees were permitted to testify to prove their own case, notwithstanding the Act of 1868, ch. 116, declaring them incompetent for that purpose; the appellant being sued in her administrative capacity, had a vital interest in the fund in her hands, for the protection not only of her own interests, but also for the protection of her administration bond. Act of 1868, ch. 116; Johnson vs. Heald, 33 Md., 352; Denison vs. Denison, 35 Md., 361.

Third.--Because David and Andrew D. Jones having both been born slaves, were mere chattels in the eye of the law, and incapable of having or transmitting any inheritable blood as to each other. Cobb on Slavery, secs. 262, 275; Dulaney's Opinion, 1 H. & McH., 560; Jackson vs. Lervey, 5 Cowen, 397; Malinda vs. Gardner, 24 Ala., 719.

That their mother died a slave--no deed of manumission, or liberation by any will having been [**4]  proved in this case. Anderson vs. Garrett, 9 Gill, 128, 136.

Fourth.--That conceding David and Andrew to have been brothers by the same mother, the decree below should be reversed, because the proof shows that at the time it is pretended David married Hannah Williams, he was a slave, and as such not able, legally, to contract marriage. Cobb on Slavery, secs. 270, 275; Dulaney's Opinion, 1 H. & McH., 560; 1 Bishop on Mar. & Div., secs. 157, 158; Howard vs. Howard, 6 Jones' (N. C.) Rep., 235; State vs. Samuel, 2 Dev. & Battle, 177; Malinda vs. Gardner, 24 Ala., 719; Smith vs. The State, 9 Ala., 990; Jackson vs. Lervey, 5 Cowen, 397; Williams, Adm'x, vs. Johnson, Adm'x, 30 Md., 507.

Fifth.--That by the rule of law, the connection having commenced at a time when David was incapable of contracting marriage, the connection must continue as it commenced, unless there be some overt act of marriage by the parties thereafter, at a time when they were competent legally to contract, and of which there is no evidence, as all the witnesses who attempt to prove the marriage, fix the time thereof to be about a year prior to the birth of the eldest of the appellees, and at a time when David [**5]  was undoubtedly a slave. Cunningham vs. Cunningham, 2 Dow's Rep., 482; Lapsley vs. Grierson, 1 H. of Lords Cases, 498; Howard vs. Howard, 6 Jones' (N. C.) Rep., 238.

Sixth.--That as there never was a legal marriage between David Jones and Hannah Williams, the appellees are not the heirs of David, but the illegitimate offspring of Hannah Williams, and as such could not inherit from David; nor if they were, could they bridge over the chasm between David and Andrew, who, born as slaves, could not, in law, be brothers to each other. The doctrine of inheritance by illegitimates, as contained in the Code, would not sanction also the piling of illegitimacy upon illegitimacy, even if the difficulty of slavery did not preclude all idea in this case of any inheritable blood.

William Shepard Bryan, for the appellees.

It is shown without the least contradiction, that Andrew D. Jones and David Jones were brothers, and that the petitioners are the children of David. The declarations of the mother of Andrew and David, that they were her children were evidence; and also those of Andrew, that David was his brother, and also those of David that the petitioners were his children. Cope [**6]  vs. Pearce, 7 Gill, 248; Charlotte Hall School vs. Greenwell, 4 G. & J., 416; Craufurd vs. Blackburn, 17 Md., 54.

If the entries in the Bible produced in evidence, were correctly copied from the original Bible, David married his wife Hannah during his term of slavery. If they were not correctly copied, the time of the marriage is left uncertain by the evidence, but the just conclusion from all the circumstances would be that David was free at the time of his marriage.

Assuming, for the sake of the argument, that the marriage took place during David's slavery, the children are legitimate. The matrimonial union between slaves never was unlawful by the laws of Maryland; but it conferred none of the civil rights attached to the marriage of free persons, because slaves were not capable of acquiring these rights. The moral relation of matrimony could be assumed by them, and was to some extent the subject of statutory regulation. Act of 1777, ch. 12. The union not being unlawful, and having all the moral attributes of marriage, the slave, as soon as he was emancipated, could invest it with the civil consequences. He was then able to make a contract, and he was competent to adopt [**7]  and ratify the imperfect and ineffectual contract of marriage made during his disability. And upon this ratification, all the civil consequences of marriage ensued, because the only impediment which existed was then removed. Girod vs. Lewis, 1 Cond. (La.) Reps., 505.

A marriage void ab initio, by reason of the incapacity of the parties, may be valid by ratification after the removal of the disability; and no new celebration is requisite--as in case of lunatics. Cole vs. Cole, 5 Sneed, (Tenn.) 57; Wightman vs. Wightman, 4 Johns. Ch. Rep., 343. And in case of infants, where the male is under fourteen and the female under twelve. 1 Blacks. Comm., 436.

By the Civil Law, slaves could not contract marriage, but they lived together in a peculiar relation called contubernium, which conferred no civil rights. Yet when they were emancipated, their children, born during slavery, the offspring of this connection, were capable of inheriting from each other and from their parents. Code Justinian, Liber 3, title 7.

If the question were doubtful before, it has been set at rest by Act of Congress, 1866, ch. 31. Whatever disabilities may have followed the slave, they have all been removed [**8]  by this Act. If because he was born in slavery, he had no inheritable blood, this Statute supplies the deficiency; it provides that "without regard to any previous condition of slavery, or involuntary servitude," the former slave shall be fully competent "to inherit, purchase, lease, sell, hold and convey real and personal property." It is an act of naturalization which, Lord COKE informs us, cancels all defects, and has a retrospective energy. Coke Litt., 129 a; 1 Blackstone's Comm., 374.

The Act of 1868, ch. 116, does not affect the competency of the evidence of the petitioners; but if it did, the case is established without the aid of their testimony.

They were not asserting a right founded on a contract with the deceased, or on a cause of action affecting the respondent as representative of the deceased. The decision of the question would not increase or diminish the assets of the estate. The deceased never had any possible interest in it. And his administratrix in her representative capacity could have none. In this controversy she is litigating for her own personal interest, and the interests of the estate are not at all involved. The only question is whether she is [**9]  to have all the estate, or to divide it with the petitioners.  

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

OPINIONBY:
GRASON 

OPINION:

 [*453]  GRASON, J., delivered the opinion of the Court.
The main questions arising upon this appeal are, whether the appellees are nephews and nieces of Andrew D. Jones, deceased, and, if they are, whether they are entitled to a distributive share of his estate? After a careful examination of the evidence in the record, we are satisfied that Andrew D. Jones and David Jones were the sons of Kate Jones, and brothers, and that the appellees are the children of David and Hannah Jones. Without entering, in this opinion, into a detailed review of the evidence, it is sufficient to say that it leaves no doubt that David Jones was married, while yet a slave, to Hannah Williams, a free woman, and that some of her children were born before David became free and some afterwards, and that David and his brother Andrew were both manumitted by Margaret Gardner by deeds, both of which were executed on the 10th of November, 1814, and recorded on the 26th of the same month--David's freedom to commence five years and Andrew's six [**10]  months thereafter. David and Hannah lived together as man and wife, and acknowledged and treated each other as such, and were so recognized by all who knew them, long after David's emancipation, and up to the time of Hannah's death, which appears to have 

 [*454]  taken place about thirty years ago; and David died twelve or fifteen years ago. Andrew died in August, 1870, leaving the appellant his widow, but no child and no relatives other than the appellees, who are his nephews and nieces. They are therefore entitled to their distributive share of his estate, unless they are incapable of inheriting by reason of their father and uncle having been at one time slaves. It has been urged in argument that the marriage of David and Hannah was void by reason of its having taken place while David was a slave, and that therefore their children had no heritable blood; and several authorities were referred to in support of this proposition. Among these is an opinion of DANIEL DULANEY, Esqr., given in 1767, and contained in 1 H. & McH. 543, 559. The facts upon which that opinion was based were, that A, a mulatto slave, obtained his freedom and purchased land in fee, and died [**11]  intestate and without issue. B, also a mulatto slave, and brother of A, obtained his freedom after the death of A, and died, leaving children by a slave woman, whose freedom he had purchased--some of the children having been born during the slavery of their mother and purchased with her, and some having been born afterwards--and the question was, whether these children could inherit the property of which their uncle died seized, or whether it escheated to the State. It will at once be seen from the statement of the facts, that B could not inherit, nor, after his death, could his children; because at the time of A's death, B and his children, then born, were all slaves, and there being no one then in existence capable of inheriting, the property escheated. It does not appear from the facts, stated in the opinion, that B and the mother of the children had ever been married, and this fact alone, if there had been no other impediment, would have been sufficient to prevent the children from inheriting A's property. In the other cases, referred to by the appellant's counsel, the parties claiming the property were slaves at the death of the party from whom they claimed to inherit, and of [**12]  course could not take the 

 [*455]  property. But in the case before us, the appellees were born of a free woman, and were themselves free from their birth and capable of inheriting. Their father, it is true, had been a slave at one time, but his slavery did not affect his children's condition; and he became free fifty years before Andrew's death. Mr. DULANEY argues that a slave could not marry because he was a slave, and a contract of marriage would be an invasion of the master's rights. But ten years after his opinion was prepared, by the Act of 1777, ch. 12, sec. 11, the Legislature authorized slaves to marry with the assent of their owners, and, whatever the law may have been in this respect before, they could lawfully marry thereafter. Although the marriage would not confer civil rights upon them, and in no manner change or affect the relation of master and slave, yet it was legalized, and consequently the issue would be legitimate. As the proof is sufficient to satisfy us that David and Hannah Jones were married, we must presume, nothing appearing to the contrary, that they were married with the consent of the mistress of David. When he afterwards acquired his freedom, certain [**13]  civil rights vested in him, as a consequence, such as the right to acquire by purchase or inheritance, and to hold and dispose of property. Upon his death the property of which he might then be seized or possessed would descend upon his children, they being free.
Mr. DULANEY further argues that the validity of a marriage depends upon the immediate effect of its celebration, and that, if it is not valid then, it could not be made good by the subsequent accidental circumstance that the parties acquired their freedom, and to illustrate the argument, he puts the case of a man marrying a woman while he had a wife still living, and says that the accidental circumstance of the first wife dying would not make the second marriage valid. It is true that in such a case the second marriage would not be made valid by the death of the first wife, because a marriage under such circumstances is a great moral wrong, and a high crime 

 [*456]  under the law. But there are cases in which marriages, contracted between parties not capable of contracting at the time of the marriage, are made valid by the subsequent ratification of the parties, as in the cases of lunatics and infants, and that without [**14]  any other or new celebration. Cole vs. Cole, 5 Sneed 63; Wightman vs. Wightman, 4 Johns. Chan. 345; 1 Blackst. Comm. 436. We think that the same law should apply to cases of marriages between slaves, who ratify the marriage after they become free. BISHOP, in his work on Marriage and Divorce, vol. I, sec. 162, says, in referring to the case of Howard vs. Howard, 6 Jones' (N. C.) Reps., 235: "In the facts of this case there is involved the particular matter upon which the writer of these volumes deems that the decision, in all such cases, ought in principle to turn. If, after the emancipation, the parties live together as husband and wife, and, if before emancipation, they were married in the form which either usage or law had established for the marriage of slaves, this subsequent mutual acknowledgment of each other as husband and wife, should be held to complete the act of matrimony, so as to make them lawfully and fully married from the time at which this subsequent living together commenced." No legal marriage could be contracted by slaves under the civil law, yet it recognized a relation between them, which was termed conturbernium,  [**15]  and, although this relation conferred no civil rights upon the parties, yet, when they became free, their children being free, although born in slavery, could inherit from each other and from their parents. Code Justinian, Lib. 3, title 7, p. 32.
After David Jones became free, he continued to live with Hannah as his wife to the time of her death, they recognizing and treating each other as husband and wife, and taking their children to the church which they were in the habit of attending, to be baptized. We should be extremely reluctant to hold a marriage, which had taken place with the consent of the owner of slaves, and under the sanction of a Statute, and thus ratified after they became free, to be void, and the issue 

 [*457]  of it bastards, merely because the parties to it were slaves at the time it was celebrated, and thus prohibit them from inheriting property from their parents or from each other after they became free. There is no doubt that the appellees are capable in law of inheriting from their uncle Andrew D. Jones, and are entitled to a distributive share of his estate.
Exceptions were taken by the appellant to certain interrogatories propounded to witnesses [**16]  by the counsel of the appellees, as leading. They go to the form of the question merely, and should have been made and noted at the time they were put, in order that the party might have had an opportunity of remodelling them. If not made at that time, they cannot be made afterwards. Smith vs. Cooke, 31 Md. 174.
Exceptions were also taken to the admission in evidence of the declarations of Kate, David and Andrew D. Jones, as to the relationship existing between them, and between them and the appellees. Evidence of declarations of the members of a family as to pedigree, are always admissible. Charlotte Hall School vs. Greenwell, 4 G. & J. 407, 416; Copes Adm'r. vs. Pearce, 7 Gill 247, 262-263; Craufurd vs. Blackburn, 17 Md. 49.
It was also argued that the petitioners were incompetent as witnesses under the Act of 1868, ch. 116, the other party being administratrix. It is very clear that they do not come within either the letter or spirit of the exception, which is alleged to exclude them. The object of the Act was to place parties upon an equal footing and to exclude the other party, when one party [**17]  to the contract, &c., was dead, lunatic, &c. In the case before us there was no contract between the deceased and the appellees, which the latter are endeavoring to enforce against his estate, nor is this a suit against his administratrix for the purpose of establishing a charge against her intestate or his estate. But it is a contest between his widow and the appellees, who claim to be next of kin and heirs-at-law of the intestate, as to the manner in which his estate shall be distributed, the widow claiming the whole, and the appellees the one-half. There is nothing in the Act of 

 [*458]  1868 to exclude them, and they are clearly competent. It was also urged that the evidence given by the appellees, who were examined as witnesses, is not to be relied on, inasmuch as they swore to having seen some of the entries made in the bible, produced at the trial and which they swore was their father's family bible, when the bible itself shows that it was published after the time when some of those entries bear date. It will however be seen from the evidence that only one of the appellees can write, and he only sufficiently well to sign his name, and that the bible referred to passed through [**18]  the hands of several members of the family, and it may be that the entries may have been copied from the bible in which they were originally made into that, which was produced at the trial, and the latter was taken by these illiterate and ignorant people for the former, especially as it is well known that a very large number of bibles of similar size and appearance are constantly being distributed by the Bible Societies of the State and counties. These three appellees who testified may, therefore, have been readily mistaken as to the bible, and yet not have been guilty of wilful falsehood. But even if their testimony is thrown out of the case, the facts, necessary to the establishment of the appellees' case, are proved by ten or eleven other witnesses who are entirely uncontradicted by those who testified in behalf of the appellant. The testimony of the latter was altogether of a negative character, that they had no knowledge whether or not there was any relationship between David and his children, and Andrew D. Jones.
We concur in the rulings of the Orphans' Court, and are of opinion that the appellees are entitled to one-half of their uncle's estate, and the decree appealed from [**19]  will be affirmed.
Decree affirmed. 

92 of 144 DOCUMENTS 

THE CHESAPEAKE AND OHIO CANAL COMPANY vs. JOHN S. GITTINGS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 276; 1872 Md. LEXIS 81 

June 19, 1872, Decided 

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

A general statement of the case will be found in the opinion of the Court. The following Exhibit of the complainant, which was received by its agent from the appellee Gittings, and the agreement of counsel, will further contribute to elucidate the questions discussed:

EXHIBIT C.

Chesapeake and Ohio Canal Co. in acct. with Chesapeake Bank and J. S. Gittings, for the Trustees of the Canal Co.

________________________________________________________________________________

  1840.		DR.	
To notes rec'd in May	63,993 90	
 "      "      "  June	133,158 16	
 "      "      "  July	67,182 75	
 "      "      "  August	17,185 95	
 "      "      "  Sept.	9,756 90	
 "      "      "  Oct.	8,607 70	
 "      "      "  Dec.	2,052 60	
  1841.	
To notes rec'd in Jan.	973 35	
 "      "      "  Feb.	659 20	
 "      "      "  March	1,075 85	
 "      "      "  April	236 90	
		304,883 26	
  1840.	
June 13. To bill advertising	9 50	
Dec. 11.  " T. Fillebrown, acc't for services,	45 00	
          " ints. on over dfts. to 1st Jan	7,342 16	
          " expenses of J. Swan and Gittings	
              to New York	100 00	
          " expenses of J. Swan, to N. York,	
              delivering bonds	33 30	
       Am't carried forward	312,413 22	
       Am't brought forward	312,413 22	
Dec. 11. To interest on over drafts, from 1st	
              Jan. to 27th Feb	1,143 03	
  1841.	
Jan.  5. To balance of acct. rendered	4,375 63	
April 6.  " commission allowed J. Swan and	
              J. S. Gittings	6,893 30	
     12.  " C. & O. C. Co's acceptance	27,976 53	
     21.  " balance	8,274 17	
		361,075 88	
  1840.		CR.	
May      By sales of sterling bonds, £  10,000	
              to Godfrey, Patterson & Co.	38,119 00	
June 17.  " sales of sterling bonds, £  5,000,	
              to Peabody, Riggs & Co.	19,111 10	
     19.  " sales of sterling bonds, £  4,000, to	
              J. Ferguson, N. York	15,466 66	
July 11.  " sales of sterling bonds, £  10,000,	
              to Peabody, Riggs & Co.	39,078 00	
Oct.  5.  " sales of sterling bonds, £  6,000,	
              to Hoffman & Co.	23,743 76	
Dec. 28.  " sales of sterling bonds, £  15,000,	
              to Peabody, R. & Co.	56,543 18	
  1841.	
Feb. 27.  " sales of sterling bonds, £  40,250,	
              to Oelricks & Lurman	152,055 56	
Jan. 19.  " interest on coupons rec'd from	
              comm's of loans	16,958 62	
		361,075 88	
April 19. Balance to Cr.	8,274 17	
________________________________________________________________________________

 [**2]  

(E. & O. E.)   CHESAPEAKE BANK,

BALTIMORE, April 21st, 1841.

R. MARSHALL, Per Bkr.

________________________________________________________________________________

£  10,000	Godfrey, Patterson & Co., N. Y.	
  30,000	Peabody, Riggs & Co.	
   4,000	John Ferguson, of N. Y.	
   6,000	Hoffman & Co.	
  40,250	Oelricks & Lurman.	
£  90,250	
________________________________________________________________________________

AGREEMENT.

The complainant, with a view to narrow the issues in this case, admits all the debits claimed in the account bearing date April 21st, 1841, a copy whereof, marked Exhibit C, is filed with the bill, except the following items:

________________________________________________________________________________

1. Interest on over drafts to 1st January	$ 7,342 16	
2.     "           "    from 1st Jan. to 27th Feb.,	1,143 03	
3. Balance of account rendered	4,375 63	
4. Chesapeake and Ohio Canal Co. acceptances	27,976 53	
5. Balance	8,274 17	
________________________________________________________________________________

the propriety of and right to which debits it denies, and waives all the allegations in its bill in this case, except such as relate to the above named disputed items, of which items it requires proof. It also waives its allegations with reference to the sales by the trustees of the bonds, and admits all the credits in said Exhibit C, to be correct as therein stated.

John [**3]  S. Gittings agrees that in view of the aforegoing admission, it shall not be necessary for the complainant, by appropriate proceedings, to make the representatives of James Swan parties to the suit.

The said John S. Gittings also admits that his co-defendant, William Gunton, one of the trustees named in both deeds of trust, filed with the bill as Exhibits A and B, never authorized or sanctioned the payment out of the trust funds in the hands of the trustees, of the canal acceptances, amounting, as claimed in said Exhibit C, to $ 27,976.53. Also, that an attachment on judgment obtained by P. McLaughlin, against the said Chesapeake and Ohio Canal Company, was issued by said McLaughlin out of the Circuit Court of the United States for the District of Maryland, on the 4th day of June, A. D., 1841, and laid in the hands of said John S. Gittings as trustee, under the deed of trust herein specified; that the same was contested by him, and that the case was twice tried in the said Circuit Court in Baltimore, and once before the Supreme Court of the United States, and was finally settled by judgment in favor of said Gittings, on the 9th day of December, 1856, and that it shall not be necessary [**4]  to produce a certified copy of the record of said proceedings, but the original papers may be read at the hearing, to have the same effect, and be subject to the same exceptions as a transcript of the record produced by the defendant. Also, that the 12th, 13th and 14th annual reports of the president and directors may be read from the printed reports, as if filed and proved under the commission by the defendant.

BROWN & BRUNE,

N. & J. P. POE,

For the Canal Company.

GEORGE H. WILLIAMS,

Solicitor for J. S. Gittings.

January 16th, 1871.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

When a Decree operates as an Estoppel.

The Chesapeake and Ohio Canal Co., on the 22d of January, 1840, with a view to provide a fund for the redemption of certain canal scrip previously issued by it, executed a deed of trust to G and others, of certain five per cent. sterling bonds of the State of Maryland. In consequence of some objections to this deed the trustees declined to accept the trust, and a new deed was accordingly executed on the 15th of April, 1840, which was accepted by the trustees. This deed after providing for the sale of the bonds by the trustees, and the payment out of the proceeds thereof, of certain specified canal scrip, further provided that the trustees should, at the end of six months from its date, pay over to the appellant, all money they might then have on hand, and deliver all bonds then unsold. Under this deed, certain sterling bonds of the State of Maryland were delivered to the trustees. On the day of the execution of the second deed, the Ches. and Ohio Canal Co. being indebted to the Alex. Canal Co. in the sum of $ 17,379.20, executed and delivered to it, its bond payable six months after date, and as a security for its payment, by an order passed on the same day, pledged and set apart any surplus of money or of State bonds in the hands of the trustees under the deed of the 22d of January, 1840, after their trust was closed. On the 24th of June, 1841, the Bank of Potomac as assignee of said bond filed a bill in chancery against the trustees G and others, the Ches. and Ohio Canal Co. and the Alex. Canal Co., to enforce the payment of the same. The bill alleged the execution of the deeds of trust, the acceptance of the latter deed by the trustees, the sale by them of the sterling bonds, and that there remained in their hands under said deed a large surplus after satisfying all the legitimate objects of the trust, which was equally pledged by the Ches. and Ohio Canal Co. to the payment of said bond. The trustees were required to answer under oath all matters touching the administration of the trust; and the bill prayed a decree for the payment by the trustees and other defendants, of the said bond to the complainant. The Chesapeake Bank designated in the deed of trust as the place for the redemption of the canal scrip, was by an amended bill made a party defendant. The trustee G answered admitting the execution of the deeds of trust, the acceptance by the trustees of the deed of the 15th of April, the sale by them of bonds, the proceeds of which, together with certain interest on coupons, amounted to $ 361,075.88; and claiming credit for disbursements to the amount of $ 353,777.89, leaving a surplus due the trust fund of $ 7,297 99. G further answering alleged that finding it impracticable to sell bonds enough for the redemption of the scrip and notes of the canal company, the Chesapeake Bank at his instance and with the knowledge and consent of his co-trustees and the canal company undertook to furnish the necessary funds on a pledge of the bonds, and with their consent the bonds went into the possession of the bank, and the sales were made with its consent, the bank always receiving the proceeds of such sales in lieu of the bonds. That at different times the bank purchased sundry acceptances of the Ches. and Ohio Canal Co. from the holders thereof, which it discounted upon the faith and in reliance that the surplus to come into the hands of the trustees from the sales of the bonds would be chargeable therewith. G denied the power of the Ches. and Ohio Canal Co. to contract the debt for which the bond of $ 17,379 20 was executed, and that the same was a lien upon the surplus in the hands of the trustees. The answer of the Chesapeake Bank was substantially the same as that of G. The Ches. and Ohio Canal Co. admitted the execution of its bond for $ 17,379.20, and the passage of the order pledging the surplus in the hands of the trustees under the deed of the 22d of January, as a security for its payment, but denied that the same was a lien upon the surplus arising under the deed of the 15th of April; it charged that there was a large surplus in the hands of the trustees after satisfying the legitimate objects of the trust, and to this surplus it claimed to be entitled. Proof was taken and BREWER, J., acting as Chancellor, among other things decreed that the Ches. and Ohio Canal Co. had the power to contract the debt for which its bond had been executed, but that in the then state of the pleadings, the complainant was not entitled to the relief prayed. Subsequently the obstacle arising from the condition of the pleadings being removed, the Chancellor, on the 3d of November, 1851, decided that there was a surplus in the hands of the trustees, after satisfying the legitimate objects of the trust, to the amount of $ 11,960.14, and decreed that the Chesapeake Bank should pay this sum to the complainant, and also deliver to it a sterling bond for £  375, which had not been disposed of by the trustees; and further decreed that the sum of $ 14,780.30, balance due on the bond of $ 17,379.20, should be paid by the Ches. and Ohio Canal Co. to the complainant. Pending this suit, and after having answered therein, the Ches. and Ohio Canal Co., on the 14th of January, 1842, filed its bill in chancery against the Potomac Bank, the Alex. Canal Co., and the trustees under the deed of the 15th of April, claiming that there was a large surplus in the hands of the trustees after satisfying all the objects of the trust; that the Bank of Potomac was seeking to enforce the payment of the bond of $ 17,379.20, as a lien upon the same; that the said surplus belonged to the complainant; and an account of the trust was asked for. The answer of the trustee G in regard to the sales of the bonds and the disbursements on account thereof was substantially the same with his answer in the suit of the Bank of Potomac. The Bank of Potomac admitted the assignment to it of the bond of $ 17,379.20, and that it was seeking to enforce its payment as a lien upon the surplus in the hands of the trustees. On the 28th of October, 1870, a general replication was entered by the Ches. and Ohio Canal Co. The trustee G in his supplemental answer, filed the 25th of January, 1871, relied upon the decree of the 3d of November, 1851, as a bar to the further prosecution of the suit by the Ches. and Ohio Canal Co. HELD:

That the subject-matter of the bill of complaint of the Ches. and Ohio Canal Co. was put in issue and decided in the suit instituted by the Bank of Potomac, and the decree passed in said suit, was an effectual bar to the further prosecution of the suit of the Ches. and Ohio Canal Company.

A decree of a Court of competent jurisdiction is final and conclusive as to all further litigation between the same parties, touching the same subject-matter. 

COUNSEL:
Frederick W. Brune and Philip F. Thomas, for the appellant, argued upon briefs submitted by them and Neilson and John P. Poe.

The consent decree of the 3d of November, 1851, is no bar to this suit.

The Chesapeake and Ohio Canal Company was debtor to the Bank of Potomac for the whole amount of the bond given to the Alexandria Canal Company, and subsequently transferred to said bank -- and the decree against it, instead of being for $ 14,780.30, should have been for $ 29,414.29.

The fact that the Bank of Potomac was willing to accept a decree against the Chesapeake Bank, against which it [**5]  had no claim, for a portion of the debt due it by the Chesapeake and Ohio Canal Company, and one against the latter for the balance, and to waive its right to a decree against Mr. Gittings for the surplus of a trust fund set apart for the payment of its claim, seems to us no valid reason why this present complainant, after crediting him with the whole amount actually paid, cannot recover from him the balance of trust funds still in his hands. Certainly this does him no injustice. If the canal company sees fit to allow him, in his account as trustee, a credit for the amount paid to the Bank of Potomac by the Chesapeake Bank, as if paid by him, it is difficult to perceive how he can justly complain.

The decree was a consent decree, binding at most only upon the parties to the agreement under which it was passed; and it should not be so extended as to shield a trustee from the obligation of rendering a full and faithful account of his trust according to the terms of the deed creating it, and thus enable him to retain $ 40,000 of trust funds, with interest for twenty years.

As between the Bank of Potomac and the Chesapeake and Ohio Canal Company, we might admit that the decree [**6]  establishes the liability of the latter to the former to the extent of the amount decreed.

But the canal company is not here seeking relief against either the Chesapeake Bank or the Bank of Potomac--but is proceeding in a separate suit against Mr. Gittings, as a trustee, having in his hands unaccounted for a large amount of its funds, entrusted to him for a specific purpose long since answered -- and it seems to us wholly immaterial to the proper decision of this case to inquire what kind of claims other parties may have against it.

So long as Mr. Gittings has no claims properly pleadable as a set off to the demand of the canal company against him, now at last brought to a hearing, how can it affect this litigation to know the Chesapeake Bank or the Bank of Potomac has obtained in a different suit a decree against it?

If the canal company were seeking to recover an alleged debt from either of these banks, the decree so entered and held by them might be available as an off-set or counter claim, but upon this proceeding by it against Mr. Gittings, the decree now owned by the Chesapeake Bank should have no more influence than the canal scrip or the canal acceptances that [**7]  the bank paid such a high price for and has held so long. Cecil vs. Cecil, et al., 19 Md., 78; Alexander vs. Walter, et al., 8 Gill, 249, 250; Shafer vs. Stonebraker, 4 G. J., 355, 360; Story's Eq. Pl., 791, 793; Seebold vs. Lockner and Wife, 30 Md., 133; Packet Co. vs. Sickles, 5 Wallace, 592; Washington, Alexandria and Georgetown S. P. Co. vs. Sickles, et al., 24 Howard, 342.

The canal acceptances amounting to $ 27,976.53, claimed to belong to the Chesapeake Bank, are not a proper charge upon the trust fund in the hands of the trustees, Swan, Gittings and Gunton. Because not authorized by the deed of trust. Huntt vs. Townsend, 31 Md., 336; Dolan and Foy vs. Mayor, &c., of Balto., 4 Gill, 404, 406.

Because such charge was never sanctioned either by Mr. Swan or Mr. Gunton, but was disavowed and repudiated by both. Because the canal company never authorized such charge by any corporate act whatever, subsequent to the deed of trust, but always protested against it and uniformly refused to make any settlement based upon a recognition of it, except in the single case of the order of the 4th of June, 1841, which was suspended by the stockholders, on the 9th of June, 1841, and [**8]  on the 14th of July, 1841, was rescinded by the board before any settlement was made. And with a view to enforce its refusal to submit to such a charge, this suit was brought in January, 1842, and has never been dismissed, discontinued, waived or settled.

Because the Chesapeake Bank was at most a mere depository of the trustees, and neither a fiscal agent nor a pledgee of the canal company, so as to give any color whatever to its claim to confiscate the surplus of the trust fund in its possession for the payment of the canal acceptances in question. Messrs. Swan and Gunton, two of the trustees, never appointed it such agent or agreed that it should be such pledgee; and Mr. Gittings, without the consent of at least one of them, could not do so himself, if indeed all or a majority might themselves lawfully do so. The deed of trust neither authorized nor contemplated such arrangement, and the canal company is not shown to have ever sanctioned it beforehand--ratified it afterwards, or submitted at any time to Mr. Gittings' pretensions in this particular. But even if Mr. Gittings, with the consent of his co-trustees, had specifically pledged the bonds to the Chesapeake Bank as security [**9]  for the advances made by it through him to the trustees, this would not authorize him, as trustee, in his account with the canal company to charge the trust funds in his hands with more than the amount of such advances. Nor could the Chesapeake Bank rightfully retain from the trustees the bonds or their proceeds for any other claim it might happen to have against the canal company.

When the advances were repaid, whatever lien the bank might have had upon the bonds or their proceeds was extinguished, and Mr. Gittings, as trustee, in permitting the bank to retain for more than such advances, was guilty of a clear violation of the express provisions of the deed of trust which should make him personally responsible to the complainant.

He does not allege in his answer that the canal company ever agreed that the Chesapeake Bank might reimburse itself for the amount of the acceptances out of the surplus of the trust fund, but simply that it relied upon its right to do so in the absence of any such agreement. And, moreover, the fact asserted by him that when the Chesapeake Bank made the advance of $ 4,375, it exacted a pledge of such surplus, negatives conclusively all idea that [**10]  the acceptances were by agreement to be secured in the same manner.

In accepting the pledge and making the advances to the trustees, it must be presumed to have done so with notice of the trust; its president, Mr. Gittings, who claims to have made the negotiations, being one of the trustees; and hence, in the absence of an agreement from the canal company that it might retain for a general balance due it, or for other claims against the company held by it, the bank was bound to pay to the trustees the whole balance in his hands after the specific advances were repaid. The trustees could not legally extend the pledge further, and the canal company never made or authorized any pledge at all.

If they did extend it further without the sanction of the Canal Company, and the Chesapeake Bank was thereby prejudiced, they are responsible to it, and cannot shift such responsibility upon the company. If they did not extend it further, then it would be a fraud on them for the bank to retain any more of the trust fund than was required to repay the advances made. In either case the trustees must account to the company according to the true meaning and obligation of the deed of trust,  [**11]  without reference to the claims of the bank against the company.

Assuming the decree relied on to be no bar, and that the defendant, Gittings, cannot set off the acceptances bought by the Chesapeake Bank, the question is, how should the account be stated by the appellant with the trustees? The McLaughlin attachment has been disposed of, and the only enquiries are, what was the amount of the trust fund for which Gittings and his co-trustees were responsible, on the 3d of November, 1851, before the agreement of that date was signed; and what deduction may the trustees claim after, or in consequence of the decree of that date, in favor of the Bank of Potomac, and the agreements and payments connected with it?

________________________________________________________________________________

The account agreed to by the Chesapeake and	
  Potomac Banks shows a trust fund, admitted	
  to be in the former bank, on November 1st,	
  1851, of		$ 14,633 99	
       Am't brought forward		$ 14,633 99	
In account C, the acceptances are	
  credited in that account on 21st	
  of April, 1841. Adding their	
  amount	$ 27,976 53	
  and interest to Nov. 14th, 1851,	
  (10 years, 6 months and 24 days,)	17,737 10	
		45,713 63	
The sum due November 14th, 1851, is	$ 60,347 62	
From which deduct then paid		14,633 99	
Balance due November 14th, 1851		$ 45,713 63	
being the amount of the acceptances, with interest.	
Add interest to May 1st, 1872, (20 years, 6 mos.	
  and 17 days,)		56,357 15	
		$ 102,070 78	
________________________________________________________________________________

 [**12]  

This shows the sum due by the trustees on the 1st of May, 1872, if no more is credited to them than the amount of the trust fund, acknowledged to be in the Chesapeake Bank, and paid to the Bank of Potomac, under the decree of Judge BREWER.

________________________________________________________________________________

But if to the balance due on the 14th of November,	
  1851	$ 45,713 63	
We add interest to the 10th of January, 1852,	
  being 56 days	426 58	
	$ 46,140 21	
And deduct then paid	7,476 37	
We have a balance of	$ 38,663 84	
which, with interest to May 1st, 1872, (20 years,	
  3 months and 20 days,)	46,989 40	
Makes the sum of	$ 85,653 24	
________________________________________________________________________________

And shows the amount due to the appellant from the trustees, after crediting them with the entire amount paid by them, or by their depository through their means by reason or on account of the trust funds received by them under the deed of trust, of the 15th of April, 1840.

________________________________________________________________________________

If, however, on the amount as above due on the	
  14th of November, 1851		$ 45,713 63	
We credit the entire claim of the	
  Bank of the Potomac, according	
  to the statement upon which the	
  decree was based, and which, on	
  the 1st of November, 1851, was	$ 29,414 29	
Less then paid	14,633 99	
	$ 14,780 30	
Add 14 days' interest to Nov. 14th,	34 51	
		14,814 81	
We shall then have due on November 14th, 1851,	
  the sum of		$ 30,898 82	
Add interest to May 1st, 1872, (20 years, 6 mos.	
  and 17 days)		38,093 11	
We have the sum of		$ 68,991 93	
________________________________________________________________________________

 [**13]  

still due at this last date by the trustees, even if they had been decreed to pay in cash, and had paid the entire claim of the Bank of Potomac as a first lien on the fund

As it appears, however, that there is a personal judgment against the appellant still open in favor of the Bank of Potomac in its case, for $ 14,780.30, with interest from November 1st, 1851, which was thus entered up through the cooperation or assent of the said bank and the defendant, Gittings; and it also appears, that for this amount the said bank, as complainant, released or waived its lien on the trust fund and the said Gittings, as trustee, neither the said Gittings, nor the Bank of Potomac, has now any right to rely on said decree or the payments under it, for any larger credit on account of the trust fund claimed in this suit, than the amount of the trust fund decreed in that case to be paid by the Chesapeake Bank, and actually paid by it, under said decree, in settlement of the claim of the Bank of Potomac, and that the additional sum of $ 7,476.37, stipulated in the agreement to be paid by the Chesapeake Bank on the 10th of January, 1852, if such payment was then made by it, is to be regarded [**14]  as a volunteer payment, outside of the decree, and paid according to the agreement, as the consideration for one-half of the decree in favor of the Bank of Potomac against the appellant, personally, which was on such payment to be assigned to the Chesapeake Bank.

In the Court below the appellant, if it had been held entitled to a decree for the amount of the acceptances, with interest, was willing to allow as a credit to the defendant, Gittings, the payment alleged to be made by the Chesapeake Bank in January, 1852, but now the appellant submits the whole question of the liability of the defendant, Gittings, to the decision of this Court, the appellant being still willing to allow any reasonable payments by Mr. Gittings, in defending the McLaughlin suit, in addition to those already claimed and allowed in the foregoing statements.

George H. Williams, for the appellees.

By agreement of counsel, January 16th, 1871, so far as figures are concerned, the complainant's dispute involves five debits, and one item of credit in Account Exhibit C. Of these, No. 1, interest on over drafts, $ 7,342.16, and No. 2, being interest on over drafts also, $ 1,143.03, are practically abandoned.  [**15]  They are the items of interest which the canal board agreed to allow the bank at six per cent. for the loan.

Item No. 3, being balance of account, $ 4,375.63, is not only allowed by Judge BREWER, but specially loaned on President F. Thomas' order.

Item No. 4, are the acceptances which Judge BREWER decides could not be set up against the Bank of Potomac, but admits, as between the Chesapeake Bank and the Chesapeake and Ohio Canal Company, were an equitable set-off. Whether the bonds were pledged with the assent of all the trustees or of the canal company, is unimportant. The canal company reaped all the benefit of saving the bonds from sacrifice by hat act--was previously notified--subsequently ratified it and recognized it by prescribing the rate of interest to be allowed, and giving J. S. Gittings three times as much commission as Swan, for procuring the loan from the bank on such pledge.

The bank advanced its own money (not the canal company's,) to buy the acceptances at par to sustain the credit of the company, and before the complainant can redeem from its own pledgee, it should pay all debts justly due.

Swan's answer also says they were deposited with the bank [**16]  by direction of the president of the canal company.

The 5th item, the balance, $ 8,274.17, depends on the credit of $ 16,958.62 for coupons.

That the trustees (and J. S. Gittings especially) never received this sum, $ 16,958.62, which the canal company wants to pocket twice, is thus manifest.

The canal company directed them not to be delivered to the trustees.

In obedience to that order the commissioner of loans of the State of Maryland, paid the amount of the coupons to the Chesapeake Bank, where the canal company kept its bank account, and they were passed to its credit in said account.

And the canal company so understood that these coupons did not pass; they allowed two per cent. commission, $ 6,893.30 on $ 344,117.26, the amount of the sale of the bonds, specially excluding the $ 16,958.62 of coupons.

If these coupons had been deemed to have passed to any or all of the trustees, as part of the trust, the commission would have been two per cent. on the amount, or $ 339.17 additional.

In fact the account, Exhibit C, of April 21st, 1841, shows that the trustees did not then pretend to have received these coupons, nor the Chesapeake and Ohio Canal [**17]  Company, that they had been received. On the contrary their instructions were obeyed, and they went to their credit in their own bank account. If the trustees are made to pay them again, Mr. Gittings will pay them the same amount twice, for obedience to instructions, (or rather they will receive it twice,) and on a sum too, on which he has been allowed no commission as trustee, upon the theory that it never came to his hands as such, or in fact came into his hands in any way. The persistence in this demand has always been, and still is, a mystery to the appellee.

The decree was in no sense a consent decree. In a sharply contested case, in which the canal company was represented in Court by able counsel, Judge BREWER not only delivered a lengthy opinion on the 27th of June, 1851, but subsequently, 3d of November, 1851, decrees "the cause being again submitted and considered."

That the Bank of Potomac and Chesapeake Bank assented to the decree, and adjusted their strife in consequence of Judge BREWER'S opinion and decree, was true; but all was done in reference to the probability of an appeal therefrom by the canal company.

That there was any secrecy about this decree,  [**18]  is not only not proved, but it is submitted that the canal company does not desire gravely so to reflect upon its eminent counsel who filed its answer in the cause--an answer most hostile to the pretensions of all the other parties to the cause; nor are suitors to be indulged in saying, twenty years after a decision of record, that a decree in a cause in which they were in Court by counsel, docketed and filed, was in any sense a matter of secrecy.

Could it be gravely asserted that in a four or five-sided controversy, conducted, as will appear by Judge BREWER'S opinion, in the most hostile manner, and by six or seven of the most eminent lawyers of their day, any decree therein could be a secret matter? In fact, was not the assent of record the surest notice and highest evidence of publicity?

After the notice by Janney's letter, 25th of September, 1840, of the claim of the Alexandria Canal Company, and the McLaughlin attachment, the 4th of June, 1841, neither the trustees nor the bank could pay over until the canal company settled its dispute with those parties, and as these suits were resisted for the benefit of and in accordance with the positions taken by the canal company,  [**19]  of course the trustee is to be allowed for his expenses.

The acceptances--any discussion about them is an amateur question. Strike out as against Mr. Gittings any liability for coupons which he did not receive, and allow the claim of the Bank of Potomac against the canal company, as Judge BREWER decreed, and there is nothing to dispute about.

________________________________________________________________________________

Thus--Bonds sold		$ 344,117 26	
      Scrip paid		305,225 88	
		$ 38,891 38	
Conceded allowances:	
Advertising, $ 9.50, Fillebrown, $ 45	$ 54 50	
Interest, $ 7,342.16, $ 1,143.03	8,485 19	
Exps. Swan and Gittings to N. Y.	133 30	
Over-draft	4,375 63	
Commissions	6,893 30	
Bill for writing sterling bond	25 00	
Fees to Glenn, etc	600 00	
		20,566 92	
      Balance		$ 18,324 46	
Bond of the Alexandria Canal Company	17,379 20	
Interest from April, 1840, to 1st Nov., 1851,	
  the date of Judge BREWER'S decree	12,035 09	
      Am't carried forward	$ 29,414 29	
      Am't brought forward		$ 29,414 29	
Deduct		18,324 46	
Short		$ 11,089 83	
Actual cash payments by the Chesapeake Bank,	
  on account of Canal Company, to Bank of	
  Potomac		$ 11,960 14	
And		7,390 15	
Actually paid		$ 19,350 29	
Deduct		18,324 46	
Short		$ 1,025 83	
________________________________________________________________________________

 [**20]  

Though the suit of McLaughlin did not, technically, make the canal company a party, yet it was an attachment against their funds, detained them so long as it lasted, and the canal company, under the attachment system, could have come into the case, having knowledge of it, and were bound by its result.

But the conclusive answer to this whole matter is, that it is res adjudicata.

The same surplus, arising from the same bonds, under the same trust, and what it amounted to, who had it, and who should and ought to have it, was struggled for by the Bank of Potomac and the Chesepeake Bank, and denied by the canal company to belong to any one but itself; the amount of allowances out of it to the trustees, and specially the amount of responsibility of J. S. Gittings, were the very issues before Judge BREWER--were the very matters involved before and passed upon by him, and conclusively settled by him twenty years ago by his decree.

Not one single new thing is or can be brought up in this case, and which was not a matter of special controversy in the former. The matters were not only adjudged, but all anterior equities prior to the decree were foreclosed. Buchanan vs. Lorman,  [**21]  3 Gill, 80; Boulden vs. Lanahan, 29 Md., 210; McKenzie vs. B. & O. R. R., 28 Md., 174; Barrs vs. Jackson, 1 Phillips, (19 Eng. Chy. R.,) 582; Lovejoy vs. Murray, 3 Wallace, 19; Cecil vs. Cecil, 19 Md., 78; Aurora City vs. West, 7 Wall., 102; Beloit vs. Morgan, 7 Wall., 622.

And a judgment of a Court of competent jurisdiction is final, not only as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. Boulden vs. Lanahan, 29 Md., 210; Henderson vs. Henderson, 3 Hare, 114; Packet Co. vs. Sickles, 5 Wallace, 592; 1 Greenleaf on Evidence, secs. 531, 532.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*294]  ROBINSON, J., delivered the opinion of the Court.
On the 22d of January, 1840, the Chesapeake and Ohio Canal Company, the appellant in this case, with a view to provide a fund for the redemption of certain canal scrip previously issued by it, executed in pursuance of an order of its board of president and directors a deed of trust to James Swan, John S. Gittings and William Gunton, of certain five per cent. sterling bonds [**22]  of the State of Maryland, which had been authorized to be given to the company, by the Act of 1838, ch. 386.
In consequence of some objections to the details of this deed, the trustees declined to accept the trust, and accordingly on the 15th day of April, 1840, a new deed of trust, conveying the same bonds to the same trustees, upon somewhat different conditions suggested by them, was prepared and executed by the company, and accepted by the trustees.
The deed provided, among other things, that the bonds should be sold by the trustees and the proceeds applied within six months from the date thereof, to the payment, in the mode therein pointed out, of the canal scrip described in a schedule appended to the deed. It also contained a provision that the trustees should, at the end of six months from its date, pay over to the appellant, all money they might then 

 [*295]  have on hand, and deliver all bonds then unsold, whether all the scrip was redeemed or not. Under this deed five per cent. sterling bonds of the State of Maryland, amounting to £  90,625, were delivered to the trustees.
On the day of the execution of the second deed, to wit: on the 15th of April, 1840, the appellant [**23]  being indebted to the Alexandria Canal Company in the sum of $ 17,379.20, executed and delivered to it its bond payable six months after date; and by an order passed on the same day, the Chesapeake and Ohio Canal Company, pledged and set apart any surplus of money or State bonds in the hands of the trustees, under the deed of January 22d, 1840, after their trust was closed, as a security for the payment of said bond to the Alexandria Canal Company.
On the 24th of June, 1841, the president and directors of the Bank of Potomac being the assignees of said bond, filed a bill in the High Court of Chancery, against the trustees, Swan, Gittings and Gunton, the Chesapeake and Ohio Canal Company, and the Alexandria Canal Company, for the purpose of enforcing the payment of the same. In this bill they alleged the execution of the deeds of trust of the 22d of January and the 15th of April, the acceptance of the latter by the trustees, the delivery to and the sale by them of the sterling bonds, and it further charged that there remained in the hands of the trustees under said deed, a large surplus after satisfying all the legitimate objects of the trust, which was equitably pledged by the [**24]  order of the Chesapeake and Ohio Canal Company, passed on the 15th of April, for the payment of said bond.
The trustees were required to answer under oath all matters touching the administration of the trust--the sale of the bonds--the disbursements of the proceeds, together with the vouchers thereof, and the bill prayed a decree for the payment by the trustees and other defendants, of the bond assigned to the complainants by the Alexandria Canal Company.

 [*296]  By an amended bill the Chesapeake Bank, designated in the deed of trust as the place for the redemption of the canal scrip, was also made a party defendant.
John S. Gittings in his answer admits the execution of the deeds of January 22d and April 15th, the acceptance by the trustees of the latter deed, the delivery to the trustees of the bonds, the sales thereof to the amount of $ 344,117.26, together with the sum of $ 16,958.62 interest on coupons received from the commissioners of loans, thus making $ 361,075.88, and claims credit for disbursements on account of the same, the sum of $ 353,777.89, leaving a surplus due the trust fund of $ 7,297.99.
For further answer he says, that finding it impracticable [**25]  to sell bonds enough for the redemption of the scrip and notes of the canal company, as presented to the trustees at the Chesapeake Bank, the said bank, at his instance, and with the knowledge of the canal company and his co-trustees, undertook to furnish the necessary funds, on a pledge of the bonds conveyed by the deed of April 15th, and that in pursuance of this agreement the bonds then in the hands of the trustees were delivered to the bank. That the subsequent sales of the bonds were made with the consent of the bank, the latter, however, always receiving the proceeds of such sales, in lieu of the bonds; that at different times in the year 1840, and prior to notice of the assignment of the bond of $ 17,379.20, which the complainants seek to enforce, the Chesapeake Bank purchased of the holders thereof sundry acceptances of the Chesapeake and Ohio Canal Company, to the amount of $ 26,402.00, the said acceptances being for work done by contractors on the canal; that at the time of the purchase of said acceptances, the bonds assigned in trust were in the possession of the bank; that they were discounted upon the faith and in the reliance that the surplus to come into the hands of [**26]  the trustees from the sales of the bonds would be chargeable therewith; that the bank had also loaned the Chesapeake and Ohio Canal Company $ 5,000 upon the pledge by the 

 [*297]  latter, that the same should be paid out of said surplus, and that upon these and other grounds the Chesapeake Bank claims to retain out of said surplus funds the loan of $ 5,000, and also the amount of the acceptances purchased as aforesaid.
The respondent denies the power of the Chesapeake and Ohio Canal Company to contract the debt for which the bond of $ 17,379.20 was executed, and denies that the same is a lien upon the surplus in the hands of the trustees. The exhibits, filed as part of the answer show that the sales of the bonds realized $ 344,117.26, which, together with $ 16,958.62 received as interest on coupons, makes the sum of $ 361,075.88 due the trust fund, and the disbursements on account of same, for canal scrip redeemed $ 305,225.88, cash loaned $ 4,375.63, acceptances $ 27,976.53, making $ 353,777.89, leaving a surplus due the trust fund of $ 7,297.99.
The answer of the Chesapeake Bank is substantially the same as that of Mr. Gittings.
The Chesapeake and Ohio Canal Company admits [**27]  the execution of its bond of $ 17,379.20 to the Alexandria Canal Company--the order of the 15th of April passed by its president and board of directors, pledging the surplus in the hands of the trustees, under the deed of January 22d, as a security for the payment of said bond, but denies that the same is a lien upon the surplus arising under the deed of April 15th; admits the delivery to and sale by the trustees of the sterling bonds, and charges that there is a large surplus in the hands of the trustees, after satisfying the legitimate objects of the trust, to which said surplus it claims to be entitled.
Proof was taken, and at the March Term, 1851, the case was argued and submitted to Judge BREWER, sitting as Chancellor, who decided:
1. That the Chesapeake and Ohio Canal Company had the power to contract the debt, for which its bond of $ 17,379.20 had been executed to the Alexandria Canal Company.
2. That the object of the order of April 15th was to create a lien upon the surplus in the hands of the trustees for the 

 [*298]  payment of said bond, but that this lien could not be asserted in the then state of the pleadings, inasmuch as the bill relies upon the order of the [**28]  15th of April, which only pledges the fund under the deed of January 22d, while the fund held by the trustees arose under the deed of April 15th.
3. That the Chesapeake Bank had the right to retain out of the surplus an amount sufficient to pay the loan of $ 4,375.63.
4. That as against the complainants, assignees for a bona fide consideration, the bank had no right to retain out of the surplus the amount of acceptances purchased by it.
The complainants, not being entitled to the relief prayed in the then state of pleadings, filed an amended bill, and at the September Term, 1851, the Chesapeake Bank and John S. Gittings having withdrawn their exceptions to the insufficiency of the averments in the original bill, the amended bill was dismissed and the case again submitted to the Chancellor, and on the 3d day of November following a decree was passed by which it was ordered, adjudged and decreed that the Chesapeake Bank should pay to the complainants the sum of $ 11,960.14, and also to deliver to them a sterling bond of the State of Maryland for £  375, being one of the bonds conveyed by the deed of trust, but not disposed of by the trustees.
It was further [**29]  decreed that the Chesapeake and Ohio Canal Company pay to the complainants the sum of $ 14,780.30.
Whilst the above suit was pending, and after having answered thereto, the Chesapeake and Ohio Canal Company, on the 14th of January, 1842, filed in the High Court of Chancery a bill of complaint against the Bank of Potomac, the Alexandria Canal Company, and the trustees under the deed of April the 15th, claiming that there was a large surplus in the hands of the trustees after satisfying all the objects and purposes of the trust; that the Bank of Potomac, as assignee of the Alexandria Canal Company, was seeking to enforce the payment of the bond of $ 17,379.20 as a lien upon the same; that the said surplus belonged to the complainant, and praying for an account of the trust, &c.

 [*299]  The answer of John S. Gittings and the exhibits filed therewith in regard to the sales of the bonds, and the disbursements on account thereof, are substantially the same as filed in the suit of the Bank of Potomac.
The Bank of Potomac admits the assignment of the bond of $ 17,379.20, and that it is seeking, as assignee, to enforce the payment of the same, as a lien upon the surplus [**30]  in the hands of the trustees.
No further proceedings were taken in the case until the 28th of October, 1870, nearly twenty-seven years after the above answers were filed, and nineteen years after the final decree in the case of the Bank of Potomac, when a general replication is entered by the present solicitors for the complainant.
The appellee, Gittings, in his supplemental answer relies upon the decree passed on the 3d of November, 1851, in the case of The Bank of Potomac, and to which the complainant was a party, as a bar to the further prosecution of this suit.
It is conceded that a judgment of a Court of competent jurisdiction is final and conclusive as between the parties thereto in regard to the subject-matter therein litigated and decided. The question then narrows itself down to this, was the subject-matter of this bill of complaint in issue and was it decided in the case of the Bank of Potomac? The pleadings, proof and proceedings settle this question beyond all controversy. In that suit as in this, the whole administration of the trust created by the deed of April 15th, the sales of the bonds, the disbursements on account of the [**31]  same, the surplus, if any, in the hands of the trustees, the rights respectively of the Chesapeake and Ohio Canal Company and the Bank of Potomac, as assignee of the Alexandria Canal Company, to this surplus, in a word all matters touching the trust and the rights of the several defendants in regard to the same, were in issue, and the Court by its decree of November 3d, decided that there was a surplus in the hands of the trustees after satisfying the legitimate objects of the trust to the amount of $ 11,960.14, and that said surplus should be paid to the Bank 

 [*300]  of Potomac, as assignee of the bond of $ 17,379.20, executed by the Chesapeake and Ohio Canal Company to the Alexandria Canal Company, and it was further decided that the sum of $ 14,780.30, the balance due on said bond, after deducting therefrom the aforesaid payment and a sterling bond of £  375, which had not been disposed of, should be paid by the Chesapeake and Ohio Canal Company, the complainant in this suit. This judgment was rendered in a cause to which the appellant was a party, and from which it had the right of appeal, and in regard to the same subject-matter involved in this  [**32]   case, and we are of opinion therefore that it operates as a bar to the further prosecution of this suit. There is nothing on record to show that this was a consent decree, passed at the instance of the Bank of Potomac and Chesapeake Bank, and without the knowledge of the appellant. There was an agreement signed by the solicitors, by which the money paid by the Chesapeake Bank was to be returned, if the Chesapeake and Ohio Canal Company appealed from the decree, thus showing that parties litigant, contemplated at that time, that such action might be taken by the present appellant. No appeal however was taken and no further steps were taken to prosecute this suit, until nearly twenty years after the date of said decree. We cannot escape the conclusion that this complainant, together with the other parties to the suit of the Bank of Potomac, considered that decree as virtually deciding all matters growing out of the trust created by the deed of April 15th. Be that however as it may, we are of opinion that said decree is a bar to the further prosecution of this suit.
Decree affirmed. 

93 of 144 DOCUMENTS 

WILLIAM HAMILTON vs. HARMAN WINDOLF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 301; 1872 Md. LEXIS 82 

June 19, 1872, Decided 

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

In May, 1869, the appellant sub-leased to the appellee a lot of ground with the improvements, situate on the south side of McHenry street in the city of Baltimore, in consideration of the sum of $ 1,200, and the payment of the annual rent of $ 36. In September, 1869, the appellant commenced the erection of several houses on the ground to the west of the appellee's house. At the trial below, the appellant testified that before he built the house adjacent to the appellee's, the appellee entered into a verbal agreement with him to purchase said house after it should have been placed under roof, at the cost of erection and ten per cent. additional, and requested him to build no chimneys and to use the west wall of his, the appellee's, house; that in pursuance of this agreement he, the appellant, made use of the west wall of the appellee's house, building no east wall and no chimneys; that when the house was under roof he offered it to the appellee according to the agreement, but he declined to take it, alleging that he had no money to pay for it. Subsequently the appellant built chimneys to the house. In addition to the proof of the [**2]  plaintiff set out in the opinion of the Court, he proved there were about forty or forty-five joists inserted to the depth of four inches into his wall; that he had a new roof put on his house --the one on the front costing $ 48, and the one on the back building, $ 15. Suit was brought and a judgment for $ 140.96 recovered by the appellee against the appellant.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Distress -- Action of Trespass -- Evidence in mitigation of Damages -- Plea of License in Actions of Trespass.

No action will lie for distraining for more rent than is due and in arrear.

In an action of trespass for an alleged injury to the plaintiff's wall by inserting joists into it, evidence by the defendant that the wall was so used by him in the erection of an adjoining building under an express parol agreement with the plaintiff, is not admissible under the general issue plea, in bar of the action, but is admissible in mitigation of damages.

Parol proof of a license specially pleaded to an action of trespass, is admissible in bar of the right to recover. 

COUNSEL:
William H. A. Hamilton and Richard Hamilton, for the appellant.

The appellant was not bound to credit his account for rent, with any moneys that might be in his hands from proceeds of sales of the appellee's goods. Barger vs. Collins, 7 H. & J., 213; Wolgamot vs. Bruner, 4 H. & McH., 70; Willson vs. Davenport, 5 C. & P., 531; Bull's Nisi Prius, 181.

The action of the Court in admitting the verbal evidence of a license from the appellee to the appellant to do the injuries mentioned in the second count of the declaration, only in mitigation of damages, and not as a bar to the trespass complained of in the said count, and in so instructing the jury, was error. The action was not for a specific performance of the contract set forth in the parol agreement, nor was it an action [**3]  of ejectment to recover the land occupied by the house of the appellant, nor was it an action between third parties to the said parol agreement, nor an action on the case for the use of said west wall, but simply an action of trespass quare clausum fregit, (even without a continuando,) which trespass could not have been committed, because of the parol license acted upon by the appellant at great cost and expense before its withdrawal. Neither the Statute of Frauds nor the Registry Act could possibly exclude said evidence.

The license was a flat bar to the second count of the declaration; for it is hardly possible to conceive of a trespass upon one's lands when he invites you to enter and do the acts complained of. Dark vs. Johnston, 55 Penna., 164; Lacy vs. Arnett, 33 Penna., 169; Addison vs. Hack, 2 Gill, 221; Winter vs. Brockwell, 8 East, 308; Powell vs. Thomas, 31 Eng. Ch., 300; Ricker vs. Kelly, 1 Greenleaf, 117; Clement vs. Durgin, 5 Greenleaf, 1; Le Fevre vs. Le Fevre, et al., 4 S. & R., 241; Carter vs. Page, 4 Iredel, 424; Rerick vs. Kern, 14 S. & R., 267; Ameriscoggin Bridge Co. vs. Bragg, 11 N. H., 102.

The hypothesis of the plaintiff's first prayer is sustained [**4]  by no evidence in the record, and under the decision in the case of the State, use of Hardesty, vs. Hamilton, 32 Md., 354, the exception to the granting of that prayer must be sustained. There is no evidence of any statements made by the defendant or his agent or agents, "that he came to seize the goods, and did seize and make a list of certain goods of the plaintiff, and said that he would remove them unless the sum of $ 72, and the sum of $ 5.76 costs were paid." The prayer was objectionable for the reason that there was no proof to go to the jury of a distress, seizure, taking, or any thing (by which the plaintiff could have suffered any damages) ever having been done.

C. D. McFarland, for the appellee.

Under the pleadings in this case the testimony of the appellant as to the license from the appellee to use his wall was only admissible in mitigation of damages, and not as a bar to the action. This is an action of trespass. Scott vs. Bay, 3 Md., 444; 9 Bacon's Abridg., Title 515, 516.

A license must be specially pleaded in trespass. 1 Chitty on Pleadings, 491, 505; Cox vs. Painter, 7 Car. & P., 767; Bennett vs. Allcott, 2 Term Rep., 166; Gronour vs. Daniels, 7 Blackford,  [**5]  108; Milman vs. Dolwell, 2 Campbell's N. P., 878.

The first prayer of the plaintiff was properly granted. An action is maintainable by a tenant against his landlord for distraining for more rent than is due. Taylor's Landlord and Tenant, paragraph 729.

The defendant's second prayer was properly refused, for the reason that this is an action of trespass, and license not having been pleaded it was not a bar to the action, besides, there was no proof offered touching the consent of the plaintiff to the damaging of his roof.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*304]  ALVEY, J., delivered the opinion of the Court.
The declaration in this case contains two counts; and in regard to the first of which it is rather difficult to determine whether it was intended to be in trespass for an illegal distress, or in case, for an excessive distress. As intended for either form of action it is certainly very imperfectly drawn. The second count is for a direct injury done to the plaintiff's wall, and is framed in trespass.
The case was tried upon the general issue plea, that the defendant did not commit the wrongs [**6]  alleged.
At the trial below seven exceptions were taken, but only two or three of which are important to be decided on this appeal.
The plaintiff gave in evidence, in support of the first count in his declaration, the sub-lease to himself from the defendant, dated the 3d of May, 1869, of the premises, in respect of which the rent was alleged to be due, whereby the plaintiff agreed to pay the defendant the yearly rent of $ 36, accounting the same from the first of January, 1869, in equal instalments of $ 18 each, on the 1st of January and July respectively, in every year during the continuance of the lease; the defendant reserving to himself the right of distress for any arrearages of the rent agreed to be paid. The plaintiff also gave in evidence certain distress proceedings, dated the 17th of January, 1871, taken by the defendant against the goods of the plaintiff, for the sum of $ 72, rent alleged to be then in arrear under the lease to the plaintiff; and also proved, by the constable to whom the distress warrant was directed, that the same had been levied; but neither the schedule of the goods taken, nor their value, is made to appear. The constable 

 [*305]  also proved that [**7]  after levying the distress, the plaintiff had paid the amount of rent claimed to be due, without making any objection to it.
The plaintiff further proved, for the purpose of showing that the distress had been taken for more than was actually due, that the defendant had rendered him an account of the rent in arrear, in which a credit of $ 25 had been given, and that he was entitled to such credit for money received by the defendant to his, the plaintiff's use; thus reducing the amount of the rent claimed by the defendant, and for which he had taken the distress.
It is not claimed, nor pretended, by the plaintiff that no rent whatever was due for which distress could be taken. On the contrary, the point of grievance is, that distress was taken for more than was due, if proper credit had been given. Some rent, it is conceded, was due and in arrear.
Proceeding upon this theory of his rights, the plaintiff, by his first prayer, asked the Court to instruct the jury, which was done accordingly, that if they should find that the distress had been levied, as stated in the evidence, and that the defendant declared his purpose to remove the goods distrained, unless the rent claimed to be due [**8]  was paid; and that the plaintiff did pay the amount of rent claimed, with the costs of distress; and should further find that the said sum of $ 72 was not due and in arrear from the plaintiff to the defendant for rent; then the plaintiff was entitled to recover, under the first count in the declaration, such actual damage as the jury might find the plaintiff to have sustained.
On the other hand, the defendant prayed the Court to instruct the jury, which was refused, that if they should find that the defendant distrained for more rent than was really due and owing, and that such distress was made as testified to by the constable Hayne, and others, then it was legal, and the plaintiff was not entitled to recover under the first count of the declaration.

 [*306]  The question thus presented, on the pleading and evidence, is, whether the distress, taken for a larger sum than was due at the time, (assuming such to be the case,) was legal, or whether it was void, rendering the defendant liable as for a trespass.
It will be observed that by the instruction given, the plaintiff became entitled to the verdict upon the finding by the jury of the fact that the distress had been [**9]  made for $ 72, and that that precise amount was not due at the time. By showing the amount due to be less, however trifling less, than the amount for which the distress was levied, the plaintiff, under this instruction, became entitled to recover. This is clearly not justified by the law, as it is now well settled. The prayer of the defendant, as to the plaintiff's right to recover under the first count of the declaration, should have been granted.
In the case of Taylor vs. Henniker, 12 Adol. & El. 488, (40 Eng. C.L.R. 105,) it was decided by the Queen's Bench, notwithstanding some previous cases to the contrary, that a distress taken for more than was due was unlawful in its inception, and that an action would lie at Common Law for such a wrong. But that decision came to be deliberately reviewed in the case of Tancred vs. Leyland, 16 Adol. & El., N. S. 680, (71 Eng. C. L. R,) and was overruled; and, in the last mentioned case, it was decided that the simple fact of making a distress for an amount larger than that really due, and selling the goods under such claim, is not actionable. This case of Tancred vs. Leyland has been followed by several [**10]  others, after very full discussion of the question.
In the case of Glynn vs. Thomas, in the Exch. Chamber, 11 Exch. 870, the declaration alleged that the plaintiff held certain premises as tenant to the defendant, and that the latter wrongfully distrained certain goods of the plaintiff, as a distress for an alleged amount of rent then dne; and that the defendant wrongfully remained in possession of such goods, under color of the distress, until the plaintiff was compelled to pay, and did pay, to the defendant the pretended arrears of 

 [*307]  rent and costs of the distress, in order to regain possession of the goods; whereas, in truth, only a small part of the pretended arrears of rent was due. It was held, after much consideration, that this declaration disclosed no cause of action; for as the distress was lawful, the defendant was entitled to a tender of the amount really due, and upon his refusal to accept that sum, the plaintiff's proper course was to replevy the goods. It was there said, however, to be clear law, as it undoubtedly is, that if the untrue claim had been followed by a sale of more of the goods taken than was sufficient to raise the amount [**11]  of rent really in arrear, with legal charges, a sufficient cause of action would have arisen. In such case, the goods would not be subject to replevin after sale.
In reference to the taking and detention of the goods by the defendant, and the payment by the plaintiff of the amount of rent claimed to be due, in order to regain possession of his goods, the Court said: "It is alleged, however, in the count before us, that the plaintiff was compelled to make payment, and did make it, in order to regain possession of his goods; and this allegation being taken to be true, we must assume now such a state of facts as would have proved it, if put in issue. But the facts necessary for that purpose would be merely that the plaintiff demanded the goods, and that the defendant refused to deliver them, unless the alleged arrears with the charges of the distress were paid, and that the payment was made in consequence. Still this would not make the demand extortionate, or the payment such as could be recovered back in this form of action, unless from these facts it followed that the detention of the goods became unlawful. Now as some rent was due, the taking was lawful; and as the taking was lawful, [**12]  so was the detention until the sum really due, with enough to cover the lawful charges, was tendered."
The declaration in the present case alleges that the distress was maliciously made; but that can make no difference; for in the case of Stevenson vs. Newnham, 13 C. B., 297, an action against a landlord for distraining for more rent than was 

 [*308]  really due, and where a similar allegation of malice was made, the Court said that such allegation was wholly immaterial, for an act which does not amount to a legal injury cannot be actionable because it may be done with a bad motive or intent.
The cases of Tancred vs. Leyland and Glynn vs. Thomas have both been recently referred to and sanctioned by this Court, in the case of Jean vs. Spurrier, 35 Md. 110, where the question of the legality of a distress was involved.
There is but one other question of importance to be decided in this case, and that arises under the sixth exception, and also on the defendant's second prayer, contained in the seventh exception.
In regard to the alleged injury to the wall of the plaintiff, complained of as a trespass in the second count of the declaration, [**13]  the defendant offered to prove, in bar of the right of action therefor, that such wall was used by him in the erection of an adjoining building, in the manner testified to, under and by authority of an express parol agreement with the plaintiff; the plaintiff agreeing and directing that the wall should be used in the manner it was by the defendant. But this evidence was excluded, as being insufficient under the pleadings, to bar the right to recover for the alleged trespass, but was admitted in mitigation of damages.
We think the Court committed no error in ruling as it did in regard to this question. The case was tried on the general issue plea alone. If license had been specially pleaded, as must be done in actions of trespass when the defendant seeks to justify by the authority of the plaintiff, or those under whom he claims, (1 Chit. Pl., 491, 505,) the evidence offered would have been clearly admissible in bar of the right to recover. The right to maintain the plea of license by such evidence as was here offered, is fully sustained by the authorities; the Statute of Frauds in such case not applying. Crosby vs. Wadsworth, 6 East., 611; Carrington vs. Roots, 2  [**14]  M. & Wels. 248; 2 Greenl. Ev., sec. 628; Crane vs. Gough, 4 Md. 316. 

 [*309]  But license from the plaintiff not having been specially pleaded, the evidence was inadmissible to defeat the action, under the general issue simply. It was properly admitted, however, in mitigation of damages.
It follows, from what we have said in reference to the admissibility of this evidence, that the defendant's second prayer was properly refused by the Court below.
The judgment will be reversed, and a new trial awarded.
Judgment reversed and new trial awarded. 

94 of 144 DOCUMENTS 

THE COUNTY COMMISSIONERS OF CALVERT COUNTY vs. JOHN GIBSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 229; 1872 Md. LEXIS 76 

June 18, 1872, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Prince George's County.

This suit was instituted by the appellee in the Circuit Court for Calvert County, to recover damages from the appellants for injuries done to his wagon and carriage, while they were being used with due care and caution on certain of the public roads in said county. The plaintiff alleged that the defendants had negligently suffered said roads to be out of repair and unmended, so as to be impassable with safety, and that thereby his wagon and carriage were broken. At the instance of the plaintiff, the case was removed to the Circuit Court for Prince George's County, when upon leave of the Court he amended his declaration, laying the venue as of Calvert county. To this declaration the defendants demurred. The Court (MAGRUDER, J.,) overruled the demurrer. The defendants then pleaded "not guilty," and issue was joined thereon.

Exception: The plaintiff to maintain the issue on his part, gave evidence tending to show the bad condition of the public roads in Calvert county mentioned in the declaration, and the injuries done to his wagon and carriage while travelling over these roads.

The defendants then proved that at [**2]  the time of the first breaking of the wagon of the plaintiff as alleged in the declaration, there was another road leading through the village of Lower Marlborough to the steamboat landing, which was in good travelling condition, over which the plaintiff might have passed without injury to his wagon; that said road had been used by the public for upwards of forty years, and was known to the plaintiff as one of the thoroughfares through said village to the steamboat landing, and was only from three to four hundred yards further to said landing than the road used by the plaintiff.

The plaintiff thereupon offered the following prayer:

If the jury find from the evidence in the cause, that the public roads of Calvert county, mentioned in the declaration, were in bad condition, and not mended and repaired, and that in consequence of such condition of the roads the wagon and carriage of the plaintiff were broken whilst travelling on the said public roads, then the plaintiff is entitled to recover the amount of damage (if any) which the jury may find he sustained by the breaking of his carriage and wagon, whilst so travelling on the said public roads; provided they shall further [**3]  find from the evidence that the plaintiff used due care and caution at the time.

The defendants also offered the four following prayers:

1. That the plaintiff is not entitled to recover in this action for any damage which he could have avoided by the exercise of reasonable caution and care.

2. If the jury shall find from the evidence that the wagon and carriage of the plaintiff were damaged as alleged, while being driven over said public roads, the plaintiff is not entitled to recover, if the jury shall further find that said damage could have been avoided by an exercise of reasonable caution and care by the plaintiff.

3. If the jury shall find from the evidence that the wagon and carriage of the plaintiff were damaged as alleged, while being driven by the plaintiff over the public roads of Calvert county, mentioned in the declaration, and that said damage was caused by a want of ordinary care and caution on the part of the plaintiff, then he is not entitled to recover in this action, although the jury may find that the said public roads, at the time of said damage, were out of repair.

4. If the jury find from the evidence in the cause, that the alleged bad [**4]  road, on which the plaintiff's wagon was broken, could have been avoided by using another road leading to said wharf, which was in good condition, and but a short distance further, and had been used by the public for upwards of twenty years, then the plaintiff did not use due care and diligence, and is not entitled to recover.

The Court granted the prayer of the plaintiff and rejected the prayers of the defendants, and the verdict and judgment being for the former, the latter appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Venue -- Responsibility of County Commissioners for Injuries arising from the condition of the Public roads -- Liability of Road Supervisors under the Act of 1868, ch. 299.

Where a suit is instituted in one county and removed to another, and the declaration is amended, the venue should be laid as of the county in which the suit was instituted.

Where in consequence of the condition of the public roads of a county, a wagon and carriage are injured, the owner thereof is entitled to recover from the county commissioners damages for such injury, provided he used due care and caution whilst travelling over the roads.

The right of action against the county commissioners for injuries resulting from the condition of the public roads, is not taken away by the 8th section of the Act of 1868, ch. 299, which permits the bond of a road supervisor, given for the faithful performance of his duties, to be put in suit for the benefit of any person who may suffer by the neglect of such supervisor to keep the roads in his district in proper order.  

COUNSEL:
Charles S. Parran and Samuel H. Berry, for the appellants.

The appellants, by their demurrer to plaintiff's narr., raised the question as to their legal responsibility for damages in actions of this kind. They contended that the Road Supervisors of Calvert county, and not the County Commissioners of Calvert county, were, under the Act of 1868, ch. 299, responsible for such damages.

The Act of 1868, ch. 299, was, by its 10th section, made applicable to Calvert county. By its 3d section, the entire labor necessary for repairing the public roads of Calvert county was placed under the control and direction of the Road Supervisors. Thus the most essential means for [**5]  keeping these roads in repair were taken from the County Commissioners and given to the Road Supervisors, who are, in consequence thereof, and according to the reasons given in the case of The County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 468, responsible for damages caused by the public roads not being kept in good repair.

The Act of 1868, ch. 299, sec. 8, prescribes that the bond of a Supervisor "may be put in suit for the benefit of any person suffering by the neglect of said Supervisor in keeping the roads in his district in proper order." This Act provides the remedy in this case, and being the only remedy given by statute law, it should have been used. The word "may," in this section, means "must" or "shall," and the remedy proposed is therefore to be regarded as mandatory. King vs. Barlow, 2 Salk., 609; Newburgh Turnpike Co. vs. Miller, 5 Johns. Ch., 113; Malcom vs. Rogers, 5 Cowen, 193; Minor, et al. vs. The Mechanics' Bank of Alexandria, 1 Peters' U. S., 64; Mason vs. Fearson, 9 Howard U. S., 248; 1 Kent's Comm., (11th edition,) 509, note b.

The amended narr. is defective, because the venue is laid as of "Calvert" county, when the case was pending [**6]  in the Circuit Court for Prince George's county at the time of the filing of the narr.

The plaintiff's prayer should have been rejected, because it did not require him to prove that he could not have avoided the injury by the exercise of reasonable caution and care. Owings vs. Jones, 9 Md., 118.

The defendants' prayers should have been granted. Mayor and City Council of Baltimore vs. Marriott, 9 Md., 160; White-ford vs. Burckmyer and Adams, 1 Gill, 127; Day and Gorsuch vs. Day, 4 Md., 262; Atwell vs. Miller and Mayhew, 6 Md., 10; Birney vs. New York and Washington Telegraph Co., 18 Md., 341.

Henry Williams, Rich'd B. B. Chew and James T. Briscoe, for the appellee.

The liability of the appellants for the damages claimed in the declaration of the appellee is conclusively established by the decision of this Court in The County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 469, and the cases cited in support of the opinion in that case. The declaration here is precisely like the declaration in that case, and avers every fact necessary to entitle the plaintiff to recover.

The construction of the Act of 1868, chap. 299, does not arise on the demurrer,  [**7]  and is not raised by any plea or ruling of the Circuit Court. The demurrer concedes that the appellants did negligently suffer the public roads in Calvert county, mentioned in the plaintiff's declaration, to be out of repair and unmended, so as to be impassable with safety, whereby the plaintiff, in travelling over said roads with his wagon and horses, and carriage and horses, and using due care, sustained the injury complained of. Non constat, that the County Commissioners of Calvert county had appointed any supervisors, as required by law, or had required them to give bond, or had offered any bond as required by section 8 of said Act, or that they made any levy for the repairs of the public roads in the said county, for the years 1868 and 1869, as required by law.

The Act of 1868, ch. 299, does not in terms, or by reasonable implication, change or diminish the power and authority of the County Commissioners of Calvert county over the public roads and bridges of said county, as defined in the Constitution of 1867, Art. 7, sec. 1, and the several provisions of law relating thereto.

The object of the Act of 1868 is not to change the liability of the county commissioners, nor [**8]  to take away the right of action against them, but to provide a cumulative remedy for the wrongs complained of in the plaintiff's declaration.

The road supervisors are liable to indictment for non-repair of the public roads, and being liable to indictment, an action on the case can be maintained against them by a party sustaining any peculiar damage. County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 481.

The provision of the Act of 1868, requiring them to give bond for the faithful performance of the duties required by that Act, and the right of action thereon for their neglect to keep the roads in repair, gives a new and additional remedy to any person suffering by such neglect; but does not take away in terms, or by any reasonable implication, the existing Common Law remedy against the county commissioners. Washington and Baltimore Turnpike Co. vs. The State, 19 Md., 239; Frazier vs. Warfield, 13 Md., 279; Hooper vs. Mayor and C. C. of Balto., 12 Md., 464.

The venue is properly laid as of Calvert county. The suit originated there, and the fact of removal for trial to Prince George's County Circuit Court has no effect upon the venue.

The plaintiff's [**9]  prayer correctly announced the law of the case. The question of due care and caution on the part of the plaintiff is expressly submitted by the proviso to his prayer.

The defendants' first, second and third prayers embrace, substantially, the propositions of law contained in the plaintiff's prayer, but the third is obnoxious to the objection that there is no evidence of a want of ordinary care and caution on the part of the plaintiff in using the said roads, as stated by the prayer. The evidence is all the other way. It is no cause for the reversal of a judgment that the Court below rejected a prayer, even though correct in itself, if, by a previous instruction, which was granted, the Court had given the law of the case to the jury as favorably as the proof admitted. Pettigrew vs. Barnum, et al., 11 Md., 434; Balto. and Ohio R. R. Co. vs. Resley, 14 Md., 424; Keech vs. Balto. and Wash. R. R. Co., 17 Md., 32; Mayor and City Council of Balto. vs. Pendleton & Harlan, 15 Md., 12.

The law of the fourth prayer is wrong, because there was no obligation on the plaintiff to use that road, which is shown by the evidence to have been the longest route to the steamboat landing, and at [**10]  times dangerous to use, in consequence of its miry condition, from the ebb and flow of the tide.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., BOWIE, BRENT, GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*235]  BRENT, J., delivered the opinion of the Court.
This suit was instituted in the Circuit Court for Calvert county, and afterwards removed, upon the affidavit of the plaintiff, to the Circuit Court for Prince George's county. After its removal the plaintiff by leave of the Court filed an amended declaration. To this declaration the defendants demurred; and they contend that the demurrer ought to have been sustained by the Court below, first, because the venue is laid as of Calvert county, while the case was pending in Prince George's county, and second, because under the laws of the State they are not liable in this action.
The statement of the venue in a declaration is intended to indicate the place or county in which the facts constituting the cause of action are alleged to have occurred, and in which the case is to be tried. The damages in this case are claimed to have resulted from the bad condition of a public road in Calvert county, and the defendants,  [**11]  who are the county commissioners, could only have been sued in that county. The venue was therefore properly stated as of Calvert county. Had it been laid in Prince George's county, it would have been manifestly error. The removal of the case did not affect or change this rule of pleading. 1 Chit. Plead., 268.
The liability of the defendants in this action, it is conceded, is settled by the case of The County Commissioners of A. A. Co. vs. Duckett, 20 Md. 468, unless by the terms of the law of 1868, ch. 299, their duties and powers in regard to the public roads have been so materially changed and abridged as to render that decision inapplicable.
In that case the county commissioners were held liable for damages resulting from the condition of a public road, upon the ground that the public roads of the county were under their charge; they being clothed in their corporate capacity with "charge of and control over the property owned by the 

 [*236]  county, and over the county roads and bridges," with power to levy the needful taxes to keep them in repair, and with such power and control over the road supervisors, who were then elective, as was sufficient [**12]  to constitute them, the supervisors, in the eye of the law their agents. None of these powers are abridged or changed by the Act of 1868, unless it be the power of removing the supervisors, about which it is silent. But the supervisors are not therefore the less their agents, for the law of 1868 has specially confided to the commissioners their selection and appointment. In looking at the entire law it will be seen, that the general control and care of the public roads, the levying of needful taxes to keep them in repair, the commutation of labor for teams and carts or wagons, the number of hands to be employed by the supervisors, the amount of their pay and that of the supervisors, are all left to the direction of the commissioners. These embrace the very powers and duties, which were held in the case in 20 Md., to be sufficient to charge the commissioners of Anne Arundel county in an action of damages, and we see nothing in this respect to distinguish the present case from that. But it is said, as the 8th section of the Act of 1868 directs the commissioners to require the road supervisors to give bond to the State, with security to be approved by them, "which bond may be put  [**13]   in suit for the benefit of any person suffering by the neglect of the said supervisors, &c.," the right of action against the commissioners is thereby taken away, and a party injured must seek his remedy upon the bond of the supervisor. The argument on the part of the appellants is, that the word may as used in this section is to be construed to mean must. We do not so construe it. There is nothing in the object or purpose of the law, which indicates that the word was used in any other than its ordinary meaning. The remedy given is as effectual as a cumulative remedy, as it would be if by a forced construction of the language it was held to be an exclusive one. The word may, when used in statutes, is often construed to mean must, but it 

 [*237]  is in cases where it is manifestly the intention of the Legislature to impose a positive and absolute duty, and to give a discretionary power. Minor vs. Mechanics' Bank of Alexandria, 1 Peters 64. We can see no such manifest intention of the Legislature in the law before us, and do not think there is any reason for giving to the section referred to the construction asked for by the appellants. Its plain [**14]  language confers a discretionary power, and to give to it any other meaning would be to violate the established rules of construction.
The prayer, which was offered by the plaintiff below and granted by the Court, correctly states the law of this case. All the facts which are necessary to fix the liability of the defendants, and the true amount of damages to be recovered, are fairly and plainly submitted to the finding of the jury. It directs them, if they find from the evidence that the public roads in Calvert county, mentioned in the declaration, were in bad condition, and that in consequence of such condition of said roads the wagon and carriage of the plaintiff were broken whilst travelling on said public roads, then the plaintiff is entitled to recover the amount of damage (if any) which he sustained by such breaking of his carriage and wagon; provided they shall further find from the evidence that the plaintiff used due care and caution whilst so travelling over the said roads.
The first, second and third prayers of the defendants submit only the question of the due care and caution of the plaintiff to the jury. As this had already been submitted to them by the prayer of [**15]  the plaintiff which was granted, these prayers, according to the repeated decisions of this Court, although they may correctly state the law, were properly rejected. The fourth prayer of the defendants asks the Court to instruct the jury if they find "that the alleged bad road, on which the plaintiff's wagon was broken, could have been avoided by using another road leading to said wharf, which was in good condition and but a short distance 

 [*238]  further, and had been used by the public for upwards of twenty years, then the plaintiff did not use due care and diligence and is not entitled to recover." This prayer was very properly refused. It is defective in not submitting to the jury to find, that there was any knowledge on the part of the plaintiff that the one road was dangerous, while the other was safe. Without some such knowledge he certainly could not, upon the facts stated in the prayer, be charged with a want of proper care and diligence. Apart from this the prayer is radically wrong. It is no excuse for the defendants, if damage was sustained in the manner set out in the prayer of the plaintiff, to say that another road could have been travelled without accident.
Finding [**16]  the rulings of the Court below without error, the judgment will be affirmed.
Judgment affirmed. 

95 of 144 DOCUMENTS 

THE POWHATAN STEAMBOAT COMPANY, Garnishee of THOMAS CLYDE vs. THE POTOMAC STEAMBOAT COMPANY and GEORGE PARKER and THOMAS PARKER. THOMAS CLYDE vs. THE POTOMAC STEAMBOAT COMPANY and GEORGE PARKER and THOMAS PARKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 238; 1872 Md. LEXIS 77 

June 18, 1872, Decided 

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

This was an attachment sued out of the Superior Court of Baltimore City on the 20th of October, 1869, by the appellees against the property of Thomas Clyde, a non-resident. The plaintiffs, in the last count of their short note, alleged that they "let to the defendant a wharf in Washington city, D.C., known as '7th street Wharf,' on account of rent of which there was due from the defendant to the plaintiffs the amount stated in the account thereto annexed, for the period of time therein named, viz: from April 1st, 1866, to Dec. 1st, 1866." The following were the open account and agreement by which the plaintiffs claimed that the defendant was indebted to them, and which were annexed to their affidavit:

WASHINGTON, December 1st, 1866.

MR. THOMAS CLYDE,

TO POTOMAC STEAMBOAT CO. and GEO. & THOS. PARKER,   DR.

________________________________________________________________________________

To Wharf rent up to above date	$ 1,000	
By cash received of O. Allen	60	
Balance due	940	
With interest from date to be added.	
________________________________________________________________________________

WASHINGTON, Nov. 29th, 1866.

JOHN VAN RISWICK, Esq., Agent, & Co.:

DEAR SIR: I will take the wharf and premises rented by Mr. Thomas Clyde, at 7 st., known [**2]  as "7 St. Wharf," off his hands, as agreed on by you and myself, from 1st December, 1866, on the following terms, viz: I will release him from all rent from the above date, and allow you as his agent to collect the rent now due by O. Allen, and also allow you to remove your steamer, and also the shed from said wharf, and only holding Mr. Clyde for the rent from 1st April, 1866, to 1st December, 1866.

GEO. MATTINGLY, Agent and Attorney.

I accept the above proposition, and will proceed to remove the shed and boat at once.

J. VAN RISWICK, Agent.

The attachment was laid in the hands of the Powhatan Steamboat Company, by service on Jacob Brandt, Jr., its president, and the goods attached and scheduled were forty shares of the capital stock of said company.

At the January Term, 1870, to which the attachment was returned, no appearance being entered for the defendant or the garnishee, the former having been returned "non est," a judgment of condemnation nisi was rendered. On the 18th of January, 1871, a writ of fieri facias was issued, and thereunder the property attached was advertised for sale on the 10th of February, following, by the sheriff. The defendant, having [**3]  heard of the attachment for the first time after his property was advertised for sale, on the 6th of February filed his petition and motion to set aside the judgment of condemnation. The reasons filed by the defendant in support of his motion are sufficiently stated in the opinion of this Court. The Court (DOBBIN, J.) overruled the motion. An appeal was thereupon taken from the judgment of condemnation and from the order overruling and refusing the motion to strike out and set aside such judgment.  

DISPOSITION:
Order reversed and new trial directed.  

HEADNOTES:

Appeal -- Attachment -- How a Joint stock Company or Association may be described in a Suit by or against it -- Unreasonable delay.

An appeal from a judgment of condemnation in attachment will not be allowed, unless taken within nine months from the date of the judgment.

By virtue of the Act of 1868, ch. 471, sec. 215, it is sufficient in any suit by or against a joint stock company or association, to describe it by the name or title by which its business is transacted.

A judgment of condemnation in an attachment on warrant against a nonresident defendant, was entered at January Term, 1870. On the 18th of January, 1871, an execution was issued on the judgment, and the property attached was advertised for sale by the sheriff. On the 6th of February, following, the defendant having heard of the attachment for the first time after his property was advertised, filed his motion to set aside the judgment of condemnation. HELD:

That there was no unreasonable delay or laches on the part of the defendant in filing his motion.  

COUNSEL:
Wm. Shepard Bryan, for the appellants.

The conduct of the plaintiffs in keeping their proceedings on the attachment from the knowledge of the defendant was unfair and amounted to a fraud.

There are many defects on the face of the proceedings.

The paper styled an agreement, shows no cause of action against the defendant. It is a letter from a man called "an agent and attorney" to a man called "agent & Co.," and an acceptance by the latter of the proposition contained in the letter. No disclosures are made showing who the principals may be. The letter is a proposition for the surrender of a wharf, and seems to imply the existence [**4]  of a previous contract for the renting of the wharf, but the terms of such supposed contract are not mentioned. The paper purports to be an acquittance and discharge from some of the obligations of this undescribed contract, and not the assumption of any liabilities. It is said that the defendant is to be held for the rent only from April to December. But it is not stated whether this rent is to be a hundred dollars or a thousand. The paper would be as good for one amount as for another. The account is as barren of particulars as the agreement. It does not state where the wharf is situated, nor how it is to be identified, nor during what time the rent accrued. Cox vs. Waters, 34 Md., 460. The agreement and the account are mentioned in the affidavit for the attachment as constituting the cause of action. The agreement does not impose any liabilities on the defendant; an account therefore founded on this void agreement, and showing what is supposed to be due thereon, is no cause of action.

The amount stated to be due in the short note, and in the affidavit for attachment, is $ 940, the amount mentioned in the account is this sum with interest from December, 1866, nearly three years [**5]  previous. Browning vs. Pasquay, 35 Md., 294.

The last count of the short note is the only one which purports to describe the cause of action. This count is radically defective. It speaks of a letting of a wharf, but the lease is not described with any certainty; it is not stated when the term commenced or ended, or what rent was reserved. Bacon's Abridg. Leases, (L.,) 1, (L.,) 3, (L.,) 4; Taylor's Landlord and Tenant, sects. 70, 71; 2 Platt on Leases, 50; Coke Littleton, 45 b. Such a lease as that described in this count would be absolutely void in law. And the count is fatally deficient in the precision and certainty required by the rules of pleading. 1 Chitty's Pleading, 260, 261.

The Potomac Steamboat Company is nowhere in the proceedings alleged to be a corporation. As a partnership, it could not sue by its firm name. 1 Chitty's Pleading, 256. Its corporate character is essential and must be proved.--Agnew vs. Bank of Gettysburg, 2 H. & G., 478. And as it is necessary to allege essential facts, it must be alleged.

All these defects in the proceedings are open to the consideration of the Court on this appeal. Mears vs. Adreon, et al., 31 Md., 235. And every objection [**6]  which would be fatal to a declaration on demurrer is fatal to the short note.

Edward Higgins, for the appellees.

In the absence of fraud or irregularity in obtaining a judgment, a motion to strike it out, not made until after the term at which the judgment was rendered, will not prevail. Sherwood vs. Mohler, 14 Md., 565; Kemp, et al. vs. Cooke, et al., 18 Md., 138.

More than a year passed after the judgments were obtained before a motion to strike out was filed.

The appellants--especially the garnishee--have been guilty of laches and unreasonable delay in contesting this case.--Relief from the judgment, under the circumstances, will not be granted. Kemp, et al. vs. Cooke, 18 Md., 139; Freidenrich, et al. vs. Moore, et al., 24 Md., 296.

There are no defects upon the face of the proceedings. The account is sufficient--yet, if it be not sufficient alone, the letter annexed gives all the necessary particulars. The vouchers were sufficient to authorize the justice to issue a warrant for the attachment. Cox vs. Waters, 34 Md., 460.

The short note is not defective--it gives the names of the parties, the cause of action, the amount claimed, and for what it was [**7]  claimed. It is sufficient. A short note is a brief statement of the cause of action, without the forms of a declaration. Evans' Practice, 127.

The appellees can sustain the action. No further description is necessary of the Potomac Steamboat Company than is given. Act 1868, ch. 471, sec. 215. The appellees are not a co-partnership.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*243]  BARTOL, C. J., delivered the opinion of the Court.
These appeals were taken, one of them from the judgment of condemnation, entered in favor of the appellees, at the January Term, 1870; and the other from the order of the Superior Court, passed on the 6th day of February, 1871, overruling and refusing the motion of the appellant, Thomas Clyde, to strike out and set aside the judgment of condemnation.
The appeals were taken on the 7th day of February, 1871.
First. The appeal from the judgment was not taken within the time prescribed by law. Formerly three years were allowed. Code, Art. 5, sec. 7; Mears vs. Adreon, 31 Md. 229. But by the Rules and Regulations respecting appeals, made and prescribed [**8]  under and by authority of the Constitution, Article 4, section 18, the time was limited to nine months from the date of the judgment. 29 Md. 1, (Rule 2d.)
These rules took effect and were in force from the first day of January, 1870, 29 Md. 8, (Rule 21,) and are applicable to this case, the judgment of condemnation having been entered after that day. The 20th section, Article 5, of the Code, which enlarges the time for an appeal, in cases where fraud or mistake is alleged, applies only to orders and decrees passed by Courts of Chancery. See 29 Md. 4, (Rule 9.) 

 [*244]  The first appeal therefore, that of the "Powhatan Steamboat Co.," Garnishee, taken from the judgment of condemnation must be dismissed, as not taken in time.
Second. In support of the motion of Thomas Clyde to set aside the judgment of condemnation, the following reasons were assigned:
First. Because they were obtained by fraud and surprise practised upon this defendant by the plaintiffs, as set forth in the affidavit herewith filed.
Second. Because the papers filed as the cause of action, shew no indebtedness by this defendant to the [**9]  plaintiffs.
Third. Because the pretended agreement, filed as the cause of action, is not stamped.
Fourth. Because it is nowhere alleged in the proceedings that the Potomac Steamboat Company is a corporation, and a private partnership cannot maintain a suit, except in the names of the individual partners.
It is objected by the appellees that this motion was made too late; but there was no unreasonable delay or laches on the part of Thomas Clyde in filing the motion. It appears that he sought relief as soon as he had any knowledge of the proceedings. He was an absentee, and had no actual notice of the attachment until his property was advertised for sale by the sheriff under the writ of fieri facias.
In disposing of the motion, we will consider the several reasons assigned, inverting their order.
By the Act of 1868, ch. 471, section 215, it is provided that "it shall be sufficient in any suit, by or against a joint stock company, or association to describe it, by the name or title by which it is commonly known, or under which its business is transacted." This provision is a sufficient answer to the fourth reason or cause assigned in support of the motion.
The objection [**10]  for the want of a stamp to the paper signed by Van Riswick, Agent, has not been urged in the argument in this Court, and could not be successfully relied on in support 

 [*245]  of the motion, as the paper is not one requiring a stamp under the Act of Congress.
The second cause assigned, based upon the alleged defects in the attachment papers, as not shewing any indebtedness from the defendant, Clyde, to the plaintiffs, we think is not supported.
The last count in the short note, when taken in connexion with "the account thereto annexed" to which it refers, is a sufficient statement of a cause of action. And the account filed with the affidavit, together with the voucher annexed thereto, being the letter of Mattingly, agent and attorney, addressed to Van Riswick as agent of Clyde, with the acceptance of the proposition therein contained by Van Riswick, agent, are sufficient to shew prima facie a debt due from the defendant, Clyde, to the plaintiffs to support the attachment.
In the affidavit of Clyde accompanying the motion, there are several things alleged, which, if true, are sufficient to make out the charge of bad faith, on the part of the appellees, in instituting [**11]  the proceedings against his property.
Nearly three years elapsed after the supposed debt had accrued before the suit was instituted, and he avers that the plaintiffs never presented their account to him, nor demanded payment from him; although he visited the city of Washington, the place where they reside, and where the debt is alleged to have arisen, frequently during that period, and was known to the plaintiffs to be there, and to be fully able to pay the debt if it really existed. He further avers that it was well known to them that he did not owe the debt or any part of it, but that the rent charged, if any was due, was due and payable by the "Washington and Alexandria Steamboat Company," a corporation of which he was only a stockholder, and that he was in no manner personally bound for the same. He further avers that Van Riswick was managing agent for the company, by which the wharf was rented, and was not his agent, and was not authorized to bind him by signing the paper exhibited as a voucher or contract.

 [*246]  In the face of these averments, verified by oath, we think the Superior Court ought not peremptorily to have overruled the motion; but that an opportunity ought [**12]  to have been afforded to the parties to sustain or to disprove these averments; and if they had been supported by proof, the motion ought to prevail. In order that the parties may have an opportunity to produce testimony, and that the motion may be heard and disposed of on its merits, we reverse the order of the Superior Court and order a new trial upon the motion.
Order reversed and new trial directed. 

96 of 144 DOCUMENTS 

ISAAC STRAUS vs. MARY ANN YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 246; 1872 Md. LEXIS 78 

June 18, 1872, Decided 

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

This was an action for malicious prosecution by the appellee against the appellant and his brothers Samuel and Leopold. The declaration contained two counts. The first alleged that the defendants appeared before John T. Gorsuch, a justice of the peace, and there falsely and maliciously, and without any reasonable or probable cause, charged the plaintiff with having feloniously stolen from them one pair of pantaloons, and upon that charge they caused the said justice to grant his warrant for her arrest, and caused the said plaintiff to be arrested and imprisoned, &c., and then caused the said plaintiff to be brought before the said justice for trial, which being had, she was fully acquitted and discharged. The second count alleged that the defendants falsely and maliciously, and without probable cause, charged the plaintiff with having committed a felony, and on that charge caused her to be arrested, &c. The plea was not guilty.

Exception: At the trial the plaintiff proved that the appellant, on the 7th of February, 1871, appeared before John T. Gorsuch, a justice of the peace, and made affidavit that he had given to the plaintiff [**2]  five pair of pantaloons to be made, and that she had returned only four pair, appropriating one pair to her own use, and craved the protection of the law against her; that the justice of the peace accordingly issued his warrant for her arrest. The plaintiff testified that on a Saturday evening in February, 1871, she went to the store house of Straus Brothers, the defendants, to get a small balance of $ 1.35, due her from them, and more work; that Isaac Straus refused to pay her, but gave her two pair of pantaloons to make, and told her to come the following Monday morning; that she called, as requested, when Isaac Straus said she had two pair of pantaloons, one of which she had retained since August, 1870, (not those received on the Saturday evening,) and that until she returned them or paid $ 15 for them, he would not pay her the balance due; that she had stolen the pantaloons; that this charge she indignantly denied. That she went home, and in a short time an officer came to the house and told her he had a warrant for her, and she must appear at the office of the justice at 4 o'clock that afternoon, which she accordingly did. That the case was postponed to a subsequent day, when [**3]  it was heard.

That at the trial of the case, Isaac and Leopold Straus and several of their employees were present and examined as witnesses for the prosecution, and on the conclusion of the examination Isaac Straus, who was very active in the prosecution, made a speech, urging her conviction. She was acquitted and discharged by the magistrate. She further testified that each pair of pantaloons was worth two or three dollars.

The defendant Isaac testified that the defendants were brothers and partners, trading under the name of Straus & Bro., and had been for the last several years engaged principally in the wholesale clothing business at No. 211 N. Gay street; that in August, 1870, they had a small lot of goods of a peculiar pattern which they gave out to three or four hands to be made up; that they usually employed from fifty to one hundred hands; that they discovered, on an examination of their books, that one pair of pantaloons of this peculiar pattern of goods was missing, and he concluded that the appellee had retained them. That having come to this conclusion, he put up a bundle, in January, 1871, containing five pair of pantaloons, in which he only put trimmings for [**4]  four pair; that three pair had been cut with the same cut of the scissors, that is the scissors cut three plies of the cloth at the same time; that two pair of the pantaloons were cut of different sizes from the said three pair. That the bundle was thus put up in the presence of his brother Leopold and two of their employees, and it was put up in this manner to test with certainty whether he was right in his belief as to the plaintiff; he expected that she would call for trimmings for the pair for which none had been furnished, if she were an honest woman; he delivered the bundle to her son who called for it; she soon after returned four pair made up; he waited some three or four days, but she did not return the fifth pair; she called afterward on a Saturday to get a small balance that was owing to her, which he refused to pay, but gave her two pair of pants to make up, and told her to call on Monday, which she did, and demanded the balance due her; but he refused to pay until she had returned the two pair which she had received before the last two pair, and which she had not returned; that he did not say she had stolen them; that she denied the charge and immediately left; that he [**5]  did not then leave the store, but sent the errand-boy after her, to ascertain where she lived; that after the return of the errand-boy he went to the magistrate's and made complaint, and asked for a search warrant to search her house.

The defendants then offered testimony tending to prove that said Isaac did not say that the plaintiff had stolen the pants, as she alleges he did, but that what he did say on the occasion was, that she retained two pair of pants the defendants had given her.

One of the defendants' witnesses testified that the demand of $ 15 was made; all his other witnesses, himself included, denied that any such demand was made.

The plaintiff thereupon offered the following prayers:

1. That if the jury find that Isaac Straus, one of the defendants, preferred the charge of larceny against the plaintiff, under oath, before John T. Gorsuch, a justice of the peace, and caused said justice to issue the warrant offered in evidence, by virtue of which she was arrested and brought before him, where, after a full examination of the preferred charge, she was acquitted and discharged, such acquittal and discharge are evidence, with the other evidence in the [**6]  cause, of the want of probable cause; and that it is competent for the jury to infer malice from the want of probable cause, as the same is defined in the defendants' sixth prayer.

2. If the jury find from the evidence that the defendant, Isaac Straus, took an active part in the trial of the plaintiff before the justice, in procuring the attendance of witnesses against her, and in the examination of the witnesses, to bring about her conviction of the charge of larceny, and that she was acquitted and discharged by the justice, and that there existed no probable cause for such charge, it is competent for them to infer malice from such active participation and the other evidence in the case, provided they find that he did so participate.

3. That malice, in its legal sense, is any wrongful act done intentionally, without legal justification or excuse; it is not what is called malice in common acceptation, as ill-will against a person.

The defendants then prayed the Court to instruct the jury as follows:

1. That in actions of this kind it is incumbent upon the plaintiff to show that the proceeding against her was instituted maliciously and without probable cause, and [**7]  that having failed to prove the absence of probable cause, she cannot recover.

2. That from the pleading and evidence in the case, the jury should find a verdict for the defendant, Samuel Straus.

3. That on the pleading and evidence the jury should find for the defendant, Leopold Straus.

4. That if the jury believe from the evidence in the case that the defendant, Isaac Straus, without the cooperation of either of the defendants, bona fide believing that the plaintiff had unlawfully withheld a portion of the goods of the defendants which she had received from them for the purpose of manufacturing the same into clothing, went to J. T. Gorsuch, Esq., a justice of the peace, and truthfully, to the best of his knowledge, stated to him, and without malice, what he conceived to be the cause of complaint, and that thereupon the justice expressed the opinion that the conduct stated constituted a criminal offence, and thereupon swore the said Isaac to said statement and issued the warrant referred to, that then the plaintiff is not entitled to recover.

5. That if the jury believe from the evidence in the cause that Isaac Straus, at the time he preferred the complaint offered [**8]  in evidence before the magistrate against the plaintiff, believed and knew of the existence of facts and circumstances which, if true, would excite in a reasonable mind the belief that the charge he made before the magistrate was true, then they should find for the defendants, although they may believe that said Isaac was mistaken in so believing, and that the plaintiff was not guilty of any such charge.

6. That before the jury can find a verdict against any of the defendants, they must be satisfied that the defendant, Isaac Straus, had not probable cause to believe that the plaintiff had committed the act of which he, the said Isaac, complained before the justice, and was actuated by malice, and that the burthen of proof is on the plaintiff to show the absence of probable cause; that probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind that the plaintiff was guilty of the charge preferred against her by said Isaac to the said justice.

The first and second prayers of the plaintiff were granted by the Court, (DOBBIN, J.;) the third was conceded; the first and fourth prayers of the defendants were rejected, the second [**9]  was conceded, and the third, fifth and sixth were granted. To the granting of the first and second prayers of the plaintiff, and to the rejection of the first and fourth of their own, the defendants excepted. There was a verdict and judgment for the plaintiff for $ 600, against Isaac Straus, and a verdict and judgment for Samuel and Leopold Straus. Isaac Straus appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Malicious Prosecution -- Probable cause -- When Malice may be inferred -- Practice in the Court of Appeals -- Inadmissible Evidence to show absence of Malice.

Where a party against whom a charge of larceny is preferred, is acquitted and discharged after a full investigation by the magistrate who issued the warrant for her arrest, such acquittal and discharge are prima facie evidence of the want of probable cause for the prosecution, sufficient to throw upon the prosecutor, in an action against him for malicious prosecution by the party against whom he made the charge, the burden of proving there was probable cause.

Malice may be inferred from the want of probable cause for a prosecution.

In an action for malicious prosecution, malice on the part of the defendant may be inferred from his zeal and activity in conducting the prosecution against the plaintiff.

An objection that there was no proof to support the hypothesis of a prayer, will not be heard in the Court of Appeals, it not appearing that such objection was distinctly made to and decided by the Court below.

The objection to a variance between the allegation of the narr. and the proof, should be made in the Court below by objecting to the evidence when offered, or by a prayer properly framed for that purpose; if not so made, it will not be heard in the Court of Appeals.

In an action for malicious prosecution, proof that the defendant acted under the advice of a magistrate, or other person not learned in the law, is not admissible for the purpose of showing the absence of malice. 

COUNSEL:
Patrick McLaughlin and Wm. P. Preston, for the appellant.

The burthen of proof is on the plaintiff to show malice and a want of probable cause. Turner vs. Walker, 3 G. & J., 377; Outlaw vs. Davis, 27 Ill., 467, 473.

If a magistrate has general jurisdiction of the subject-matter, and the party states his case honestly, and without malice, he is not liable. The case of the Marshalsea, 10 Coke, 69; Von Latham vs. Libby and Rowan, 38 Barbour, 339, 344, 348; Outlaw vs. Davis, et al., 27 Ill., 467, 472, 473; Turner vs. Walker, 3 G. & J., 377.

An illegal arrest is not sufficient to sustain the action. Turner vs. Walker, 3 G. & J., 377.

The charge must have been wilfully false. 2 Greenleaf on Evidence, sec. 453; Burley vs. Bethune, 5 Taunt., 580, 584; Cecil vs. Clarke, 17 Md.,  [**10]  508; Lyon vs. Hancock, 35 Cal., 372, 376.

A discharge by the examining magistrate is not evidence of want of probable cause. Wheeler vs. Nesbitt, et al., 24 Howard, 544; Thorpe vs. Balliett, 25 Ill., 339; Kidder and Wife vs. Parkhurst and another, 3 Allen, 393, 396.

A. H. Hobbs, for the appellee.

The examination by the justice and his discharge and acquittal of the appellee, was prima facie evidence of the want of probable cause, and proper for the consideration of the jury.

It was an ex parte proceeding, in which the alleged traverser had no power to produce witnesses in her behalf, and did not, in fact, attempt to produce any. The prosecution before the examining magistrate produced all the evidence that could be brought together, and failed to establish the charge preferred. It would be difficult to show stronger evidence of the want of probable cause than is here shown. Had the magistrate, instead of discharging the appellee, held her to bail for her appearance before the grand jury, that determination on his part would have been evidence of probable cause. Bostick vs. Rutherford, 4 Hawks, 91, (N. C.;) Maddox vs. Jackson, 4 Mumf., 465; 1 Am. L. Cases, 270, (5th [**11]  Ed.)

And this finding the party guilty would be evidence for a defendant in a case of malicious prosecution.

The propositions of law submitted in the plaintiff's prayers are abundantly sustained by reason and authority. 1 American Lead. Cases, 268, (5th Ed.;) 2 Greenleaf's Ev., sec. 455; Nicholson vs. Coghill, 4 Barnwall & Cresswell, 21-24; Johnson vs. Chambers, 10 Iredell, 287; Williams vs. Norwood, 2 Yerger, 330-336; Johnston vs. Martin, 3 Murphey, (N. C.,) 248; Bostick vs. Rutherford, 4 Hawks, (N. C.,) 88-91; Hill vs. Palm, 38 Mo., 22; Chapman vs. Dodd, 10 Minn., 364, 365; Casperson vs. Sproule, 39 Mo., 43; Brant vs. Higgins, 10 Mo., 734; Ross & Co. vs. Innis, 35 Ill., 487.

The defendant's first prayer was clearly not law, as there was abundant evidence for the consideration of the jury as to the want of probable cause, and the Court could not have granted it without invading the province of the jury.

The defendant's fourth prayer was properly rejected for numerous reasons. It rests, in part, on the belief of the defendant without stating the facts and circumstances. 1 Am. Lead. Cases, 254. The mere belief of a party avails nothing. Ross & Co. vs. Innis, 35 Ill.  [**12]  , 504; Winebiddle vs. Porterfield, 9 Barr., 139; Hall vs. Sugdan, 6 Barb., 89; Lawrence vs. Lanning, 4 Porter, (Ind.,) 196; Jacks vs. Stimpson, 13 Ill., 701; 1 American Lead. Cases, 266, (5th Ed.)

Even an expert would not be permitted to give his opinion or belief except upon a hypothetical or agreed state of facts. There is no evidence to support the theory of the prayer. The magistrate did not initiate the prosecution. The defendant "craved the protection of the law against the plaintiff."

The justice did not say that the alleged offence was "a criminal offence." But merely, "that as the law used to be, the matter complained of was a breach of trust, but that it was now different," and thereupon, he "swore the said Isaac to the truth of said charge," and issued the writ. If the prayer be intended to assert that the "opinion" of the justice amounted to justification, it affirms what is not law. It has already been carried far enough, and probably to a dangerous extreme in giving to the advice of counsel upon all the facts in the case, the force and effect of a justification. The opinion of a nonprofessional man is no justification. Beal vs. Robeson, 8 Iredell, 278; 1 American [**13]  Lead. Cases, 268.  

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

OPINIONBY:
GRASON 

OPINION:

 [*254]  GRASON, J., delivered the opinion of the Court.
This action was brought for an alleged malicious prosecution, and at the trial below the plaintiff offered three prayers, the first and second of which were granted and the third conceded, and the defendant six, of which the first and fourth were rejected, the second was conceded by the plaintiff, and the third, fifth and sixth were granted, and the defendant excepted to the granting of the plaintiff's prayers, and to the rejection of the first and fourth of his own, and the judgment being against him he took this appeal.
The first prayer asked an instruction that if the jury should find that the appellant preferred under oath a charge of larceny against the appellee before a justice of the peace, and caused him to issue his warrant for her arrest, by virtue of which she was arrested and brought before him, and after a full investigation of the preferred charge she was acquitted and discharged, that such acquittal and discharge were evidence with the other evidence in the cause, of the want of probable [**14]  cause for such charge, and that it was competent for the jury to infer malice from the want of probable cause, as the same was defined in the sixth prayer of the appellant, which had been granted by the Court. We think that the prayer states correctly the propositions of law. It is true that it is incumbent upon the plaintiff to allege and prove in an action for malicious prosecution, that the prosecution was 

 [*255]  both malicious and without probable cause; but the discharge of the plaintiff by the examining magistrate, is prima facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary. 2 Greenl. Ev., sec. 455; Secor vs. Babcock, 2 Johns' Rep., 203; Bostick vs. Rutherford, 4 Hawks 83. It is also well settled that malice may be inferred from the want of probable cause. Turner vs. Walker, 3 G. & J. 377, 386; 2 Greenl. Ev., sec. 453.
The second prayer of the appellee states as legal proposition that malice can be inferred from the conduct, zeal and activity of a party in conducting the prosecution of a plaintiff, and this proposition is supported [**15]  by the 453d sec. of 2 Greenl. Ev., and the case of Turner vs. Walker, above referred to. Both of the above prayers were alleged to be objectionable, because there was no proof in the cause that a charge of larceny had been preferred by the appellant against the appellee. As this objection was not specially made in the Court below, it cannot be heard in this Court in view of the Act of 1862, ch. 154, and the fourth rule of this Court. It was also argued that these prayers ought not to have been granted inasmuch as the nar. averred that the appellant had maliciously and without probable cause preferred the charge of larceny against the appellee and caused her to be arrested, &c., whereas, the proof offered at the trial below showed that the charges made against the appellee was that of embezzlement. If the appellant desired to avail himself of this variance between the allegation of the nar. and the proof, he should have done so by objecting to the evidence at the time it was offered, or by a prayer properly framed for that purpose. Not having done so the objection cannot be heard by this Court, since the Act of 1825, which is incorporated in the Code. See Leopard vs. Ches. & Ohio Canal Co., 1 Gill 222; [**16]  Stockton vs. Frey, 4 Gill 406, 422.
The first prayer of the appellant assumed that there was no evidence in the case of a want of probable cause for the prosecution, when we have shown that the discharge of the 

 [*256]  appellee by the examining magistrate furnished prima facie evidence of its absence. The testimony of the appellee also tended to prove it, and the prayer was therefore properly refused. The appellant's fourth prayer asserted as a proposition of law that the appellee was not entitled to recover, if the appellant truthfully and to the best of his knowledge stated to the justice of the peace, and without malice, what he conceived to be the cause of complaint, and that thereupon the justice expressed the opinion that the conduct stated constituted a criminal offence, and thereupon swore the appellant to said statement, and issued the warrant referred to. In the first place there was no evidence that the justice expressed the opinion that "the conduct stated constituted a criminal offence," and this was sufficient cause for rejecting the prayer. But it is evident, from the argument of the appellant's counsel in this Court, that the intent and [**17]  meaning of the prayer is, that the appellant was not liable, if he acted in the premises under the advice of the magistrate. Although, if a party makes a full and fair statement of all the facts to counsel and acts under his advice, this is admissible evidence for the purpose of showing absence of malice; yet it may be rebutted by other surrounding circumstances and the other evidence in the cause. Turner vs. Walker, 3 G. & J. 377. But we know of no case in which it has ever been held that proof, that a party had acted under the advice of a magistrate or any other party not learned in the law, was admissible for such purpose. The appellant's fifth and sixth prayers, which were granted, gave him the benefit of the law as favorably as he was entitled to it.
There being no error in the rulings of the Court below, its judgment will be affirmed.
Judgment affirmed. 

97 of 144 DOCUMENTS 

JOSEPH LEAGUE vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 257; 1872 Md. LEXIS 79 

June 18, 1872, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR to the Circuit Court for Baltimore County.

The plaintiff in error was indicted for murder in the Circuit Court for Baltimore County, at August Term, 1871, together with five other persons. A motion for leave to sever in defence was made and granted. A jury sworn and empaneled to try the case of the plaintiff in error, on the 8th of November, 1871, were unable to agree, and were discharged by the Court on the 12th of the same month. He was thereupon admitted to bail, and the case was continued to the next December Term. At that term, availing of the right given by the 91st section of the 30th Article of the Code, the plaintiff in error elected to traverse the indictment before the Court instead of before the jury; and the case was accordingly tried before the Court on the 15th of January, 1872. The Court, constituted of two judges, after hearing the evidence, was divided in opinion. The fact of the equal division in opinion was entered of record, and the Court ordered a re-trial.

On the 31st of January, 1872, the plaintiff in error filed a motion or petition, reciting the facts, and praying his dismissal by the Court. This motion was overruled. On the following [**2]  day, viz., February 1st, 1872, the plaintiff in error, under and in pursuance of the first rule and regulation of the Court of Appeals, made under the 18th section of the 4th Article of the Constitution, filed a petition for the removal of the cause to the Court of Appeals, as upon writ of error. The Court did not immediately pass any order upon the application, but caused a jury to be drawn and impanelled on the 3d of February. A verdict was returned of not guilty of murder, but guilty of manslaughter; the jury also recommending the prisoner to the mercy of the Court. A motion for a new trial was made and prevailed, and the case continued to March Term, 1872. The Court then, on the 6th of March, 1872, passed an order allowing the removal of the record to the Court of Appeals, upon the application made on the previous 1st day of February.  

DISPOSITION:
Writ of error dismissed.  

HEADNOTES:

Writ of Error -- Trial by the Court instead of the Jury -- Effect when the Court, consisting of two Judges, fail to agree.

A writ of error sued out before final judgment, is premature, and will be dismissed.

Where a party, in virtue of Article 30, section 91, of the Code, elects to be tried by the Court instead of the jury, and the trial takes place, the Court is substituted for the jury, and has the same duties and functions to perform in passing upon the guilt or innocence of the accused; and unless the party charged is determined to be guilty or not guilty, there can be no judgment either of conviction or of acquittal.

Where a party, indicted for murder, instead of being tried by the jury, is tried by the Court, consisting of two judges, and they fail to agree, he is left in the same position as if no trial had taken place. It is in law a mis-trial, and a re-trial must of necessity be had.  

COUNSEL:
D. G. McIntosh and Arthur W. Machen, for the plaintiff in error.

The right of the traverser to have the cause tried by the Court was absolute. Having made his election, and submitted all the issues to the Court, he thereby, under the law, made it incumbent upon the Court to dispose finally of the case. The trial [**3]  he was entitled to necessarily involved a judgment, of acquittal or conviction. All the constitutional rights provided in the declaration of rights adhered to the traverser, subject only to his waiver of a jury trial. He was entitled to the privilege of counsel, to be confronted with the witnesses against him, to an examination of them on oath, and to a speedy trial. This case was duly submitted, accordingly. No formal issue is necessary in such cases. Rawlings vs. The State, 2 Md., 215. The Court, acting upon the submission, assumed to try the cause, and did try it. The evidence having been all heard, the Court who had heard it had nothing left to do but pronounce judgment.

The substitution of the Court for a jury involved a difference, proceeding from the essential distinction between the two tribunals. The Court, though the functions of a jury were merged in it, acted as a Court. Unanimity was not requisite, either for conviction or acquittal. The judgment of a majority is equivalent to the judgment of all. State vs. Buchanan, 5 H. & J., 500. A jury may fail to agree, but a Court must arrive at a decision. The judgment is not the judgment of one Judge, or two Judges, or three [**4]  Judges, but the judgment of the Court.

In the present case, the Court before whom the trial was had, was constituted of two Judges. When these two differed in opinion, the like result followed as in other cases of an equal division of a Court upon a question before it for adjudication; the question was necessarily determined against the party upon whom the burden of the affirmative rested. Gregg vs. Mayor and C. C. of Balto., 14 Md., 479, 503; Hatton vs. Weems, 12 G. & J., 83, 102; Michael vs. Schroeder, 4 H. & J., 227.

A Court may, and in point of fact often does, adjudge and determine a cause when it is equally divided in opinion. It is true that a decision, based on a division of the Court, establishes no principle, and ought not to be made a precedent, but it is none the less a judgment and conclusive of the particular case.

In Etting vs. Bank of the United States, 11 Wheat., 78, a leading case in the Supreme Court, Chief Justice MARSHALL, with his customary precision, indicated the distinction: "The principles of law," he said, which have been argued, cannot be settled; but the judgment is affirmed; the Court being divided in opinion upon it."

Upon a division [**5]  of the Appellate Court, the practice is not merely to allow the judgment below to stand, nor to dismiss the appeal for want of ability to act in the premises; but a judgment of affirmance is entered in the Appellate Court. It has been held that such a judgment is entitled to all the consideration due to a judgment of the Appellate Court, even though the question involved be one of jurisdiction, and although an opportunity be afforded to review it upon a second appeal in the same cause. Washington Bridge Co. vs. Stewart, 3 How., 413.

In Holmes vs. Jennison, 14 Pet., 540, the Supreme Court being evenly divided, the opinions of four Judges standing against those of the other four, upon the question of the Court's jurisdiction, the decree took no notice of the circumstance of the division. Its language was: "This cause came on to be heard, &c.; on consideration whereof, it is now here ordered and adjudged by this Court, that this writ of error to the said Supreme Court (of Vermont) be, and the same is hereby, dismissed for the want of jurisdiction."

In a case where a Circuit Court was equally divided upon the question of jurisdiction, and the question came up upon a certificate [**6]  of division, and the Supreme Court also was equally divided, the cause was remitted to the Court below, in order that that Court might enter a decree of dismissal, leaving to the plaintiff the right then to appeal from such decree if he thought proper. Silliman vs. Hudson River Bridge Co., 1 Black, 582.

Attorney General Syester, for the State.

The whole point of the objection to the proceedings in the Circuit Court, seems to be: That upon the submission of the case to the Court, and its inability to agree, the party was entitled to be discharged, because the indictment was not sustained. That the burden of proof was upon the prosecution; the affirmative proposition was on the State. And that when it failed to make out its case, the prosecution was at an end. And, moreover, that the failure to make out the case and sustain the indictment, is to be ascertained in this particular instance, not by a finding of "not guilty," but by the inability of the tribunal selected to find anything at all.

It is submitted, on the other hand, that when a party is put upon his "deliverance," and submits his case to a Court instead of to a jury, the duties of the Court are precisely those [**7]  that would have devolved on the jury; that in either case, to entitle a party to be discharged, he must be found "not guilty."

There is no sort of analogy between such a case as this and those cases where propositions are submitted to judicial tribunals and are not sustained. Where a party offers evidence which is objected to--as in Ferrall vs. Kent, 4 Gill, 209--there an equal division of the Court leaves the question and the parties precisely as it found them.

So also in the cases where, on appeals, the Appellate Court is equally divided--the judgment below stands, simply because the Court was unable to agree. Every thing is left precisely as it is found.

The same is true of motions of any kind to dismiss appeals; for illustration: whenever such motions are made, and a Court stands equally divided, the motion fails, and the case must be decided on its merits, simply because the Court came to no conclusion. In all such cases, the cause and the rights of parties before the Court are left precisely as the Court finds them, because the proposition, whether an offer of testimony, a motion or an appeal, has not been sustained.

Now, by the errors assigned in the petition [**8]  for this writ, we are told that all this doctrine must be reversed; that in cases like this, the division of a Court must not leave the question and parties where the Court found them.

It is said that here the affirmative is on the State, and that when the Court cannot agree, it has actually found that the affirmation charged in the indictment is not true.

But when the party on trial selects the Court, instead of the jury, to pass upon his "deliverance" between him and the State, it is but a mere change in the tribunal to respond to the matter between the people and the party charged. The duties in each case are identical. Before he can be acquitted, the tribunal selected must agree to his acquittal.

The jury proceeds to its duties and obligations according to the laws constituting its existence and regulating its action; and in order to a discharge of the party, the jury must agree, and that agreement requires the concurrence of every member of the jury.

When the Court addresses itself to the discharge of the same duty, it must proceed according to the laws and regulations established and recognized as governing its deliberations and judgments.

If composed [**9]  of two or more members, the agreement which constitutes the action of the tribunal, requires the concurrence of a majority of the members. But in either case, before any final or conclusive judicial act can be done or made, there must be an agreement according to the laws and rules which enter into and constitute the very right and power of the tribunal to decide anything; and before a party, charged by the grand inquest of the State, can be discharged, it must be by some known, acknowledged and recognized judicial act. An inability to form a conclusion, whether by division in a jury or division in a Court, is no judicial act.

But the record shows that no judgment, or order, or act in the nature of a judgment, final and conclusive in its character, has ever been entered by the Court in this case.

If the inability of the Court to arrive at any conclusion at all is to be refined and construed into an acquittal, the remedy of the plaintiff in error is yet open to him by his proper plea in this regard. Indeed, the record shows that he proceeded to trial, after the failure of the Court to agree, and set up no such defence; that he was convicted of manslaughter; but the Court granted [**10]  a new trial, and the case stands continued on the docket.

Can a writ of error lie in a case like this, where no judgment has been rendered? where nothing final and conclusive in its nature has taken place? "A writ of error lies where a man is aggrieved by an error in the foundation, proceeding, judgment or execution of a suit; but without a judgment, or an award in the nature of a judgment, no writ of error does lie." Coke Lit., 288, b. See also 1 Arch. Cr. Prac. & Pl., 198.

It is well settled by authorities in Maryland and elsewhere, that the expression "judgment," in this connection, means a final judgment, and final judgments are such as at once finish the proceeding, by settling and concluding all the rights of the parties to the proceeding. Hence judgments after verdict, in debt, for "a sum certain," judgments by confession for amounts agreed upon, and judgments in favor of defendants, are final. But in every other case, as on default, on demurrer, &c., and all rulings on motions, the judgment is interlocutory, deciding only in the first instance that the plaintiff ought to recover; in the second, that he is not entitled to recover; and in the last, some mere point of [**11]  practice or order of proceeding. There is no judgment in this case to be "reversed." The refusal of the Court to grant the prayer of the petition of the 31st of January is not a judgment. The overruling of a mere "motion" is not a determination of a Court, final and conclusive in its character.

"It is well settled that no appeal can be prosecuted until a final decision has been had in the Court below, which concludes the rights of the parties." Smithson & Owens vs. U. S. Telegraph Co., 29 Md., 165.

The decision in this case, like that in 29 Md., did not conclude any right of the plaintiff in error, for, as in 29 Md., so here, "the case still stands for trial."

There is nothing in the nature and quality of a writ of error which gives it a wider scope or greater range than an appeal in a civil case. "They are but different modes of accomplishing the same thing--the review of judgments of Courts of original and inferior jurisdiction by a Court of appellate jurisdiction." Coston vs. Coston, 25 Md., 504.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*264]  BARTOL, C. J., delivered the opinion of the Court.
This [**12]  record shows that the plaintiff in error being indicted for murder, was tried by a jury, who, failing to agree upon a verdict, were discharged; he was then admitted to bail, and the case continued to December Term, 1871. At that Term he elected to be tried before the Court, under the 91st section, Art. 30, of the Code; and the case was accordingly tried before the Court on the 15th day of January, 1872. The Court, consisting of two Judges, were unable to agree, and ordered a re-trial.
On the 31st day of January, 1872, the plaintiff in error, by his attorneys, moved the Court that he be discharged, insisting that the failure of the Court to agree, was equivalent to a judgment of acquittal. This motion being overruled, he prayed for a writ of error.
Afterwards, on the 3d day of February, 1872, he was tried before a jury, plead "not guilty," and the jury rendered a verdict of "not guilty of murder, but guilty of manslaughter," and recommended the prisoner to the mercy of the Court. On the same day a motion was made on behalf of the prisoner for a "new trial," which was granted by the Court, and the cause continued.
There being no final judgment in the case, the [**13]  writ of error was prematurely brought, and must be dismissed. But as the counsel on both sides have intimated a wish that the opinion of this Court should be expressed upon the main question in the case, which has been fully argued; and as the decision of the same will obviate the necessity of suing out another writ of error, or taking an appeal, in case the final judgment should be against the defendant below, we consider it proper briefly to express some of the reasons why, in our judgment, the Court below was right in refusing to discharge the defendant.
By the Constitution, Art. 15, sec. 5, it is declared that "in the trial of all criminal cases, the jury shall be the judges of law as well as of fact." The Code, Art. 30, sec. 91, provides 

 [*265]  that "any person presented or indicted, may, instead of traversing the same before a jury, traverse the same before the Court, who shall try the law and the facts."
The effect of this is to allow a party the privilege of electing to be tried by the Court instead of a jury, and when such election is made, the Court is substituted for the jury, and has the same duties and functions to perform in passing upon the guilt or innocence [**14]  of the accused.
Unless the party charged is determined to be guilty, or not guilty, there can be no judgment either of conviction or of acquittal.
In this case the party was not found guilty by the tribunal elected to try him, nor was he determined to be not guilty. The record states that in fact there was no judgment pronounced in his case. The two Judges were unable to agree, and so could do nothing, except to order a re-trial in the same manner as when the jury failed to agree upon a verdict. It would be a strange consequence from this to say that in law or in fact, the failure of the Court to pronounce any judgment is equivalent to a judgment of acquittal.
It has been argued that where a Court is equally divided in opinion upon a question, the judgment is against the party maintaining the affirmative, as in Michael vs. Schroeder, 4 H. & J. 227, the Court being equally divided in opinion upon a motion to remove a case to another jurisdiction, the motion was lost. And if this Court is equally divided in opinion upon a motion to dismiss an appeal the motion is lost, as was held in Hatton vs. Weems, 12 G. & J. 83-102, and Gregg vs. Mayor and C. C. of Balt., 14 Md. 479-503. [**15]  And from this it has been argued that the onus or affirmative being upon the State, an equal division of the Court, or a failure of the Judges to agree upon a judgment of conviction necessarily entitled the party to be acquitted. But in our opinion the rule which governs judicial tribunals where propositions of law are submitted to them which are not sustained, has no application to a case like this. If the argument was sound, it would apply 

 [*266]  as well to the case where a party is tried by a jury and they fail to agree upon a verdict, as to the case of a trial by the Court. Each is alike bound to make true deliverance between the traverser and the State. The duty of the tribunal by which he is tried is to arrive at a judgment or verdict, without which there can be neither an acquittal nor a conviction.
The only difference is that which results from the difference in the constitution and nature of the two tribunals; to make a legal verdict all the jurors must agree; but where the matter is traversed before the Court, if it is composed of two or more members, a majority of them must concur in rendering the judgment; and where there is an equal division among them and no [**16]  judgment is rendered, the party is left in the same position as if no trial had taken place. It is in law a mis-trial, and a re-trial must of necessity be had.
Writ of Error dismissed. 

98 of 144 DOCUMENTS 

THE FRANKLIN FIRE INSURANCE COMPANY OF BALTIMORE vs. THE CHICAGO ICE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 102; 1872 Md. LEXIS 66 

May 22, 1872, Decided 

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

This was an action of covenant on a policy of insurance issued by the appellant to the appellees, insuring against loss or damage by fire, to the amount of twenty-five hundred dollars, from the 10th of November, 1868, to the 10th of November, 1869, "their one story frame ice house, situate, detached, on the line of the Chicago and North Western Railroad, at Chrystal Lake, McHenry County, Illinois." The fire occurred early on the morning of the 11th of August, 1869, and on the same day, Mr. Blake, the secretary of the appellee, gave notice of the loss to Messrs. Campbell, Whitman & Wallace, the agents in Chicago of the appellant who took the insurance, and on the same day they sent the notice of the loss to the appellant. The proofs of loss were then made out by the secretary, Mr. Blake, who was inexperienced in such matters, and was not aware of the necessity to have a certificate of the nearest magistrate or notary public, as required by the following condition of the policy:

X. Persons sustaining loss or damage by fire, shall forthwith give notice thereof in writing to the Company, and as soon after as possible they shall [**2]  deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hands. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also whether any and what insurance has been made on the same property; giving a copy of the written portion of the policy of each Company; what was the whole cash value of the subject insured, and their interest therein; in what general manner the building insured or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building, and when and how the fire originated. They shall also produce a certificate, under the hand and seal of a magistrate, notary public, or commissioner of deeds most contiguous to the place of the fire, and not concerned in the loss as creditor or otherwise, not related to the assured, stating that he has examined the circumstances attending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the assured, and that he verily believes that he, she or they have, by misfortune and without fraud [**3]  or evil practice, sustained loss and damage, on the subject insured, to the amount which such magistrate, notary public or commissioner of deeds may certify. ****

When Campbell, Whitman & Wallace, on the 11th of August, 1869, sent the notice of loss, they received in reply from the president of the appellant a letter dated the 17th of the same month, by which they were notified that the matter had been referred to Barnum & Wells as the adjusters of the appellant. Barnum & Wells declined to act, but, with the approval of the appellant, employed R. H. Lawrence as adjuster in their stead. Blake, the secretary of the appellee, made up the proofs of loss and left them with Campbell, Whitman & Wallace ten days or two weeks after the fire. No objection was made to the want of a certificate. Campbell, Whitman & Wallace, after retaining the proofs for several days, returned them to Blake, with directions to hand them to Mr. Lawrence, the adjuster. Blake delivered the proofs to Lawrence, receiving a promise to let him know if they were deficient, after he had examined them. The proofs were sent by Lawrence to the appellant, and they were received about the last of September, 1869. No [**4]  notice was ever given to the appellee of any objections to the proofs furnished, on the ground of the absence of the certificate, and no objection was made, even in general terms, to the proofs, until the letter of the president of the appellant to the appellee's attorney, under date of the 28th of December, 1869. In the month of December, Mr. Smith, the president of the appellee, went to Baltimore, and there had an interview with the president of the appellant and demanded payment, which was refused, not on the ground of the insufficiency of the proofs, but because, as the appellant claimed, it was not on the risk. Mr. White, the president of the appellant, gave a different statement of the interview, but fixed the date of the meeting as early in December. Mr. Smith having been unable to obtain the amount which he claimed under the policy, applied to counsel, whereupon the following correspondence occurred between them and the president of the appellant:

BALTO., Decr. 17, 1869.

DEAR SIR: We hold for collection the claim of the Chicago Ice Company, under your Policy, No. 2396, for $ 2,500. We understand you have received proof of loss. If the same is insufficient or defective [**5]  in any particular, we will gladly correct it upon notice.

We trust we can arrange this matter with you without suit.

Truly yours,

MARSHALL & FISHER.

Mr. WHITE, Prest. Franklin Fire Insurance Co.

BALTIMORE, Dec. 18, 1869.

Mess. MARSHALL & FISHER:

GENTLEMEN: Your note is at hand and duly considered. I have written to Chicago for a full report in regard to the loss of Chicago Ice Co., and expect to receive it in a few days, when I will call upon you.

Very truly yours,

L. S. WHITE, Prest.

BALTIMORE, Dec. 28, 1869.

Mess. MARSHALL & FISHER:

GENTLEMEN: The papers sent us as "Proofs," in regard to loss of Chicago Ice Co., are not complete nor satisfactory. You will therefore please have the same properly prepared and placed in our hands, so that we can give the same proper examination and consideration.

Very truly yours,

L. S. WHITE, Prest.

BALTIMORE, 29th Decem., 1869.

L. S. WHITE, Esq., Prest. Franklin F. Ins. Co.:

DEAR SIR: Yours of 28th inst. is received. In your former letter, of the 18th inst., you informed us that you had written to Chicago for a full report in regard to the loss, and expected to receive [**6]  it in a few days, when you would call upon us. It seems that at the date of your first letter you made no objection to the proof of loss, nor are we aware in what respect you now object to it.

If you will indicate the particulars in which you consider the proof of loss defective, we will take measures to have all such defects cured as far as we may deem it material to do so.

We desire also to know, to save all unnecessary trouble, whether your company will pay upon being furnished with such preliminary proof as your policy requires.

Very respectfully, your obt. servts.,

MARSHALL & FISHER.

BALTIMORE, Jan. 3d, 1870.

Mess. MARSHALL & FISHER, Balto.:

GENTLEMEN: As Prest. of the Franklin Fire Ins. Co., I must insist that the Chicago Ice Co. shall furnish proper legal preliminary proofs of loss before they claim payment of this company, and I do not intend in anywise to waive the production of such preliminary proofs as required by our policy. What preliminary proofs are necessary and material, you must determine from the policy, and as lawyers you can do that better than myself.

Very truly yours,

L. S. WHITE, Prest.

The following memorandum [**7]  was printed on the back of the policy of insurance:

Builder's Risk.--The working of carpenters, roofers, tinsmiths, gas fitters, plumbers or other mechanics, in building, altering or repairing the premises named in this policy, will vitiate the same, unless permission for such work be endorsed in writing hereon.

Exception: The plaintiff offered three prayers, the second and third of which the Court refused; the first as follows, it granted:

1st. That if the jury shall find from the evidence that the plaintiff furnished to the agent of the defendant, in Chicago, the preliminary proofs of loss offered in evidence, and that said proofs were forwarded by said agent to the defendant, and received by the defendant on the 25th of September, 1869, and that the defendant retained said proofs of loss, and made to the plaintiff or its agents no objection thereto, nor any objection to the absence of a certificate, as required by the 10th condition of the policy, up to the time when Mr. White, president of the defendant, had the conversation with the witness Smith, testified to by said Smith in the month of December, 1869, should the jury find such conversation. And if they further [**8]  find that in said conversation the said president of the defendant refused to pay the loss under said policy, upon grounds other than the defects of said proofs of loss, or the absence of said certificate, or both, and that at the time of so refusing to pay, the said president of the defendant made to said Smith no objection to said proofs of loss, or to the absence of said certificate, then the defendant cannot now object to the sufficiency of said proofs, or the absence of said certificate, notwithstanding the jury may find that the witness White wrote the letters of December 28th, 1869, and January 3d, 1870, under the circumstances offered in evidence.

The defendant offered the following prayers:

1st. That if the jury believe the statement of the witness, James P. Smith, Jr., the president and superintendent of the plaintiff, in his deposition contained, that he kept a crew of workmen and a carpenter or two about the building in controversy the year round, and was constantly making repairs and keeping the building in thorough condition, the policy was vitiated by reason of the facts so stated under the memorandum printed on the back of said policy, and headed "Builders'  [**9]  Risk," and the verdict must be for the defendant.

2d. That the preliminary proof offered in evidence by the plaintiff as having been furnished to the defendant prior to the institution of this action, is not legally sufficient to entitle the plaintiff to recover, and it being admitted that the president of the defendant, acting for it, addressed to the attorneys of the plaintiff and sent to them, on or about the 3d of January, 1870, the letter of that date, which is in evidence, the verdict of the jury must be for the defendant.

3d. That the plaintiff was bound to disclose and make known to the defendant, before or at the time of the delivery of the policy in suit, every fact material to the risk; and if the jury shall find that the plaintiff failed or omitted so to disclose and make known to the defendant any fact whatever, material to the risk, the jury must find for the defendant. Even although the jury should further find that Campbell, Whitman & Wallace, of Chicago, were at that time agents of the defendant, to receive and forward applications for insurance, and that they were referred by the plaintiff to L. N. Moore & Co., of Chicago, and took the form of the policy [**10]  or application from one of the forms of said L. N. Moore & Co., without any representation on the part of the plaintiff as stated by the witness Wallace. This prayer was refused as offered, but granted with the following modification:

But in considering the proposition put to them in this prayer, the jury are to take into consideration that the defendant, in making insurance upon an ice house like that mentioned in the evidence and devoted to the uses therein mentioned, is presumed to know and to have contemplated all the casualties and incidents to which the subject might be properly liable as such ice house, devoted to such uses.

4th. That Campbell, Whitman & Wallace, of Chicago, were capable of acting in law and fact as the agents of the plaintiff, in obtaining insurance from the defendant, notwithstanding they were at the same time agents of the defendant to procure business for it. And if the jury shall find that the plaintiff did so make the said firm its agents in this case, the plaintiff is as much bound by their acts done in the cause of such agency, as if they had not been defendant's agents at the same time.

5th. That the defendant is not bound by any acts [**11]  of parties in Chicago, purporting to be its agents, except to the extent to which the jury shall find that they were authorized by the defendant to act for it, prior to the acts done, or at the time thereof, and not subsequently thereto; [unless they shall find that after the said acts, and with full knowledge thereof, the defendant ratified and confirmed them.] And the jury, in determining upon the existence and extent of any such agency, must be governed by their own conclusions from the evidence, and not by the declarations or pretensions of parties claiming to be agents of the defendant, and to act in its name, although the testimony of such parties, as witnesses, may be regarded for that purpose along with its other evidence in the case. (Refused as offered, but granted with this modification:) Unless they shall find, that after the said acts, and with full knowledge thereof, the defendant ratified and confirmed them.

6th. That if, during the period embraced in the policy, the premises in question were so occupied or used as to increase the risk, or if the risk, during the said period, was increased by any means whatever within the control of the assured, the policy is [**12]  void, and the plaintiff is not entitled to recover.

7th. That if the jury find from the evidence, that the application which the plaintiff made or authorized to be made to the defendant for the insurance in controversy, omitted or concealed any fact in the description of the premises, material to the risk, then the plaintiff cannot recover. The sixth and seventh prayers were refused as offered, but granted with the modification:

But in considering these prayers, the jury will take into consideration the nature and use of the property as described in the evidence.

8th. That the plaintiff is bound by the representation as to contributing insurance contained in its application, and if that representation was untrue, the policy is void, and the plaintiff is not entitled to recover.

9th. That even if the plaintiff should, under any instruction of the Court, be entitled to a verdict, it can only recover upon the basis of contribution stated in the application.

10th. That there is no legal or competent evidence in this cause to show that the plaintiff in this case had any legal insurable interest in the property mentioned in this cause as destroyed by fire, either [**13]  at the time of the making of said policy or at the time of its destruction by fire, as testified to in this cause, and therefore the plaintiff is not entitled to recover.

11th. That the preliminary proofs shown by the evidence to have been furnished to the defendant by the plaintiff, are in themselves insufficient under the policy, and their verdict must consequently be for the defendant, unless they find the facts to be true which are assumed as the basis of the plaintiff's first prayer granted by the Court. And by the words "preliminary proofs," the defendant means to cover the certificate of a magistrate, notary public or commissioner, required by the tenth condition of the policy.

The defendant, by its counsel, objected to the first prayer of the plaintiff, because the evidence in the case was insufficient to support the proposition of law therein asserted, even if such proposition were law upon the hypothesis of facts that it assumed, which was denied.

The Court (DOBBIN, J.) rejected the defendant's first, second, third, fifth, sixth, seventh, eighth, ninth and tenth prayers as offered, but granted the third, fifth, sixth and seventh with modifications, and granted [**14]  as offered its fourth and eleventh.

To the granting of the plaintiff's first prayer, and to the refusal of the Court to grant the defendant's first, second, third, fifth, sixth, seventh, eighth, ninth and tenth prayers as offered, the defendant excepted; and the verdict and judgment being for the plaintiff for $ 2,348.78, &c., the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Fire Insurance -- Implied Waiver -- Estoppel -- Construction of Clauses in a Policy of Insurance against Fire -- Builder's Risk -- Evidence of Insurable interest.

Where the preliminary proofs of the loss by fire of property insured are furnished to the insurance company within a reasonable time, and no objection is then made to such proofs or to the absence of a certificate required of the insured by a condition of the policy, and the insurance company months afterwards refuses to pay the loss under the policy upon other and distinct grounds, and at the time of such refusal makes no objection to the proofs of loss, or to the absence of the certificate, it will be estopped in an action on the policy, to sit up and rely upon such objections, notwithstanding the policy provides that "nothing but a distinct specific agreement, clearly expressed and endorsed on the policy, shall operate as a waiver of any printed or written condition, warranty or restriction therein."

A clause in a policy of insurance against fire, that "nothing but a distinct specific agreement, clearly expressed and endorsed on the policy, shall operate as a waiver of any printed or written condition, warranty or restriction therein," refers to those conditions and provisions of the policy which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated as conditions; it has no reference to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proofs of the loss.

Where from the character and structure of a building insured, and the use made of it, it is necessary to employ workmen the year round to repair, and keep it in thorough condition for the business to which it is appropriated, such employment of workmen thereon does not vitiate the policy under the memorandum printed thereon, entitled "Builder's Risk," which provides that "the working of carpenters, roofers, tinsmiths, gas fitters, plumbers or other mechanics, in building, altering or repairing the premises named in this policy, will vitiate the same, unless permission for such work be endorsed in writing hereon."

The true intention of this article in the policy is to prohibit such hazardous use of the building insured, as is generally denominated "builder's risk," which arises from placing it in the possession, or under the control of workmen for rebuilding, alteration or repairs; it does not refer to such repairs as are indispensable to the proper conduct of the business to which the building is appropriated.

A person in possession of property, claiming and occupying it as its owner, is prima facie presumed to be seized in fee; and in the absence of any proof of an outstanding title in others, or of any incumbrance upon the property, this prima facie presumption is sufficient to show an insurable interest therein.  

COUNSEL:
R. J. Bouldin and John Carson, for the appellant.

The obligation to furnish preliminary proof in accordance with the tenth condition of the policy could not be released by an implied waiver, based on the testimony of Smith, in the face of the last clause of the eighth condition, which requires an express waiver. Forbes vs. Agawam Mut. Fire Ins. Co., 9 Cush., 470; Gatch vs. Abbott, 13 Md., 314; Spring Garden Mut. Ins. Co. vs. Evans, 9 Md., 15, 16; Hale vs. Mechanics' Mut. Fire Ins. Co., 6 Gray, 173.

The plaintiff's first prayer was therefore bad in law, and obnoxious to the exception of no testimony to support it, as there was no testimony in the cause of express waiver. Abbott vs. Shawmut Mut. Fire Ins. Co., 3 Allen, 215; Mutual Ins. Co. vs. Deale, 18 Md., 27; Ames vs. N. Y. Union Ins. Co., 14 N.  [**15]  York, 264.

The case of 12 Gray, 265, is in hostility to 13 Md., 314; it admits, that under a policy like this, there can be no implied waiver, but maintains the imperfect proof by the doctrine of estoppel, while the cases on which 12 Gray, 265, relies are those which establish the doctrine of an implied waiver; waiver and estoppel are wholly different; the latter is inapplicable to the contract, and is a novel method of doing away with the contract.

The ice company, through their attorney, waived the waiver by the offer of December 17th, and December 29th, 1869, to furnish preliminary proof; and the express notice of the company that they waived nothing, obliged them to furnish proper proof. Citizens' Fire Ins., Security and Loan Co. vs. Doll, 35 Md., 89.

If proper preliminary proof had been furnished in compliance with the correspondence, it would have been an implied waiver of the so-called catching condition.

Smith swears the ice house was nearly as good as new, for the reason that he had always kept a crew of men, and a carpenter or two about the building the year round, and was constantly making repairs and keeping the building in thorough condition. This avoided [**16]  the policy under the clause entitled, "Builder's Risk."

There was a stable under the ice house; the Court's modification of the third prayer of the appellant in effect decided, that this fact, though material to the risk, was not necessarily to be disclosed by the insured. The same objection applies to the Court's modification of the sixth and seventh prayers of the defendant. Augusta Ins. and Bank. Co. vs. Abbott, 12 Md., 348; Franklin Fire Ins. Co. vs. Coates & Glenn, 14 Md., 295-299; Howell's Ex'rs. vs. Baltimore Equitable Society, 16 Md., 384.

The eighth and ninth prayers were an affirmation of the eighth condition of the policy. Smith vs. Mechanics and Traders' Ins. Co., 32 N. Y., 399; Baltimore Fire Ins. Co. vs. Loney, et al., 20 Md., 20.

There was no sufficient legal evidence of ownership; possession merely was not sufficient under the seventh clause of the policy, and the testimony being all given subject to exception, the parol proof that the building belonged to the ice company was inadmissible. Baltimore Fire Ins. Co. vs. Loney, et al., 20 Md., 20; Illinois Mut. Fire Ins. Co. vs. Marseilles' Man. Co., 1 Gilman, 236.

William A. Fisher and Charles Marshall,  [**17]  for the appellee.

The first prayer of the appellee, and the second of the appellant, relate to the preliminary proof. That of the appellee asserts a waiver arising out of the facts above stated, while that of the appellant disregards all the facts save the absence of the certificate, and asserts that the jury must find for the appellant for that reason.

It is sufficient to support the waiver, that the refusal to pay was put distinctly on other grounds than the absence of the certificate. Edwards vs. Baltimore Fire Ins. Co., 3 Gill, 186; Franklin Fire Ins. Co. vs. Coates & Glenn, 14 Md., 294, 295; Tayloe vs. Merchants' Ins. Co., 9 Howard, 403, 404; McMasters vs. West Chester Ins. Co., 25 Wendall, 379; Flanders on Ins., 542, 543.

The appellant's prayer ignores such refusal, and also the promise by the adjuster to call attention to any defects; under the promise, the appellant was bound to call attention to the defect within a reasonable time. Allegre vs. Ins. Co., 6 H. & J., 412, 413.

The appellant's prayers also ignore the result of the immediate appointment by the appellant of an adjuster, and its determination to act by his advice, from his own examination, and [**18]  not from a consideration of any preliminary proof. This, coupled with the absence of objection in due time, relieves any exception to the proofs. Priest vs. Citizens' Mut. Ins. Co., 3 Allen, 602; Sexton vs. Montgomery County Ins. Co., 9 Barb., 191; Blake vs. Exchange Mut. Ins. Co., 12 Gray, 265; Lycoming County Mutual Ins. Co. vs Schollenberger, 44 Penna. State, 259.

If the appellee had undertaken to supply the certificate after December 28th, 1869, and abandoned its right to rely upon the waiver which had already resulted, it would have been met with two difficulties--first, it would have been contended by the appellant that the proof was to be considered as furnished only when completed by the certificate, and that it was then too late, under the tenth condition of the policy; second, the loss would then be payable only after the expiration of sixty days from due notice, proofs and adjustment. Among the various catching conditions of the policy are, (16th,) provided that no suit should be maintained unless brought within six months after the loss.

If the certificate had been furnished after the 28th of December, the appellant would have treated the proofs as then made,  [**19]  waited for sixty days and then refused to pay, and, as more than six months would have elapsed since the fire, would have defied the appellee under the sixteenth condition.

The appellant relies also to sustain its theory as to the preliminary proof, on the last clause of the eighth condition, which provides that nothing but an agreement, endorsed on the policy, shall operate as a waiver of any condition. Such a condition may be waived as well as another. But what the appellee relies on is not a waiver of the production of proofs in the sense of the condition; the proofs were produced, and the conduct of the appellant estops it from saying they are not perfect. Blake vs. Exchange Mut. Ins. Co., 12 Gray, 265.

The next question arises under the first prayer of the appellant. Among other memoranda printed on the back of the policy, was one entitled "Builder's Risk," which provided that the working of carpenters, roofers, tinsmiths, gas fitters, plumbers, or other mechanics, in building, altering or repairing the premises named in the policy, without permission endorsed in writing on the policy, should vitiate it. Mr. Smith, president of the appellee, stated that the ice house [**20]  was nearly as good as new, because he "had always kept a crew of men and a carpenter or two about the building the year round, and was constantly making repairs and keeping the building in thorough condition." The prayer asserts that such mode of dealing with the building avoided the policy. There was in fact a sufficient endorsement on the policy in writing of the authority to make such repairs as are described. The evidence shows the character of the ice house, its dimensions and its capacity.

The appellant insured such an ice house, knew that it was all of wood, and that it would be knocked to pieces in a single season's business, unless breakages were made good as they occurred. It was indispensable to the proper conduct of the appellee's business, and the insurance as an ice house was in itself a permission. Wash. Fire Ins. Co. vs. Davison and Symington, 30 Md., 107, 108.

Interpreted as the prayer seeks to do, the article would be repugnant to the written clause--insuring the building--and would be governed and controlled by it. Flanders on Ins., 305, 311-315; Harper vs. Albany Insurance Co., 17 New York Rep., 194.

But the article does not admit fairly of the interpretation [**21]  put upon it. The term, "Builder's Risk," is well known to insurers and others, and does not include casual patching up about a building, but the putting the building under the control of the mechanics. Maryland Fire Ins. Co. vs. Whiteford, et al., 31 Md., 225; Grant vs. The Howard Ins. Co. of New York, 5 Hill, 10.

The modifications added by the Court to the third, sixth and seventh prayers were entirely unobjectionable, as they but stated the proposition advanced by this Court in the case of Washington Fire Insur. Co. vs. Davison and Symington, 30 Md., 108.

The modification added to the fifth prayer is even less liable to objection, as it merely states the effect of a deliberate ratification by the appellant of the acts of its agent.

The eighth prayer of the appellant was a mere abstract proposition, and was properly refused. There was no evidence whatever of the untruth of any representation in the application as to contributing insurance. The prayer seems to have been based upon the error which is embodied in the ninth prayer, namely, that the assured warrants that the same insurance shall be continued on the insured property that was on it at the time of the insurance.  [**22]  There is no such warranty. Forbush vs. Western Mass. Ins. Co., 4 Gray, 337.

Therefore the ninth prayer was also properly refused, because it asks for contribution on the basis of the insurance existing at the time of the application, and not of the loss-- assuming that the assured is obliged to continue the same insurance as at the time of the application.

The appellant's tenth prayer asserts that there is no sufficient evidence of an insurable interest in the appellee, at the time of the making of the policy. Even if proof be necessary, the fact that the appellee was in possession of the property, claiming it as its own, is prima facie evidence of seizin in fee. 1 Phillip's Ev., 646.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*116]  BARTOL, C. J., delivered the opinion of the Court.
This is an action of covenant on a policy of insurance, issued by the appellant to the appellee, "on their one-story frame ice house, situate, detached, on the line of the Chicago and N. W. R. R., at Chrystal Lake, McHenry Co., Illinois."

 [*117]  No question arises upon the pleadings, all errors therein having been waived [**23]  by agreement.
The first ground of defence relied on by the appellant, was the failure of the appellee to furnish the preliminary proof of loss, in manner and form as required by the tenth condition of the policy. The fire occurred on the morning of the 11th of August, 1869, and on the same day, notice thereof was given to the agents of the appellant, who on the same day notified the appellant. Proofs of loss were made up and transmitted to the appellant within a reasonable time, but it is objected that they were defective and insufficient.
The appellee on the other hand contended that the appellant, by its conduct and proceeding, after it had been notified of the fire, and received the proofs of loss, had waived all objection thereto, and was precluded from objecting to their sufficiency.
By the first prayer of the appellee (which was granted) the jury were instructed that if they should find from the evidence the facts therein enumerated, the appellant could not now object to the sufficiency of the proofs of loss, or to the absence of a certificate as required by the tenth condition of the policy.
Distinct objection to this prayer was made in the Court below, on the ground of [**24]  the want of evidence to support it; and the same objection is urged in this Court by the appellant; not because there was no evidence tending to prove the facts enumerated in the prayer, but because there was no testimony in the cause of an express waiver, as required by the eighth condition of the policy; without which, it is argued, the obligation to furnish preliminary proof, in accordance with the tenth condition of the policy, could not be released; and that an implied waiver would not be sufficient, and could not be shown in the face of the eighth condition.
Apart from the terms contained in the last clause of the eighth condition of the policy, there can be no doubt that the facts stated in the appellee's first prayer, if believed by the 

 [*118]  jury, would amount to a waiver of the defects in the preliminary proofs, and preclude the appellant from objecting to their sufficiency. Allegre vs. Ins. Co., 6 H. & J. 408, 412, 413; Edwards vs. The Baltimore Fire Ins. Co., 2 Gill 176; Franklin Fire Ins. Co. vs. Coates & Glenn, 14 Md. 285, 294, 295; Tayloe vs. Merchants' Fire Ins. Co., 50 U.S. 390, 13 L. Ed. 187, 9 How. 390, 403, 404. [**25]  
These decisions sufficiently show the principles which govern in ordinary cases, arising under policies of insurance, containing stipulations with regard to the preliminary proofs of loss to be furnished by the assured.
The difficulty in the present case grows out of the terms of the eighth condition in the policy; which is in these words: "Should the assured, in making application for insurance, submit a survey, plan or description of the property herein insured, upon which this insurance is effected, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured. And any misrepresentation whatsoever, whether in written application or otherwise, or any omission to disclose and make known every fact material to this risk, will vitiate this policy. Nothing but a distinct, specific agreement, clearly expressed, and endorsed on this policy, shall operate as a waiver of any printed or written condition, warranty or restriction therein."
The effect of a provision of this kind, in a policy of insurance, was considered by the Supreme Court of Massachusetts, in Blake vs. Exchange Mutual Ins. Co., 12 Gray 265. [**26]  The language of the very able Judge who gave the opinion of the Court is so apposite to this case, that we quote it at length. "How far the provisions as to the form of the notice and proofs of loss, after a valid contract has been made and a loss taken place under it, can be regarded as conditions of the contract itself, it is not necessary to determine, nor whether their being classed under the designation of conditions of insurance could change the nature and purpose of the stipulations themselves; for it seems to us that the question is not as to the provisions of the contract, but as to the performance 

 [*119]  of the provisions. The plaintiff is not seeking to set up a contract from which a material provision has been omitted by the oral consent of the officers of the company. The policy contained the usual provisions as to notice and proofs of loss. Upon the happening of the loss, the plaintiff sent to the defendants certain notices and proofs in pursuance of the requisition of the by-laws upon the subject. If the notices were defective, good faith on the part of the underwriters required them to give notice to the insured. If they failed to do so, if they proceeded to negotiate [**27]  with the plaintiff, without adverting to the defects, if still further, they put their refusal to pay, on other and distinct grounds, they are, upon familiar principles of law, estopped to set up and rely upon the defective notices; the law assumes that the notices were correct, and will not listen to the defendant when he seeks to show the contrary." After citing several authorities the learned Judge proceeds: "If the plaintiff relied upon any exemption from the obligations of the policy, or any modification of them by the agents or officers of the company, or any addition, he must show such exemption, modification or addition by endorsement upon the policy. But the question whether a stipulation as to notice and proofs of loss has been fulfilled, or whether the defendant is in a condition to be heard upon that question, must be tested by the ordinary rules of law. There is a time when objections in matters of form must be taken. If they are not then made, they never can be made. The law does not say the procedure was perfect, but that the question is not open. The adherence to and liberal application of this principle are necessary to the maintenance of good faith and fair dealing [**28]  in judicial proceedings."
We concur in the reasoning of the Court in 12 Gray, and consider it applicable to the present case. According to our construction of the last clause in the eighth condition of the policy, it refers to those conditions and provisions of the policy which enter into and form a part of the contract of 

 [*120]  insurance and are essential to make it a binding contract between the parties; and which are properly designated as conditions; and that it has no reference to those stipulations which are to be performed after a loss has occurred; such as giving notice and furnishing proofs of loss. These are not conditions inherent in the contract itself, but stipulations to be performed by the assured as preliminary to his right of action on the contract, or to the liability of the company to pay the loss. When we read this part of the eighth condition with the context, and construe the whole together, we are satisfied that it has no reference to the requirements with regard to the preliminary proofs of loss found in the "tenth condition" of the policy; and that it was not contemplated with respect to them, that no defect or omission could be waived by the [**29]  company without a written agreement to that effect endorsed upon the policy.
The cases of Hale vs. Mechanics' Mutual Fire Ins. Co., 6 Gray 169; Forbes vs. Agawam Mutual Fire Ins. Co., 9 Cush. 470, and Abbott vs. Gatch 13 Md. 314, cited by the appellant seem to us to be inapplicable. In each of those cases, the matters which the parties stipulated should be evidenced only by agreement in writing, constituted an integral part of the contract essential to make it binding between the parties.
In our opinion there was no error in granting the first prayer of the appellee; and for the reasons before stated the second prayer of the appellant was properly refused.
The next question arises upon the first prayer of the appellant.
The witness James P. Smith, Jr., (the president of the ice company,) stated in his testimony that the "ice house was nearly as good as new, for the reason that he always kept a crew of men and a carpenter or two about the building the year round, and was constantly making repairs and keeping the building in thorough condition." The appellant contends, and by its first prayer asked the Court to instruct [**30]  the jury that these facts, if believed by them, vitiate the policy 

 [*121]  under the memorandum printed thereon entitled "Builder's Risk," which provided that "the working of carpenters, roofers, tinsmiths, gasfitters, plumbers, or other mechanics, in building, altering or repairing the premises named in the policy, without permission endorsed in writing on the policy, should vitiate it."
We think that by a fair and reasonable interpretation of this article of the policy, it cannot be understood as referring to the casual patching up of the building, such as spoken of by the witness; but as prohibiting such hazardous use of the building as is generally denominated "Builder's Risk," which arises from placing it in the possession or under the control of workmen for rebuilding, alteration or repairs. To place upon it such a construction as contended for by the appellant, would defeat the intent of the parties, and be repugnant to the written clause of the policy insuring the building; which, looking at its size, structure and use, must have reasonably contemplated the necessity for such repairs as the witness described, as indispensable to the proper conduct of the appellee's [**31]  business. The evidence shows that the building was two hundred and sixteen feet long and one hundred and forty feet wide; that the height, from the top of the sill to the under sill of the plate, was twenty-six feet; that the walls were of joists three by six inches, hollow two feet thick, filled in with tan; the materials all wood, bound with iron. There was a balcony round the upper part of the house, and an inclined plain, or tramway, fourteen feet wide, extending from the lake to the plate of the ice house, on which the ice was dragged up by horse power. The capacity of the house was twenty-four thousand tons of ice. It is very obvious that a building so constructed would necessarily be constantly liable to be injured and damaged by the use for which it was intended, rendering it indispensable for the prosecution of the business of the appellee, that breakages should be repaired as they occurred; all of which was known to the appellants, and will be presumed to have been in their contemplation at 

 [*122]  the time the contract was made, and permitted by the written terms of the policy insuring the premises as an ice house.
For the principles governing the construction of [**32]  policies of insurance, we refer to Harper vs. The Albany Mutual Insurance Co., 17 N.Y. 194, and Washington Fire Insurance Co. vs. Davison and Symington, 30 Md. 91, 107, 108.
We think there was no error in refusing the appellant's first prayer. And upon the same principle, the modification made by the Court below in the appellant's third, sixth and seventh prayers, is free from objection.
The modification added to the appellant's fifth prayer stated the law correctly, and though it appears to have been excepted to below, has not been made a ground of objection in the argument in this Court.
The appellant was not entitled to have its eighth prayer granted, as there was no evidence whatever of any misrepresentation as to contributing insurance made at the time of the contract.
The proposition asserted in the ninth prayer, that the assured was obliged to continue the same insurance on the property as existed at the time of the application, is erroneous, and was properly rejected. There was no such warranty in the policy. Forbush vs. Western Massachusetts Insurance Co., 4 Gray 337.
The appellant's  [**33]  tenth prayer was also properly refused. It asks an instruction to the jury, "that there is no legal and competent evidence in the cause to show that the plaintiff had any legal insurable interest in the property mentioned as destroyed by fire, either at the time of the making of the policy, or at the time of the fire."
The proof in the cause is, that the appellee was in possession of the property, claiming and occupying it as its owner. This is prima facie evidence of title. "A person in possession of land is prima facie presumed to be seized in fee." 1 Phillips on Evidence, 646, and note. In the absence of proof of an outstanding title in others, or any incumbrance upon the 

 [*123]  property, this prima facie presumption of a seizin in fee, growing out of the occupation by the appellee as owner of the property, was sufficient to show an insurable interest therein, and consequently there was no error in rejecting the tenth prayer of the appellant.
There appearing to be no error in the rulings of the Court below, we affirm the judgment.
Judgment affirmed. 

99 of 144 DOCUMENTS 

JAMES MUSGRAVE vs. JOHN F. STAYLOR, Administrator of JOHN STAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 123; 1872 Md. LEXIS 67 

May 22, 1872, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

Practice.

In a suit instituted against C and M, a decree was passed adjudging that M held a market stall in trust for S, deceased, and directing M to convey the same to the administrator of S. From this decree C, who claimed an interest in the stall, appealed, and on the appeal the decree was affirmed. Afterwards, within nine months from the date of the decree, M appealed. On this appeal it was HELD:

That the affirmance of the decree on the appeal of C, was a conclusive adjudication against any interest which he might have had in the stall, and his rights could not be set up to support the claim of M, which rested solely upon the title of C.

Where the purpose of an injunction was to prevent a transfer to a third party, or any disposition of a market stall which would defeat or embarrass the passage of the final decree, under which the complainant's rights could be effectively secured and enforced, an objection to the final decree, that it did not dissolve the injunction previously granted, is untenable. The injunction served its whole office and purpose by being obeyed until the final decree; and no order of dissolution was necessary to the validity and effectiveness of that decree, which disposed of the whole controversy by granting the relief prayed by the bill.  

COUNSEL:
William A. Stewart, for the appellant.

W. H. Dawson and J. R. Quinn, for the appellee.  

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

OPINIONBY:
MILLER 

OPINION:

 [*124]  MILLER, J., delivered the opinion of the Court.
It appears from this record that John Staylor, who died intestate in April, 1862, was in his lifetime possessed of a certain stall in the Belair market, the legal title to which was in James Musgrave, who held it in trust for the deceased. In 1863 Musgrave transferred the stall to William T. Courtney, a grandson of the intestate, and in 1866 Courtney re-transferred it to Musgrave to secure the payment of $ 200, then loaned him by Musgrave. In May, 1868, John F. Staylor administered upon the personal estate of his father, John Staylor, deceased, and shortly thereafter filed the bill in this case against Courtney and Musgrave.
The bill alleges that Musgrave, in disregard of the trust reposed in him, assigned the stall absolutely to Courtney, who has since been in possession of the same,  [**2]  though both he and Musgrave well knew the latter had no interest therein other than as trustee for the benefit of the intestate and those interested in his estate; that since then, in 1866, Courtney has reassigned the stall to Musgrave as security for a loan of $ 200, and Musgrave now refuses, upon demand made, to deliver possession of the same to the complainant, unless he is first paid the sum due him by Courtney; that it is immaterial whether the title and possession of the stall are in Musgrave or Courtney, as each was cognizant of the trust therein, and was bound to hold it to the uses and purposes of that trust. The prayer of the bill is, that the right of the complainant, 

 [*125]  as administrator of his father, to the title and possession of the stall, be decreed and established; that the defendants be restrained by injunction from selling or disposing of it; that a receiver be appointed to sell the same and bring the proceeds into Court to abide its order, and for general relief. The injunction was granted as prayed.
Musgrave in his answer admits the original trust for John Staylor, but avers that after his death he transferred the legal title to Courtney at the request [**3]  of the complainant himself, who at that time being the eldest son and claiming to represent the family, stated to respondent that it was a family arrangement in which all had agreed, that as Courtney paid the funeral expenses of the deceased, and was to provide for his mother, who was a daughter of the deceased, it was but just that the stall, which was then but of little value comparatively, should be transferred to him. He admits the re-transfer to himself by Courtney, as security for the loan of $ 200, and avers that he now holds the legal title to be transferred to Courtney on payment of that sum, with interest due thereon; and he further charges that as the transfer to Courtney was made at the instance of the complainant, it would be a fraud upon him to permit the stall now to be taken from him without requiring his loan of $ 200 to be first paid him.
Courtney in his answer excepts to the jurisdiction of the Court, and then states that at the time of the death of John Staylor the stall was of but little value, and immediately after his death the complainant and his other children told respondent to take possession of the stall, and that he should thereafter own the same, provided [**4]  he would pay the funeral expenses and debts of the deceased, and the back rent on the stall, upon the faith of which, respondent took possession of the stall and made all said payments, and took a transfer of the stall to himself from Musgrave, on the 6th of January, 1863, with full knowledge and consent of complainant and the other children of the deceased, and has been in possession 

 [*126]  ever since, holding and owning the stall as a bona fide purchaser for value, and complainant and the estate of John Staylor have no interest whatever therein, and he denies the allegations of fraud and violation of trust set forth in the bill. He admits the re-transfer to Musgrave as security for the $ 200 loan, and denies that the latter holds the stall upon any trust except as security for this loan.
Testimony was then taken which clearly established the fact that the stall was paid for by John Staylor in his lifetime, and was held in trust for him by Musgrave, at the time of his death. It also appears from the evidence, that besides this stall the deceased left very little personal estate, and owed debts to a small amount; that Courtney, who with his mother and sisters lived with his [**5]  grandfather, and had attended to the business of the stall for some time prior to his death, paid the funeral expenses and debts of the deceased; that he received the sum of $ 126 due the deceased by Musgrave, but whether this, together with the value of the other small personal property of the deceased, which he also received and disposed of, was sufficient to pay the debts and funeral expenses is not clearly shown. In respect also to the alleged arrangement or understanding upon which the transfer was made to Courtney, the proof is to some extent conflicting. We think however it is quite certain there was no family arrangement of any kind entered into and binding upon all the children and distributees of the intestate. Some two or three of them, including the complainant, doubtless did consent and agree that Courtney should have the use of the stall for the support of his mother and sisters, so long at least as his mother (who died before the bill was filed) should live; but if it were necessary for us now to decide that question of fact, we should say the proof fails to establish clearly and satisfactorily that there was an agreement by any of the parties that the stall should [**6]  be transferred to Courtney so as to vest the absolute ownership thereof in him. The retransfer 

 [*127]  by Courtney to Musgrave to secure the $ 200 loan is fully proved.
After the testimony was returned the cause was submitted for final decree without argument. The Circuit Court thereupon passed a decree adjudging that Musgrave held the stall in trust for John Staylor, deceased, and directing him, by a good and sufficient assignment, to convey the same to the complainant as administrator of the said John Staylor, and transfer it to him upon the books of the city comptroller and register.
From this decree Courtney alone, in the first instance, appealed, and on his appeal the decree, on motion of the appellee, was affirmed by this Court under its eleventh rule, the appellant's counsel having failed to file his brief as required by that rule when the case was called for argument. Afterwards, but within nine months from its date Musgrave took the present appeal from the same decree.
The affirmance of the decree on Courtney's appeal is a conclusive adjudication against any interest or claim he may have had in the property, and his rights cannot now be set up on the present appeal [**7]  to support the claim of Musgrave. But the only interest Musgrave has in the matter is re-payment of the sum he loaned to Courtney, and he cannot successfully assert a lien therefor upon the stall, except upon the ground that Courtney had a valid title to it, and could pledge it as security for that loan. In other words his lien claim, which affords the only basis of relief in equity, rests solely upon the title of Courtney, which has been definitely pronounced invalid. In this state of case it is impossible for him to obtain relief in this Court. He must pursue his remedies for the recovery of the debt due him by Courtney in the usual manner and in the proper forum. His right to assert this lien being gone, he cannot refuse to execute the transfer ordered by the decree, except upon condition that this loan is first repaid to him.

 [*128]  Nor can we discover any other ground upon which he can complain of the decree. That clause of it which declares "that the transfer hereby decreed to be made is without prejudice to the demands of the defendants to be adjudicated in the proper Court," whatever it may mean, or whatever effect it may have, can in no event work injury [**8]  to the appellant. This clause, like that directing the costs of the suit to be paid by the complainant out of the goods or money of the intestate in his hands, was inserted for the benefit of the defendants, and if it has any force must operate in that way. The objection that the decree does not dissolve the injunction previously granted forbidding the appellant to dispose of or transfer the stall, is equally untenable. The purpose of the injunction was to prevent a transfer to a third party, or any disposition of the property which would defeat or embarrass the passage of a final decree under which the complainant's rights could be effectively secured and enforced. It served its whole office and purpose by being obeyed until final decree, and no order of dissolution was necessary to the validity and effectiveness of that decree, which disposed of the whole controversy by granting the relief prayed by the bill. It scarcely need be said, in conclusion, that the fact that the complainant did not press for the appointment of a receiver to take charge of and sell the property, which is made a part of the prayer for relief in the bill, has worked no injury to the appellant.
Decree affirmed  [**9]   and cause remanded. 

100 of 144 DOCUMENTS 

THOMAS C. BASSHOR and WALLACE STEBBINS, Trading as THOMAS C. BASSHOR & Co., vs. JAMES S. FORBES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 154; 1872 Md. LEXIS 69 

May 22, 1872, Decided 

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

This was an action by the appellants against the appellee, to recover from the latter as a stockholder of the Oakland Coal and Iron Company of Baltimore, $ 4,692.38, with interest, alleged to be due by the company, on its note for that amount, dated the 28th of September, 1867, payable four months after date, for which it was alleged that the appellee was liable, because the whole amount of the capital stock of the company had not been paid in, and he was a stockholder thereof to an amount greater than the appellants' claim.

The appellants offered in evidence the certificate of incorporation, incorporating the company "for the purpose of carrying on the business of mining for coal and iron, and other metals and minerals." They also proved that the defendant, as director and general superintendent of the company, and Joseph Wilkins, its president, were authorized to contract on behalf of the company for the purchase of a boiler and engine, to be erected on the company's lands in Allegany county, for the working of a steam saw mill thereupon; and that in pursuance of that authority, they did, in the name and on behalf of the [**2]  company, contract in writing therefor; the whole to be set and put in running order for $ 4,450; and the company's note at four months, secured by a mortgage on its property to be given therefor, and that the appellants knew that the boiler and engine were meant to be used for a saw mill. They also proved that the note of the company, dated the 28th of September, 1867, at four months for $ 4,692.38, secured by mortgage of its lands, was given for said engine and boiler, and for additional articles in and about its construction, amounting to $ 242.38. The appellee proved, subject to exception, that before the written contract for the purchase was executed, and when he called on the appellants to know on what terms they would furnish the engine, boiler and appurtenances, and having agreed to do it for $ 4,450, they inquired about the means of the company; and being informed by the defendant, that it had no money in its treasury, they proposed to take his individual note, to which he replied, that he would not give it, that he had enough at stake in the company already, without risking a cent more, having purchased his interest as an investment, not as a stock speculation; that the appellants [**3]  then asked if the directors would give their individual note, to which he replied, that they would not, and added that the appellants would have abundant security in their boiler and engine, and eight hundred acres of land, and if they could get a mortgage from the company in full satisfaction of their claim, they would have abundant security, to which they replied, "very good," and agreed to take the company's note and mortgage, and deliver the machinery. The appellee also proved, that at the time of the execution of the contract one of the appellants told the president of the company that the appellee had refused to make himself individually responsible, as he had already invested enough in the enterprise, and had not bought the stock as a speculation; and that the appellee then told the appellants that they must rely solely on their mortgage. The appellee then also said he had been informed that there was coal and iron on the company's lands, but that he had been there and enquired and could find none, and that the only salvation of the stockholders was to use up the timber on the land; and they wanted the engine for that purpose. He also proved on cross-examination by the appellants,  [**4]  that he entered into the contract with the understanding that he was not in any shape or form to be responsible, and told Basshor, before the contract was executed for the note and mortgage, that if he did not think it was safe on that security, he had better not take it.

The appellee further proved that after the execution of the mortgage, the mortgaged premises were offered for sale, upon an execution prior in date to the mortgage, and issued upon a judgment which had been rendered without the knowledge of the officers of the company; that on having his attention directed to it by the sheriff's advertisement, he had called the appellants' attention to it, and that after conversation between some of the officers of the company and the appellants, a paper had been executed between the appellants and Mr. Browning, and left in possession of Mr. Browning, providing that if the appellants should buy the property at the sheriff's sale, Mr. Browning might redeem it by re-paying the purchase money and the appellants' mortgage thereon. The appellee also proved, subject to exception, that it was afterwards agreed between him and John F. Ehlen, on behalf of the company, and Basshor, on [**5]  behalf of the appellants, that Basshor should bid in the property at the sheriff's sale for the appellants; that the appellee should assist him in making the purchase and lend the money to pay for it; that the company should have the privilege of redeeming the property, and if it did not, the appellants should hold it in full satisfaction of all claims against the company. He also proved that notice was given at the sheriff's sale that the property was sold subject to a large claim of the appellants, and it was knocked down to Basshor for $ 620, the amount of the judgment; that the appellee lent him the money to pay for it; that Basshor paid to the sheriff the money so lent for that purpose and took from him a deed for the property in fee simple to the appellants; that the loan, with interest, was afterwards repaid to the appellee, when it was understood that the appellants were to keep the property; that they took possession of it immediately after the conveyance of it to them, and that the company had never exercised its privilege of redeeming. The appellee also proved that he had provided himself with a letter of credit for $ 16,000 and took it with him to Cumberland for the purpose [**6]  of purchasing the property himself, and would have bought it, and would have gone as high as $ 11,000 or $ 12,000 on behalf of the company, but for the understanding with Basshor, under which he bought it without any adverse bid on the part either of the company or the appellee; and proved that it was worth seven or eight thousand dollars when bought by the company.

The appellants then gave evidence tending to rebut the proof of the appellee as to the circumstances and understanding under which the original contract was made, and the note and mortgage were given and accepted, and also as to the understanding under which the property was bought by the appellants through Basshor at the sheriff's sale, and further, to show that there was no understanding between the parties outside of the original written contract and the paper prepared by Browning.

The plaintiffs then offered the following prayer:

If the jury shall find from the evidence that the five persons named in the certificate of incorporation of the Oakland Coal and Iron Company of Baltimore, offered in evidence by the plaintiffs, being free white persons and citizens of the State of Maryland, did make and sign [**7]  the same and cause it to be recorded in the year 1865, in the office of the clerk of the Superior Court of Baltimore City; that the said company has since become and still remains indebted to the plaintiffs; and that at the time that the said indebtedness was contracted the defendant was a stockholder in the said company to an amount greater, at the par value of his stock, than the amount of said indebtedness; and if the jury shall further find that the said company has never received from its stockholders, in payment of its stock, the full par value of said stock as fixed in said certificate of incorporation, then the jury are instructed that the plaintiffs are entitled to recover from the defendant in this action such amount as the jury may find to be due from said company to the plaintiffs.

The defendant offered the four following prayers:

1. If the jury believe from the evidence that the promissory note sued on was given for the purchase of a steam engine, boiler and appurtenances bought by the Oakland Coal and Iron Company from the plaintiffs for the purpose of working a saw mill, and appurtenances to be used by said company for the manufacture of lumber for sale in [**8]  the market, and that such purpose was known to the plaintiffs when they agreed to and did furnish and put up the said engine, boiler and appurtenances, then the said note was void, and the plaintiffs are not entitled to recover.

2. If the jury believe from the proof that the promissory note sued on was given for the purchase of a boiler, steam engine and appurtenances, and that it was part of the agreement of purchase that the purchase money should be secured by a promissory note, and a mortgage on the interest of the Oakland Coal and Iron Company in certain lands, and that the plaintiffs should look only to the company and to said mortgage for the price agreed to be paid for said engine, boiler and appurtenances, and shall further believe that said note was duly given according to the agreement, and said mortgage in like manner was duly executed and delivered to and accepted by the plaintiffs, then they are not entitled to recover in this action.

3. If they believe that the interest of the Oakland Coal and Iron Company in certain lands lying in Allegany county, and in the engine, for the price of which the note offered in evidence was given, was bought at sheriff's sale [**9]  by, and was conveyed to the plaintiff, Basshor, under an agreement previously made between him, acting for both the plaintiffs, and Forbes, acting for the said company, that said Forbes would aid him in making and paying for said purchase, and that if said property was not redeemed by said company, it should be held by said Basshor for the plaintiffs in satisfaction of the debt due by said company to them; and shall further believe that said Forbes did so aid said Basshor in making and paying for said purchase, then the plaintiffs are not entitled to recover in this suit--it being admitted that the said property was not redeemed by said company.

4. If the jury believe from the evidence that the fee simple title to the property covered by the mortgage offered in evidence was acquired by the plaintiff, Basshor, after the execution and recording of the said mortgage on behalf of him, the said Basshor, and his co-partner, and that said Basshor, for himself and his partner, has since sold and disposed of the same, then the plaintiffs are not entitled to recover.

The Court (DOBBIN, J.) rejected the first and fourth prayers of the defendant, and granted his second and third in connexion [**10]  with the plaintiff's prayer, which it refused to grant, except with the qualification contained in the said second and third prayers of the defendant, but did grant it with such qualification. The plaintiffs excepted to the refusal of the Court to grant their prayer without qualification, and also to the qualification and to the granting of the defendant's second and third prayers; and the verdict and judgment being against them, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice in the Court of Appeals -- Parol Evidence -- Individual Liability of a Stockholder of an Incorporated Company under Article 26, section 52 of the Code.

Where upon objection to evidence it is admitted by the Court, subject to exception, and the party objecting to it, does not at some subsequent stage of the trial, apply to the Court by motion or prayer to exclude it, he cannot raise the question of its admissibility in the Appellate Court.

Proof of any collateral parol agreement, or independent fact, which does not interfere with the terms of the written contract, though it may relate to the same subject matter, is admissible; and whether such collateral agreement was made, or independent fact occurred, contemporaneously with, or as preliminary to the main contract in writing, is quite immaterial.

A boiler, steam engine and appurtenances were purchased by an incorporated company, it being a part of the agreement of purchase, that the purchase money should be secured by a promissory note of the company and a mortgage on the interest of the company in certain lands, and that the vendors should look only to the company and to the mortgage for the payment of the purchase money. The note was given by the company according to the agreement, and the mortgage was likewise duly executed and delivered to the vendors and by them accepted. On an action brought under the provisions of Article 26, section 52 of the Code of Public General Laws, by the vendors against a stockholder of the company, to recover on the note, it was HELD:

That the plaintiffs were not entitled to recover. 

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

The plaintiffs sold machinery to the company under a written contract. The defendant offered parol evidence of conversations between the plaintiffs and the company's agents, of whom the defendant was one, which are said to have preceded and accompanied the execution of the contract.

It was upon this evidence that the defendant based his defence, that the plaintiffs had waived his individual liability when the debt was contracted. Conceding the truth of this evidence, as we are bound to do for the purposes of this appeal, it shows no waiver of the statutory individual liability. It simply shows that the defendant and the other officers of the company [**11]  refused to make themselves individually liable by note, and that all the parties being ignorant of the existence of the statutory liability, supposed that the plaintiffs would have no security other than the note and mortgage of the company. Such are the utmost inferences that a jury could have been authorized to draw from this testimony; if the plaintiffs had offered no rebutting testimony and had contented themselves with demurring to this evidence, they would have been entitled to judgment upon such a demurrer.

The Court therefore erred in submitting it to the jury to find whether "it was part of the agreement of purchase; that the plaintiffs should look only to the company and the mortgage;" or, in other words, waive the statutory liability of the defendant.

The testimony, so far from supporting, actually negatived such an hypothesis. And yet the instruction was one which was well calculated to mislead the jury. The testimony showed clearly that the plaintiffs did look only to the company and mortgage, (because they knew of no other security;) and the average juryman could hardly be expected to discriminate between this and an understanding or agreement that they should [**12]  look only to the company and the mortgage. The jury very naturally inferred from this instruction following upon the parol evidence which had been laid before them, that the question for them to determine was, whether or not the parties had contracted with reference to individual liability, and that if they had not the plaintiffs could not recover.

This parol evidence, (if it had any relevancy to the case,) was inadmissible, as tending to vary and control the legal effect of the written contract.

This objection was made when the testimony was offered, and is to be considered as renewed by the exception to the defendant's second prayer, in which this evidence was submitted to the jury. The defendant's second prayer should not have been granted:

1st. Because it was founded upon an hypothesis which, (if so construed as to support the legal conclusion of the prayer,) was in direct opposition to the evidence.

2d. Because it was easily susceptible of a construction which (though warranted by the evidence) was in opposition to the law.

3d. Because it submitted to the jury parol evidence to vary and control the legal effect of a written contract.

Upon the general [**13]  question of individual liability of stockholders, reference may be had to Norris vs. Johnson, 34 Md., 485; and upon the question of waiver, to Sodini vs. Winter, 32 Md., 130.

The defendant, to support his defence that the debt had been satisfied, again resorted to parol evidence in a case where the rights of the parties were settled by a contract in writing.

The land mortgaged to the plaintiffs, to secure their claim against the company, was offered for sale by the sheriff upon a prior judgment. The plaintiffs entered into a written contract with the company, binding themselves, in the event of their purchase of the said land, to permit the company to redeem upon payment of the debt and purchase money. The defendant offered parol evidence to show that the plaintiffs further agreed, that if the company did not redeem, the land should be held by the plaintiffs in "full satisfaction" of their claim against the company.

The appellants objected to this testimony, and renewed their objection by exception to the defendant's third prayer, in which it was submitted to the jury.

The evidence was inadmissible, as adding to the written agreement of the parties a new and important [**14]  qualification, and the prayer founded upon it should have been rejected.

The evidence was also inadmissible upon another ground. The contract related to the purchase and redemption of land, and was within the Statute of Frauds.

S. Teackle Wallis, for the appellee.

If the admissibility of the evidence were open for consideration, it ought not to be excluded on the ground of its having added to, varied or contradicted a written instrument, or that any of it tended to prove a parol contract which had been merged in a written one, for it related only to points which the written contract did not profess to embrace.-- McCreary vs. McCreary, 5 G. & J., 147, 156, 157, 158; Dorsey vs. Eagle, 7 G. & J., 331; Creamer vs. Stephenson, 15 Md., 222; Bladen vs. Wells and Wife, 30 Md., 583, 584.

The contract relied on in the second prayer of the defendant was not to give up without consideration the individual liability of the stockholders, to which the plaintiffs were once entitled, but that they had never become entitled to it. They might have sold the engine and boiler on the security of the mortgage alone without even the note of the company or its covenant to pay. If it had [**15]  been part of the contract that the mortgage alone was to be relied on and the company to be under no liability, it would be difficult to imagine whence its liability would arise. The exclusion of the individual liability of the stockholders might as legitimately be a part of the contract of purchase, and the theory of the prayer, supported by the evidence, is that it was.

The contract relied on in the third prayer was not for the giving up of the liability of the company or that of the stockholders, if the latter ever existed, without consideration. The appellee's agreement to aid and his actually aiding the appellants in making and paying for the purchase at the sheriff's sale, was consideration enough for their agreement to retain the property in satisfaction of the debt due by the company, if the latter did not or could not avail itself of its privilege of redeeming it. There was nothing in that contract contrary to the policy of law. Neither the appellee nor the company was under any obligation to bid for the property. They were entitled, with or without consideration, to abstain from bidding. By agreeing not to exercise their right to bid, and aiding the appellants in making [**16]  the purchase, for the consideration assumed, they wronged no one.

The company was chartered for the mining purposes specified in the certificate, not for the purpose of sawing timber and improving land. An incorporation for the latter purpose required to be differently obtained and would have been subject to other provisions. The mode by which a corporation incorporated under our general law is authorized to extend or change its business is expressly provided for. The contract to sell the engine and boiler for a purpose known to the seller not to be within the corporate power of the company, was void and imposed no liability on the company or its stockholders. Code, Art. 26, secs. 19, 42, 60, 67; Penna., Del. and Md. Steam Nav. Co. vs. Dandridge, 8 G. & J., 248, 318, 319; Plank Road Co. vs. Young, 12 Md. 484; Angell & Ames on Corporations, 253, note 2, 255, note 5 and note a; Campbell, et al. vs. The Mississippi Union Bank, 6 Howard, (Miss.,) 625.

The first prayer of the appellee ought therefore to have been granted, and the prayer of the appellants, which ignored this hypothesis, might properly for this reason have been refused.

The acquisition by the appellants of [**17]  the fee simple title to the mortgaged property and subsequent sale of it merged the mortgage and the debt thereby secured. Mitchell vs. Mitchell, 2 Gill, 230; Glenn, et al. vs. Spry, 5 Md., 117; Wahl vs. Barroll & Spence, 8 Gill, 293, 294; 1 Hilliard on Mortgages, (3d Ed.,) 522; Speer vs. Whitfield, 2 Stockton, N. J., 107; James vs. Morey, 2 Cowen, 246, 300, 319; 1 Greenleaf's Cruise, 56, (marg.,) 61, top.

The merger of the mortgage, to which the appellee would have been entitled to be subrogated if compelled to pay the debt, relieved him from liability. Garey vs. Hignutt, 32 Md., 552.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*164]  ALVEY, J., delivered the opinion of the Court.
The question as to the admissibility of the parol evidence offered by the defendant in the Court below, and which was objected to at the time by the plaintiffs, but admitted by the Court subject to exception, is not before this Court for review, inasmuch as the Court was not at any subsequent stage of the trial invoked to exclude such evidence, and exception taken to its refusal so to do. Whether the evidence was really admissible, [**18]  the Court below does not appear to have definitively decided. All that was done by the Court was to allow the evidence to be given, subject to the exception of the plaintiffs, 

 [*165]  which might be insisted on at some later period in the course of the trial, when the question of the admissibility or inadmissibility of the evidence could be better understood than at the moment when offered. This course is frequently pursued, in order to facilitate the trial, and as a means of more fully understanding the relation and bearing of the proffered evidence to and upon the issue involved, than can be well seen in the early progress and development of the cause. The practice in this respect is most generally regulated by rule of Court; but, in all such cases, if the party objecting to the evidence intends to insist upon his objection taken in the first instance, he should, before or at the close of the evidence, apply to the Court, either by motion or prayer, to exclude the evidence objected to, and thus have the question of the admissibility of the evidence definitively disposed of, and to the final ruling on this latter application the exception, if desired, should be taken. If this [**19]  is not done, the benefit of the original objection cannot be availed of here, for the obvious reason that there has been no final decision of the question in the Court below; and the mere statement in the bill of exception that certain evidence was offered and objected to, but admitted subject to the objection, to be disposed of at a subsequent stage of the trial, does not by any means raise the question here as to the admissibility of such evidence. This proposition was, in effect, decided in the case of Coates & Glenn vs. Sangston, 5 Md. 121.
But if the question of the admissibility of this evidence was properly before us, we could have no hesitation in declaring the evidence admissible for the purpose for which it was offered. It was not, as supposed by the learned counsel for the plaintiffs, liable to objection on the ground that it tended to contradict, add to, or vary the written contract between the plaintiffs and the Oakland Coal and Iron Company. It had reference to a collateral matter, and about which the contract was silent. The individual liability of the defendant as stockholder in the company is not provided for by the terms 

 [*166]  of the contract,  [**20]  but, if it exists at all, can only exist as a statutory incident to such contract, and as collateral to the obligation of the company. The liability of the stockholder is, in one sense, founded in contract, it is true, but such liability is so far collateral to and independent of that of the corporation on the contract itself, that it may be waived or discharged without in any manner affecting or impairing the direct corporate liability. It was the object of the evidence offered to show that the individual liability of the stockholder was waived and excluded by showing that the plaintiffs had entered into the contract with the company with the distinct understanding that they were to look to and rely upon the security furnished by the company, alone and exclusively, and that without such understanding the contract would not have been made on the part of the corporation represented by the defendant. This evidence, we think, was competent and admissible, and the objection taken to it wholly untenable.
The rule of exclusion, relied on by the plaintiffs' counsel, is in no way infringed by the introduction of the evidence objected to; for it is well settled by the most unquestionable [**21]  authorities, that proof is admissible of any collateral parol agreement, or independent fact, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter; and whether such collateral agreement was made, or independent fact occurred, contemporaneously with, or as preliminary to, the main contract in writing, is quite immaterial. Lindley vs. Lacy, 17 Com. B., (N. S.,) 578; 2 Taylor's Evidence, secs. 1038, 1049. And this principle has been very fully and explicitly sanctioned by this Court in the cases of McCreary vs. McCreary, 5 G. & J. 147; Creamer vs. Stephenson, 15 Md. 211.
Having said that the parol evidence objected to was admissible for the purpose for which it was offered, it follows, necessarily that, in our opinion, the Court below was right in granting the defendant's second prayer. That prayer submitted to the jury to find, that if it was agreed at the time of 

 [*167]  the purchase from the plaintiffs of the boiler, steam engine and appurtenances, that they, the plaintiffs, should rely only upon the responsibility of the company, and the sufficiency of the [**22]  mortgage and note taken for the price of the articles sold or furnished, for payment, then the plaintiffs were not entitled to recover. Of the correctness of this proposition we think there can be no doubt.
It is contended however that because it was proved that the parties to the contract did not know, at the time it was entered into, of the existence of the statute imposing the individual liability upon the stockholders for the debts of the corporation, therefore the plaintiffs cannot be supposed to have intended to waive such liability. But if it be true, as was submitted to the jury to find, that it was distinctly agreed that the plaintiffs were to rely alone upon the liability and security of the company, and no other, it would be any thing but just or fair to allow them to hold the defendant liable upon the theory suggested. We think in reason it cannot be done.
As to the defendant's third prayer, we think that was properly granted also. If the facts therein enumerated were found by the jury, they clearly constituted a discharge and satisfaction of the claim, by the express agreement of the plaintiffs; and of course with that being done, all pretence for holding the defendant [**23]  liable ceased to exist.
Finding no error in the rulings of the Court below, its judgment will be affirmed.
Judgment affirmed. 

101 of 144 DOCUMENTS 

PHILIPPA E. DEFORD, Guardian ad litem of HARRIET B. DEFORD and ELLA V. DEFORD, Infants, vs. THOMAS DEFORD, CATHARINE A. WEBB, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 168; 1872 Md. LEXIS 70 

May 22, 1872, Decided 

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

The bill in this case was filed by Catharine A. Webb and Benjamin F. Deford, children of the late Benjamin Deford, and executors under his will, and by John D. Kremelberg, as father, guardian and next friend of his three children, grand-children of the testator, against the appellants, Harriet B. Deford and Ella V. Deford, also grand-children of the testator, and others. The bill charged that a doubt had arisen whether the seventh clause of the testator's will had not created, or attempted to create, a perpetuity contrary to law; by which doubt, the complainants, Catharine A. Webb, and Benjamin F. Deford, the trustees named in said clause, were greatly embarrassed in the administration of the estate. The bill prayed a judicial interpretation of the clause in question. Two of the children of the testator answered, insisting that the clause in question was void as intending to create a perpetuity contrary to law, and that the property therein mentioned descended to the heirs-at-law of the testator. One of the grand-daughters of the testator answered, submitting the question to the judgment of the Court; another answered, maintaining [**2]  the devise.

The Court (PINKNEY, J.) on the 3d of July, 1871, passed a decree declaring that the said seventh clause was void and of no effect, and that the testator "died intestate of all of the estate and property by the said clause sought and attempted to be unlawfully disposed of, and limited in trust."

From this decree the present appeal was taken in behalf of the infant children of Isaac Deford, and of their mother, his widow.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Void Trust -- Perpetuity -- Void Devise -- Void Bequest.

Where a trust is created which may continue beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction thereafter, it is void as infringing the rule against perpetuities.

Where a devise of real estate is void by the rules of law, the land descends to the heirs-at-law of the testator, and does not pass to the residuary devisee. But where a bequest of personal property is void, the property passes to the residuary legatee. 

COUNSEL:
Charles Marshall and S. Teackle Wallis, for the appellants.

The decree of the Circuit Court, in so far as it holds that a perpetuity was attempted, and that there was an intestacy as to the realty, is unobjectionable, but manifest error occurred in the ruling that there was any intestacy as to the personalty: the decree should have been that the personalty passed under the general bequest of the residue.

It is settled law in Maryland that when a devise is inoperative, the realty passes to the heir-at-law, and the personalty to the residuary legatee. The tenure of property has been accommodated to this view of the law, and it is too late to criticise the reasons upon which it was originally decided.  [**3]  Tongue's Lessee vs. Nutwell, 13 Md., 415; Cox's Adm'rs. vs. Harris, 17 Md., 31; Helms vs. Franciscus, 2 Bland, 560.

The appellees, the Kremelbergs, seek to sustain the decree in this case by the ruling in Barnum vs. Barnum, 26 Md., 174, which is claimed to have been, that Mr. Barnum died intestate of both the real and personal estate. The language which was used by the Court, on page 174, might as well be applied to the realty alone as to the realty and personalty, and in any event it is quite apparent that the question was not before the Court in that case at all. It would be difficult to convince the Court that it was the purpose of the former Court of Appeals to overrule, without discussion and without particular reference to it, the judgment which it had recently pronounced in Cox's Adm'rs. vs. Harris, 17 Md., 31, and which, in the language of the Court, "is recognized by the whole current of authorities both in England and in this country."

It can make no difference that both realty and personalty were the subjects of the devise. In such case the realty will take one direction and the personalty another.

The different rules as to perpetuities, applied under the [**4]  same devise to realty and to personalty, are illustrations of this view; and many cases of void devises have occurred in which the testator has been treated as intestate as to the real estate, and not intestate as to personalty.

In fact, if the distinction between the right of the residuary legatee as to realty, and his right as to personalty, is to be presumed, it is impossible to make the rule different under a will of realty and personalty from that which would prevail as to the will of realty and as to a will of personalty. If an uniform interpretation is to be given to a will devising both realty and personalty, by which rule is the Court to be governed; by that applied to real estate, or that applied to personalty? It is obviously impossible to select either rule of interpretation as to both, so long as the distinction alluded to is kept up under any circumstances, though probably, if a selection were to be made, it would be more proper to make both real and personal property pass to the residuary legatees, as it is for them that the testator has expressed a general preference.

Alexander B. Hagner, on behalf of the children of Mrs. Kremelberg, argued

That if the [**5]  seventh clause of the will be void, the testator must be held to have died intestate of all the property therein mentioned, whether real or personal, and it will in no degree be controlled or disposed of by the residuary clause.

The intention of the testator was evidently against any such enlarged interpretation of the residuary clause. He first carefully culls from his estate all those portions which he is unwilling should pass under the residuary clause, and in each instance, in effect, declares that the particular property disposed of by the several special devises and bequests, should not pass as part of the residuum. With the utmost particularity, evincing a studied design, he withdraws the property enumerated in the seventh clause from that portion of his estate which he is willing to bestow upon the five beneficiaries named in the residuary clause. He certainly supposed that all the devises he had incorporated in his will were equally valid, and the instrument, at the time of his death, is to be read as if he had declared in express words that none of the property mentioned in the previous clauses of the will should pass under the residuary clause, which was therefore limited [**6]  by the previous clauses.

That any of the devises should afterwards fail, cannot affect the question as to what he intended should pass under the eighth clause, in the absence of an express provision that the property thereby given should be increased in the event of the failure of any of the other devises. The intention of the testator can no more be relied upon as the excuse for transferring to the residuum the property specially dedicated to the objects of the seventh clause, than it could be invoked to swell any other devise of the will with property left by some other clause which had happened to fail of effect.

There is nothing like an express provision in the will, declaring that the personalty in the seventh clause should pass in any event, as part of the residuum, as is the case with reference to the fifth clause; and it can only do so, if at all, by force of some rule of construction.

But it is a cardinal principle, in the interpretation of wills, that the heir is not to be disinherited by implication. If the property is not effectually given in some other direction, the heirs and distributees will take it, even against the testator's intentions, and a fortiori [**7]  in the absence of such intention.

If the claim of the appellants were allowed, the children of one of the testator's daughters would be deprived of all participation in the personalty in the seventh clause, in the absence of any expression by the testator declaring this to be his wish or intention.

But the authorities are opposed to the distinction sought to be drawn between the disposition of the realty and of the personalty in the seventh clause, in the event of his intestacy in respect thereof. It is conceded that the real estate cannot pass under the residuary clause. Tongue vs. Nutwell, 13 Md., 416.

In Barnum vs. Barnum, 26 Md., 174, the Court expressly held, that if the trust therein spoken of were void, "the testator would be held to have died intestate of his hotel property," and that "it would not pass by the residuary clause." The case shows that "the hotel property" consisted as well of fee simple estate as of leasehold, furniture, chattels, &c. This decision is therefore to be considered as overruling Cox's Adm'rs. vs. Harris, et al., 17 Md., 23, so far as that case supports the appellants' claim. The case of Barnum vs. Barnum, in this particular, is in accord [**8]  with many of the best considered cases, ancient and modern. Dyose vs. Dyose, 1 P. Wms., 305; Davers vs. Dewes, 3 P. Wms., 40; Skrymsher vs. Northcote, 1 Swanst., 566; Attorney General vs. Johnstone, 2 Amb., (577); Gravenor vs. Hallum, 2 Amb., (645); Wainman vs. Field, Kay, 507; Collins vs. Wakeman, 2 Ves., Jr., 683.

It is contrary to another well recognized canon of construction, to assign one purpose to a testator as to his realty, and another as to his personalty, in the same clause. Woodland vs. Wallis, 6 Md., 166; Hatton vs. Weems, 12 G. & J., 107.

And since the real estate passes as undisposed of property, upon the theory that the testator had not effectually expressed his intention that it should pass under the residuary clause, in case the seventh clause should be held void, the personalty should likewise pass as in a case of intestacy, if the seventh clause is void, since there is the same absence of intention that it should pass under the eighth clause.

If the Court should be of the opinion that the personalty passes under the residuary clause, in the event of the seventh clause being held void, it will be insisted by the appellees that it is not void as creating [**9]  a perpetuity contrary to the provisions of the law on the subject of executory devises.

It is admitted that the question of remoteness is to be determined with regard to possible events, and therefore, if the limitation is such that it may extend beyond the limit allowed by law, the devise will be void for remoteness. But it is also equally clear that "the remoteness against which the rule for prevention of perpetuities is directed, is remoteness IN THE COMMENCEMENT, or first taking effect of limitations, and not in the cessor or determination of them." Lewis on the Law of Perpetuity, 52 Law Library, (173); Supplement to Lewis on Perp., 66 Law Library, (164); Boughton vs. James, 1 Coll., 26; Perry on Trusts, secs. 377, 381; Trickey vs. Trickey, 3 M. & K., 560.

Does the limitation to the grand-children in the seventh clause necessarily commence within the period of a life or lives in being at the death of the testator, and the term of twenty-one years and a fraction of a year thereafter? If it does, then the limitation is not void as a perpetuity. The question should be answered in the affirmative.

The trustees are to apply the net income from the property to the grand-daughters [**10]  living at the testator's death. If these were the only grand-daughters, there could be no difficulty, since they were actually living at the testator's death. It is supposed a difficulty may arise with respect to the grand-daughters who may be born after his death. But it is evident that all the grand-daughters who may be born after the testator's death, must be born during the lives of their mothers respectively, or within a fraction of a year after the death of their respective fathers. They must therefore come into existence within the time allowed by the rule, viz: within a life or lives in being at the death of the testator, and the term of twenty-one years and a fraction beyond. Arnold vs. Congreve, 1 Russ. & Mylne, 209.

It seems equally clear that the interest given to each grand-child born after the testator's death, vests in such grand-child at its birth. If this be so, it is of no consequence how remote the cesser or determination of the estate of the trustees may be, even if half a century may have elapsed before the number of grand-daughters may be reduced to three. That the termination of the trust is to be delayed until a large number of lives must end, is of no [**11]  importance upon this point. The aggregate number of lives is regarded but as one, even if they are as numerous, in the words of the books, as the soldiers in the army. Lewis on the Law of Perpetuity, 52 Law Library, (179.)

Is the validity of the devise impaired by the provision that "the heirs and distributees" of such grand-daughters as may have died before the termination of the estate, are to participate in the distribution of the fund? This relates only to remoteness in the cesser of the trust estate, and cannot extend or restrian it. The period of distribution will be the same, whether the heirs and distributees of the deceased grand-daughters are to participate or not. Whenever there are less than three grand-daughters living, the fund is to be distributed, and if the interest of the respective grand-daughters vested within the time allowed by the rule, the remoteness of the time of distribution, or the character of those who are to share the property, is of no importance.

The devise would certainly be good as to the grand-daughters living at the time of the distribution, and if so, it will be sustained as to them, even if it were illegal as to the heirs and distributees [**12]  of such as had died. If it were illegal as to the latter, those shares would go to the heirs and distributees of the testator. Arnold vs. Congreve, 1 Russ. & Mylne, 209.

But the devise or bequest to each grand-daughter for life, and after her death to her "heirs and distributees," vests a fee simple estate in each grand-daughter, although liable to be increased or diminished by deaths or births. If this be so, each grand-daughter may sell or dispose of her interest under the seventh clause, before the period of distribution; and hence, the corpus of the estate will not be inalienable during any prohibited period. Perry on Trusts, sec. 386, and cases there cited.

Indeed, the trustees have authority to sell the entire property, and invest the proceeds anew; and it was admitted in the Court below, as appears from the opinion of the Judge, that this circumstance would extricate the case from the supposed difficulties arising from the rule against perpetuities. Bland vs. Williams, 3 My. & Keene, 411; Lewis on the Law of Perpetuity, 66 Law Lib., (194;) 1 Jarman on Wills, 234; 2 Jarman on Wills, 76; Lewis on Perp., (167,) (173,) (559;) Routledge vs. Dorril, 2 Ves., Jr., 365; Act [**13]  of 1861-'62, ch. 161.

The limitations in the case of Barnum vs. Barnum, 26 Md., 119, differ very essentially from those in this case, and it is not an authority against the validity of the seventh clause.  

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

OPINIONBY:
MILLER 

OPINION:

 [*175]  MILLER, J., delivered the opinion of the Court.
The decree below declares the seventh clause of the will of Benjamin Deford void and inoperative, because it infringes the rule against perpetuities. This part of the decree cannot be reversed without overruling the decision in Barnum's Case, 26 Md. 119.
The testator commences this clause of his will by declaring, "Whereas I have now a number of grand-daughters and may have many more, and believe I will confer more good on my family by making proper provisions for my said grand-daughters than by any other disposition of my property," and he therefore "gives, devises and bequeaths, certain described real estate and bank stock to two trustees and the survivor of them and the heirs, executors, administrators and assigns of the survivor in trust, to and for the following uses and purposes, viz: to [**14]  receive the rents and profits thereof and keep the same in order, to pay all taxes, expenses and charges, including a reasonable compensation for services as trustees, 

 [*176]  and to apply and use the balance, being the net income thereof, in the support, education and maintenance of such grand-daughters, as I now have, or may hereafter have, or may at any time hereafter descend from any of my five children now alive, for the just and equal benefit of the said grand-daughters during their respective lives, which said trust is to be continued for the benefit of the said grand-daughters so long as there may remain living at least three of them, but no longer, but in case there shall not be alive of them the said grand-daughters at least three, then the trust hereby created is to end and be determined, and the said property is to be divided absolutely among my said grand-daughters who may then be alive, and the heirs and distributees of such of them as may have previously died, per stirpes and not per capita; the income of said property during the continuance of the said trust to be divided between my said grand-daughters who may be living, and the child,  [**15]  children, descendant or descendants of such as may die during the said trust, leaving at the time of such death any descendant, per stirpes and not per capita."
It is plain this trust may continue beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year, to cover the period of gestation, thereafter, and that during this time the property may be placed extra commercium. The trustees are to hold the property and apply its net income not solely for the benefit of grand-daughters living at the testator's death, but also for the benefit of all that may at any time thereafter descend from any of the testator's five children alive at his decease, and is to continue until his grand-daughters, then born or thereafter to be born, be reduced in number to two; then only is the trust to cease and the property to be divided. Thus many grand-daughters of the testator's living children may be born years after his death, and their number may not be reduced to two until long after the expiration of the lives in being when the will took effect, and the allowed period thereafter. 

 [*177]  During all this time the trust by express [**16]  terms is continued. Each after-born grand-daughter as she comes into existence steps in and derives the benefit of the income, for her education and maintenance, equally with those living at the testator's death, and if any one of the grand-daughters, whether then living or after-born, dies without leaving issue, before the period of distribution arrives, the property all goes to those in esse at that time, and the then living descendants of such as may have previously died. The trust is fastened upon the whole for the benefit of parties in being when the period of distribution arrives, and that period may not arrive until long after the expiration of the time within which the law permits estates to be tied up.
In Barnum's Will the devise was to trustees in trust with a leasing power to continue, "so long as my said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or any of them, shall live," and the Court held it void because the trust might extend so as to embrace persons and lives not in esse at the time of the testator's death. After stating the rule that the law would not permit an estate to be [**17]  so limited as by possibility to extend beyond a life or lives in being, and twenty-one years and a fraction thereafter, they said the case before them did not present the question "as to the future vesting of an executory estate, in order to determine the validity of the preceding one; but simply whether the trusts of the will require in their execution a longer period than that prescribed by the rule against perpetuities, and, therefore, render the property devised to the trustees inalienable during that time; if so, the law denounces the devise in trust a sa perpetuity, and declares it void." All the reasoning in that case applies here, and we regard it as a binding and conclusive authority which must, notwithstanding the very able argument of counsel to the contrary, control our judgment in the present case. The Courts in prescribing and settling the rule against perpetuities have founded it in true wisdom. They have thereby 

 [*178]  limited the indulgence of the natural inclinations of men to fix control over their property after death, in order to provide for those of their own blood who may come after them, by a careful consideration and regard for "those larger principles [**18]  of public policy which are essential to the welfare of communities and States." The decision in Barnum's Case is a fair and just application of the rule, and in addition to the authorities therein cited for its support, reference may be made to secs. 382 and 383 of a most excellent work (Perry on Trusts) recently published, where it is said: "A perpetuity will no more be tolerated when it is covered by a trust, than when it displays itself undisguised in the settlement of a legal estate. 'If,' as Lord GUILFORD said, 'in equity you could come nearer to a perpetuity than the Common Law admits, all men, being desirous to continue their estates in their families, would settle their estates by way of trust, which might make well for the jurisdiction of Chancery, but would be destructive to the commonwealth. Therefore the creation of a trust or equitable interest, which cannot vest in the object of the trust within the time limited by law for the vesting of legal estates, will be nugatory. Thus where a testator devised his real estate to trustees, to apply the rents to the support of his wife, during the life of the wife, and on her death to convey the estates to all his present [**19]  and future grand-children, as they respectively attained the age of twenty-five years, to hold to them and their heirs as tenants in common, it was held that the trust to convey was void, for the reason that some of the grand-children might not become twenty-five years old until after the expiration of the life of the tenant for life, and twenty-one years in addition." The fact that the testator, in another clause of his will, empowers his trustees to change the investments and reinvest as often as may be deemed proper, by making sales or otherwise, does not change the nature of the trust, which may extend beyond the time limited, and does not therefore extricate the case from the operation of the rule; the possibility 

 [*179]  of such continuance the law regards as decisive in determining the question of perpetuity or not.
The decree after declaring the seventh clause void, further declares the testator to have died intestate of all the estate and property thereby attempted to be disposed of, thus devolving the bank stock therein mentioned upon the next of kin. The appellants insist this is error, and that this stock as personal property passes under the residuary [**20]  clause.
This question has also been settled by express decisions of this Court. In Tongue vs. Nutwell, 13 Md. 415, it was decided that in case of a devise of real estate void by the rules of law the land descended to the heirs-at-law and did not pass to the residuary devisee. In their opinion the Court admit the preponderance of authority outside of Maryland was in favor of the residuary devisee, and base their decision upon Lingan vs. Carroll, 3 H. & McH. 333, a case decided nearly seventy years before, never overruled or doubted, but followed and acquiesced in by the legal profession as sound Maryland law. In Cox vs. Harris, 17 Md. 23, a similar question in reference to a void bequest of personal property arose, and the Court held the residuary legatees entitled to it, according to the law recognized by the whole current of authorities both in England and in this country. They referred to Tongue vs. Nutwell, and said, they did not intend to disturb the law established by that case, that being a devise of realty, affecting the rights of an heir-at-law which have always been regarded even in this State, and that [**21]  the distinction between a void devise of real estate and a bequest of personal property, was sanctioned by the authorities referred to, and should be maintained. In Barnum's case, the Court remarked that if the clauses declared void and the residuary clause constituted the entire will, the testator would be held to have died intestate of his "hotel property," under the ruling in Tongue vs. Nutwell. In using the terms "hotel property" the Court, in our opinion, had reference to the real estate of which the property thus described chiefly consisted, and did not advert to the fact 

 [*180]  that the furniture in the hotel and other personal estate might be regarded as included therein. We cannot impute to the Court an intention, simply by the use of these two words in this connection, without reference to, or any comment upon it, to overrule the case of Cox vs. Harris, a recent and well considered adjudication upon the very question of the right of residuary legatees to personal estate attempted to be disposed of by a void bequest. The same Judge who delivered the opinion of the Court in Cox vs. Harris, concurred without remark in the decision in Barnum's case,  [**22]   and we must infer that by the latter decision the Court meant merely to adopt and follow the law of Tongue vs. Nutwell, respecting real estate to which alone they refer. As to the intention of the testator to be derived from the terms of the residuary clause in the will before us, no doubt can exist if the rule in Cox vs. Harris, and the authorities there cited, is ever to be applied. The language "rest and residue of my estate" is as comprehensive as possible, and it is only the decision in Tongue vs. Nutwell, that saves the realty to the heirs at law. From these views it follows the decree is erroneous in declaring an intestacy of the bank stock mentioned in the seventh clause of this will, and it must therefore be reversed, and the cause remanded in order that the decree may be reformed in this respect.
We have decided the seventh clause of the will to be void without considering whether any of the appellees have the right to raise that question, because we consider it presented by the appeal taken by the appellants, and the position they assume in this Court. They insist the decree is wrong because it takes the bank stock away from them as residuary legatees. Whether [**23]  that be error or not must depend in the first place upon the validity or invalidity of this clause, for if that be valid the appellants as residuary legatees have no title and have not been prejudiced by the decree they have appealed from.
Decree reversed and cause remanded. 

102 of 144 DOCUMENTS 

GEORGE BLAIN vs. ENOS EVERITT, WILLIAM H. MARR and WILLIAM P. HULL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 73; 1872 Md. LEXIS 64 

May 21, 1872, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity side of the Circuit Court for Prince George's County.

The bill in this case, the object and purport of which are fully stated in the opinion of the Court, was filed on the 29th of January, 1872, by the appellees against the appellant. On the bill duly sworn to, and the accompanying exhibits, the Court (FORD, J.) passed an order directing an injunction to issue as prayed, and appointing a receiver to take charge of the real estate mentioned in the bill, &c., and requiring the defendant to deliver the same to the receiver, subject to the future order of the Court. The defendant, on the 12th of February, 1872, filed his answer verified by affidavit, and on the same day appealed from the order of the Court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Landlord and Tenant -- When Equity will not intervene between Landlord and Tenant.

Where the relation of landlord and tenant exists, and through failure of the landlord to take the necessary steps, as provided by law, to terminate the tenancy at its expiration and summarily eject the tenant holding over, the tenant has acquired the right to continue the tenancy at sufferance, or for another year, a Court of Equity will not intervene and oust him because he is a bad manager, or is vicious and disagreeable to his landlord, or is insolvent. 

COUNSEL:
Samuel H. Berry, for the appellant.

The Circuit Court erred in ordering the injunction:

1st. Because there were no sufficient allegations in the bill to authorize the granting of an injunction, as the appellees had their full and complete remedy at law. Pfeltz vs. Pfeltz, 14 Md., 376; Hubbard vs. Mobray, 20 Md., 167; Amelung vs. Seekamp, 9 G. & J., 468; Baugher vs. Crain, 27 Md., 36; Gelston vs. Sigmund,  [**2]  27 Md., 334; Fort vs. Groves, 29 Md., 188; Mayor, &c., of Frederick, vs. Groshon, 30 Md., 436.

2d. Because the prayer in the bill was only to restrain the appellant from the use and occupation of the houses and land, and to appoint a receiver, and the appellant was not restrained by the injunction from the alleged use and appropriation by him of the rents, issues and profits of the lands since they have been in his possession, nor was he required by the bill to account for the same.

3d. Because the improper cultivation of the land, and the depreciation of its value under the management of the appellant, as charged, and the appropriation of the rents and profits of the estate are stated to have occurred since the 1st of January, 1871, when it is charged that the appellant held the property of the appellees as tenant, and if responsible at all, is responsible in that capacity.

4th. If the appellant held said property as tenant, and had no other right or title to the same, the appellees had their full and complete remedy at law against him for the recovery of the rent, and upon legal notice to quit the premises, they could recover possession of the property. 1 Code, Art.  [**3]  53, sec. 1; Lamar vs. McNamee, 10 G. & J., 116; Anderson vs. Critcher, 11 G. & J., 450.

The order appointing a receiver should not have been passed:

1st. Because the bill does not contain such a statement of facts as rendered it necessary for the safety and protection of the property to place it in the hands of a receiver. Blondheim, et al. vs. Moore, 11 Md., 365; Voshell vs. Hynson, 26 Md., 94.

2d. Because Courts of Equity exercise this power with great precaution, and only when they are satisfied by abundant proof that it is absolutely necessary for the protection of the rights of the parties interested in the property. Blondheim, et al. vs. Moore, 11 Md., 365; Uhl vs. Dillon, 10 Md., 500; Rich, et al. vs. Levy, et al., 16 Md., 74; Knighton vs. Young, 22 Md., 370, 371; Haight & O'Connell vs. Burr, 19 Md., 130.

The Court erred in ordering the injunction and appointing the receiver, for the further reasons:

1st. Because the charge of fraud in a bill is not of itself sufficient to warrant the Court in interfering by injunction, or by the appointment of a receiver, but the reasons upon which the apprehensions are based, must be distinctly stated, to enable the [**4]  Court to determine whether they are well founded, and whether they show such a state of facts as will warrant its interference upon an ex parte application, without notice. Roman vs. Strauss, 10 Md., 89; McCann vs. Taylor, 10 Md., 418; Hankey vs. Abrahams, 28 Md., 588.

2d. Courts of Equity will not interfere by injunction, or the appointment of a receiver, where the right of the complainant to the property is not clear and undisputed, nor will they interfere where the defendant is in possession of the property as joint owner and as tenant. Cherry vs. Steine, et al., 11 Md., 1; State vs. Jarrett & Harwood, 17 Md., 309; Thomsen vs. Diffenderfer, et al., 1 Md. Ch. Dec., 489; O'Bryan vs. Gibbons, 2 Md. Ch. Dec., 9; Kipp vs. Hanna, 2 Bl., 26; Williamson vs. Wilson, 1 Bl., 418.

Frank. H. Stockett and C. C. Magruder, for the appellees.

On this appeal this Court is confined to the case made by the bill, and does not examine the answer. Wagner & Marshall vs. Cohen, 6 Gill, 97; Alexander vs. Worthington, 5 Md., 471; Guyton vs. Flack, 7 Md., 398; Haight & O'Connell vs. Burr, 19 Md., 132; Craufurd vs. Craufurd, 22 Md., 458.

Does the bill with the exhibits accompanying the same [**5]  make out such a case as justified the Court in granting the injunction and appointing a receiver?

The averments in the bill on this appeal, whatever may be the real state of the case, must be taken as true. Haight & O'Connell vs. Burr, 19 Md., 133.

The averments in the bill are ample to justify, nay, to require the order to be passed.

The granting of an injunction is a matter resting in the sound discretion of the Court. Reddall vs. Bryan, et al., 14 Md., 444. But whenever the complainant shows a case which, in the exercise of such discretion, justifies the interposition for such relief, the Court will not hesitate to apply the remedy. 2 Story's Eq., secs. 919-928.

And though the Court will not interfere by injunction to restrain a trespasser, merely because he is a trespasser, yet it will so interfere where the injury alleged is irreparable, or where full and adequate relief cannot be had at law, or where the injury complained of is of a character to work destruction of the property, or where it is necessary to prevent multiplicity of litigation. Shipley vs. Ritter, 7 Md., 408; Gilbert vs. Arnold, 30 Md., 29; Mayor, &c., of Frederick, vs. Groshon, 30 Md., 436;  [**6]  Wagner & Marshall vs. Cohen, 6 Gill, 104.

This case recommends itself with a threefold claim to equitable interposition:

First. The injury complained of is averred to be irreparable, and the facts are stated which show it so to be.

Second. No full and adequate relief could be had at law for such wrongs and injuries, even against a solvent party; but here it is averred that the defendant is insolvent, and therefore irresponsible; and to turn over the complainants to a Court of Law for redress, would be mockery.

Third. The injury complained of, and that threatened, is such as would work the destruction of the property, and the injunction was absolutely necessary as the only remedy to prevent and restrain this.

The appointment of a receiver in the case was eminently necessary, not only to preserve the property from destruction as to its improvements, by reason of the threats of injuring the same, made by the defendant, but also to protect the crops and the rents and profits, which were in imminent danger of being wasted and misapplied by an insolvent and irresponsible party. Clark vs. Ridgely, 1 Md. Ch. Dec., 70; Williamson vs. Wilson, 1 Bl., 418; Hannah K. Chase's [**7]  Estate, 1 Bl., 206; Wagner & Marshall vs. Cohen, 6 Gill, 104; Blondheim, &c., vs. Moore, 11 Md., 365; State vs. North. Cen. R. R. Co., 18 Md., 193.  

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

OPINIONBY:
MILLER 

OPINION:

 [*77]  MILLER, J., delivered the opinion of the Court.
This appeal is from an order granting an injunction and appointing a receiver.
The bill and exhibits show that the complainants having purchased at trustee's sale a tract of land in Prince George's county, containing about seven hundred and ninety-two acres, made a written agreement with the defendant, on the 12th of January, 1870, by which they agreed to sell and he to purchase, one undivided eighth part thereof for $ 2,968.13, payable in instalments; he also agreeing to pay one-eighth of all expenses incurred in the purchase of the whole tract, and in improving the same, including the building of houses, since the 10th of November, 1869, and to move with his family on the land and farm a portion of it on such terms as are usual in that part of Maryland.
Under this contract the complainants put the defendant in possession of about one-half the land, but difficulties having subsequently [**8]  arisen between them, owing, as the bill charges, to the bad conduct of the defendant and his neglect and mismanagement of the property of the complainants, who had in 

 [*78]  the meantime received their deed for the land from the trustee, determined to terminate their connection with the defendant, and proposed and entered into another agreement with him on the 12th of January, 1871, annulling, as they aver, the former contract.
So far as it is necessary to state the terms of this latter agreement, it appears the complainants thereby agree to pay the defendant $ 100, to refund to him the money he had then advanced under the previous contract, amounting to $ 1,855.08, to allow him and his family to remain in the dwelling house, and to work certain designated parts of the land, which he on his part agreed to work to the best advantage and in such crops as he thought proper, and "to vacate the dwelling house and land on or before the 1st day of January, 1872;" he was also to have one-half of all the crops, including the provender made on the land during the year 1871, and they reserved the right to enter and make improvements upon the property and to seed the land in the fall [**9]  of 1871.
The bill filed on the 29th of January, 1872, contains numerous statements and charges. We shall notice only those the complainants' counsel have deemed most material. They are in substance as follows: The complainants aver they have in good faith performed their part of the contract of January, 1871, have paid to the defendant the $ 100, and tendered to him the whole amount he had advanced under the agreement of January, 1870, which he has declined to receive, and have permitted him with his family to occupy the dwelling house, and to work and cultivate, as their tenant, for the year 1871, that part of the land they agreed he should work. They charge that his management and cultivation since January 1871, has been very destructive and injurious to the land itself and the buildings thereon; that he has permitted a large new tobacco house to be blown down and destroyed, for want of care and proper attention; that he has refused, and still refuses, to pay the rent due for the year 

 [*79]  1871--being one-half the crops--and is converting the same to his own use in reckless and utter violation of his said contract; that during the year 1871 he has cut and used for fuel valuable [**10]  timber trees, has permitted all the fencing to be destroyed, has refused to repair the fences as he should have done, although complainants have furnished on the place four or five thousand rails which have become more or less destroyed; that on the 4th of January, 1872, they, in pursuance of the agreement of January, 1871, demanded of him to vacate at once with his family the said dwelling house and lands, but he has positively refused to do so, and fraudulently threatens to destroy the buildings remaining on the place, and to destroy every thing on the place belonging to complainants, and to injure the land and premises in every manner and way he can, and they have reason to believe and fear from his repeated menaces and threats that he will do so; that he has already done in fraud of their rights great injury to the property and committed repeated and great waste and damage to it. They aver the property is not safe and secure in his hands, nor are the last nor will the future rents and profits of the same be safe in his hands, but the same will be recklessly and fraudulently destroyed and wasted so that they will be utterly lost to the complainants who are entitled to the same;  [**11]  and they also charge and aver that the defendant is insolvent, and that they will have no security for their indemnity if he is permitted to remain in possession and to receive the rents and profits of the property. They further charge that he fraudulently intends and affirms that he will hold on to the possession of the property in utter disregard of complainants' rights and of his solemn agreement as aforesaid, and they believe and therefore charge, if he is permitted to remain in possession, that he will wantonly destroy and injure the property, and they will not be able to make the improvements on the lands by the erection of buildings which they design to do, and their loss will be great and irreparable. In view therefore of the fraudulent 

 [*80]  proceeding of the defendant and the wrongs and injuries already done to the complainants, and those threatened to be done by him, they are advised they are entitled to relief in the premises by the granting of an injunction and the appointment of a receiver.
The prayer of the bill is that an injunction be issued enjoining, restraining and forbidding the defendant from further using or occupying the said property, lands and dwellings [**12]  thereon, and enjoining and forbidding him to attempt further to cultivate the said lands, or any part thereof, or in any manner interfering with the same or any part thereof, and also for appointment of a receiver for the said property with power and authority to take possession of and preserve the same in all respects, and to farm and cultivate the said land, and to collect, receive and take care of all the rents, crops, issues and profits thereof, to be accounted for in this Court, until the further order of the Court, and for full and general relief in the premises.
On this bill with the accompanying exhibits the Court passed the order from which this appeal is taken, directing the injunction to issue as prayed, and at the same time appointing a receiver to take charge of the real estate mentioned in the bill, and to cultivate, manage and collect the rents and profits due or arising therefrom, and requiring the defendant to deliver the same to the receiver, subject however to any future order of the Court.
It is plain the whole scope and purpose of this bill, the ultimate object it seeks to attain, is to oust the defendant of possession of the land [**13]  and dwelling house. This has been done by means of a receiver and the writ of injunction in the form asked for and granted. These have been made to perform the office of a writ of habere facias possessionem. Thus the main object of the bill has been attained by the order appealed from, passed on an ex parte application, without allowing the defendant an opportunity to be heard. No authority or precedent for such a proceeding has been cited, 

 [*81]  and it would be strange if any could be found. The only effectual remedy the defendant had was to suspend the operation of the order by an immediate appeal, which he has very properly taken.
What was the relation between these parties? The bill avers and the exhibits show the defendant was tenant of the complainants for the year 1871, under an agreement to render as rent a portion of the crops raised upon the land, and to quit the premises at the end of that year. The law clothed the landlords with ample power to terminate that tenancy at its expiration, and summarily eject the tenant if he held over. If they failed to take the necessary steps to that end, does this give them the right to ask a Court of Equity to remove him?  [**14]  If by reason of this failure the defendant has acquired the right to continue their tenant at sufferance or for another year, has equity jurisdiction to intervene and oust him because he is a bad manager or cultivator, or is vicious and disagreeable to his landlords, or is insolvent? Cases not unfrequently occur where a receiver of rents and profits of real estate may be appointed even on an ex parte application, where the main object of the bill is some relief properly cognizable in equity, and the purpose is to preserve and secure them for the benefit of those ultimately entitled. In such cases the averment of insolvency of the party in possession and receipt of the rents and profits, is most important in making out that strong and special case of imminent danger of loss always required as essential to a departure from the old rule, not to make such an appointment in any case, under any circumstances, before answer. Thus in Clark vs. Ridgely, 1 Md. Ch. 70, the complainants claimed title to a trust real estate and the rents and profits thereof, and sought by their bill a sale for the purpose of partition and an account of the rents and profits from the party [**15]  in possession. The bill also asked for a receiver, and we may assume the Chancellor would have made the appointment at once, and rightfully, if there had been an averment that the party in the 

 [*82]  enjoyment of the rents and profits was insolvent and unable to account for the same. So in Hannah K. Chase's Case, 1 Bland 206, where a widow was seeking dower in real estate (the Fountain Inn, in Baltimore,) and an account of rents and profits from the time her title accrued, the Chancellor, upon averment and proof that the party in whose hands and control the property was, and who was in the actual receipt of its rents and profits, was insolvent, appointed a receiver because that averment and proof showed the rents and profits to be exposed to imminent danger, or indeed to inevitable loss. Where a money fund is the subject of controversy, cases of settlement of partnership on dissolution, and others of like character, are familiar instances where the exercise of this power by Courts of Equity has been beneficially exerted. But none of these bear any analogy to the case before us. Title to the land as between these parties is not made a subject of litigation by [**16]  this bill. It merely states a case in which the relation of landlord and tenant exists, and the object is to amove the tenant. For that purpose full and adequate remedy has been provided by law without the aid of equity. The law has also provided ample and summary means for the landlord to collect his rent. When this bill was filed the process of distraint was open to the complainants for the rent due and in arrear for the year 1871, whether that was a money rent or a portion of the crops. If any right of possession in the defendant now exists, it is in virtue of that relation and by reason of the complainants' neglect to take in time the proper steps to eject him. If a landowner has upon his lands, by agreement or default, a negligent and insolvent tenant bound to pay rent in money or in kind, that fact cannot give a Court of Equity power to amove him and work the land during the tenancy by means of a receiver. To sustain a pretension like this would open a novel and most extensive head of equity jurisdiction, and equity Courts might soon find themselves engaged in working and managing half the farms in the State. If he is a mere naked trespasser the law also furnishes ample means [**17]  of redress.

 [*83]  The only ground of interference by a Court of Equity in a case like this is to prevent waste or acts of irreparable injury. If that had been the relief sought, and the injunction confined to this preventive remedy, we should have affirmed the action of the Court below in granting the injunction. For that purpose the averments of the bill are sufficient, and the case would fall within the numerous decisions of this Court, settling the law upon that subject. There is no prayer for such specific relief in the bill, but under the prayer for general relief the complainants may apply for a modified injunction covering this ground, which may be granted if the Court below, on considering the bill and answer (the latter of which this Court is not at liberty to notice on this appeal) or on further application, shall deem it proper. For that purpose the cause, on reversal of the order appealed from, will be remanded.
Order reversed and cause remanded. 

103 of 144 DOCUMENTS 

GEORGE W. BROOKS vs. J. THOMAS LESTER, JAMES MCALLISTER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 65; 1872 Md. LEXIS 63 

May 17, 1872, Decided 

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

On the 4th of December, 1869, John Glenn executed an agreement to lease certain property in the city of Baltimore to George Spreckelmyer; and on the same day Spreckelmyer mortgaged said property to Glenn to secure the sum of $ 12,000, the same to be advanced as certain buildings to be erected on the property progressed. On the 6th of December, 1869, Spreckelmyer executed a mortgage of the same property to the appellant to secure the payment of a sum of money, not to exceed $ 3,600 for building materials to be furnished as required by the mortgagor, in and about the erection of certain dwelling houses, on the mortgaged property. The mortgage was recorded in the afternoon of the day of its execution. A default having occurred in the performance of the covenants contained in the mortgage from Spreckelmyer to Glenn, proceedings to foreclose the same were instituted in the Circuit Court of Baltimore city, and on the 5th of November, 1870, a decree was passed for the sale of the mortgaged property on which six houses had been built. Glenn was appointed trustee to make the sale. He sold the houses on the 29th of March, 1871, for the sum [**2]  of $ 18,825. The sales were duly ratified on the 2d of May, 1871. The proceedings were thereupon referred to the auditor who stated an account allowing the expenses of the sales, and the mortgage claim of Glenn in full, amounting to $ 12,673.22, leaving a balance of $ 3,750.62 subject to the order of the Court. Against this residue the appellant filed a claim for $ 2,400, with interest thereon from the 6th of December, 1870, being a balance which he alleged was due him under the mortgage from George Spreckelmyer. The appellees also filed claims under the mechanics' lien law, against said residue. The auditor, under instructions from the solicitor of the appellant, stated a second account, in which he allowed the appellant $ 2,445.20, the full amount of his mortgage claim with interest, and apportioned the balance then remaining, $ 1,305.42, amongst the various lien creditors, whose claims amounted in the aggregate to $ 13,147.77. To this account the appellees excepted for the following reasons:

1. There was no debt due by Spreckelmyer to Brooks when the mortgage was given.

2. That materials to be furnished as required subsequent to the date of the mortgage, were not a legal [**3]  consideration for the mortgage.

3. That the mortgage was executed by Spreckelmyer, and the materials were furnished to him subsequent to the commencement of the buildings erected by him and sold by Glenn.

Under these exceptions testimony was taken before the auditor, and after argument the Court (PINKNEY, J.) passed an order sustaining the exceptions. From this order the present appeal was taken.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Mortgage -- Article 64, section 2 of the Code -- When a Mortgage has priority over a Mechanics' lien -- What constitutes the Commencement of a building under the Mechanics' Lien law.

Where the amount intended to be secured is expressed in the mortgage, as required by the Code, (Art. 64, sec. 2,) it is valid, though designed to secure future advances to that extent.

A mortgage to secure the payment of a specified sum of money for building materials to that amount in value, to be furnished from time to time, as required by the mortgagor, is valid. The fact that the advances are to be made in materials in lieu of money, does not affect the validity of the instrument.

In order to give a mortgage to secure advances, priority over a mechanics' lien, the mortgage must be recorded before the building is commenced.

The commencement of a building under the mechanics' lien law, is the first labor done on the ground which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction.  

COUNSEL:
C. D. McFarland, for the appellant.

A mortgage given as a security for future advances is valid. 4 Kent's Comm., 204, marg. 175.

Advances to be made in building materials are a legal consideration in a mortgage. Gen'l Ins. Co. vs. U. S. Ins. Co., 10 Md., 528; Wilson, et al. vs. Russell, 13 Md., 494; Page vs. Green, 6 Conn. 345; Mix vs. Cowles, 20 Conn., 420; McDaniels vs. Colvin, 16 Verm., 300.

The only point or question tried and decided in the Court below was, whether the buildings were commenced before the recording of the mortgage, and is therefore the only subject for review in this Court. Art. 5, sec. 12 of the Code, as amended by the Act of 1862, ch. 154.

The testimony of George Spreckelmyer, George W. Brooks, Gason [**4]  Watkins and the evidence as to the state of the weather on Monday, December 6th, 1869, proves that the mortgage was recorded before the commencement of the buildings.

The buildings consisted of six dwelling houses. The burden is on the exceptants to prove that the work was commenced on all of them before the mortgage was recorded. The exceptants do not attempt to show which house was commenced before the mortgage was recorded. The commencement of one was not the commencement of the entire six houses. The proof on the exceptants' own showing, does not justify a decision that the mechanics' lien claimants have priority over the mortgage.

William Reynolds, Jr., and E. J. D. Cross, for the appellees, contended,

That the "driving of the pegs in the ground, laying it off," which the witness, Thomas Murray, testified was done on Saturday evening, December 4th, two days before the execution of the alleged mortgage to Brooks, was the actual commencement of the building. In the case of Pennock vs. Hoover, 5 Rawle, 308, it is expressly declared that "the first labor done on the ground, which is made the foundation of the building," "constitutes the commencement of the building [**5]  of a house." Taken in connection with the fact that this driving of the pegs and laying off the ground on Saturday was followed by the digging of the foundations on the Monday following, according to the exceptants' witnesses, or on Tuesday, according to the appellant's, who also testified that owing to the stormy whether on Monday it was impossible to work on that day, can it be disputed that both these operations constituted one continuous act, which was the first labor done upon the ground?

That even if it be held that the building was not commenced until the digging of the foundation was actually begun, still, as stated in the opinion of the Court below, the weight of the evidence is with the exceptants. Four witnesses swear positively that the work was begun on Monday morning, the recollection of the witness Murray being corroborated by a memorandum made in his pass-book at the time.

The lien creditors have a priority over the claim of Brooks, the alleged mortgage not being given to secure a debt due, nor for a legal consideration. The interest of Spreckelmyer, which he had to mortgage, was only the equity of redemption in an agreement for a lease from Glenn, who had [**6]  an agreement for a lease from Crawford; an interest in an interest already mortgaged, and of no value until improved by the materials furnished by the lien creditors. It was not such an advance mortgage as would come under the ruling of this Court, in Willson vs. Russell, 13 Md., 494; 1 Greenleaf's, Cruise Title XV, Mortgage, 79; 1 Washburn's Real Property, 481; 2 Powell on Mortgages, 533, 534, note E; Shaw vs. Neal, 6 House of Lords, 608.  

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

OPINIONBY:
MILLER 

OPINION:

 [*69]  MILLER, J., delivered the opinion of the Court.
Objection has been made to the validity of the mortgage to the appellant on the ground that the sum (not exceeding $ 3,600) thereby agreed to be advanced for the erection of the houses, was not to be in money, but in building materials. Where the amount which it is intended to secure is expressed in the mortgage, as required by the Code, (Art. 64, sec. 2,) it is valid, though designed to secure future advances to that extent. Mortgages, or deeds in the nature of mortgages, to secure future loans or advances, if bona fide made, have always been sanctioned by the Common Law, and if unexceptionable [**7]  in other respects, their validity cannot be questioned in Maryland. Wilson vs. Russell, 13 Md. 494. In our opinion, the validity of such an instrument is not affected by the fact that the parties thereto agree that the advances shall be in materials to the specified amount in value instead of money. We see no reason why an agreement to advance and receive building materials in lieu of money should not constitute a legal consideration for a mortgage of this character.
The main question in the case is one of fact, viz: whether this mortgage was recorded before or subsequently to the "commencement 

 [*70]  of the building." If before, it has priority; if subsequently, the mechanics' lien has preference by the express terms of section 15, Article 61, of the Code.
The mortgage was executed on Monday, the 6th of December, 1869, and recorded at half-past two o'clock, P. M., on the same day. It was proved by Spreckelmyer, the mortgagor and builder, that on the afternoon of the preceding Saturday he laid the ground off for the buildings, and drove some pegs in the ground in laying it off, but nothing more was then done. We cannot regard this as a commencement [**8]  of the building within either the letter or the spirit of the law. In the case of Pennock vs. Hoover & Myers, 5 Rawle 291, 308, it is said, it may be safely considered the universal understanding as to what constitutes the commencement of the building of a house, that it is "the first labor done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction." The facts of that case do not warrant the inference the Court would have held such acts as these we are now considering, to constitute a commencement of the building. If that were so, the same thing might be said of the mental labor of selecting the location, designing dimensions, and the mechanical work of measuring the ground and drawing plans of the building on paper, all of which would leave no patent and plainly visible trace of work and labor on the ground itself. This would open wide the door to innumerable frauds upon parties advancing money on mortgages of this kind. What the law means by these terms is, some work and labor on the ground, the effects of which are apparent, easily seen by every body, such as beginning to [**9]  dig the foundation, or work of like description, which every one can readily see and recognize as the commencement of a building.
Little or no reliance seems to have been placed upon these acts in the Court below. Most of the testimony and the attention of the Court was very properly directed to the question whether the excavation for the cellars and foundation 

 [*71]  was commenced on Monday morning before the mortgage was recorded, or on the morning of the following day. As to this we have, after a careful examination of the evidence in the record, reached a different conclusion from that arrived at by the Circuit Court. The testimony is conflicting, as is naturally to be expected, so far as it rests upon the memory of witnesses testifying to a fact like this, occurring nearly two years before they were examined. It is proved however by that sort of proof which carries with it absolute conviction, that a storm commenced on Saturday night and continued until Monday night, of such a character as to be noticed in all the daily papers of the city, and by those whose practice or duty it was to observe the state of the weather. By evidence derived from this source, it is clearly established [**10]  that this storm began on Saturday night, with a cold and steady rain, making Sunday one of the most unpleasant and disagreeable days of that season; that it continued during all of Monday, accompanied with hail and snow, which fell to the depth of two inches or more. On Monday night the storm ceased and pleasant weather followed. The testimony on the part of the appellees is chiefly that of Murray, who performed the work of excavation, and that of two of the laborers then in his employ. These three witnesses each state the work was commenced early on Monday morning and was continued during all that day. Murray, in corroboration of his testimony, produced a memorandum in his book, made at the time, of the number of days his workmen worked on this job, showing they worked five days during that week. This memorandum does not however show conclusively that the men worked on Monday; it does not designate the days of the week, and consists simply of five marks opposite the names of the several workmen, showing each had worked five days, and is accompanied by the date, 6th of December, 1869. Murray says the work was finished on Friday, and that they did not work there on Saturday, thus [**11]  making Monday one of the five days of the memorandum; but this statement is made 

 [*72]  from memory, and one of the workmen named in the memorandum says he remembers to have worked there on Saturday. It is perfectly consistent with the memorandum to include Saturday and omit Monday from the five days of which it professes to be a record. But that these witnesses were mistaken in supposing the work was begun on Monday, appears to us quite plain from their answers to questions as to what sort of weather it was on the day they began the work. Murray says "it was tolerably cold, but we had no rain or snow on that day that I remember." One of the workmen says "it was cold weather, no snow and no rain," and the other, "the morning was blowing a little, right sharp and no snow or rain when we commenced;" and he had previously described it as a dry, sharp, cold morning. This could not have been the weather on Monday, and is precisely what it was on Tuesday. On the other hand, Brooks, the appellant, says he visited the premises Monday afternoon, after his mortgage was recorded; that "it was snowing at the time; there had been no work commenced on the buildings; there were [**12]  no carts, wagons or laborers there, and I was satisfied there had been none there during the day, and then I felt easy on my mortgage; I went up there for that purpose." His testimony is supported by that of Spreckelmyer, who says he believes the digging was commenced on the 7th or 8th of December; and that of Watkins, who visited the premises about 9 o'clock on Tuesday morning to see about selling lime for the buildings, and says he saw they were digging the cellars, and judged they had been at work about two hours; it looked like they had just commenced that day. That could not have been the appearance of the work, if three hundred cart loads of earth had been removed on the preceding day, as testified to by Murray.
In our opinion, it is established by the weight of evidence, that the work was not commenced until Tuesday morning. It follows, the order appealed from must be reversed and the 

 [*73]  claim of the appellant under his mortgage allowed in full, in preference to the liens of the appellees, and for that purpose the cause will be remanded.
Order reversed and cause remanded. 

104 of 144 DOCUMENTS 

JOHN WANAMAKER vs. JOHN BOWES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 42; 1872 Md. LEXIS 61 

May 16, 1872, Decided 

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

On the 24th of June, 1869, Judson H. Smith executed a bill of sale, by way of mortgage to the appellee, of certain goods, furniture and household stuff. By a provision in the mortgage, the mortgagor was entitled to retain possession of the property until default, which could not occur until the 24th of June, 1870, the date fixed for the payment of the first instalment of the mortgage debt. On the 19th of October, 1869, the appellant sued out of the Superior Court of Baltimore city an attachment on original process, under the Act of 1864, ch. 306, against Smith, to recover from him the sum of $ 5,871.30; this attachment was laid on the goods embraced in the mortgage, and the same were seized and sold by the sheriff. On the 21st of February, 1870, this suit was instituted by the appellee in the Baltimore City Court against the appellant to recover damages for the alleged wrongful seizure of said goods.

The declaration contained three counts: The first, a special count in case, for the seizure, and the refusal to restore the goods upon request, "in consequence of which the plaintiff was deprived of the advantage, pecuniarily, of [**2]  having said goods disposed of at retail; by means whereof he could have realized much greater sums of money for the same than the proceeds resulting from auction sales or sales en masse." The second, a count in trespass de bonis asportatis. And the third, a count in trover.

At September Term, 1871, the cause was tried, but the jury were unable to agree, and it was afterwards removed at the instance of the appellee to the Circuit Court for Howard county, where it was tried in April, 1871, resulting in a verdict and judgment in favor of the plaintiff for $ 1,000.

Three exceptions were taken by the defendant to the rulings of the Court below.

First Exception: The plaintiff offered in evidence the mortgage to himself from Smith, and also the attachment proceeding, stating at the time of so offering it, that he did so for the purpose of showing that it was void, because the bond which had been given under the Act of 1864, ch. 306, was void. The bond is as follows:

Know all men by these presents, that we, William H. Wanamaker, on behalf of John Wanamaker and Wm. H. Wanamaker, and Robert Cathcart, sureties, all of Baltimore city, in the State of Maryland, are held and [**3]  firmly bound unto the State of Maryland in the full and just sum of twelve thousand dollars, current money, to be paid to the said State, its certain attorney or assigns; to the payment whereof, well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Whereas, the above bounden W. H. Wanamaker has, on the day of the date hereof, ordered an attachment out of the Superior Court of Baltimore city, at the suit of John Wanamaker, against Judson H. Smith, for the sum of fifty-eight hundred and seventy-one dollars and thirty-cents, and the same being about to be sued out of said Court, returnable on the second Monday of January next.

Now the condition of the above obligation is such, that if the said John Wanamaker shall prosecute his suit with effect, or in case of failure thereof, shall well and truly pay and satisfy to the said Judson H. Smith, or to any person interested in these proceedings, all such costs in said suit, and such damages as shall be awarded against the said John Wanamaker, his heirs, executors or administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said attachment,  [**4]  then the above obligation to be void, otherwise to remain in full force and effect.

In witness whereof, we have hereunto set our hands and seals, this 19th day of October, 1869.

JOHN W. WANAMAKER,   [Seal.]

(W. H. WANAMAKER,)

WM. H. WANAMAKER,   [Seal.]

ROBERT CATHCART,   [Seal.]

Signed, sealed and delivered in presence of JOHN W. PEALE.

The sureties verified as to their sufficiency before the clerk of the Court.

The defendant then proposed to prove that the mortgage was fraudulent as against creditors. To this evidence the plaintiff, while admitting that the defendant was a creditor of the mortgagor, at and before the execution of the mortgage, objected, and the Court (HAMMOND, J.) sustained the objection, being of opinion that the attachment bond was void and the whole proceeding illegal, and that the defendant had no right to show that the mortgage under which the plaintiff claimed title to the goods alleged to have been seized, was fraudulent as against creditors and void. The defendant excepted.

Second Exception: This exception is fully stated in the opinion of the Court.

Third Exception: The plaintiff offered a [**5]  duly certified copy of the bill of sale from Judson H. Smith to John Bowes, and gave evidence tending to prove the validity of the respective items of consideration recited in said bill of sale, and that written notice of it was given to the sheriff and to the agent and brother of the defendant before the issuing of said writ of attachment, and that the goods upon consignment from the defendant, at the stores Nos. 38 and 40 W. Baltimore street, were easily discriminated from the residue of the stock of goods then at said store; that prior to and at the time of the said seizure, J. H. Smith was heard to tell Wm. Wanamaker, the agent and brother of the defendant, at the store, that he could readily pick out his brother's (the defendant's) goods that had not been sold; that said consigned goods and all others had marks upon them, and could readily be recognized and distinguished from the defendant's and all other goods upon the premises which were seized; that the goods seized and sold by the sheriff under the attachment, other than those consigned by the defendant and those subsequently purchased by Smith, were covered by the bill of sale aforesaid and upon the premises at the time of [**6]  its execution; that the entire stock, at the seizure, was worth from $ 12,000 to $ 15,000, including the defendant's goods and those covered by the bill of sale, and those subsequently purchased; that the defendant's consigned goods were of the value of about $ 1,500; that the goods sold by the sheriff did not bring one-fourth of their value. The plaintiff further proved that the sheriff took possession of all the goods in the store by order of the defendant's agent, Wm. Wanamaker, though he knew there was a bill of sale, and so notified the said William, who gave him a bond of indemnity before he would consent to seize and remove the goods from the stores Nos. 38 and 40 W. Baltimore street. A witness of the defendant, one Wm. Wanamaker, also testified that he knew his goods by the marks upon them; that he held a conversation with Judson H. Smith, who informed him that the bill of sale was all bosh, and only given to keep off the creditors; on his cross-examination there was evidence elicited tending to show that this conversation took place after the issuing and levy of the attachment.

To maintain the issue on his part, the defendant offered evidence tending to prove that, on [**7]  the 24th of June, 1869, he was a large creditor of Judson H. Smith's for a debt contracted in 1868, and in the spring of 1869, and that the said debt remained unsatisfied down to the time of the issuing of the attachment offered in evidence; that when the attachment was issued, the plaintiff was aware of its being issued; and that when the sheriff, under it, proceeded to seize the goods mentioned in the evidence, the plaintiff did not point out to the officers making the seizure the goods claimed by him under the mortgage to him from Smith, dated June 24th, 1869, although he was at Smith's store during the transaction; that when the mortgage was executed, no change was made by Smith in the management of his business; that he continued to buy goods suitable for his business, of the same character and description as those mentioned in the mortgage, down to the time of the seizure under the attachment--such purchases amounting to from four to six thousand dollars--and continued to make sales ranging from about two thousand to three thousand dollars per month, exclusive of the month of August, when they were lighter; that the goods mentioned in the mortgage were kept in a separate place [**8]  or room from the stock of goods previously consigned to Smith by the defendant, or subsequently purchased by Smith, but that the goods consigned by the defendant were easily discriminable, by reason of the marks and tickets upon them; that before the attachment, Smith promised to surrender to the defendant his consigned goods, but failed to do so; that Smith, in the spring of 1868, failed, being largely indebted to various persons, including the plaintiff and defendant; that a compromise was effected with most of his creditors at thirty-three per cent., the plaintiff and defendant included; that Smith gave his promissory notes to such as agreed to take the thirty-three per cent., at six, twelve and eighteen months; that the first of said notes were paid, the others remaining unpaid; that the plaintiff also took said notes; that none of them were paid in consequence of Smith's alleging to the plaintiff his inability to meet them; that the plaintiff, without either communicating or concealing the fact from the creditors who made such settlement, gave Smith back these notes, and the whole original debt formed a portion of the consideration of the bill of sale, which was given the 24th [**9]  of June, 1869.

The defendant further proved, that no part of the proceeds of the goods seized and sold under the attachment was paid over to him, but that the whole net proceeds were paid to Emill Sutro, the assignee in bankruptcy of said Smith.

The plaintiff offered the following prayers:

1. That if the jury find that the attachment was in fact issued under and on account of the impression that the bill of sale did include all the goods on the premises at the time of the execution of such bill of sale, and that the attachment was not at all issued and levied on account of the conversation of William Wanamaker with the grantor, Smith, then such conversation is not admissible to affect the damages.

2. That if the bill of sale given in evidence be unimpeachable as to its validity, by the defendant in this action, the plaintiff is entitled to recover under the first count the value of the goods covered by the mortgage bill of sale which were taken by the defendant, having the means of knowing his own goods from the other goods of the plaintiff covered by the mortgage bill of sale, with such interest on their value as the jury may see fit to allow, and that the jury [**10]  are also entitled to give punitive damages, if having the opportunity and means of knowing the goods of his own, as discriminated from those of the plaintiff, and with knowledge of the plaintiff's mortgage bill of sale, he proceeded to issue the attachment given in evidence, and to seize and sell the goods which were taken under said attachment; provided the jury find no other circumstances in the case to decide them not to give punitive damages.

And the defendant asked the following instructions:

1. That by the terms of the mortgage from Judson H. Smith to the plaintiff, Smith was entitled to the possession of the goods therein mentioned, until default in the payment of the promissory notes therein recited at the maturity thereof respectively. And that, therefore, the plaintiff cannot recover upon the second and third counts in his declaration, because at the time of the alleged trespass and conversion by the defendant in said counts set forth, none of the said promissory notes had matured, and the said Smith being accordingly in no default in the payment thereof, the plaintiff was not entitled to the possession of the said goods, and not being entitled to such possession,  [**11]  cannot maintain trespass for the seizure and asportation, or trover for the conversion of such goods.

2. If the jury find from the evidence that the mortgage from Judson H. Smith to the plaintiff, dated June 24th, 1869, was made for the purpose of delaying, hindering or defrauding the creditors of said Smith, it is void and the plaintiff cannot recover.

3. If the jury believe that the goods mentioned in the mortgage of June 24th, 1869, from Smith to the plaintiff, were by the permissive act of the plaintiff so intermixed with other goods on the premises of said Smith, not included in said mortgage, as to prevent separation, then the plaintiff cannot recover.

4. If the jury find from the evidence that at the time of the seizure under the attachment, there were upon the premises goods belonging to the defendant, and consigned by him to Smith for sale on commission, and also other goods purchased by Smith subsequent to the date of said mortgage from Smith to the plaintiff, and that by the permissive act of the plaintiff, the goods mentioned in said mortgage were allowed to be so intermingled by said Smith with such consigned, and subsequently purchased goods as to prevent [**12]  separation, or that at the time of said seizure the plaintiff did not point out to the sheriff the goods by him under said mortgage; but that, on the contrary, the plaintiff claimed all the goods so seized by the sheriff, then the plaintiff is not entitled to recover.

5. That to entitle the plaintiff to recover, he must prove: 1st. That the goods seized were on the premises of said Smith at the time of the execution of the mortgage. 2d. That they were known to the defendant to have been on the premises at the date of the said mortgage, or that they were as such pointed out by the plaintiff to the officers making such seizure.

6. That there is no evidence that the plaintiff pointed out to the officers making the seizure the goods claimed by him under the mortgage from Smith.

7. If the jury believe from the evidence that in the spring of 1868, Judson H. Smith being unable to pay his creditors in full, made a settlement with them by passing to them his unsecured promissory notes, payable at dates ranging from six months to twenty-four months, for thirty-three per cent. or thereabouts, of his indebtedness to them respectively, and that his creditors, including the plaintiff,  [**13]  by virtue of an agreement or understanding with said Smith and with each other, accepted said thirty-three per cent. so payable, in full satisfaction of their respective claims, and that subsequently the plaintiff, without the knowledge or consent of his fellow-creditors of said Smith, surrendered to said Smith, the promissory notes given to him in satisfaction of his claim against Smith, and obtained from said Smith the mortgage of June 24th, 1869, as a security for his whole claim, as recited therein, against said Smith, then said mortgage is fraudulent and void, and the plaintiff is not entitled to recover in this suit.

8. That if the jury find for the plaintiff, their verdict must be limited to the value of such of the goods specifically enumerated in the mortgage from Smith to the plaintiff, dated June 24th, 1869, as they may find from the evidence were upon the premises at the time of the seizure under the attachment offered in evidence, including all goods consigned to said Smith by the defendant, with such interest and such value as the jury may allow.

The Court granted the prayers of the plaintiff, and rejected those of the defendant, except the first, which was [**14]  conceded. To this ruling of the Court, the defendant excepted and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Attachment bond -- Act of 1864, ch. 306 -- Impeachment of Mortgage -- Evidence in mitigation of Damages in an Action for the Illegal Seizure of Mortgaged goods -- Exemplary Damages -- Measure of Damages.

The bond required by the Act of 1864, ch. 306, as preliminary to issuing an attachment, if not executed in conformity with the statute, is invalid, and the attachment is illegal and void.

A creditor of a mortgagor not having acquired a lien upon the mortgaged goods, by attachment or other valid legal process, will not, in an action against him by the mortgagee for wrongfully and illegally seizing the mortgaged property, be permitted, merely because he is a creditor of the mortgagor, to impeach the mortgage as fraudulent as against creditors, either as a defence to the action, or in mitigation of damages.

In an action by a mortgagee against a creditor of the mortgagor for a wrongful and illegal seizure of the mortgaged goods -- they having been taken under a void attachment -- the defendant may prove in mitigation of damages, that at the time of the seizure under the attachment, there was rent in arrear due upon the premises occupied by the mortgagor, in which the goods were; that after the seizure by the sheriff, and before the removal of the goods, there were filed with him by the landlord a notice and affidavit of such rent in arrear, and that in pursuance of such notice, and of an order of Court passed in the attachment case, the sheriff paid to the landlord, out of the proceeds of the sales of the property, the amount of the rent in arrear.

In an action for an illegal seizure of goods, where there is no evidence of wanton or malicious wrong on the part of the defendant, exemplary damages should not be allowed.

The measure of damages, for an illegal seizure of goods, is to be determined in accordance with the facts of the particular case.  

COUNSEL:
John J. Donaldson and John P. Poe, for the appellant.

The ruling to which the first exception was taken, was erroneous; the attachment bond was not void. Stewart vs. Katz, 30 Md., 344, 345.

But, assuming that the bond was void, the defendant being admitted to be a creditor of Smith's, and having seized the goods under color of lawful process, had a right to defend himself in a suit for damages by proof of the fraudulent and void character of the plaintiff's claim.

At the time of the seizure complained of, the appellee's mortgage was not due, and until default the mortgagee had no right to possession. He could not, therefore, (as is conceded,) maintain either trespass or trover.

The second and third counts being accordingly abandoned, the plaintiff's case rested entirely upon his first count. The injury complained of in that count was to his reversionary interest as mortgagee, in goods lawfully in the possession of the mortgagor before default.

It was the injury to his title therefore, and not [**15]  to his possession that was in issue, and for which damages were sought to be recovered.

He claimed under the mortgage and not otherwise; if that was void he had no title at all, and if he had no title it is somewhat difficult to perceive what cause of action he had, and how he could have been injured by the seizure of the goods which he did not own. At all events, in determining the damages, the character of his title, whether bona fide or fraudulent, was a material subject of inquiry to be passed on by the jury.

The evidence to the rejection of which the second exception was taken should have been admitted in mitigation of damages. The rent due being a lien upon the fund in the hands of the sheriff was properly deductable therefrom, and the extent of the plaintiff's right to recover was manifestly materially affected by this fact.

The plaintiff's first prayer was improperly granted. The second prayer was also erroneous.

First. Because it denied the right of the defendant to impeach the mortgage for fraud.

Second. Because it allowed the jury to give punitive damages.

The first count of the declaration, upon which alone the plaintiff's case rested, merely [**16]  sought to recover such damages as he sustained "pecuniarily, by not being allowed to have the goods disposed of at retail." Under this count punitive damages being expressly excluded could not be recovered.

The defendant's eighth prayer presented the proper measure of damages and should have been granted.

The defendant's third, fourth, fifth and sixth prayers are directly sanctioned by the case of Hamilton vs. Rogers, 8 Md., 301, and should have been granted. See also Chappell vs. Cox, 18 Md., 519.

John Henry Keene, Jr. and Wm. Henry Norris, for the appellee.

It was undoubtedly competent for the appellee, as mortgagee under a valid mortgage, to maintain an action on the case against any one seizing or injuring the goods covered by the mortgage. Forbes vs. Parker, 16 Pick., 462.

"A voluntary or fraudulent conveyance is perfectly good between the parties and their representatives, and against all persons except creditors." 1 Amer. Lead. Case, Sexton vs. Wheaton, and Salmon vs. Bennett, 45.

The creditors have to be such as have a lien by judgment or valid judicial process. Hastings vs. Belknap, 1 Denio, 191-198; Birely & Holtz vs. Staley, 5 G. & J., 452;  [**17]  Jones vs. Bryant, 13 New Hamp., 53; Neustadt vs. Joel, 2 Duer, 532; Ogden vs. Prentice, 33 Barb., 162.

It is admitted, that a lien by a valid attachment would authorize the sheriff or the execution creditor to show a deed to be fraudulent as between the plaintiff and the execution debtor. Pease vs. Anderson, 44 Ill., 218; Bascom vs. Smith, 21 New York, 595.

Was the attachment then in this case valid, and was it competent for the plaintiff to show its invalidity? That he was entitled to show its invalidity arises from the principle, that want of jurisdiction is never a collateral question. Trieber vs. Blocher, 10 Md., 14; Hall & Loney vs. Richardson, 16 Md., 396.

Was the attachment void? The attachment process is strictissimi juris, and every thing requisite to give jurisdiction must affirmatively appear on the face of the proceedings. Evesson vs. Selby, 32 Md., 345; Boarman vs. Israel, 1 Gill, 373; Risewick vs. Davis, 19 Md., 82.

In this attachment case, the attachment was void by two defects connected with the execution of the bond, either of which was fatal.

1st. The bond was not executed by the obligor proposed in the body of the bond, Wm. H. Wanamaker,  [**18]  but by John W. Wanamaker, the plaintiff in the attachment suit, by Wm. H. Wanamaker, who had no sealed power of attorney, authorizing the signing of the name of the plaintiff in the attachment suit. Stewart vs. Katz, 30 Md., 344.

A man cannot be both surety and obligor in the same bond. Elwell vs. Shaw, 1 Am. Lead. Cases., 599, 602, 603; Lessee of Clark vs. Courtney, 5 Peters, 350; Bellas vs. Hays, 5 Sergt. & Rawle, 438; Stinchcomb vs. Marsh, 15 Gratt., 211; Key's Ex'rs vs. Parnham, 6 H. & J., 418.

2d. The bond was never approved. The oath of two sureties as to their sufficiency, is not the approval required by the Act of 1864.

As the Act of 1864, ch. 306, section 4, required the bond to be approved, "which bond shall be filed in the office of the clerk issuing such attachment," it would seem that a substantial compliance with the law required this jurisdictional fact to appear on the bond as the cause of action to any one damnified.

There is no evidence set out in the second bill of exception to entitle the Court to consider it, as it does not incorporate the evidence in the first bill of exception.

But without reference to this objection the ruling was correct--assuming [**19]  the attachment to have been valid. Thomson vs. Balt. and Susq. Steam Co., 33 Md., 312.

But the attachment being void, the appellant was a wrongdoer and entitled to set off no claims of other people paid by him. Addison on Torts, 543, 664; Attack vs. Bramwell, 113 E. C. L. R., 520; Sowell vs. Champion, 6 Ad. & Ell., 407; White vs. Binstead, 76 E. C. L. R., 307; Barker vs. Braham, 3 Wils., 376; White vs. Morris, 73 E. C. L. R., 1015; Wormer vs. Biggs, 61 E. C. L. R., 36; Perrott vs. Shearer, 17 Mich., 55, 56; Lyon vs. Yates, 52 Barb., 243, 244.

The third bill of exception presents for consideration the doctrine of the confusion of goods.

Assuming that the goods of the appellant were indiscriminately mixed with those of the mortgagor, it would not be competent for him to object this fact as against the mortgagee. His permissive act is as much binding on him as that of the mortgagee.

The error consists in confounding contiguity with confusion. The doctrine asserted by the rejected instructions would close every commission house in the country.

There is nothing in the cases of Hamilton vs. Rogers, 8 Md., 304, 321, and of Chappell vs. Cox, 18 Md., 519, in any wise [**20]  varying the common law principle, that due enquiry must be made by the attaching officer. Bond vs. Ward, 7 Mass., 126, 127; Crosby vs. Baker, 6 Allen, 295; Roth vs. Wells, 29 New York, 471.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*54]  BARTOL, C. J., delivered the opinion of the Court.
The appellee, plaintiff below, claimed title to certain goods and chattels, consisting of a stock of goods in a store, with the furniture and store fixtures, under a bill of sale, by way of mortgage, executed on the 24th day of June, 1869, by J. H. Smith. The mortgage contained a provision entitling the mortgagor to retain possession of the property until default, which could not occur until the 24th day of June, 1870, that being the date fixed for the payment of the first instalment of the debt secured by the mortgage.
On the 19th day of October, 1869, the appellant sued out an attachment, under the Act of 1864, ch. 306, against Smith, and caused the same to be laid on the property conveyed by 

 [*55]  the mortgage, and the same was seized by the sheriff and sold; and this suit was instituted by the appellee to recover damages for the alleged [**21]  illegal seizure.
The declaration contains three counts: the first is in case, counting on the plaintiff's title under the mortgage; the second is in trespass de bonis asportatis, and the third in trover.
The Court below, at the instance of defendant, granted by consent an instruction to the jury which denied to the plaintiff the right to recover upon either the second or third counts of the declaration; the recovery was therefore exclusively upon the first count.
The first exception taken by the defendant was to the ruling of the Circuit Court, declaring the bond which had been given under the Act of 1864, for the purpose of obtaining the attachment, to be void, and the attachment proceeding illegal; and that the defendant had no right to offer evidence to impeach the bill of sale as fraudulent against creditors.
There can be no doubt of the insufficiency of the bond. It was, perhaps, intended as the bond of John Wanamaker (the attaching creditor) as principal, and of Wm. H. Wanamaker and Robert Cathcart as his sureties; but John is in no respect bound; for in the body of the instrument it is declared to be the obligation of William H., and in the recital he [**22]  is called the "above bounden William H."
By the second resolution in Combe's case, 9 Coke, 76, b, it was resolved that "when any has authority as attorney to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place, and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name, and as the act of him who gives the authority." And such is the law at this day with respect to deeds and other instruments under seal, except in so far as the same has been altered by the provisions of the Code, which have no application here. Frontin vs. Small, 2 L. Raymond 1418; Harper vs. Hampton, 

 [*56]  1 H. & J. 622, 709; Lessee of Clarke vs. Courtney, 5 Peters 318, 349.
Affixed to the bond are the name and seal of John, put there by William H., but it does not appear that he had lawful authority to bind his principal, it being conceded in the argument that the authority under which he claimed to act was verbal merely; it is not therefore the bond of John. Nor is William H. bound as principal, for it is expressly stated that [**23]  he and Robert Cathcart bind themselves as sureties, and a party cannot be both principal and surety in the same obligation. This distinguishes this case from Stewart vs. Katz, 30 Md. 334.
The bond being invalid, it follows that the attachment was "illegal and void," for so it is declared by the Act of 1864, section 41.
The defendant thus being without the protection of valid legal process, was it competent for him to impeach the bill of sale as fraudulent, as against the creditors of Smith the mortgagor? It is objected that it is not competent for him to do so, because he had not obtained any lien by judgment and execution, or other valid judicial process; and a number of authorities have been cited to show that in order to entitle a creditor to impeach a deed as fraudulent under the statute, it is necessary for him first to obtain a judgment, or other lien, upon the property conveyed by the deed. This general proposition is supported by the case of Birely and Holtz vs. Staley, 5 G. & J. 432, 452, and has long been the recognized law of this State.
By the Act of 1835, now embodied in the Code, Art. 16, section 35, it is provided that [**24]  a creditor may maintain a bill in equity to set aside a fraudulent deed without having first obtained a judgment at law upon his demand. This provision has materially enlarged the rights of creditors and extended their remedies; but it is by its terms confined to proceedings in Courts of Equity, and cannot be construed as changing the rights of the parties in a case like this. The 

 [*57]  general rules of law must apply. The defendant not having acquired a lien by attachment, or other valid legal process, cannot, merely because he is a creditor of the mortgagor, be permitted, in defense of an action for wrongfully and illegally seizing the goods, to impeach the mortgage as fraudulent against creditors. As between the parties to the mortgage, it is a good and valid conveyance; and third parties cannot impeach it at law, unless they have a lien upon the property; a mere creditor of the mortgagor having no jus in rem, cannot be heard to set up this defense either as a bar to the suit or in mitigation of damages. We therefore affirm the ruling of the Circuit Court in the first bill of exceptions.
The second bill of exceptions was taken to the refusal of the Circuit Court to [**25]  permit the defendant to prove in mitigation of damages, that at the time of the seizure under the attachment, there was rent in arrear due upon the premises occupied by the mortgagor, in which the goods were, amounting to $ 1,048; that after the seizure by the sheriff and before the removal of the goods, there were filed with the sheriff, by the landlord, notices and affidavits of such rent in arrear, and that the sheriff in pursuance of such notices, and of an order of Court passed in the attachment case, paid over to the landlord the amount of rent so in arrear, out of the proceeds of the sales of the property seized.
The defendant was without the protection of valid legal process, and being a wrongdoer "he could not appropriate the property wrongfully seized either to pay a debt due to himself, or to any other creditor, except by the consent of the debtor or by the sanction of the law;" and therefore, if the rent had been voluntarily paid by the defendant or by the sheriff, (who was a co-trespasser,) the defendant could not be allowed for such payment in mitigation of damages. This proposition is supported by all the authorities. Sowell vs. Champion, 6 Ad. & E. 407, (33 E.C.L. 92;) [**26]  Gillard vs. Brittan, 8 Mee. & W. 576; White vs. Binstead, 76 E.C.L. 303; Attack vs. Bramwell, 41 L. J., 146, (C. Law, 1863.) 

 [*58]  Many other cases might be cited, both English and American, to the same effect. The law is so correctly stated in Addison on Torts, 543, 664, 665.
But it is equally clear, both upon reason and authority, that if after the illegal seizure, the goods had been taken out of the hands of the defendant by legal process, as by execution at the suit of another; or if a distress had been actually levied thereon for rent in arrear, and the goods, or some of them, taken thereunder, such fact could be given in evidence in mitigation of damages. While the general rule is that for the wrongful taking and conversion of the plaintiff's goods, the measure of compensation is the value of the goods, and the wrongdoer will not be allowed voluntarily to appropriate the proceeds to the payment of the plaintiff's debts, or in any other way apply them voluntarily to his use without his consent; and claim thereby to reduce the amount of his liability. Yet if without the agency or act of the defendant, the goods [**27]  have been by operation and judgment of law applied to the use of the plaintiff, his damages resulting from the unlawful act will be pro tanto diminished. In 2 Greenleaf on Evidence, sec. 276, the author, speaking of the measure of damages in actions of trover says: "If the plaintiff has himself recovered the property, or it has been restored to him and accepted, the actual injury occasioned by the conversion, including the expenses of the recovery, will form the measure of damages; and if the property in whole or in part has been applied in payment of the plaintiff's debt, or otherwise to his use, this may be considered by the jury as diminishing the injury and consequently the damages." There are some cases which support this last proposition; but taken in its broad unqualified terms, as stated by the author, it is not in accordance with the general current of authority. The distinction is between cases where the property, or its proceeds have been voluntarily appropriated by the defendant to the payment of the plaintiff's debt, or otherwise to his use, and those in which they have been so applied 

 [*59]  by judgment or operation of law, as by legal process instituted [**28]  by a third person. In the latter case this fact may be proved in mitigation of damages. The cases on this point are collected in 2 Greenleaf's Evidence, sec. 635 a. (n. 2.)
The decision of this exception therefore turns upon the question of the effect of the proceedings by the landlord, and of the Court's order under which the sheriff paid the rent.
In Thomson vs. Balt. & Susq. Steam Co., 33 Md. 312, it was decided that an attachment on warrant was not an execution within the meaning of VIII Anne, ch. 14, section 1, and consequently that the sheriff, who had seized goods under such attachment, was not liable to the landlord for so doing. But the goods being sold by the Court's order under the attachment, it was held that the landlord's remedy was to go into Court and claim the payment of the rent in arrear out of the proceeds; and that he would be entitled to precedence by reason of his quasi lien on the goods. In this case the landlord resorted to that remedy, and the rent in arrear was paid; not by the voluntary act of the sheriff or of the defendant, but by the Court's order. It is true that the proceedings in attachment, being irregular, the [**29]  landlord might have disregarded them, and instituted his distress, but he was not bound to do so; finding the goods in the custody of the sheriff, under color of legal process, he was not bound to determine for himself the question of the validity of the attachment, nor was he responsible for any errors or defects in the proceedings; and having resorted to his remedy by filing his claim in Court duly authenticated, and obtained satisfaction, so far as the question before us is concerned, the case stands as if the landlord had proceeded by distraint to recover the rent in arrear.
The property was to that extent appropriated to the use of the plaintiff in satisfaction of a debt for which it was liable, not by the voluntary act of the defendant, and it is reasonable and just that the measure of recovery in this suit should be diminished pro tanto. In our opinion therefore the evidence 

 [*60]  stated in the second bill of exceptions ought to have been admitted.
The third bill of exceptions brings before us the prayers.
The first prayer of the plaintiff and the second and seventh of the defendant, have been disposed of in deciding the first exception; they relate to the question [**30]  of bona fides of the mortgage, which we have said it was not competent for the defendant to impeach, being a mere creditor of the mortgagor without any lien upon the property. We affirm the action of the Circuit Court upon these prayers. In our opinion there was no error in rejecting the third, fourth, fifth and sixth prayers of the defendant. There was no evidence in the case to support the proposition that the goods embraced in the mortgage were intermingled and confused with other goods so that they could not be distinguished, upon due care and inquiry which it was the duty of the officer and the defendant to make.
The second prayer of the plaintiff and the eighth of the defendant relate to the measure of damages. By the former, which was granted, the jury were instructed that they "were entitled to give punitive damages." We think this was error, as was said in Moore, et al. vs. Schultz, 31 Md. 418, 423, "ordinarily in actions of this character, the plaintiff is entitled to recover, if there be no circumstances of aggravation, the value of the goods taken with interest to the time of trial." "But if the trespass be committed in a wanton and aggravated [**31]  manner, indicating malice, or a disregard of the rights of others, and the circumstances of the case afford no justification," exemplary or punitive damages may be allowed.
The same rule is well stated in Selden vs. Cashman, 20 Cal. 56, and in Rose vs. Story, 1 Barr, (Pa.,) 191, 197. In this case there is no evidence of wanton or malicious wrong on he part of the defendant, he was in the pursuit of his legal remedy under the statute, and through inadvertence, failed to comply with the prerequisites of the law, and thus became liable to this suit, but there is nothing in the facts or circumstances 

 [*61]  of the case to subject him to punitive damages. We therefore think the Circuit Court erred in leaving to the jury the discretion to give punitive damages.
It is stated in the third bill of exceptions, "that the defendant proved that no part of the proceeds of the goods seized and sold under the attachment was paid over to him, but that the whole net proceeds were paid to Emill Sutro, the assignee in bankruptcy of said Smith," (the mortgagor.) No question was raised in the Court below upon this evidence, either as it might affect the right of the [**32]  defendant to impeach the bill of sale as fraudulent under the Bankrupt Law, or as affecting the measure of damages; it has however been called to our attention by the notes of counsel filed since the argument. Without expressing any opinion upon the questions suggested, we refer to Leake vs. Loveday, 4 M. & G. 972; Bolander vs. Gentry, 36 Cal. 105, and Hanson vs. Herrick, 100 Mass. 323.
Judgment reversed and new trial ordered. 

105 of 144 DOCUMENTS 

JOHN A. GABELEIN vs. FREDERICK PLAENKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 61; 1872 Md. LEXIS 62 

May 16, 1872, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR from the Superior Court of Baltimore City.

This suit was instituted under the Act of 1864, ch. 6. The declaration contained the common counts and the following special count:

"And for that C. W. Frickey, on the second day of February, 1871, by his promissory note, now overdue, promised to pay to the plaintiff or order $ 400, three months after date, and the defendant endorsed the same as surety, and the said note was duly presented for payment and was dishonored; whereof the defendant had due notice, but did not pay the same." The affidavit filed with the declaration alleged the cause of action to be "the annexed protested promissory note." The note was endorsed:

JOHN A. GABELEIN,

FREDERICK PLAENKER,

F. & H. WEHR.

The notary's certificate was attached, showing that the note was protested at the request of the Deutsche Spar Bank of Baltimore, the holder; that C. W. Frickey was the maker, and John A. Gabelein an endorser, and was notified as such of the non-payment of the note.

The defendant, the appellant, appeared and pleaded, "never was indebted" and "never promised as alleged," the pleas being verified by affidavit. Issues were joined [**2]  and a trial was had; a verdict was rendered for the plaintiff for $ 417.31, and judgment was entered accordingly. On the day following the entry of the judgment, a fieri facias was issued. On the same day the defendant moved the Court to grant a new trial; the motion was overruled. The defendant thereupon moved the Court to strike out the judgment and quash the fieri facias, without assigning any reasons in support of the motion; this motion was also overruled. At the following Term of Court, the defendant applied for a writ of error, stating that there was error in the judgment, because:

1st. The alleged cause of action filed with the plaintiff's declaration and affidavit, is not a writing or account by which the defendant is indebted, and the plaintiff was not entitled to recover in this action upon any cause of action other than the alleged cause of action.

2d. The alleged cause of action filed with the plaintiff's declaration and affidavit, does not support any count in said declaration.

The writ was allowed.  

DISPOSITION:
Writ of Error quashed.  

HEADNOTES:

Practice in the Court of Appeals -- Act of 1825, Chap. 117.

In an action on a promissory note, the defendant appeared and pleaded; issues were joined, and on a trial before a jury a verdict was rendered for the plaintiff, and judgment entered accordingly. On the day following the entry of the judgment, a fieri facias was issued, and thereupon the defendant moved for a new trial; the motion was overruled. The defendant then moved to strike out the judgment and quash the fieri facias, without assigning any reasons in support of the motion. The Court overruled the motion. At the following Term of Court the defendant applied for a writ of error, stating that there was error in the judgment, because: First -- The alleged cause of action filed with the plaintiff's declaration and affidavit is not a writing or account by which the defendant is indebted, and the plaintiff was not entitled to recover in the action upon any cause of action other than the one alleged. Second -- The alleged cause of action filed with the plaintiff's declaration and affidavit does not support any count in said declaration. The writ was allowed. HELD:

That under the Act of 1825, ch. 117, and the fourth Rule of the Court of Appeals, the alleged errors assigned in the application for a writ of error were not open for examination in the Appellate Court, it not plainly appearing by the record that they were tried and decided by the Court below.  

COUNSEL:
John S. Tyson and Lewis H. Robinson, Jr., for the plaintiff in error.

George T. Beall, Jr., for the defendant in error.  

JUDGES:
The [**3]  cause was submitted on briefs to BARTOL, C. J., STEWART, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
STEWART 

OPINION:

 [*63]  STEWART, J., delivered the opinion of the Court.
From an examination of the record, it appears the Superior Court of Baltimore city had jurisdiction of the subject-matter of the suit, and the parties litigant appeared; issues were made, a trial had before a jury, verdict rendered, motion for a new trial overruled by the Court, judgment rendered on the verdict, and execution issued.

 [*64]  The defendant moved to strike out the judgment and quash the fieri facias; no reasons appear to have been assigned to sustain the motion.
The brief of the appellant filed in this Court relies upon certain grounds of objection to the proceedings in the Superior Court, but which do not appear to have been made during the trial, before the verdict, nor on the motion to strike out the judgment and quash the fieri facias, but are disclosed for the first time in the application for the writ of error.
The record no where shows that the Superior Court pronounced any judgment upon these questions.
Under the authority of the 18th section of the 4th Article of the Constitution,  [**4]  this Court has provided rules, to have the force of law, until changed by the Court or the Legislature. They may be found in 29 Md. 1-8.
By the first rule, specially applicable to writs of error, and simplifying the form of proceeding, it is required in such cases, that in the petition for the removal of the record, the points or questions of law, in the decision of which, by the Court below, error is alleged, shall be plainly designated, and no point or question not so presented shall be heard or determined by the Court of Appeals.
In the application for the writ of error in this case, the alleged errors have been specifically assigned as required by this rule; but upon an inspection of the record, it does not appear that the points or questions alleged in the application were made or decided at the trial below.
Under the Act of 1825, chap. 117, they are not open for examination in this Court. This Act is embodied in the fourth rule, which declares that "in no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below." Whilst this is a tribunal to review the proceedings [**5]  of inferior Courts, the law, as well as these rules having the force of law, confines its adjudication to questions 

 [*65]  determined by such Courts. See Bridendolph vs. Zeller's Ex'rs., 5 Md. 58.
No question or point having been made, according to the record in the Court below, in conformity with the mandate of the law, we have no authority to disturb the judgment complained of; on the contrary, every legal intendment is to be made in its favor. The writ of error must therefore be quashed.
Writ of Error quashed. 

106 of 144 DOCUMENTS 

FRANK ZANTZINGER vs. F. J. RIBBLE, Assignee in Bankruptcy of JOHN C. DEYERLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 32; 1872 Md. LEXIS 59 

May 10, 1872, 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:

Assignee in Bankruptcy -- Construction of the Act of Congress, entitled, "An Act to establish a uniform system of Bankruptcy throughout the United States,' approved March 2, 1867.

A judgment for $ 103.78, &c., was recovered by a bankrupt prior to his becoming such, on the 8th of July, 1867. The suit in which the judgment was recovered, was commenced on the 18th of September, 1861, on a promissory note, dated 2d of April, 1861, for $ 153.78. Afterwards, by order of the Court, passed on the 22d of April, 1870, the original judgment was amended and entered for the sum of $ 153.78, &c. The conveyance of the property of the bankrupt to his assignee, was made on the 15th of June, 1869. In a suit by the assignee of the bankrupt to recover on this judgment, his right to maintain the action was denied upon the ground that the judgment being subsequent in date to the assignment, was not conveyed thereby, but was the property of the bankrupt. HELD:

1st. That the cause of action and the original judgment thereon, being antecedent to the application in bankruptcy, and to the assignment, passed by operation of law to the assignee, subject to the right of the bankrupt to have the judgment altered and corrected.

2d. That the subsequent action of the Court increasing the amount of the judgment, did not in any manner impair the right or obligation of the assignee to sue for and recover the amount as finally ascertained.

The provision of the Act of Congress, establishing a uniform system of bankruptcy, which prescribes that as soon as the assignee is appointed and qualified, the Judge or register shall by an instrument under his hand, assign and convey to such assignee all the estate, real and personal, of the bankrupt, is merely directory, and the signature of the Judge is not essential to the assignment, where some equally formal mode has been adopted, sanctioned by the seal of the Court, which imports verity, and gives authenticity to all the judicial acts of the Judge.

The right of an assignee of a bankrupt to sue for and recover a debt due the bankrupt prior to his bankruptcy, does not depend upon the instrument of assignment prescribed by the Bankrupt Act; such right is vested in him in virtue of the adjudication of bankruptcy, and his appointment as assignee.

An instrument of writing purporting to assign under the Act of Congress, establishing a uniform system of bankruptcy, all the property of a bankrupt to the assignee therein named, certified by the clerk of the District Court of the United States, for the District of Virginia, under the seal of his Court to be a true copy of the original assignment on file in his office, is admissible in evidence, and sufficient to show the assignee's right to sue in behalf of the bankrupt's estate.  

COUNSEL:
J. A. L. McClure, for the appellant.

Skipwith Wilmer, for the appellee.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., BOWIE, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*33]  BOWIE, J., delivered the opinion of the Court.
The appellee, as assignee of J. C. Deyerle, a bankrupt, sued the appellant on the 1st of March, 1870, in the Superior Court of Baltimore, in an action of debt, on two judgments of the Circuit Court of the city of Norfolk, Virginia, which were set out originally in two counts; the first declaring on a judgment obtained by the bankrupt before his application, viz: on the 8th of July, 1867, against the defendant for $ 153, and $ 2.67 charges of protest, with interest and costs.
The second, declaring on a judgment obtained by the bankrupt, before he became bankrupt, in said Court, on the 8th of July, 1867, for $ 242.85 damages, with interest and costs.
By leave of the Court, the nar. was afterwards amended by adding a third count, declaring on a judgment of said Court, obtained by the bankrupt (before he [**2]  became such,) on the 22d of April, 1870, for the sum of $ 153, and $ 2.67 charges of protest, with interest and costs.
The appellant filed six pleas, (the second and fourth of which were withdrawn,) leaving the following on which issues were joined:

 [*34]  1st. Nul tiel record. 3d. That the alleged judgments were illegally obtained. 5th. That the defendant paid the said Deyerle before he became bankrupt, the full amounts of said judgments and costs. 6th. That after the recovery of the said alleged judgments and before the institution of this suit, the said Deyerle, before he became bankrupt, released to the defendant the amount alleged to have been recovered in said judgments.
The appellee offered in evidence transcripts of records of the Circuit Court for Norfolk city, Va., duly authenticated as described in the second and third counts.
The record offered under the third count showing a judgment entered originally on the 8th of July, 1867, for $ 103, and $ 2.67 charges of protest, etc., and afterwards by order of Court on the 22d of April, 1870, amended and entered for the sum of $ 153.78, and $ 2.67 charges of protest, interest and costs.
The appellee then further to [**3]  maintain the issue upon his part, and to prove that the estate of said J. C. Deyerle, real and personal, had been legally assigned to him as assignee in bankruptcy, offered in evidence the following paper writing:

"IN THE DISTRICT COURT OF THE UNITED STATES, "FOR THE DISTRICT OF VIRGINIA,

"In the matter of J. C. Deyerle, Bankrupt, District of Virginia, ss.
In Bankruptcy.
"Know all men by these presents, that F. J. Ribble of the ----- of -----, in the county of Roanoke and State of Virginia, in said District, has been duly appointed assignee in said matter.
"Now therefore, I, JOHN C. UNDERWOOD, Judge of said District, by virtue of the authority vested in me by the 14th section of the Act of Congress, entitled 'An Act to establish a 

 [*35]  uniform system of Bankruptcy throughout the United States, approved March 2d, 1867,' do hereby convey and assign to the said F. J. Ribble, assignee as aforesaid, all the estate real and personal, of the said J. C. Deyerle, bankrupt aforesaid, including all the property of whatever kind of which he is possessed, or in which he was interested or entitled to have on the 31st of December, 1868, with all his deeds, books, and papers [**4]  relating thereto, excepting such property as is exempted from the operation of this assignment by the provisions of the 14th section of said Act."
"To have and to hold all the foregoing premises to the said F. J. Ribble, and his heirs forever; in trust nevertheless, for the use and purposes, with the powers and subject to the conditions and limitations set forth in said Act.
Witness, the Honorable JOHN C. UNDERWOOD, Judge of the said Court, and seal thereof, at Richmond, Virginia, on the 15th day of June, A. D., 1869.
SEAL
"E. J. UNDERWOOD, Clerk of District Court for said District."

"OFFICE U.S. DISTRICT COURT, "DISTRICT OF VIRGINIA.
"I, Edward J. Underwood, Clerk of the U.S. District Court for the District of Virginia, do hereby certify that the within is a true and correct copy of the original assignment not on file in this office.
"Given under my hand and seal of the Court, this 19th day of October, A. D., 1869.
SEAL
"ED. J. UNDERWOOD, Dist. Clerk."
The defendant objected to the admissibility and competency in evidence of the said paper for said purpose, and to its being read to the jury; but the Court overruled the objection, and permitted it to be read [**5]  to the jury as evidence for the purpose aforesaid, whereupon the defendant excepted.

 [*36]  The appellant's counsel in his brief, contends that the evidence being offered for the purpose of maintaining the issue generally on the part of the plaintiff and to prove the assignment, it should have been rejected if inadmissible for either purpose, and insists it was not admissible generally on the third count, because the assignment if valid as such, was prior to the date of the judgment as described in the third count, the former being made on the 15th of June, 1869, and the judgment on the 22d of April, 1870, the latter being subsequent, was not conveyed by the assignment, but was the property of Deyerle.
The transcript of the record shows that the suit in which the judgment was entered, was commenced on the 18th of Sept., 1861, on a promissory note of the appellant to the bankrupt, dated the 2d of April, 1861, for $ 153.78, on which the original judgment for $ 103.78, was entered on the 8th of July, 1867, and afterwards by order of the Court, passed the 22d of April, 1870, the judgment was amended and entered for the sum of $ 153.78, etc.
The cause of action and original judgment [**6]  were clearly antecedent to the application in bankruptcy and assignment, and as such passed by operation of law to the assignee, subject to all the rights of the bankrupt to have it altered and corrected.
The subsequent action of the Court increasing the amount of the judgment, did not in any manner impair the right or obligation of the assignee to sue for and recover the amount as finally ascertained. The second point of objection, that the paper excepted to was not admissible as evidence, because the 14th section of the Bankrupt Law, requires the judge or register "by an instrument under his hand" to convey, etc., is not in our opinion more tenable than the first. Although the Act of Congress prescribes that as soon as the assignee is appointed and qualified, the judge or register shall by an instrument under his hand assign and convey to the assignee all the estate, real and personal, of the bankrupt, yet this 

 [*37]  provision must be regarded as directory and not essential to the assignment, where some equally formal mode has been adopted, sanctioned by the seal of the Court, which imports verity, and gives authenticity to all the judicial acts of the judge.
The right [**7]  of the appellee to maintain his action, did not depend on the instrument of assignment. The bankrupt Act expressly enacts that all choses in action, all debts due the bankrupt, all causes of action "with like right, title, power and authority to sell, manage, dispose of, sue for, and recover the same as the bankrupt might or could have had, if no assignment had been made, shall in virtue of the adjudication of bankruptcy and the appointment of his assignee be at once vested in such assignee." Bankrupt Law, sec. 14, Bump's Law and Practice of Bankruptcy, 37.
It is also enacted that "in suits prosecuted by the assignee, a certified copy of the assignment made to him by the judge or register, shall be conclusive evidence of his authority to sue." Bankrupt Act, sec. 16, Bump's Law and Practice of Bankruptcy, 42.
The instrument of the assignment offered in evidence, being certified by the Clerk of the District Court, under the seal of his Court, to be a true copy of the original assignment on file in his office, the same is sufficient to show the assignee's right to sue. Independently of these provisions, the right of the assignee to sue was not put in issue by [**8]  any of the pleas, but on the contrary the bankruptcy was expressly admitted, and it was not incumbent upon the plaintiff to prove the assignment, so that the admission of the paper, if erroneous, did not injure the appellant. The judgment below is therefore affirmed.
Judgment affirmed. 

107 of 144 DOCUMENTS 

THE NATIONAL MECHANICS' BANK OF BALTIMORE vs. THE NATIONAL BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

36 Md. 5; 1872 Md. LEXIS 57 

May 8, 1872, Decided 

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

Three exceptions were taken by the defendant who appealed.

First Exception: This is fully stated in the opinion of the Court.

Second Exception: The plaintiff proposed to read in evidence the following testimony of Mr. Gibson, late cashier of the appellee, as taken by a stenographer on a former trial of the cause:

Question. "Can you state any conversation that took place between L. P. Bayne and yourself, on the 23d of April, 1866, with regard to a transfer order?"

Answer. "On the morning of the 23d of April, as I was approaching the bank door from Market street, I met Mr. Bayne very near the bank door. He said to me that the Mechanics' Bank was debtor $ 65,000, and asked me whether they could get $ 25,000. I told Mr. Bayne at once that I did not know what would be the result of our exchanges, but that I would see. He said he would return. He did return, I suppose, about 10.30 A. M., at which time my brother, Dr. Gibson, was with me. Mr. Bayne came in and asked me whether the Mechanics' Bank could get that $ 25,000. I had ascertained that we were credited to the amount of $ 63,000; and told him that the bank could [**2]  have it. I went with him to the counter of the teller, whom I instructed to draw a transfer draft in favor of the Mechanics' Bank for $ 25,000."

The defendant's counsel objected to the admissibility in evidence of any statements of L. P. Bayne, so as to affect the defendant, on the ground that the declarations of Bayne were not evidence to prove his agency for the defendant, and that as part of the res gestae, they were not admissible until the agency had been established by other evidence.

But the Court (DOBBIN, J.) said that there was now some evidence in the cause which justified the admission of the declarations of Bayne which had been previously offered and rejected, and therefore overruled the objection and admitted the evidence, reserving to itself the right to modify its decision if it should see fit to do so in the progress of the cause.

Third Exception: The plaintiff offered nine prayers, the fourth, sixth, seventh and eighth of which, the Court rejected, the others were granted as follows:

1. If the jury shall find from the evidence in the cause that the transfer order, dated the 23d of April, 1866, offered in evidence, was applied for and obtained by [**3]  the witness, Mr. Bayne, as agent of the defendant, and that he was regarded by the cashier of the plaintiff as such agent, and that the said Bayne in said transaction was in fact such agent; and shall further find from the evidence that said transfer order came into the possession of the defendant, and was used by said defendant in the manner stated in the evidence; and that by such use the defendant received at the Clearing House, on the 28th day of April, 1866, the sum of $ 25,000 of the money of the plaintiff; and shall further find that the said plaintiff was never paid for said transfer order by the defendant, or by any other party; and that after the receipt of said money as aforesaid, by said defendant, if the jury shall find such receipt, the plaintiff demanded a return and re-payment of said money, and that the defendant refused to return the same, then the plaintiff is entitled to recover in this suit.

2. That it is not necessary that the jury shall find, as a matter of fact from the evidence, that there was any special authority given by the defendant to said Bayne, or to the firm of Bayne & Co., to act as agent in the procurement of the said Clearing House order from [**4]  the plaintiff for the defendant; but the jury are at liberty to find such agency, from all the facts and circumstances in evidence, if they shall believe from all the evidence in the cause, that said Bayne, or said Bayne & Co. was in fact such agent in the procurement of said transfer order.

3. That there is no legally sufficient evidence in the cause from which the jury can find, as matter of fact, that in April, 1866, there was a well established and uniform usage, which entitled the defendant, as the holder of the said paper, mentioned in the plaintiff's first prayer, to demand as matter of right payment from the Clearing House in legal tender notes of the amount mentioned in said paper. (Refused as offered, but granted with the following qualification:)

But the jury is at liberty to find from the evidence in the cause as to the origin of such transfer orders, the terms in which they were drawn, the convenience they were intended to subserve, and the fact that they were sometimes so used, that such orders represented money which might be drawn in legal tender notes as well as used to pay debtor balances.

5. If the jury shall not find from the evidence in the cause,  [**5]  that the said house of Bayne & Co. was acting as agent of the defendant in the procurement of said transfer order, dated the 23d of April, 1866, but shall find that said house was acting in its own behalf; and shall further find, that said order was delivered by the cashier of the plaintiff, on the implied understanding that the same would be paid for during the business hours of said day; and shall further find, that no payment therefor was ever made to the plaintiff by said Bayne & Co., or by any party whatever; and shall further find, that the defendant had notice, at or about mid-day of the said 23d of April, 1866, that said transfer order had not been paid for, and that the plaintiff did not acknowledge any liability, on its part, to the defendant, or to said Bayne & Co., or otherwise on account of said order; and shall further find, that, afterwards, the defendant sent in said order, in a sealed package, to the Clearing House, on the morning of the 28th of April, 1866, and received, on that day, the sum of $ 25,000 by reason of having sent in said transfer order, in said sealed package on that morning, as a part of its claim against the plaintiff; and shall further find from [**6]  the evidence, that by the rules and practices of the Clearing House, such a document as said transfer order, was not a document proper to be sent in as an item of claim against the plaintiff, to be paid in the exchanges of that day at said Clearing House; and that said rules and practices were known to the defendant; and shall further find, that the rules and practices in force at that time, were such as have been offered in evidence, and that the plaintiff, in pursuance of said rules and practices, paid, at the Clearing House, the amount for which the plaintiff was, on that day, declared to be a debtor, inclusive of the sum of $ 25,000, claimed by the defendant as due on account of said Clearing House order; and that the defendant afterwards received at the Clearing House the amount for which it appeared on that day to be a creditor, inclusive of said $ 25,000; then such payment was not a voluntary payment by the plaintiff, and does not, of itself, debar the plaintiff from maintaining this suit.

9. And the jury are also at liberty to find, from the evidence, that Bayne was the agent of the defendant in the matter of obtaining Clearing House transfer orders for the defendant,  [**7]  from the plaintiff; if they shall find such orders were obtained, notwithstanding he may have had no instructions to obtain them in the name of and on the credit of the defendant; provided, the jury shall find from the evidence, that the defendant adopted and ratified the acts of Bayne in obtaining such orders for its use, by using them in fact for its own benefit, and by subsequently paying the plaintiffs for the same, through said Bayne, by means of its own cashier's check. (Refused as offered, but granted with the following qualifications:)

Insert, "with full knowledge of all the facts," between the words, "defendant" and "adopted," in the seventeenth line from the bottom of this page, and add the following to the end of the prayer: "but to enable the jury to find a ratification by the defendant under this instruction, they must find that Bayne bought this transfer draft in the name, and on the credit of the defendant, notwithstanding he may have had no instruction to do so, and that afterwards the said defendant, with full knowledge of all the facts, adopted and ratified his act." 

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence of Agency -- Province of the Court and Jury as to a question of Agency.

The declarations of a broker or of an agent are not per se evidence of agency; but when evidence of facts tending to show that the relation of principal and agent existed, has been offered directly or circumstantially, it is then the province of the jury to determine whether there is such proof of agency as to make the declarations of the supposed agent binding on the principal.

The declarations of an agent are not admissible to bind the principal until the agency is established; but where there is evidence of agency, although not full and satisfactory, such evidence should be submitted to the jury who are the exclusive judges of its weight.

It is not the province of the Court to determine the question of agency vel non; but to decide whether there is any evidence tending to prove agency.  

COUNSEL:
Theo's B. Horwitz and Reverdy Johnson, for the appellant,

Contended,  [**8]  that even if the language of Gibson used in Bayne's presence, was to be treated as a declaration of Bayne, which was denied, still the Court should not have allowed it to go to the jury, for the following reasons:

1st. The evidence which had been offered to show that Bayne was in fact the agent of the appellant in obtaining this transfer order, was not sufficient to justify the admission of his declarations. To afford such a justification, the proof should have "clearly established" the agency, or in other words, should have been sufficient "to show an agency" "to the satisfaction of the Court." The proof should not only tend to establish the agency, but should in the judgment of the Court, make out a clear prima facie case, and not leave the mind of the Court in doubt. Marshall vs. Haney, 4 Md., 511; Atwell vs. Miller, 11 Md., 359; Nicholls vs. Dowding and Kemp, 1 Starkie's Rep., 81; Rosenstock vs. Tormey, 32 Md., 182.

2d. This evidence was admitted generally, and the Court never modified its ruling, but on the contrary, expressly instructed the jury in the second instruction granted as prayed by the appellee, that they were "at liberty to find the agency from all the facts [**9]  and circumstances in evidence." The direction of Gibson to Smith in Bayne's presence, which was considered by the Court as equivalent to a declaration by Bayne, was thus made evidence of the fact of Bayne's agency. And further, the conversations between Bayne and Gibson, which had been at first rejected by the Court, were also afterwards admitted generally, and became evidence of Bayne's agency. Thus, although the jury may have thought that the evidence in the cause, other than this direction of Gibson's and these conversations of Bayne, utterly failed to establish the agency, they may yet have found the agency from this direction and these conversations. To let the case go to the jury in such a form, was clearly to permit the agency to be established by the declarations of the agent. This was error. In the case of partnership, where each partner is in law the agent of the others, the declarations of one partner are not admissible to prove the partnership as against the other partners. The same rule applies to the ordinary relation of principal and agent; and the declarations of the agent, while admissible against the principal as part of the res gestae, after proof of the agency satisfactory [**10]  to the Court, are never admitted as evidence of the agency. Story on Agency, sec. 136; 1 Greenleaf on Ev., sec. 177; 2 Greenleaf on Ev., sec. 484; Collyer on Part., 554; Mussey vs. Laban, 3 Cushing, 517; Allcott vs. Strong, 9 Cushing, 323; Dutton vs. Woodman, 9 Cush., 255; Brigham vs. Peters, 1 Gray, 139; Garth vs. Howard, 8 Bing., 451, (21 E. C. Law Rep.)

The appellee again offered in evidence the conversations of Bayne with Gibson, which had been previously offered and rejected. The Court permitted them to go to the jury on the ground "that there was now some evidence in the cause which justified" their admission. This evidence should have been rejected for the reasons set forth under the first point.

The first prayer of the appellee should have been rejected as well because there was no legal and sufficient evidence in the case that Bayne was the agent of the appellant in obtaining the transfer order of April 23d, 1866, as because the language of the prayer was calculated to confuse and mislead the jury.

The second prayer of the appellee was improperly granted, because by its first clause it was calculated to mislead the jury, and because by its second clause it authorized [**11]  the jury to find the fact of agency from the declarations of Bayne, or from the statements of others made in his presence.

The third prayer of the appellee should have been rejected, because there was no question in the case about any usage of the character described in the prayer. The right to demand payment of a transfer order in legal tender notes, depended on the true construction of the order itself, looking to the circumstances set forth in the Court's qualification of the prayer. The transfer order was a written instrument, and was therefore to be construed by the Court either absolutely or conditionally, upon the finding of certain circumstances by the jury. But the qualification left the whole question of the construction of the order to the jury, and was in that respect erroneous. Williams vs. Woods, 16 Md., 252, 253.

Further, the language of said qualification was certainly calculated to confuse and mislead the jury.

The Court erred in granting the fifth prayer of the appellee, because, even if the prayer were correct in the conclusion of law, stated at the end of it, which is denied, it was calculated to confuse and mislead the jury by its long recital of [**12]  various circumstances which had no bearing on that conclusion.

The ninth prayer of the appellee did not refer to or in any way embrace or cover the case of the transfer order in controversy in the cause, but, on the contrary, referred only to cases where the appellant had paid for transfer orders by its cashier's check. It introduced a new and immaterial issue, and obviously could not be properly granted. The Court accordingly rejected it as offered; but went on to grant it with a qualification, viz:

The jury could not find "a ratification by the defendant under this instruction" of the transfer order in controversy, because this transfer order had not been paid for except by Bayne's memorandum check, while the instruction referred to cases where the orders had been paid for by the check of the appellant's cashier. This transfer order was thus placed in a category to which it did not belong, and the jury were thus authorized to assume that they might consider it as embraced in the prayer, if they found the facts recited in the qualification. This tended to mislead the jury, and did injustice to the appellant.

But the principal and conclusive objection to this qualification [**13]  is, that there was no evidence in the cause upon which it could be founded. For the very reason that there was no such evidence, the counsel for the appellee had not offered a prayer presenting to the jury the question of the obtention by Bayne of this order on the credit and account of the appellant, and the adoption and ratification of that act by the appellant, with knowledge of the facts, but had contented themselves with a prayer relating to other orders.

Wm. F. Frick and William Schley, for the appellee.

The first and second exception involve in principle precisely the same question. Whilst the plaintiff's counsel did not suppose, that the acquiescence of Mr. Bayne in the statement made by Mr. Gibson to Mr. Smith, in Bayne's presence, was, per se, proof that Bayne was acting in the transaction as agent of the defendant; nor that the declarations of Bayne himself were, per se, evidence of such agency; yet they supposed, as it was impossible to produce, simul et semel, every link in their proposed chain of evidence, that they had a right to commence at either end of the chain; and that, when they had closed, the question would be one, as to the effect of the evidence,  [**14]  rather than to its admissibility. For the question of agency may often depend on facts and circumstances; and must be determined upon all the evidence in the cause. The plaintiff's counsel also supposed, that what was said and done at the time, in relation to the transfer order, was admissible, as part of the res gestae. Mr. Smith wrote the order, in the presence of Mr. Gibson, and of Mr. Bayne, by direction of Mr. Gibson. Was it not admissible to shew that he acted under such direction? And in what way could such direction be more satisfactorily shewn than by giving the very words used at the time of the transaction--dum fervet opus? 1 Greenleaf's Evidence, secs. 108-114.

The evidence was properly admitted.

1st. As part of the res gestae. The theory of the defendant was, that Mr. Gibson had passed the transfer order to Mr. Bayne, on the credit of Bayne & Co., and had received in payment therefor the memorandum check of Bayne & Co. The claim of the plaintiff was, that the transfer order was procured by Bayne for the defendant, for the use of the defendant.

Upon the defendant's theory, Mr. Gibson would have committed an enormous wrong. In Eichelberger vs. Finley, 7 H.  [**15]  & J., 387, the Court, speaking of the officers of a public bank, said, in effect, they can honor no check, without a gross violation of their trust, beyond the amount to the drawer's credit, on deposit.

It was a material fact to be shewn, that Bayne did not apply for the transfer order in the name, or on the behalf, of Bayne & Co.; and that it was not delivered to him as a loan to Bayne & Co. It might be that he had no authority to use the name of the defendant, and that he obtained the transfer order under a false pretence, and mala fide. If so, the defendant would not be affected by his statement or acquiescence. But the question of authority vel non was an ulterior question, to be decided upon the whole evidence; and was a totally different question, from the intention and act of Mr. Gibson.

2d. The evidence was admissible, on the question of agency vel non, in the procurement of the order in controversy.

It is conceded by the plaintiff's counsel that the declaration of a party that he is acting as agent for a third party is no evidence, as against such third party, to establish the fact of agency, where it is denied. But there is another rule equally as well established,  [**16]  that, when the fact of agency is made out by other proof, the statements and declarations of the agent, made at the time, and constituting a part of the res gestae, bind the principal. Story on Agency, secs. 134-137.

The objection below was based on the case of Rosenstock vs. Tormey, 32 Md., 182, and it was twofold: firstly, that the statements and declarations of a party, professing to act as agent, are not evidence to prove such agency as against the alleged principal; and secondly, that proof of agency is to be first given, and to be decided by the Court, before the statements, declarations or acts of the party, professing to act as agent, can be received in evidence.

The learned Judge yielded to the authority of this decision, in his action, in admitting the evidence, and the appellee relies upon it, as showing that the jury is to decide the question of agency: that it may be inferred from facts and circumstances, and is to be decided upon all the evidence in the cause.

By the testimony of Mr. Carter and Mr. Smith, the fact of an actual agency in procuring from the plaintiff transfer orders for the defendant was shown to have existed; then the privity of contract [**17]  between the banks, evidenced by transfer orders, drawn in favor of the defendant, and paid for by the checks of the defendant's cashier, in favor of the plaintiff--no pretence of notice of revocation of authority--the legal presumption of continuance--certainly furnished some evidence to the jury, that the order of the 23d of April, 1866, was obtained for the defendant by Bayne, as the defendant's agent. It may have been slight evidence; but the language of this Court, in the case of York County Bank vs. Stein, 24 Md., 466, applies to a case like this. Quoting Henderson vs. Mayhew, 2 Gill, 409, the Court said, "if there was evidence to establish such an agency, the jury were the exclusive judges of its weight." And this was but a repetition of what had been previously said, in Morrison vs. Whiteside, 17 Md., 459. All that was necessary to be done by the plaintiff in order to admit the acts, declarations and acquiescence of Mr. Bayne as evidence against the defendant, was to adduce some proof, from which the fact of agency might be inferred. Thomas vs. Sternheimer, 29 Md., 271; Paley on Agency, ch. 3, sec. 2, p. 162, (28 Law Library, 70, &c.)

The third exception brings up, for [**18]  review, the instructions given by the Judge to the jury. And in these there is nothing of which the defendant below can rightfully complain.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*15]  BOWIE, J., delivered the opinion of the Court.
The appellee instituted suit in the Superior Court of Baltimore City, in June, 1866, against the appellant and filed its 

 [*16]  narr. containing the common counts in assumpsit. The object of the suit was to recover the sum of $ 25,000, the amount of an order issued on the 23d of April, 1866, by the appellee in favor of the appellant, in the following words:
THE NAT. BANK OF BALTIMORE, April 23, 1866.
Clearing House will transfer to the Mechanics' National Bank, twenty-five thousand dollars of balance due us.
$ 25,000.
(Signed,)   J. THOS. SMITH, Teller.
The parties to the suit were both members of the Baltimore Clearing House Association. The Constitution, and resolution of April 25, 1864, altering the eighth section of the Constitution, and also the form of Clearing House certificates, were given in evidence.
From these it appears the object of the Association was "the [**19]  effecting at one place, and at one time, of the daily exchanges between the several associated banks, and the payment at the same place, of the balances resulting from such exchanges."
Sec. 6 provides: "The association shall appoint one of their members to be a depository of such coin (or greenbacks) derived from the exchanges as any of the associated banks may desire shall remain on special deposit for safe keeping; and the depository shall issue therefor, in proper form, certificates in convenient amounts, signed by the cashier or paying teller, which shall be received in payment of balances and shall be negotiable only among the associated banks."
By the 8th section of the Constitution, as amended by resolution of the 25th of April, 1864, it is declared, "the hour for making exchanges at the Clearing House shall be half past eight o'clock, A. M. The debtor banks shall pay at the Clearing House daily, by 11 o'clock, the balances due from them respectively, either in legal tender currency or certificates, and the creditor banks may receive the respective 

 [*17]  balances due to them by 12 o'clock, provided all the balances due from the debtor banks shall then have been  [**20]   paid."
Sec. 9. "Should any one of the associated banks fail to pay the balance due from it by 11 o'clock, the depository bank shall notify such delinquent bank, and if, after such notice, the money is not paid by 12 o'clock, such bank shall be considered as ruled out by such default, and notice thereof given immediately by the depository to the respective banks, who shall forthwith furnish to the depository, the amount of such balance, in proportion to their respective balances against the defaulting bank, resulting from the exchanges of that day; and the amount so furnished to the depository shall constitute claims on the part of the responding banks respectively, against the defaulting bank."
The appellee delivered the Clearing House transfer order on the morning of its date, about 10.30 A. M., to L. P. Bayne, who, at the time of its delivery, left his memorandum check for the same amount drawn on the appellee, with whom he kept no account and where he had no funds, and L. P. Bayne soon afterwards delivered the transfer order to the appellant, who placed the same to the credit of Bayne's account with it, which was then largely overdrawn.
The transfer order not having been presented [**21]  at the Clearing House, until after the balances due the appellee on that day had been paid, and the appellant having settled its balances at the Clearing House with other funds, demanded payment of the same of the appellee, who refused to pay it, unless the appellant would give its check for it.
In the meantime Bayne had failed. Several days afterwards, (after some correspondence between the parties as to the right of the appellant to retain or use the transfer order,) the appellant sent the order to the Clearing House, where it was settled from balances due the appellee, and returned to it in a sealed package, in liquidation of its balances.
The appellee then instituted suit, and the verdict and judgment being in its favor, an appeal was prayed.

 [*18]  Three bills of exception were taken by the appellant. The first and second to the admission of testimony tending to prove that Bayne, or Bayne & Co. were the agents of the appellant, in purchasing the transfer order on the Clearing House; the third to the granting of the first, second, and fifth prayers of the appellee as presented, and to the granting of its third and ninth prayers with modifications.
The first and second bills [**22]  of exception, and the first and second prayers of the appellee, included in the third bill of exception, present questions as to the order, admissibility and competency of the evidence to charge the appellant as principal, for the acts of its supposed agents. Although varying in form, these are almost identical in substance, and will therefore be considered and disposed of together.
It was admitted, that at a former trial of this cause, in which the same issues were joined, the jury not being able to agree were discharged without giving any verdict, and that at that trial, Patrick Gibson, late cashier of the appellee had been examined and cross-examined as a witness, and since died. By agreement, the testimony of Mr. Gibson as taken by a stenographer at the former trial, was admitted to be read to the jury, subject to exceptions.
On the third interrogatory being read, viz:
"Can you state any conversation that took place between L. P. Bayne and yourself, on the 23d of April, 1866, with regard to a transfer order?" the defendant's counsel objected to the admissibility in evidence of any statements of L. P. Bayne, so as to affect the defendant, on the ground that the declarations of [**23]  Bayne were not evidence to prove his agency for the defendant, and that, as part of the "res gestae," they were not admissible, until the agency had been established by other evidence. Which objection was sustained by the Court.
The appellee then proceeded to examine Messrs. Carter and Smith; the former, paying teller of the appellee for ten or twelve years prior to April, 1865, and the latter, paying teller since.

 [*19]  Mr. Carter testified that, as paying teller of the appellee, he had repeatedly issued Clearing House transfer orders to the appellant, through Mr. Bayne, who was the first person who applied for such orders in favor of the appellant, in payment of which, Bayne always at first, brought checks of the cashier of the appellant on their bank, at the time he obtained the transfer orders; and during the latter part of his service, Bayne would sometimes leave his own memorandum check, and would shortly afterwards, in a few minutes return and take it up with a check of the appellants on their bank. He had no recollection of Bayne having paid for the Clearing House transfer orders, in any other way. He took Bayne's memorandum check, until he could bring the cashier's [**24]  check of the appellant. Bayne never brought his own certified check to the appellee for transfer orders whilst witness was there. It was a common thing for Bayne to obtain transfer orders for the appellant.
Mr. Smith testified that he succeeded Carter as teller of the appellee; that he had as teller in April, 1866, issued Clearing House transfer orders to the appellant; he thinks Bayne usually applied for them, and that he gave them by the order of the cashier. Bayne, during witness' period of service, paid for them by his (Bayne's) certified checks on the appellant's bank. Bayne usually, when he got the transfer orders, left his memorandum checks on the appellee's bank, in which he kept no account; that Bayne kept his account in the appellant's bank. Having testified that the transfer order of April 23d, 1866, for $ 25,000, drawn by the appellee in favor of the appellant, on the Clearing House, was in his hand writing, he was requested to state the circumstances under which it was given; he stated, that on the 23d of April, 1866, Mr. Gibson, the cashier of the Bank of Baltimore came to his desk accompanied by Mr. Bayne, and said, while Bayne was standing by, "Mr. Smith, the Mechanics'  [**25]  Bank wants a transfer order for $ 25,000, give Mr. Bayne an order for that amount, in favor of the Mechanics' Bank."

 [*20]  The appellant objected to what Gibson said to the witness, being given in evidence to the jury, upon the same ground on which the declarations of Bayne, had been hereinbefore objected to; but the Court overruled the objection, and allowed the evidence, on the ground that there was some evidence in the case, the weight of which the Court was not called upon to determine, which tended to prove that Bayne had acted as the agent of the defendant, in the matter of obtaining transfer orders from the plaintiff, in favor of the defendant for its use,--the Court reserving to itself the right to modify this ruling, if it should deem it proper in the progress of the cause to do so.
The declarations of Gibson, in the presence of Bayne, admitted under the ruling of the Court, (which constitutes the subject of the first exception,) were offered under very different circumstances from those which accompanied the declarations of Bayne, previously excluded.
These were not preceded by any evidence tending to show a previous course of dealing by Bayne, in the name [**26]  and on behalf of the appellant, with the appellee, for Clearing House transfer orders, or any previous transactions between the parties, in their corporate capacities; but were an isolated occurrence as far as the record shows, in which Bayne, for the first time, represented himself as acting for the appellant. On the contrary, the testimony of Carter and Smith, tended to show continuous antecedent dealings, in which the checks of the appellant were used to procure transfer orders, and other facts were developed, from which privity between the appellant and Bayne, as principal and agent, might have been inferred.
Declarations of a broker or agent are not "per se" evidence of agency: but when evidence of facts "in pais" tending to show the relation of principal and agent existed, has been offered directly or circumstantially, it is then the province of the jury to determine whether there is such proof of agency, as to make the declarations of the supposed agent, binding on the principal.

 [*21]  It is not the province of the Court to determine the question of agency "vel non," more than any other fact involved in the issue; but, to decide whether there is any evidence [**27]  tending to prove agency. Whether there be any evidence or not is a question for the judge, whether it is sufficient evidence is a question for the jury. 1 Greenleaf's Ev., sec. 49.
"The preliminary question is to be tried by the judge, though he may in his discretion, take the opinion of the jury upon the facts, on which the primary question depends." 1 Greenleaf's Ev., sec. 49.
In Rosenstock vs. Tormey, 32 Md. 169, this Court alluding to the practice of allowing parties to introduce evidence which was irrelevant "per se," upon the assurance of counsel, it would be followed up by evidence which would make it relevant, remarked: "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 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 the principal under any circumstances until the 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,  [**28]  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 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 

 [*22]  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 were not therefore in fact, prejudiced by the ruling in the second exception."
It is clear from the context, in which the citation from Marshall and Haney and [**29]  Atwell and Miller, is embodied, this Court did not intend to decide that full proof of agency should be required, before the acts and declarations of the supposed agent, were submitted to the jury. In Marshall vs. Haney, it does not appear there was any preliminary evidence offered of the agency of Kinkle, whose declarations were proposed to be offered in evidence to the jury to bind the defendant. In passing upon the exception to these declarations, the Court said: "The declarations of an agent are not admissible to bind his principal under any circumstances, until the agency is first clearly established, which has not been done in this instance." 4 Md. 498, 511.
So in Atwell, etc. vs. Miller, it was proposed to ask a witness, whether he had heard certain conversations between a man named Johns and the appellants, or either of them, which was objected to. The Court said, the question was asked upon the ground that Johns was a partner, or an agent of the parties, and there was not sufficient evidence of either. "Until one of these propositions was first settled to the satisfaction of the Court, the testimony was inadmissible." 11 Md. 348, 359. [**30]  
These decisions are strictly conformable with the rules of evidence, having regard to the respective provinces of the Court and jury.
If full proof of agency must be given before the acts of the supposed agent can be submitted to the jury, the Court would become judges of the fact as well as of the law.
The Judge only decides whether there is prima facie any reason for sending it at all to the jury. 1 Greenl. Ev., sec. 49.

 [*23]  This position is, we think, fully supported by the authorities cited by the appellee on this point. York Co. Bank vs. Stein, 24 Md. 447; Henderson vs. Mayhew, 2 Gill 393, 409; Morrison vs. Whiteside, 17 Md. 452: from which it may be collected, that where there is evidence of agency, although not full and satisfactory, yet such evidence should be submitted to the jury, who are the exclusive judges of its weight. The appellant argues, that as the Court below never afterwards modified its ruling in the first exception, but in the second instruction granted at the instance of the appellee, directed the jury that they were "at liberty to find the agency from all the facts and circumstances [**31]  in evidence," that although the jury may have thought that the evidence in the cause, other than this direction of Gibson, and these conversations of Bayne, utterly failed to establish the agency, they may yet have found the agency from this direction and these conversations. They say, "to let the case go to the jury in such a form, was clearly to permit the agency to be established by the declarations of the agent." The answer to this is, the second instruction, of course, was not given until all the evidence in the cause was in; the argument assumes, that in all that evidence, there was none tending to establish agency, except the items objected to; and that all the evidence, combined with the directions and conversations of Gibson and Bayne, produced no fuller proof of agency, than the directions and conversations alone; any chain of testimony however strong, may be destroyed by separating the links in this way.
But it is not the province of the Court to assume that the jury found contrary to the evidence. If the appellants believed this, their remedy was a motion for a new trial.
In considering the objections to the evidence in the first and second bills of exception, we have [**32]  answered those to the first and second prayers in the third bill of exception, except the general one, that they were calculated to mislead the jury, to which, being legitimate conclusions from the evidence referred to in them or previously given, they were not liable.

 [*24]  The objections to the third, fifth and ninth prayers of the appellee, which constitute the remaining subjects of the third bill of exception are that they submit to the jury questions of which there was no evidence; that they involved matters of law--and that they were calculated to mislead the jury. The third prayer it is said should have been rejected, because there was no question in the case about any usage of the character described in the prayer. That the right to demand payment of it in legal tender notes depended on the construction of the order itself. The transfer order was a written instrument, and was therefore to be construed by the Court, either absolutely or conditionally, upon the finding of certain circumstances by the jury. But the qualification left the whole question of the construction of the order to the jury.
This prayer, as originally offered, affirmed there was no legally sufficient [**33]  evidence in the cause, that in April 1866, there was a well established and uniform usage, which entitled the appellant as holder (of the transfer order) to demand of right, payment from the Clearing House in legal tender notes; which proposition the Court qualified by adding, "but the jury is at liberty to find from the evidence in the cause as to the origin of such transfer orders, the terms in which they were drawn, the convenience they were intended to subserve, and the fact that they were sometimes so used, that such orders represented money, which might be drawn in legal tender notes, as well as used to pay debtor balances."
In the course of the trial below, it appears from the third bill of exception, there was a struggle on the one hand, to prove that the transfer order only served the purpose of assigning so much of the balance due the creditor bank at the Clearing House, to the debtor bank named in the order, and was not negotiable; on the other, to show that it was deemed equivalent to a draft payable to bearer, and was payable on presentation in legal tender notes.
Mr. Gibson, in his cross-examination, testified, "If you mean to ask me whether the Clearing House pays [**34]  transfer 

 [*25]  drafts in greenbacks, I say no; it will be shown that the Clearing House is not in the habit of honoring transfer drafts" *** "that it is paid in a certificate."
Mr. Rogers, the acting teller of the Clearing House, testified, that he had occasionally paid transfer orders in money.
The appellee insists that the object of its third prayer as offered, was to obtain the Court's interpretation of the transfer order. In their view, it was not a bill of exchange, nor a check, nor other commercial paper, but an instrument sui generis. An effort had been made on the part of the appellant, to prove a custom and usage giving to such a transfer order the attributes and character of a check for so much money payable in legal tender notes.
From the testimony above cited, it is obvious, this prayer was not subject to the exception, that there was no evidence to which it was applicable; if there had been no evidence, such objection, not being raised at the time, would not now be tenable, and the modification of the prayer being in favor of the appellant, even if erroneous, would not be ground of appeal on its part.
That the prayer submitted a question of law to the jury,  [**35]  (if such was the fact,) is no longer a ground of reversal, "unless it appear from the record that an objection thereto for such defect was taken at the trial;" it does not appear to us, however, that any such question was submitted by the prayer as originally framed and submitted, or as modified by the Court.
The fifth prayer of the appellee (which is included in the appellant's third exception) is objected to on the ground that, even if the prayer was correct in the conclusion, (which is denied,) it was calculated to mislead the jury by its long recital of various circumstances, having no bearing on that conclusion.
This prayer predicates the appellee's right of recovery, upon the appellant's procuring the sum of $ 25,000, on the transfer draft, by using it contrary to the rules and regulations 

 [*26]  of the Clearing House, with full notice that the same had been obtained of the appellee without payment.
Negativing the theory of agency, upon which the liability of the appellant was sought to be fixed in the first and second prayers, the appellee in this seeks to recover upon the implied obligation of the appellant to repay what it received without consideration; or, that the [**36]  appellant, coming into possession of the sum of $ 25,000, belonging to the appellee, ex aequo et bono, was liable in this action for the same.
Much as the detail of immaterial facts in the formation of prayers is to be condemned and avoided, we cannot in this instance perceive that any of those enumerated have no relation to the conclusion, or are calculated to confuse or mislead the jury. The prayer might perhaps have been condensed, but as an epitome of the evidence on which the appellee based the proposition of law with which it concludes, it is not, in our opinion, justly subject to exception. The law of the prayer is, we think, thoroughly sustained by the decisions of this Court, as well as the authorities cited by the appellee. Kennedy vs. The Balto. Ins. Co., 3 H. & J. 367; Vrooman vs. McKaig, 4 Md. 450. The action was an equitable action, in which the plaintiff might prove all equitable circumstances incident to his case, and recover any money in the hands of the defendant which, "ex aequo et bono," belonged to the plaintiff.
The ninth prayer of the appellee, the granting of which, as modified by the Court, forms the last ground of the [**37]  appellant's third exception, it is said, as originally drawn, referred to transfer orders paid for by the appellant by its cashier's check, as contradistinguished from those purchased by Bayne with his own certified check; and therefore introduced a new and immaterial issue, and could not properly be granted in that form; that the Court, whilst properly rejecting it, modified it so as to make it obnoxious to the objection, that it confounded the distinction between the different operations, and allowed the jury to draw conclusions as to the latter, which were only applicable to the former.

 [*27]  Much stress was laid in the argument by the counsel for the appellant on this branch of the case, to establish the position, that whilst purchases by means of the cashier's check of the appellant, might tend to prove agency in Bayne, pro hac vice, they had no such tendency, in relation to the transfer order, the subject of the present suit.
Such an argument might be addressed to the jury, whose province it was to determine the question of agency vel non from all the circumstances; whether the change in the mode of dealing indicated a real change in the relation of [**38]  the parties, was a question for the jury.
The Court could not assume to disconnect these transactions, merely from the difference in the details, and decide that those purchased with the cashier's check were on account of the appellant, and those otherwise purchased were not, but were on individual account.
Bayne testified, "my arrangement at that time with the Mechanics' Bank was, that they were to certify Bayne & Co's checks to be good to an amount any day of $ 30,000 of over draft, to be made good by 3 o'clock of the same day." *** "That he was not instructed by the Mechanics' Bank on that day to get Clearing House funds. They did not know of it, but knew that he had to raise the Clearing House funds and would do it; it was his business to get what was needed."
The question was asked by the defendant's counsel, "Did the Mechanics' Bank ever authorize you to go out and get transfer orders on their account, for which they were to be liable?" To which he replied, "Yes, several times; sometimes, when witness went to get Clearing House funds, certain of the banks would not lend to brokers--would not give him the transfer orders, except the cashier's check of the Mechanics' Bank [**39]  was left with them at the time; in such cases he would report the fact to the Mechanics' Bank, and that bank would then send its own cashier's check in payment. Other banks would take the certified check of Bayne & Co." He further testified, "that no officer of the Mechanics' Bank knew that 

 [*28]  he was going to get the $ 25,000 transfer order from Gibson; that Bayne & Co. were over $ 83,000 at the Mechanics' Bank, and they had to make their account good."
The ninth prayer of the appellee, as originally offered, applied to cases of this kind, in which the agent, although duly authorized to purchase for the Bank, could not accomplish his object without pledging the bank's credit; but the Court perceiving, it may be, that the case at bar was not included in that category, added the proviso, enlarging the application of the principle, that ratification is equivalent to previous authority, and emphatically declared that to "enable the jury to find a ratification under this instruction, they must find that Bayne bought this draft in the name and on the credit of the defendant, notwithstanding he may have had no instruction to do so, and that the defendant, with full knowledge [**40]  of all the facts, adopted and ratified his act."
The maxim, "omnis ratihabitio mandato aequiparatur," could scarcely have been applied with more caution. The qualification by the Court of the appellee's ninth prayer was made for the benefit and protection of the appellant "ex abundanti cautela." As we have before remarked of other prayers, it is not to be presumed after verdict, there was no evidence to warrant the instruction, not being specially excepted to on that account.
Finding no error in the several rulings of the Court below, the judgment will be affirmed.
Judgment affirmed.
STEWART, J., dissented from some of the conclusions of the majority of the Court.  

108 of 144 DOCUMENTS 

SAMUEL GINSBERG and ISAAC OPPENHEIM vs. EMILIE POHL, Wife of ANTON POHL, by her next friend, GEORGE H. SPRECKELMEYER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 505; 1872 Md. LEXIS 52 

March 22, 1872, Decided 

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

The case is stated in the opinion of the Court.

Exception--The defendants offered five prayers, the first of which was conceded, the third, fourth and fifth were granted, and the second, as follows, was rejected:

If the jury shall find that the goods and chattels mentioned and specified in the schedule offered in evidence in this cause by the plaintiff, were at the time of the levy under the attachment issued at the suit of the defendants, actually in the custody, or in the possession and under the control of the sheriff of Baltimore city, by virtue of prior attachments issued at the suit of other creditors of Anton Pohl, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must be for the defendants.

The defendants excepted to the rejection of their second prayer, and the verdict and judgment being for the plaintiff, they appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Attachment -- Custodia Legis -- Where Trespass de bonis asportatis will not lie -- Priority of Attachments.

Goods and chattels taken under a valid writ of attachment, whether belonging to the debtor or to a third person, are in the custody of the law, and the owner thereof cannot maintain an action of trespass de bonis asportatis, either against the creditor or the officer for attaching the same under a subsequent writ.

Where attachments by way of original process, are laid on the same day, and there is nothing in the officer's return, nor on the face of the proceedings to show a priority in the time of the service, it may be presumed that they were served at the same time; but if laid at different times on the same day, they will take precedence according to the priority of service.  

COUNSEL:
James A. Buchanan and Wm. Schley, for the appellants.

John H. Ing and Milton Whitney, for the appellee.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [**2]  
 [*506]  ROBINSON, J., delivered the opinion of the Court.

This is an action of trespass de bonis asportatis, for the seizure by the appellants, of the goods and chattels of the appellee, under a writ of attachment issued against her husband.
The appellants, defendants below, contend that at the time of the service of their writ, the goods and chattels of the appellee 

 [*507]  were in the possession of the officer, under prior attachments, issued by other creditors against the husband, and being thus in the custody of the law, the appellee has no right to bring an action of trespass for the alleged seizure of the same property under a subsequent attachment.
To maintain an action of trespass de bonis asportatis, the plaintiff must have either the possession, or the title with the right to immediate possession of the property taken. Where goods and chattels however are taken by an officer under an attachment, they are in the custody of the law, and the officer holds them to satisfy the plaintiff's demand, or to return them to the owner upon the dissolution of the attachment. Being thus responsible as well to the creditor as to the debtor, the officer [**3]  is entitled to the possession, and it is well settled that he may maintain an action of trespass or trover against any one wrongfully interfering with the same. Now it is quite clear, that neither the actual possession, nor the exclusive control of the same goods and chattels, can be in two persons at the same time, and hence it follows, that when they are once taken under an attachment, the owner thereof has not either the possession, or the title with the right to immediate possession of the same. So long as the attachment lien exists they are in the custody of the law, and although they cannot be taken by another officer under a subsequent execution or attachment, yet if the latter be directed to the same officer, he may schedule the property already in his possession, and hold the surplus after satisfying the prior executions or attachments. In making the levy under the subsequent writs however, he cannot be sued as a trespasser, because the goods and chattels were at the time in his possession under prior writs. The owner may sue him in trespass for the original taking, i. e. under the prior writs, or he may sue in case for damages sustained by the [**4]  levy under the subsequent writs, so also if instead of taking the goods, he suffers them to remain with the owner after the seizure under the writs. In such a case, so long as the attachment lien exists, the possession of 

 [*508]  the owner is the possession of the officer, and although he may schedule the goods under subsequent writs, yet when he actually takes possession of them the law will refer the taking to the prior writs.
But the rule of law is supposed to be different where the officer takes the goods of a person other than the debtor. In Cromwell, et al., vs. Owings, 7 H. & J. 55, this Court held that goods taken under an execution are in the custody of the law, and could not be replevied out of the officer's hands, either by a stranger, the lawful owner thereof, or by the defendant in the judgment, and this whether such goods when taken, were in the possession of the defendant or not. The Court say: "The question whether the goods of a stranger taken out of his possession, on an execution against another person, can be replevied out of the hands of the officer, having also been discussed, and being a question in which the public is materially concerned, and [**5]  therefore proper to be settled, we avail ourselves of this occasion to express our opinion upon the subject. In Thompson vs. Button, 14 Johns. 86, and Clark vs. Skinner, 20 Johns. 465, it is held that in such a case a replevin will lie." The decisions in these cases were disapproved of by this Court, and it was held that the property whether wrongfully taken or not, was in the custody of the law, and could not be replevied by the owner, although a stranger to the execution. We are of opinion therefore, that goods and chattels taken under a valid writ of attachment, whether belonging to the debtor or a third person, are in the custody of the law, and the owner thereof cannot maintain an action of trespass de bonis asportatis, either against the creditor or the officer for attaching the same under a subsequent writ.
This brings us to the question, as to whether there is any evidence in this case, tending to prove that the property of the appellee, was in the custody of the law at the time of the service of the appellants' attachments.
It seems that on the 12th of November, 1868, two writs of attachment were issued against [**6]  the husband of the appellee, 

 [*509]  one at the suit of Meyer & Co., and the other at the suit of Kaufman, and that on the 14th of the same month, the property of the appellee was attached, scheduled and appraised under the writ of Meyer & Co., and the same property attached, scheduled, but not appraised, under the writ of Kaufman.
On the 14th of November, the appellants' attachment was issued, and laid, and annexed to the schedule, the sheriff makes the following return:
"Being the same goods attached, scheduled and appraised under two prior attachments, issued from this Court at suits of Sigmond T. Meyer, et al., and Adolph Kaufman."
It thus appears that the property in question was attached under the three several writs on the same day, and the next point to determine is whether they were served simultaneously or at different times on the same day? Where attachments, by way of original process, are laid on the same day, and there is nothing in the officer's return, nor on the face of the proceedings, to show a priority in the time of the service, it may be fairly presumed that they were served at the same time; but if laid at different times on the same day,  [**7]  they will take precedence, according to the priority of service, for although as a general rule, the law does not regard fractions of a day, yet this rule is subject to exceptions in cases where it is necessary to ascertain and determine a priority of right. It must be admitted that the sheriff's return is quite ambiguous, and when he speaks of the property attached under the writ of the appellants, as being the same goods attached under two prior attachments at suits of Meyer, et al. and Kaufman, the word prior may be construed as referring either to the issuing or to the service of the same. If to the issuing of the attachments, and the property in question was attached simultaneously under the three writs, then the appellee could sue each of the attaching creditors as trespassers; on the other hand, if the word prior is to be understood as referring to the service of the attachments, and the sheriff had in point of fact 

 [*510]  previously attached the property, under the writs of Meyer and Kaufman, then the service of the appellants' attachment would not constitute them trespassers. Nor does the testimony of Creamer throw any light upon the question.  [**8]  He says the goods were taken from the premises on the same day, upon the several attachments, but he does not say the writs were served at the same time; if he had, it would have relieved this case of all difficulty. The prior attachment of the goods under the writs of Meyer and Kaufman, is not inconsistent with the removal of the property at a later hour of the same day. For these reasons, we are of the opinion the Court erred in excluding from the jury the question as to whether the goods and chattels, at the time of the levy under the appellants' attachment, were in the custody or in the possession of the sheriff, by virtue of attachments issued and laid prior thereto, at the suit of other creditors against the husband, and the prayer of the appellants submitting this question ought to have been granted.
It was suggested, that no injury was done to the appellants by the refusal of this prayer, because under the instructions granted, to entitle the plaintiff to recover, the jury were required to find, that the goods in question were seized and taken from the actual possession of the appellee by the sheriff under the appellants' attachment. This however,  [**9]  we cannot say. They may have been in the actual possession of the appellee when the appellants' attachment was laid and when they were taken, but yet the sheriff may have levied upon the same prior thereto under the attachments of Meyer, et al., and Kaufman, and have left them in the possession of the appellee. Under such circumstances, the possession of the appellee was the possession of the sheriff, and neither the sheriff nor the appellant under whom he acted, could be sued by the appellee in an action of trespass de bonis asportatis, for a seizure of the same goods by virtue of a subsequent attachment. How far the appellee being in possession, might sue in trespass, another officer, or a stranger, for unlawfully 

 [*511]  interfering with the property, is not a question before us in this appeal.
For these reasons the judgment below will be reversed, and a new trial awarded.
Judgment reversed and new trial awarded. 

109 of 144 DOCUMENTS 

JACOB W. HUGG, Administrator of JACOB HUGG, deceased, vs. THE BALTIMORE AND CUBA SMELTING AND MINING COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 414; 1872 Md. LEXIS 44 

March 19, 1872, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

General average -- Freight on trans-shipped Cargo not subject for General average -- Rule in case of Trans-shipment of portion of Cargo -- Capacity in which the Master acts in case of trans-shipment.

When a vessel puts into a port of distress, and there trans-ships a portion of her cargo, the freight paid the substituted bottom is not an expense or loss to be contributed for in general average.

If a ship is disabled from completing her voyage, the master must trans-ship the cargo if he can, and he may then charge the excess of the cost of trans-shipment over his freight, to the owner of the goods; but the owner of the goods cannot be held answerable both for the whole freight originally contracted for, and the freight paid on the trans-ship ped goods.

The costs of such trans-shipment cannot be charged in general average, on the ground that it was an expenditure for the benefit of all concerned, in substitution for a greater expenditure which the master had the right to incur by landing the cargo and repairing.

When a ship is disabled from completing her voyage, and the cargo is sent on to the port of destination by another vessel, at less cost than the original freight secured by the charter party, the master in sending it forward acts as agent of the ship owner in order to earn his full freight.

These principles apply to the case where a portion of the cargo is trans-shipped on a substituted bottom, and the residue is carried to its destination by the original bottom, as well as to the case of a total trans-shipment. 

COUNSEL:
Thomas H. Bevan and Wm. S. Waters, for the appellant.

There are two questions involved in this appeal:

1st. Whether there is any evidence in the case upon which the plaintiff is entitled to a general average contribution in respect of the freight of "The Adelaide?"

2d. Whether the plaintiff is entitled to recover the whole freight of "The Adelaide?"

First.--As to the question of general average. Expenses incurred, sacrifices made, or damages sustained for the common benefit of ship, freight and cargo, constitute general average. These expenses, sacrifices and damages must grow out of a necessity occasioned by a peril of the sea, and must be attended with a deliberate purpose, with a view to the common benefit, and must be extraordinary and successful. Birkley vs. Presgrave, 1 East, 220; Abbott on Shipping, 474, 497, 498; Nelson vs. Belmont, 21 New York, 36; Plummer vs. Wildman, 3 M. & S., 482; Laws of Wisbuy, Arts. 5, 55, 56, (1 Pet. Ad. R., Appendix;) Marine Ordinances of France, Tit. 7, Art. 2, (2 Pet. Ad. R., App.)

The claim in [**2]  this case is for extraordinary expenses incurred in a port of necessity, with a view to the common benefit of ship, cargo and freight. The rule in America makes no distinction between the causes which brought the ship into a port of necessity, so that it is occasioned by a peril of the sea. The expenditure must only be extraordinary, and with a view to the common benefit. Abbott on Shipping, 497, 498; 1 Pars. Sh. & Ad., 385.

There is evidence in this case tending to prove that the Maggie V. Hugg was in the port of Rio Janeiro from a necessity occasioned by a peril of the sea; and it was the duty of the master to act for the good of all, in order that ship, cargo and freight might all be saved. This is precisely the condition of things out of which the right to general average contribution arises. It springs out of no implied agreement among the several owners of ship and cargo, but is based upon a community of interest at the time of the sacrifice, expenditure or loss. The authority of the master to act when the exigency of the case makes it necessary for him to act for the common good, cannot be doubted. 3 Kent, 210, 212; Lemont vs. Lord, 52 Maine, 365, 391; The Copenhagen, 1 [**3]  Rob. Ad., 243; The Gratitudine, 3 Rob. Ad., 214; Nelson vs. Belmont, 21 New York, 40.

Was the freight paid the Adelaide, under the circumstances of this case, an extraordinary expense? The test of this is, was it such an expense as the owners were bound to incur by the terms of the charter-party under ordinary circumstances? The charter-party bound the owners to carry the goods in the Maggie V. Hugg. This was his ordinary duty, and the carrying of the goods in another ship is not within the ordinary scope of the contract, and never becomes a duty except when dictated by necessity. Wilson vs. Bank of Victoria, L. R., 2, Q. B., 213; 3 Kent, 236; Plummer vs. Wildman, 3 M. & S., 482; 1 Pars. Mar. Law., 298, 303; 1 Pars. Sh. & Ad., 377, 381; Lyon vs. Alvord, 18 Conn., 76; Nelson vs. Belmont, 21 N. Y., 40.

Second.--Suppose the freight of "The Adelaide" not the subject of general average contribution, is not the owner of the cargo responsible for it? Hugg vs. Augusta Ins. Co., 7 How., 609; Abbott on Ship., 465, note 1; 3 Kent, 312; Shipton vs. Thornton, 9 Ad. & Ell., 314; Searle & Scovell, 4 Johns. Ch., 218; Lemont vs. Lord, 52 Maine, 386.

Richard M. Venable and Daniel M. Thomas,  [**4]  for the appellee.

The only question involved in this suit may be stated in the following words: When a vessel puts into a port of distress, and there trans-ships a portion of her cargo, is the freight paid the substituted bottom an expense or loss to be contributed for in general average?

This claim is made either on the principle that the expenditure was a substitution beneficial to all parties for a greater expenditure, which the ship master had a right to incur by repairing at Rio, and ought to be apportioned in the same way as the greater expenditure would have been; or as an extraordinary expenditure for the general advantage of all interests concerned.

As a substituted expense--The claim cannot be allowed on this ground. There is no legal principle on which expenses incurred by one course could be apportioned according to what might have been the facts if a different course had been adopted. Wilson vs. Bank of Victoria, Law Rep., 2 Q. B., 203.

As an original expense--There is no case to be found in the books where freight by a substituted bottom was contributed for in general average. The circumstances under which lost freight is apportioned, are stated in [**5]  1 Parson's S. & A., 380, and n. 1. The two cases in which such contribution is made, are the case of a jettison and the case of a vessel lost by voluntary stranding. If the voyage be broken up in any other way than by a voluntary stranding, the freight lost is not contributed for. Contributors in general average are not insurers of freight. Lee vs. Grinnell, 5 Duer, 400, 432; Nelson vs. Belmont, 5 Duer, 310, 322, (21 N. Y., 36;) Columbia Ins. Co. vs. Ashby, 13 Pet., 343.

If by reason of wreck or other cause the master is unable to carry the goods to their destination in his own ship, he must trans-ship the goods, or send them to their destination in another bottom. 1 Parson's S. & A., 235, 236; 3 Kent's Com., 210-212; Broadhurst vs. Columbian Ins. Co., 9 Johns., 17; Gaither vs. Myrick, 9 Md., 118, 137, 138.

In such cases the rule for the adjustment of the freight is well settled. "The cargo, on its arrival at the port of destination, is chargeable with the increase of freight arising from the charter of the new ship; that is, the extra freight beyond what the freight would have been under the original charter-party if the necessity of hiring another ship had not intervened.  [**6]  The owner of the goods is not responsible both for the old freight and the new." Searle vs. Scovell, 4 Johns. Ch., 218.

It cannot be alleged that this rule is inapplicable when only a part of the cargo is trans-shipped. There is nothing in principle to distinguish the two cases. The necessity is no greater in one case than the other; and the duty of the master equally imperative. If there is any distinction, it is favorable to the view that this principle is more readily applicable to partial than to entire trans-shipments; for in cases of partial trans-shipments, in addition to the advantage accruing to the shipper from sending forward the cargo, the ship owner is benefited by saving something of his freight. If it be argued that when there is only a partial trans-shipment the voyage is saved, it is replied that an expense merely for securing the voyage is not to be contributed for. It is the safety of the cargo, and not of the voyage that constitutes the foundation of general average. Columbian Ins. Co. vs. Ashby, 13 Pet., 331.

The obligation to trans-ship and the expense of trans-shipping, are imposed on the master and the ship owner by the charter-party. Every expense [**7]  which the ship owner incurs with the purpose of expediting or effecting the voyage, be it usual or unusual, at sea or in port, is within his contract to transport. If a portion of the cargo is transferred to, and conveyed and delivered by, a substituted bottom, it is upon the original contract. 1 Parson's S. & A., 236, n. (1.)

It is only when an expense is incurred to rescue, or connected with the rescue of a cargo from an impending peril, that a question of general average can arise. The expense of trans-shipment is unconnected with, remote from, and entirely independent of, the act of putting into port. No expense thus unconnected and remote has ever been allowed in general average. There is high authority directly to the point, that expenses incurred by trans-shipment are not general average loss, but fall on the cargo or on the ship, according to the circumstances of the case. 1 Parson's S. & A., 402; 2 Phillip's Ins., 1341; Heyliger vs. N. Y. Firemen's Ins. Co., 11 Johns., 84; Lyon vs. Alvord, 18 Conn., 66.

This claim is wanting in almost all of the characteristics which distinguish those apportioned for in general average.

The law of general average is a branch [**8]  of the law of agency. The master charges the respective interests with contribution by some act which he is authorized to do in virtue of his position as agent. He becomes habilitated with this agency, and entitled to charge the goods without a request from the owner, in consequence of the danger of the situation in which they are placed. 2 Phillip Ins., 1296.

In order that he may charge the goods, there must be a sufficient necessity to raise an agency, and this the law is loth to do. Lemont vs. Lord, 27 Maine, 390, 393.

But when a vessel is in a port of necessity, and it becomes necessary to trans-ship, the capacity in which the master acts, is not now a subject for dispute. The origin, measure and extent of his agency are given in 1 Parson's S. & A., 236, and in Lemont vs. Lord, 52 Maine, 390. If there is a total abandonment of the ship, he trans-ships as the agent of the owner of the cargo, but so long as there is a possibility of earning any freight for the ship owner he acts as his agent. In this case there were forty shillings freight earned on each trans-shipped ton for the owner of the vessel; and in making the trans-shipment the master acted as his agent, and not [**9]  as the agent of the owner of the cargo so as to subject him to a charge under the law of general average. 52 Maine, 391; 1 Parson's S. & A., 197, 198, n.; 3 Wall., 347.

Without bringing the cargo to its destination no freight could be earned. And the benefit that the owner of the Hugg derived from the trans-shipment was that he thereby earned his freight.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*419]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted to recover a sum claimed to be due the appellant's intestate, for contribution in general average, under a contract of affreightment.
The original shipment by charter-party, was of a cargo of copper ore, six hundred and seventy-nine tons, on board the 

 [*420]  Maggie V. Hugg, a vessel belonging to the appellant's intestate, from Taltal, in Chili, to the port of Baltimore, at a freight of £  3. 10s. per ton. The contract contained the usual exception of the dangers and accidents of the seas. After encountering rough weather, it was discovered that the ship was leaking badly, and the master made for the Falkland Islands. There upon consultation [**10]  with the crew, it was determined to proceed to Rio de Janeiro, and the vessel entered that port on the 24th day of December, 1864. There the captain noted a protest, and solicited a board of survey; who after an inspection of the vessel, in their report recommended "that she be lightened, say four hundred or five hundred tons, and that the same be shipped to port of destination to avoid heavy cost of landing, warehousing and attendant expenses upon the same.
Pursuant to this recommendation a ship called the Adelaide was chartered, and three hundred tons of ore were transhipped, and sent by her to Baltimore; the freight to be paid thereon at the rate of thirty shillings per ton. Both vessels then proceeded to Baltimore and delivered their cargoes, and the appellee paid freight on all the ore delivered, at the rate of £  3. 10s. per ton, the freight originally agreed on.
Captain Hugg then submitted the expenses incurred by the Maggie V. Hugg, during her voyage, to Thomas H. Norris, an average adjuster in Baltimore, who made out a statement by which $ 8,039.76 was charged as the amount to be paid, in general average by the cargo--$ 2,746.27 of that sum being made up by bringing [**11]  into the general average account the freight paid the Adelaide.
The appellee not being satisfied with this statement, submitted it to Bird & Wilson, average adjusters in New York, who prepared an amended statement, by which it appeared that the cargo was liable for $ 5,143.70 in general average; this sum was accordingly paid.
By the agreement of counsel in the Court below and in this Court, all other questions in dispute have been adjusted, 

 [*421]  and it is conceded that the payments made by the appellee to the appellant's intestate, covered all that was due, if the freight paid the Adelaide be not taken into the general average; otherwise there is due the further sum of $ 2,746.27.
The only question presented by this appeal is thus succinctly stated in the appellee's brief:
"When a vessel puts into a port of distress, and there trans-ships a portion of her cargo, is the freight paid the substituted bottom, an expense or loss to be contributed for in general average?"
In the argument, the appellant's counsel stated as an alternative proposition, that if the freight of The Adelaide was not the subject of general average contribution, then the owner of the cargo [**12]  is responsible for it all. But we find no authority which supports the position that in case of trans-shipment of cargo from a port of necessity, the shipper is chargeable with the freight in the substituted bottom, in addition to that originally contracted to be paid. In contracts of affreightment the general rule as stated by Chancellor KENT is "that the delivery of the goods at the place of destination, according to the charter-party, is necessary to entitle the owner of the vessel to freight. The conveyance and delivery of the cargo form a condition precedent, and must be fulfilled." 3 Kent's Com., 219, m.
If the ship be disabled from completing the voyage the freight may be earned by forwarding the cargo by another vessel. 1 Parson's S. & A., 233, 234; Luke vs. Lyde, 2 Burr 882, 887; Shipton vs. Thornton, 9 Ad. & E. 314.
In such case, the captain may stipulate for the payment to the substituted vessel, of a higher freight than that originally contracted for, and the cargo will be answerable for such increased freight. For it is held that in such case the captain acts from necessity as agent for all concerned; and as such [**13]  may bind the owner of the cargo by his contract of trans-shipment. In Rossette vs. Gurney, 11 C. B., (73 E. C. L., 176,) JERVIS, C. J., said: "It may happen that a new 

 [*422]  bottom can only be obtained at a freight higher than the original rate of freight. It does not seem to have been settled whether the ship owner may charge the cargo with the additional freight."
But the rule, as we have stated it, is well settled in this country. It is laid down by Chancellor KENT, 3 Com., 212, m., and recognized by the Supreme Court in Hugg vs. Augusta and Banking Ins Co., 48 U.S. 595, 7 How. 595, 609, 12 L. Ed. 834, and by numerous decisions of State Courts, which will be found collected in the notes to 1 Parson's S. & A., 236, 237.
It will be found by examination of these cases that while it has been held that the increased freight may be charged to the cargo, the meaning is that the hire of another vessel may be so chargeable, even though it exceeds the freight payable under the charter, not that the cargo can be held liable for both the new and the old freights combined. "The rule," says Parsons, "as usually expressed [**14]  is, that the master must trans-ship if he can, and may then charge the excess of the cost of trans-shipment over his freight to the owner of the goods." 1 Parson's S. & A., 235, 236.
The rule is stated in the same way by Chancellor KENT, in Searle & Adams vs. Scovell, 4 Johnson's Ch. R., 218, a leading case on this subject. On page 226, the Chancellor says, "I understand from the French books that the extra freight means the surplus beyond what the freight would have been by the original charter-party, if no necessity of hiring another ship had intervened. The owner of the goods is not responsible for the old and new freight united." In this case there was no extra freight paid. It is very clear, both upon reason and authority, that the appellee having paid the whole freight originally contracted for under the charter-party, cannot be held answerable in addition, for the freight paid on the portion of the cargo forwarded from Rio to Baltimore by the Adelaide.
The question then recurs, can it be charged in general average as an extraordinary expenditure incurred for the benefit of all concerned? This claim cannot, in our opinion, be supported 

 [*423]  on [**15]  the ground that it was an expenditure for the benefit of all concerned, in substitution for a greater expenditure which the captain had a right to incur by landing the cargo and repairing at Rio.
This point was expressly decided in Wilson vs. Bank of Victoria, Law Rep., 2 Q.B. 203. In that case it was sought to charge in general average, certain extraordinary expenses incurred in buying coal; because, as it was argued, the money so expended "was an expenditure to prevent the necessity of unshipping the cargo at Rio, and therefore ought to be charged against the same interests, and in the same proportions, as the expenditure which it prevented would have been charged."
In answer to this, the Court, while they guard against expressing any opinion upon the question, whether under the circumstances of that case, the ship-owners could have charged the owners of the cargo with any part of the expenses of unshipping and warehousing the cargo, as a point which did not arise, go on to say: "But passing this by; we think that the expenses actually incurred must be apportioned according to the facts that actually happened, and that there is no legal principle on which they [**16]  can be apportioned, according to what might have been the fact, if a different course had been pursued."
We think that proposition is unquestionably sound, and directly applicable to this case. The captain of the Hugg, having elected to trans-ship a portion of the cargo on another vessel, and not to repair; the rights of the parties must be governed by the principles applicable to the case of trans-shipment, and not to the case which might have arisen, if the cargo had been landed and the ship repaired at Rio.
Is it then, under the circumstances of the case, such an expenditure as constitutes a claim for general average contribution? No case has been cited by counsel, nor have we found any, in which such an item has been estimated as a general average loss or expense. The absence of precedent 

 [*424]  in support of the appellant's claim is a strong argument against it, for many similar cases must have occurred. But in addition to this, the authorities, so far as they are applicable, appear to be against it; and it seems to us that upon principle, the claim ought to be disallowed, as not coming within the reasons upon which general average losses are ascertained: "Sacrifices [**17]  voluntarily made in the course of the voyage, of part of the ship or cargo, to save the residue of the adventure from impending peril or extraordinary expenses incurred for the benefit of both ship and cargo, and which became necessary in consequence of a common peril, are usually regarded as the proper subjects of general average," by Justice CLIFFORD in McAndrews vs. Thatcher, 70 U.S. 347, 3 Wall. 347, 365, 18 L. Ed. 155. The learned Judge further remarks: "All losses which give a claim to general average contribution, says a standard writer upon the law of insurance, may be divided into two great classes:
"1. Those which arise from sacrifices of part of the ship or part of the cargo, purposely made in order to save the whole adventure from perishing.
"2. Those which arise out of extraordinary expenses incurred, for the joint benefit of both ship and cargo," and cites 2 Arnould on Insurance, 881.
The claim in this case if it exist at all, comes within the second class; and on this ground it is placed in the argument of the appellant, who contends that the freight paid The Adelaide, was "an extraordinary expenditure for the joint benefit of both ship [**18]  and cargo."
It is perfectly well settled that if the ship is wrecked, or from perils of the sea becomes totally disabled, so that the voyage is broken up, the expense of sending the cargo forward by another vessel is not a general average charge.
In Parson's Sh. & A., 402 the law is thus correctly stated:
"The master, if by wreck or other cause, he is unable to carry the goods to their destination in his own ship, always may, and by the weight of American authority, must, if he 

 [*425]  can, trans-ship the goods, or send them to their destination in another bottom. The expense incurred by doing this is not a general average loss, but falls on the cargo or on the ship, according to the circumstances of the case." In support of this last proposition the author cites Heyliger vs. N. Y. Fireman's Ins. Co., 11 Johnson 85, and Lyon vs. Alvord, 18 Conn. 66. In the first of these cases, a ship bound for New York was stranded on the coast of New Jersey. In the effort to save the ship and cargo, lighters were procured. The ship was lost, but the cargo was saved, and sent to New York in the lighters. It was held that the cost of the lighters [**19]  was chargeable in general average, it being an expense incurred for the common benefit. The Court say: "The expense of conveyance, in another vessel or boat, strictly so considered, ought to fall on the ship-owner, and not on the shipper of the goods. But this was not that case. The vessel was stranded and the cargo and vessel in jeopardy, and here was a joint effort and expense for the recovery of both, and the ship was lost and the cargo only saved. The expense of removing the cargo from the place of the shipwreck to the port of New York may have been a small item of itself, but it is not separated and stated in the case."
In Phillips on Ins. vol. 2, sec. 13, the author in treating of general average expenses says: "The expense of forwarding a wrecked cargo by another conveyance to the port of destination is not included in the contribution"--cites in the note Heyliger vs. N. Y. F. Ins. Co., 11 Johnson, and says: "The small expense of transporting the cargo from Shrewsbury to New York was included; but the Court seems to admit that it could not properly be included."
The rules governing questions of this kind rest upon the law of agency. "The master charges the [**20]  respective interests with contribution by some act which he is authorized to do in virtue of his position as agent for the parties concerned."
When the ship is disabled from completing the voyage, and the cargo is sent on to the port of destination by another 

 [*426]  vessel at less cost than the original freight secured by the charter-party, the captain in sending it forward, obviously acts as the agent of the ship-owner, for thereby he is enabled to earn his full freight.
As was said by JERVIS, C. J., in Rossette vs. Gurney, 11 Q. B., before cited: "If the master trans-ships because the original ship is irreparably damaged, without considering whether he is bound to trans-ship or merely at liberty to do so, it is clear that he trans-ships to earn his full freight, and so the delivery takes place upon the original contract."
It follows from this, that the trans-shipment being made under and in fulfilment of the original contract made by the ship owner, and for the purpose of earning full freight, that in the trans-shipment, the captain acts as his agent and for his benefit, and not as agent of the owner of the cargo; as we have seen he may do; under circumstances [**21]  in which the ship owner is not interested in the trans-shipment, because no freight can be earned for his benefit; by reason of the cost of trans-shipment exceeding the original freight payable under the charter-party. But where as in this case, the freight from the port of necessity to the port of destination, is less than the original freight stipulated for in the charter-party, the cost of trans-shipment falls upon the ship owner, and is designated in the insurance law not as a general average loss, but as a particular average on freight, or as a loss on freight for which the underwriter is bound; and so the law is stated by Phillips in his work on Insurance. In vol. 2, sec. 1438, the author says: "A particular average or partial loss on freight is occasioned by the loss of the ship after a part of the voyage is performed, which makes it necessary to hire another ship to carry on the cargo to the port of destination in order to earn the freight." And in sec. 1441: "In case of goods being transported for a part of the voyage only by the ship, of which the freight is insured, and a freight pro rata itineris peracti is earned, the loss is computed by deducting [**22]  from the gross freight the actual or estimated expense of forwarding the goods to the port of destination."

 [*427]  It follows from these authorities that if the Hugg had been altogether disabled from completing her voyage, and the whole cargo had been sent on by The Adelaide, at the freight of thirty shillings per ton, that this expenditure could not be charged in general average, but would have fallen upon the ship owner, and would be what is called in the books "a particular average," or loss on freight covered by his policy on freight.
It has been argued by the appellant, that the present case does not fall within the operation of this rule, because only a part of the cargo was trans-shipped by The Adelaide, and the Maggie V. Huyg was not wrecked or altogether disabled, but completed her voyage and carried a portion of the cargo to the port of destination in safety. But we can see no good reason for this distinction.
The test is, in what capacity does the captain act in incurring the expense, and for whose benefit? In trans-shipping by The Adelaide three hundred tons, at thirty shillings per ton, and thereby earning seventy shillings per ton on [**23]  the whole cargo, the captain acted exclusively as the agent of the ship owner, and for his benefit, for the purpose of earning his full freight; and thus one essential element is wanting to bring it within the rules of general average. It is not an expenditure for the common benefit of both ship and cargo."
The ruling of the Court below being in conformity with the views above stated; the judgment will be affirmed.
Judgment affirmed. 

110 of 144 DOCUMENTS 

DANIEL MILLER, and others, trading as DANIEL MILLER & Co. vs. JOSEPH LEA, and others, trading as JOSEPH LEA & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 396; 1872 Md. LEXIS 42 

March 18, 1872, Decided 

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

The facts are sufficiently given in the opinion of the Court.

Exception--The plaintiffs offered the following prayers:

1st. If the jury find that the plaintiffs were the agents for the sale of the goods of the manufacturer under a contract to guaranty all sales, and that the goods in controversy were received by the plaintiffs from the manufacturer under said contract, and that the plaintiffs consigned said goods to Goodwin, Oliver & Co., to be sold on commission, for account of the plaintiffs, then the plaintiffs are so far principals or owners as to said goods, as to entitle them to bring this action in their own names.

2d. If the jury shall find that Messrs. Goodwin, Oliver & Co. were the agents of the plaintiffs for the sale of the goods mentioned in the three bills offered in evidence, dated Jan. 3, Jan. 7 and Jan. 12, 1871, and that they sold and delivered the goods to the defendants, and also shall find that the defendants, at the dates of said purchases, had reason to believe that Goodwin, Oliver & Co. were not the actual and bona fide owners of the goods, then their verdict should be for the plaintiffs, even [**2]  if they believe that the defendants then thought that said Goodwin, Oliver & Co. were agents for the manufacturers of the goods, and not for the plaintiffs.

3d. If the jury shall find that the plaintiffs were the owners of the goods mentioned in evidence, as such ownership is defined in the plaintiffs' first prayer, and that they consigned said goods to Goodwin, Oliver & Co. for sale by them on commission, as their factors or agents, for account of the plaintiffs, and that Goodwin, Oliver & Co. sold and delivered said goods to the defendants as offered in evidence, and that before said goods were paid for, Goodwin, Oliver & Co. became insolvent, and that the defendants received the notice of the claim of the plaintiffs for the price of said goods as offered in evidence, and that said goods have not been paid for, then the plaintiffs are entitled to recover the amount remaining unpaid of the price of said goods, less such commissions as the jury may find to have been due to Goodwin, Oliver & Co. from the plaintiffs, for sale of said goods, and that under the evidence in this case, the defendants are not entitled to the benefit of any set-off against the plaintiffs, on account of [**3]  moneys loaned by them to Goodwin, Oliver & Co., as offered in evidence.

The defendants thereupon offered the following prayers:

1st. That if the jury find that the plaintiffs, doing business as merchants in Philadelphia, consigned to Goodwin, Oliver & Company, doing business as commission merchants in the city of Baltimore, certain goods to be sold by them, and that they sold said goods in their own name as principals, with the authority of the plaintiffs, to the defendants, and that the defendants dealt with Goodwin, Oliver & Co. as, and believed them to be, the principals in the transaction; and if the jury shall further find, that before the said defendants had any knowledge or notice that said Goodwin, Oliver & Co. were not the principals in the transaction, defendants lent to said Goodwin, Oliver & Co. the sum of $ 4,250, as stated in the evidence, and that said sum remains due and unpaid, then the defendants are entitled to set-off so much thereof in this action as shall be sufficient to settle and pay the claim of the plaintiffs.

2d. If the jury shall find the facts stated in the defendants' first prayer, and shall further find that the plaintiffs were the agents [**4]  in Philadelphia for the sale of the goods, for the proceeds of sale of which suit is brought in this case, and that they represented to the defendants that they were such agents, and did not inform the defendants until after said goods were sold, and until after Goodwin, Oliver & Co. had failed in business, that they had interest in said goods, although they knew of the sale thereof to the defendants, but by their conduct and representations, as given in evidence, induced the defendants to believe that they had no interest in the same, then the defendants are entitled to the set-off as stated in their first prayer.

3d. That the plaintiffs cannot recover on the evidence which they have given, because said evidence shows that they were agents for the sale of the goods, for the proceeds of sale of which this suit is brought, and not the owners thereof.

4th. That the plaintiffs are not entitled to recover in this case, unless the jury find from the evidence that the plaintiffs paid to the owners of the goods, for the proceeds of the sale of which suit is brought, the price of said goods before suit was brought in this case.

5th. That if the jury find the facts stated in [**5]  their first prayer, and further find that the loan therein mentioned, of $ 4,250 by the defendants to Goodwin, Oliver & Co., was made in a course of dealing between the defendants, and said Goodwin, Oliver & Co. acting as agents or factors for the plaintiffs, then the defendants are entitled to set-off so much thereof in this action as shall be sufficient to pay the claim of the plaintiffs.

The Court, (DOBBIN, J.,) granted the prayers of the plaintiffs and rejected those of the defendants; to this ruling the defendants excepted, and the judgment being against them, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Right of a Del credere Agent to sue persons dealing with his Agent -- Claim of Set-off by one Purchasing from the Agent of an Undisclosed principal -- Construction of Article 3, section 7 of the Code, relating to Agents or Factors -- Rights of persons purchasing from the Agent of an Undisclosed principal.

L & Co. were del credere agents for the sale of "Simpson's Prints;" quantities of these goods they shipped to G. O & Co., commission merchants and factors in Baltimore, to be sold. D. M & Co., merchants in Baltimore, loaned certain sums of money to G. O & Co., and afterwards purchased of them several parcels of the "prints" on time. At the time of the purchase D. M & Co. were aware that G. O & Co. were commission merchants selling goods on commission, and that they were agents for the sale of "Simpson's Prints," but the name of L & Co. did not appear in the transaction, and D. M & Co. were not aware that G. O & Co. were agents of L & Co. G. O & Co. failed, and immediately D. M & Co. were notified to pay the amount of sales to L & Co, and not to G. O & Co., and upon their declining to recognize this claim, suit was brought against them. HELD:

1st. That L & Co. were entitled to maintain their action against D. M & Co.

2d. That D. M & Co. could not set-off a claim due them from G. O & Co., as against the demand of L & Co.

3d. That section 7, of Article 3 of the Code, in relation to agents and factors, did not apply to the present case.

Where a principal permits an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been the real contracting party, and is entitled to the same defence, whether it be by common law or by statute, payment or set-off, as he was entitled to at that time against the agent -- the apparent principal.

But if the character of the seller is equivocal -- if he is known to be in the habit of selling sometimes as agent and sometimes as principal, a purchaser who is aware of this and makes no inquiries as to the capacity in which the seller acts, will be denied the benefit of his set-off, if it should turn out that he has bought of an undisclosed principal. 

COUNSEL:
Arthur Geo. Brown and Geo. Wm. Brown, for the appellants.

The appellees, after availing themselves of all the advantages, which, as a foreign firm they derived from the large business which they knowingly permitted Goodwin, Oliver & Co., to conduct in their own names and apparently on their own responsibility in Baltimore, cannot now be allowed first to disclose themselves for the purpose of depriving appellants of a set-off, to which, in justice, they are entitled. 2 Kent's Com., 632; Smith's Mercantile Law, (3d Ed.) 202, 203, 204; Broom on Parties, (56 Law Lib.,) 45; 2 [**6]  Smith's L. C., 642.

The contract in this case was between Goodwin, Oliver & Co. and the appellants; and the appellees being strangers to it, could not sue.

An agent may sue on a contract made by him in his own name, because it is his contract; the principal may sue, because he is the principal; but a person who is neither the one nor the other cannot. Lewis vs. Brehme, 33 Md., 428; Broom on Parties, (56 Law Lib.,) 44.

Here, agents not named in the contract made by their subagents appear in the guise of principals, to avail themselves of a privilege which in law belongs to the real and ultimate principals. Lewis vs. Brehme, 33 Md., 428.

The Supreme Court thus states the law in N. J. S. Nav. Co. vs. Merchants' Bank, 6 How., 381: "The Court look to the substantial parties in interest with a view to avoid circuity of action, saving at the same time to the defendant, all the rights belonging to him, if the suit had been in the name of the agent." Oelricks vs. Ford, 21 Md., 489, 501, 507; Ford vs. Williams, 21 How., 287, 289; 3 Rob. Prac., 57; 2 Kent's Com., 632; Wilson vs. Smith, 3 How., 763, 770; Seignior vs. Walmer, Godbolt, 360; Smith's Merc. Law, (3d Ed.,) 152, 202,  [**7]  203, 204; Broom's Com. Law, 539; Broom on Parties, (56 Law Lib.,) 46.

"The real principal may sue on a contract in which he calls himself agent of a third person unnamed." Roscoe's N. P. Ev., 12th Ed., 97; Dicey on Parties to Actions, 143; Schmalz vs. Avery, 16 Ad. & El., N. S., 655.

A del credere agent is but an agent; and he differs only from any other agent because of certain peculiar obligations to his principal which do not affect third parties. Houghton vs. Matthews, 3 Bos. & Pull., 485; Bramble vs. Spiller, 21 L. T., N. S., 672, C. P. S. C., 18 W. R., 316.

Fisher's Digest for 1870, p. 270, thus sums up the case of Bramble vs. Spiller:

"When a del credere agent sells for a disclosed principal, he cannot sue the purchaser on the contract of sale in his own name." Fairlie vs. Fenton, 39 L. J. C. L. Exch., 107; Roscoe's N. P. Ev., 12 Ed., addenda to p. 97; Addison on Cont., (6th Ed.,) 598; Benjamin on Sales, 548; 1 Parsons on Cont., (5th Ed.) 91; Thompson vs. Perkins, 3 Mason, 232; Paley on Agency, ch. IV, sec. 1; Warner vs. McKay, 1 Mees. & Wels., 591; Browne on Actions, (45 Law Lib.,) 161 Mar., and cases cited, note r; 1 Selw. N. P., (13th Ed.,) 735; Broom [**8]  on Parties, (56 Law Lib.,) 46; Sangston vs. Maitland, 11 G. & J., 286, 288, 297.

But supposing for the sake of argument, that the appellees' first prayer was properly granted, the appellants then insist that the law is correctly laid down in their first prayer. Semenza vs. Brinsley, 114 E. C. L., 477; 1 Selw. N. P., (13th Ed.,) 735; Sangston vs. Maitland, 11 G. & J., 297; 2 Kent's Comm., 632; George vs. Clagett, 2 Smith's Leading Cases, 77; Smith's Mercantile Law, (3d Ed.,) 162-168; Brown vs. McGran, 14 Pet., 479, 494, 495; Fraub vs. Milliken, 57 Me., 63.

Charles Marshall and William A. Fisher, for the appellees.

The first proposition, arising under the first prayer of the appellees and the third and fourth prayers of the appellants, is in regard to the rights of the appellees to sue. The appellants assert that the appellees could not maintain a suit in their own names at all; or, at any rate, not without proof that they had paid their principals, Simpson & Sons, the price of the goods, before the institution of the suit. But the proof shows that the appellees were del credere agents of Simpson & Sons, and their relation to their principal is that of debtor. Their right [**9]  to sue in such case is well established. An agent may always sue in his own name when he is answerable to his principal. Story on Ag., secs. 397, 398; Houghton vs. Matthews, 3 Bos. & Puller, 485, 489; Robinson vs. Rutter, 4 Ellis & Black., 954; Dunlap's Paley on Agency, 361.

He may sue in any case in which he has contracted in his own name, unless there is evidence of his principal's objection. Sargent vs. Morris, 3 Barn. & Ald., 277.

The second and third prayers of the appellees state the law correctly. The seventh and tenth sections of Article 3 of the Code, (the Maryland Factors' Act,) dispose of the demand of the appellants to their supposed set-off, especially as the debt from Goodwin, Oliver & Co. to them had been contracted previously to the sales.

The Maryland Factors' Act was adopted within a year of the English Statute, (6 Geo. IV, ch. 94,) and is in most part copied verbatim from it, and it is remarkable that it differs from it mainly in the destruction of the set-off so completely.

But independently of the Factors' Act, the evidence does not present a case in which a set-off could be permitted. The testimony of Mr. Miller himself shows that he knew that [**10]  Goodwin, Oliver & Co. were not selling the goods on their own account, but were in fact acting as factors for some principal; he merely says he thought the principal was Simpson & Sons, and not the appellees. A set-off never was allowed at the common law, in a case in which the party dealing with an agent knew he was acting merely as agent, and it is permitted only in cases in which the party claiming the set-off dealt with the agent, supposing him to be a principal; Notes to George vs. Clagett, 2 Smith's L. C., 187; Fish vs. Kempton, 7 C. B., 693, 694, (63 Eng. C. L. Rep.;) Dunlap's Paley on Agency, 325, 327; Moores vs. Henderson, 1 East., 335; Semenza vs. Brinsley, 18 C. B., N. S., 467, (114 Eng. C. L. Rep.)

Besides, there was collusion between Goodwin, Oliver & Co. and Miller, if Mr. Miller's statement is to be accepted, and no right of set-off could arise out of such a transaction. Dunlap's Paley on Agency, 326, 330; Powell vs. Bradlee, 9 G. & J., 220.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*403]  ALVEY, J., delivered the opinion of the Court.
This action was brought by the appellees, merchants of Philadelphia,  [**11]  against the appellants, to recover the amount of an account for goods sold to the latter by Goodwin, Oliver & Co., factors and commission merchants of Baltimore, to whom the appellees had consigned goods for sale.
The appellees were del credere agents or factors of William Simpson & Sons, for the sale of what is known as "Simpson's Prints." They consigned to Goodwin, Oliver & Co. quantities of these goods to be sold on their account; and the latter sold to the appellants, on the 3d, 7th and 12th of January, 1871, parcels of such goods, amounting in the aggregate to the sum of $ 1,032. These sales were on a credit of thirty days, and before the accounts were all collectible, and before any of them had been paid, Goodwin, Oliver & Co. failed, and without accounting in any way to their principals, the appellees, for the amount of the proceeds of sale.
Immediately after the failure of these Baltimore factors, the appellants were notified to pay the amount of sales to the appellees, and not to Goodwin, Oliver & Co.; and, upon their declining to recognize the claim of the appellees, this suit was brought.
At the trial in the Court below, several prayers were offered by each of the [**12]  parties, those on the part of the appellees being granted, while those by the appellants were rejected; and to which ruling of the Court, in reference to all the prayers, the appellants excepted.
By these prayers, two questions are presented on this appeal--first, as to the right of the appellees to sue and maintain the action; and, secondly, as to the right of the appellants to the benefit of set-off of a claim due them from Goodwin, Oliver & Co., as against the demand of the appellees.
The principles that must control the case are few, and appear to be exceedingly plain and simple.

 [*404]  1. As to the right of the appellees to sue. It is supposed by the appellants, that because the appellees were themselves mere agents, and were not named or known in the contract of sales, and Simpson & Sons might have an action for the money claimed, therefore the appellees cannot sue. But it is clear, we think, that such supposition is without foundation. The question here is, not so much as to the relation of the appellees to Simpson & Sons, as to the relation of Goodwin, Oliver & Co. to the appellees. It is clear, that as between the appellees and Goodwin, Oliver & Co., they stood in [**13]  the relation of principal and agent. The goods were received by Goodwin, Oliver & Co. directly from the appellees, and were to be sold for their account. These Baltimore factors derived all their authority from the appellees, and their accountability was to them primarily. As agents for the sale of the goods, Goodwin, Oliver & Co. could raise no question inconsistent with the relation of principal and agent, as between themselves and the appellees, unless by the active intervention of Simpson & Sons. In the sale of the goods, therefore, to the appellants, Goodwin, Oliver and Co. were the agents and factors of the appellees, and the latter are entitled to all the rights of principals as against third parties dealing with their factors.
And why should the appellees not be regarded as the principals in the sales to the appellants? There is no good reason certainly for depriving them of that position, but, on the contrary, many why they should be so regarded. Consider their obligations and their relation to the goods.
By taking the goods for sale, under a del credere commission, the appellees became responsible for their value, and, in the absence of active intervention by the general [**14]  owner, they became the virtual owners as to all third parties. They were entitled to the management, control and possession of such goods, and had full authority to sell them in their own names, and, of course, by their own agents. They were also entitled to a lien on the goods, or their proceeds, for their commissions, 

 [*405]  disbursements and advances made in respect of them, as well as a lien for their general balance of accounts. They could, moreover, maintain suits in their own names for trespasses and torts committed on such goods while in their possession, founded upon their special ownership and rights therein. Story's Agency, secs. 400, 401. While therefore the appellees bore the relation of agents to the general owner of the goods, there is no reason that would forbid their maintaining the relation of principals to other parties, in respect to the same goods.
Regarding then the appellees as principals in the contract of sale, it is beyond all question that they are entitled to sue for the price of the goods sold, although the contract of sale be in the name of the agents actually making the sale. This is established as a clear proposition. When goods have been sold [**15]  by a factor, says Chancellor KENT, (2 Com., 632,) "the owner is entitled to call upon the buyer for payment before the money is paid over to the factor; and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal. If however the factor should sell in his own name as owner, and not disclose his principal, and act ostensibly as the real and sole owner, the principal may, nevertheless, afterwards bring his action upon the contract against the purchaser, but the latter, if he bona fide dealt with the factor as owner, will be entitled to set-off any claim he may have against the factor, in answer to the demand of the principal." This principle is founded upon a series of cases, at the head of which is the leading case of George vs. Claggett, 7 T. Rep. 359. It follows therefore that the first prayer of the appellees, which asserted their right to maintain the action, was properly granted; and that the third and fourth prayers of the appellants, which denied such right, were properly refused by the Court below.
2. We come next to the appellants' right of set-off [**16]  as against the appellees.

 [*406]  This right of course depends upon the circumstances under which it is claimed.
It appears from the testimony of one of the appellants, who was examined as a witness, that the claim for set-off originated in two separate loans to Goodwin, Oliver & Co., made on the 29th of November, and the 16th of December, 1870, before, and without any sort of connection with, the sale of the goods, the price of which is sued for. These loans were made on call; and upon being called for, after the sale of the goods, time was extended for payment, under an agreement by which notes were to be given, with the right to renew.
The same witness also proved that he knew that the appellees were the Philadelphia agents for the sale of the "Simpson Prints," and believed that Goodwin, Oliver & Co. were the Baltimore agents; but he never knew that the goods purchased by his firm came from the appellees; that their name did not appear in the transaction; that he had supposed Goodwin, Oliver & Co. to be the Baltimore agents of the manufacturers of the goods, Simpson & Sons; and that he knew Goodwin, Oliver & Co. to be commission merchants, selling goods on commission. These [**17]  facts are proven by the appellants themselves, and may be taken as admissions by them.
The general proposition is well settled that "where a principal permits an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the real principal as if the agent had been the real contracting party, and is entitled to the same defence, whether it be by common law or by statute, payment or set-off, as he was entitled to at that time against the agent, the apparent principal." Isberg vs. Bowden, 8 Exch. 852; George vs. Claggett, 7 T. Rep. 359; Carr vs. Hincliff, 4 B. & Cr. 551; Sims vs. Bond, 5 B. & Ad. 393; Fisher vs. Kempton, 7 M. G. & S. 687.
But while this is the general principle that applies to such cases, the buyer must be cautious, and not act regardless of the rights of the principal, though undisclosed, if he has any 

 [*407]  reasonable grounds to believe that the party with whom he deals is but an agent. Hence, if the character of the seller is equivocal--if he is known to be in the habit of selling sometimes [**18]  as principal and sometimes as agent, a purchaser who buys with a view of covering his own debt and availing himself of a set-off, is bound to inquire in what character he acts in the particular transaction; and if the buyer chooses to make no inquiry, and it should turn out that he has bought of an undisclosed principal, he will be denied the benefit of his set-off. Add. on Cont., 1191. If by due diligence the buyer could have known in what character the seller acted, there would be no justice in allowing the former to set-off a bad debt at the expense of the principal. Fish vs. Kempton, 7 M. Gr. & S. 687.
Here the facts are uncontroverted, that the appellants did believe, and of course acted with reference to that belief, that Goodwin, Oliver & Co. were but agents in the sale of the goods purchased by them; and that they, the appellants, knew the character of the business of Goodwin, Oliver & Co. to be that of factors and commission merchants. With such knowledge it would be rather difficult to sustain the right of set-off claimed in this case, according to the authorities upon which the right is founded.
In the recent case of Semenza vs. Brinsley, 18 C. B., N.  [**19]   S. 467, it was held, that a party who bought goods of a person whom he knew to be selling them as agent, could not set-off, in an action by the principal for the price, a debt due to him from the agent, even though he did not, at the time of the purchase, know and had not the means of knowing, who was the real owner. It was further held, that the plea of set-off was vicious, because it did not allege affirmatively that which was said to be the gist of the defence, viz: that the defendant did not know, and had not the means of knowing, that the party selling the goods was a mere agent in the transaction.
Upon the principle of the authorities just cited, it would appear to be free of all doubt, that the Court below was right 

 [*408]  in granting the appellees' second and third prayers; and its ruling was equally correct in rejecting the first and second prayers on the part of the appellants. The second prayer of the appellants was also objectionable upon other grounds than its conflict with the principle of law to which we have referred; there was not evidence in the cause, legally sufficient, from which the jury could have found some of the facts embraced in its hypothesis.  [**20]  
The appellants' fifth prayer was intended to present the law, according to what was supposed to be the proper construction of the 7th section of the 3d Article of the Code, in relation to agents and factors. But we think the prayer was properly rejected by the Court below.
The section of the Code referred to was intended to apply to cases, not like the present, but where sales or contracts of sales have been made by agents, known to be acting as such, who become insolvent before the payment of the purchase money, and where the principal, whether known or not at the time of sale, may sue for and receive the money due on the sales, without being subject to any set-off that may have accrued between the person acting as agent and the buyer, "unless such claim of set-off shall have arisen in a course of dealing with the said agent or factor, acting as such for the same principal or owner, or from previous advances of money or materials found, or work or labor done for the use or advantage of the said principal or owner." In construing this provision of the statute, we do not concur with the suggestion made at the bar, that it was the intention of the Legislature to restrict the right [**21]  of set-off as it previously existed, in cases of sales made by agents, who were honestly supposed by the buyers at the time to be acting as principals or owners. To adopt such a construction would most likely, in many cases at least, lead to deception and fraud.
But in this case, the appellants knew, or had reasonable grounds for knowing, according to their own statement, that Goodwin, Oliver & Co., were not acting as principals in fact 

 [*409]  in the sale of the goods, but as mere agents; and as the loans were made to them by the appellants, which constitute the claim of set-off, sometime before the goods were sold, and not in a course of dealing for and on account of the appellees as principals of Goodwin, Oliver & Co., it follows that the section of the Code, under which the fifth prayer of the appellants was framed, can have no application to the case. The Court below was therefore right in rejecting the prayer.
Concurring with the Court below in its rulings on the several propositions embraced in the exception of the appellants, we shall affirm the judgment.
Judgment affirmed. 

111 of 144 DOCUMENTS 

WILLIAM REA vs. ELIZABETH A. TWILLEY, WILLIAM T. MANNING, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 409; 1872 Md. LEXIS 43 

March 18, 1872, Decided 

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

This was an action instituted on the 23d of July, 1869, by the appellees, to recover from the appellant the rents and profits which he had received from a farm called "Darly's Addition Enlarged," since the death of a certain John A. Scott, who died seised and possessed of said estate, sometime in the month of December, 1863. The appellees were the nearest blood relations and heirs-at-law of the deceased, and claimed that he died intestate of said estate. The appellant, who was the executor under the will of the said Scott, insisted that he did not die intestate of the farm in question, but that it passed under the residuary clause of the will, to his wife Eliza Scott during her natural life. The facts of the case are sufficiently stated in the opinion of the Court. The case was submitted to the Court without the intervention of a jury; and it was agreed between the parties that if the Court should be of the opinion that John A. Scott died intestate as to the farm or tract of land in question, their judgment should be in favor of the plaintiffs for such sum as should be ascertained to be equivalent to the rents, issues and profits [**2]  of said farm for the three years immediately preceding the institution of this suit; and if the Court should be of opinion that the said farm was devised to Eliza Scott for life, by the will of her husband, the judgment should be entered for the defendant's costs. Judgment was rendered on the 24th of January, 1871, in favor of the plaintiffs for $ 570.87, with interest and costs. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of the Residuary clause of a Will.

A testator having bequeathed to his wife absolutely, his negro slaves, his household and kitchen furniture, stock and other movable property on the premises, devised to her specifically, during her natural life, all the real estate he then owned. The residuary clause of the will was as follows: "All the balance of my estate undisposed of, and all bonds, notes and accounts due me, I want the same collected and invested in stock of the Farmers and Planters' Bank of the city of Baltimore, or some other or better stock, and the interest or dividends thereof paid over to my dear wife, Eliza Scott, during her natural life." After the execution of his will, the testator became seised and possessed of a farm. HELD:

That the farm did not pass to the wife for life, under the residuary clause of the will, but descended to the heirs-at-law of the testator. 

COUNSEL:
James Wallace, Sewell T. Milbourne and T. A. Spence, for the appellant.

Clement Sulivane and Daniel M. Henry, for the appellees.  

JUDGES:
The cause was submitted on briefs to BARTOL, C. J., BRENT, BOWIE, GRASON, MILLER and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*410]  ROBINSON, J., delivered the opinion of the Court.
On the 24th day of February, 1857, John A. Scott made his last will and testament, and after the execution of the 

 [*411]  same, purchased a tract of land called "Darly's Addition Enlarged," containing four hundred and fifty acres. The question is, whether this subsequently acquired tract of land is devised in the will, or whether it descends to the heirs-at-law? Art. 93, sec. 309, Code of Pub. Gen'l Laws.
The appellant contends [**3]  that it is devised under the following residuary clause:
"All the balance of my estate undisposed of, and all bonds, notes and accounts due me, I want the same collected and invested in stock of the Farmers and Planters' Bank of the city of Baltimore, or some other or better stock, and the interest or dividends thereof paid over to my dear wife, Eliza Scott, during her natural life."
The meaning of the words "all the rest of my estate," or "the balance of my estate," or words of like import, used in the residuary clause of a will, has been repeatedly considered by the Courts, and without reviewing the many decisions in regard thereto, it is sufficient to say they all agree that the question, as to whether they are to be understood as embracing real estate, or construed as referring to personalty only, is one of intention, to be ascertained from the face of the will. Bullard vs. Goffe, 37 Mass. 252, 20 Pick. 252; Doe vs. Buckner, 6 D. & E. 210; Doe vs. Hunell, 5 Barn. & Ald. 18; Dunnage vs. White, 1 Jac. & Walk. 584; Monk vs. Mawdsley, 1 Sim. 286; Walters vs. Walters,  [**4]   3 H. & J. 201; McChesney vs. Bruce, 1 Md. 344; Cole vs. Ensor, et al., 3 Md. 446; Roe vs. Harvey, 5 Burr 2638; Doe vs. Chapman, 1 Hy. Bl. 223.
Standing alone and uncontrolled by antecedent or subsequent parts of the will, they are unquestionably sufficient to pass real estate, but where it appears from the whole context of the will, and especially when used in a residuary clause, bequeathing personal property exclusively, that the testator did not intend to embrace real estate, the intention must prevail, and the words will be construed as including personal property only. The heir-at-law is not to be disinherited except by express terms, or by necessary implication, 

 [*412]  and the land not being specifically devised in such cases, his title must prevail, unless an intent to the contrary is satisfactorily established.
The question then, in this case resolves itself into this, does it appear from the face of this will, that the testator intended to devise in the residuary clause, the tract of land in question? And first, let us consider the question, supposing the tract of land to have belonged to [**5]  the testator at the time of the execution of the will.
In the first clause, he bequeaths to his wife his negro slaves.
In the second, his household and kitchen furniture, stock and other movable property on the premises.
In the third and fourth, he devises specifically certain real estate to her during life.
It will be observed that the technical words "give and bequeath" are used in each of the clauses in regard to the personal property, and the words "give and devise" in regard to the realty, thus clearly showing, that the draughtsman of this will, understood the precise force and meaning of testamentary words. Having thus devised and bequeathed real and personal property in separate clauses of the will, it would seem strange, to say the least of it, that the testator should devise a tract of land, containing four hundred and fifty acres, perhaps the most valuable part of his estate, in a residuary clause of the will, in connection with personal property exclusively, without any name or description to designate or identify the same, and without using any operative or effective words to pass real estate. "All the balance of my estate [**6]  undisposed of" **** "notes, bonds, accounts due me, I want collected and invested." **** On the other hand, if it be said, that the words "balance of my estate undisposed of" are used to embrace any and all properties, real and personal, of which the testator might die seized and possessed, and not otherwise specifically disposed of, it is sufficient to say in addition to the above views, that the clause itself, is wholly unintelligible, and 

 [*413]  inconsistent with such a construction. The executor is the person charged with the collection and investment of the property embraced in this clause of the will, and although he might collect the rents of the tract of land in question, he could not invest them, because according to the construction contended for by the appellant, Eliza Scott, the tenant for life, would be entitled to the same. He might also collect and invest the proceeds arising from the sale of the land, but no authority is conferred upon him to sell.
Looking then, to the whole context of this will, and especially to the residuary clause relied on by the appellant, we find nothing to justify the conclusion, that the testator intended to devise the real estate [**7]  in question. On the contrary, the words "balance of my estate undisposed of," being accompanied with a bequest of personal property exclusively, and so used in connection therewith, as to make the clause unintelligible upon the theory that the testator intended to embrace the tract of land in question, we are of opinion, that they are to be construed as referring only to such other personal property, ejusdem generis, as is mentioned in the residuary clause of the will. And although Courts may transpose words in a sentence, or supply mere verbal omissions in a will, in order to reach the obvious general intent of a testator, yet this will not be done in any case where such a transposition would defeat the intention.
Entertaining these views on the merits of the case, it is unnecessary to consider the motion made to dismiss the appeal.
Judgment affirmed. 

112 of 144 DOCUMENTS 

FREDERICK RICE, and others, vs. CAROLINE A. HOFFMAN, by her next friend, EDMUND M. HOFFMAN. CAROLINE A. HOFFMAN, by her next friend, EDMUND M. HOFFMAN vs. FREDERICK RICE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 344; 1872 Md. LEXIS 37 

March 15, 1872, Decided 

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

Philip Horn died in the year 1834, intestate, leaving a large real and personal property, an undivided ninth part of which descended to his daughter Caroline A., who intermarried with Ephraim Hoffman, in July, 1845, and had a child born alive in the following year. Under a bill for partition, filed in the year 1869, a part of the real and leasehold estate of the deceased was sold by trustees; and attachments were laid in their hands by the creditors of Ephraim, upon judgments recovered against him in 1869 and 1870. The auditor stated an account in which he allowed Mrs. Hoffman one-ninth of the net proceeds of sale. The creditors of her husband excepted to this allowance. After the hearing of the exceptions, the Court (PINKNEY, J.,) decided that the proceeds of the leasehold property were liable to the creditors of the husband, but that the proceeds of the real estate must be regarded as standing in the place of the real estate, and only the allowance which might be made to the husband, in lieu of his life estate as tenant by the curtesy, was liable to his creditors upon the death of his wife. The auditor thereupon stated an [**2]  account in which he distributed to the trustees, to await the claims of the attaching creditors the amount of the leasehold and personal property belonging to Mrs. Hoffman, also an account showing the value of Ephraim Hoffman's interest, as tenant by the curtesy, and an account allowing the whole amount to the trustees, subject to the attachments of the creditors. The Court passed an order ratifying the first account and rejecting the others.

From this order both parties appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Husband and Wife -- How far a Wife's Real estate, acquired before 1853, is liable for her Husband's debts.

The real estate of a married woman, acquired before 1853, is exempt during her life, from execution for the debts of her husband.

The proceeds arising from the sale of such real estate, under a decree for partition, stand in the place of the real estate, and only so much of the proceeds as may be allowed to the husband in lieu of his interest as tenant by the curtesy, is liable to his creditors upon the death of the wife.  

COUNSEL:
Samuel Snowden, for the creditors.

After the marriage of Ephraim Hoffman and Caroline A., in 1845, and issue was born alive in 1846, Ephraim became entitled to a tenancy by the curtesy initiate in all the real estate belonging to his wife, according to the well settled rule of the common law, which had not then been changed by statute. Tyler's Law of Coverture, &c., 398; Mutual Ins. Co. vs. Deale, 18 Md., 47; Wright vs. Wright, 2 Md., 453; Schindel vs. Schindel, 12 Md., 108.

This right having been vested in the husband, he could not be divested by the subsequent statutes in relation to the property of married women; and they cannot be construed to have a retrospective [**3]  operation. Rose vs. Sanderson, 38 Ill., 247; Williams vs. Johnson, 30 Md., 507.

The leasehold estate vested in the husband at the time of the marriage, and the proceeds thereof are therefore liable to the claims of his creditors.

The Act of 1841, ch. 161, having been omitted from the Code, the interest of the husband in both the real and leasehold property is liable to the claims of the creditors. Johns vs. Hodges, &c., 31 Md., 515; Albert vs. White, 33 Md., 297.

The Act of 1841 did not deprive the husband of his interest at common law, in the real estate of his wife, but only prohibited the sale of such interest during her life--the lien of the judgment still continuing. Anderson vs. Tydings, 8 Md., 443. It was therefore only a suspension of the remedy of the creditor during the life of the wife, and this the legislature had a right to change and alter at pleasure. Potter's Dwarris, 471, &c.

The order of ratification should be affirmed; and the order rejecting the account shewing the interest of Ephraim Hoffman as tenant by curtesy should be reversed, and the account ratified.

Allen E. Forrester and Wm. F. Frick, for Mrs. Hoffman.

In so far as the fund [**4]  in this case consists of sales of the real estate of Mrs. Hoffman, which she owned at the time of her marriage in 1845, it is protected by the Act of 1841, ch. 161, which provides "that no real estate hereafter acquired by marriage, shall be liable to execution during the life of the wife, for debts due from the husband." If that Act be still in force, it is clear that the creditors of her husband cannot reach this fund, as they attempt to do.

The property will be converted into money, when paid for by the purchasers from the trustees, but as the purpose of the Act was to prevent the lands of the wife from being liable for the debts of the husband, during their joint lives, a conversion of them into money, by a proceeding in invitum against the wife, for partition and sale, cannot have the effect of creating any such liability. Hall vs. Hall, 4 Md., Ch. Dec., 283; Logan vs. McGill and wife, 8 Md., 470; Smith, &c., vs. McAtee, 27 Md., 420.

It is said however, on the part of the creditors, that this Act is not contained in the Code, and is therefore abrogated and impliedly repealed. But section 1 of Article 1 of the Code, provides that the adoption of the Code shall not impair [**5]  any right vested, or discharge any contract existing at that period. When the contract of marriage was consummated between Mr. and Mrs. Hoffman, the law of 1841 protected her property from liability for his debts; and it would be consistent neither with the true meaning and construction of this section of the Code, nor with the provision of the Constitution of the United States, in reference to the same subject matter--that the rights secured by law to Mrs. Hoffman at the time of her marriage, should thereafter, during her life, be taken away, or impaired. 4 Wheaton, 696; 1 Howard, 319.

The property (both real and personal) of Mrs. Hoffman, "belonging to her at the time of her marriage," also became protected from the debts of her husband, and not liable in any way for the payment thereof by the Act of 1853, ch. 245, subsequently reenacted in Article 45 of the Code.

If this Act and the Code apply to the case, the fund in Court, not only in so far as it arises from the sales of Mrs. Hoffman's realty--but also from the sales of her leasehold and personal estate, is protected from the claim of the creditors of her husband. It is said that this Act refers only to the case of [**6]  marriages contracted after its passage. But the act does not plainly by its terms so declare; and no reason can be given for supposing that the Legislature intended to make any such unwarrantable distinction. All that can justly be said, in limitation of its provisions, is that it was not meant to apply to creditors of the husband, who were such prior to the passage of the Act.

This Court, in its decisions upon this Act, has always drawn a distinction between the rights of the husband and those of his creditors. The Act was not intended to affect the former--but only the latter. Therefore, whatever may be the rights of Mr. Hoffman, as tenant by the curtesy of his wife's real estate, or his right to claim and possess himself absolutely of her chattels real--it is not competent for his creditors, (without any intervention on his part,) to interpose in this case, and claim that his curtesy rights shall be calculated and allowed, and his marital claims to the leasehold property be also allowed--merely for the purpose of enabling his creditors, who became such since the passage of the Code, to reach those funds by an attachment by way of execution. Schindel vs. Schindel, 12 Md., 313;  [**7]  Weems vs. Weems, et al., 19 Md., 345.

The whole of Mrs. Hoffman's property in this cause, is "protected from the debts of her husband" by section 43 of the Constitution of 1867. This Constitution differs in its provisions in this respect, from those of 1851 and 1864, as it executes itself: while the former provided only for the passage of laws by the Legislature on that subject. As the creditor in this case became such after the adoption of the Constitution of 1867, the rights of the wife were in nowise impaired by it. The creditors trusted Mr. Hoffman, with knowledge of the existence of a paramount law of the State, protecting all his wife's property absolutely from liability for their claims.

They cannot be permitted, by any contrivance, to defeat this provision in favor of the wife--which is now finally a fundamental rule of law, which even the Legislature cannot abrogate. Thomas vs. Owens, 4 Md., 225, 226.  

JUDGES:
The causes were argued before BARTOL, C. J., BOWIE, BRENT, GRASON and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*349]  ROBINSON, J., delivered the opinion of the Court.
Philip Horn died in 1834, seized and possessed of a large real and personal estate. Caroline A. Hoffman,  [**8]  who intermarried with Ephraim Hoffman in 1845, is a daughter of the said Philip, and entitled to an undivided one-ninth part of said property.
Under a bill filed for partition in 1869, part of the real and leasehold estate of the said Philip was sold, and the question is, whether the distributive share of Caroline A. Hoffman, arising from the sale thereof, is liable to execution for the debts of her husband, contracted in 1869.
I. No question can arise, we think, in regard to the proceeds of sale from the leasehold estate. By the law of this State, as it stood at the time of the marriage, the husband was entitled to the chattels real of the wife, with power to sell, assign or transfer the same at any time during the coverture; and in whatever light this interest or right of the husband thus acquired under the marriage contract may be viewed, we are of opinion that it was not taken away, nor in any manner affected by the subsequent legislation in regard to the rights of married women. If so, it must follow that the proceeds arising from the sale of the chattels real belong to the husband, and are therefore liable to execution for his debts.
II.--In regard  [**9]   to the real estate.
By the marriage, the husband was entitled at common law to the rents and profits of the wife's real estate during their joint lives, or as stated in some of the cases, during the coverture. 

 [*350]  Upon the birth of a child alive, he became tenant by the curtesy initiate, and upon the death of the wife, to a life estate in the lands and tenements of which she was seized during the marriage. This interest of the husband was liable to be taken in execution and sold at any time for his debts, until the act of 1841, chapter 161, which provided, "That no real estate hereafter acquired by marriage, should be liable to execution during the life of the wife, for debts due from the husband." The effect of this Act, according to the decision in Logan vs. McGill, 8 Md. 461, was not to destroy the tenancy by curtesy, but to suspend the right of execution on the part of the husband's creditors, during the life of the wife.
It is contended however, that the provisions of the Act of 1841 are omitted in Article 45, of the Code, and that Ephraim Hoffman being a tenant by curtesy initiate, his interest in the real estate of his wife may be taken [**10]  and sold under execution. Article 45, of the Code, however, must be construed in the light of the previous legislation on the subject. By the Act of 1841, the real estate of the wife was protected from sale for the husband's debts during her life. Then came the Act of 1842, chapter 293, providing that a married woman might become seized or possessed of any property real or slaves, in her own name, and as of her own property; and then the Act of 1853, chapter 245, passed in pursuance of the Constitution of 1851, which exempted all the property, both real and personal, of the wife from liability on account of the debts of the husband. Such then were the statutes in regard to the property of married women at the time of the adoption of the Code. Now, section 1, of Article 45, of the Code, provides "that the property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire or receive by purchase, gift, grant, devise, bequest, or in a course of distribution, shall be protected from the debts of the husband, and not in any way liable for the payment thereof," &c. ***

 [*351]  Having thus exempted all the property of the wife, both [**11]  real and personal, from liability on account of the husband's debts, it was unnecessary to add in terms the provisions of the Act of 1841. It would be a strange construction to say, that in thus exempting the wife's property of every kind and description, the Code had in effect repealed the provisions of the Act of 1841, so as to allow her real estate to be sold for the debts of her husband. Such a construction surely never entered the minds of the codifiers, nor do we think it warranted by a fair interpretation of the Code itself. The Code was intended mainly as a revision or embodiment of preexisting statutes, and having provided in express terms that the real and personal property of the wife should be exempt from all liability, it was hardly necessary to add that her real estate should not be sold for the debts of the husband during her life.
But it is contended that the real estate being converted by a sale under a decree of the Court for partition, the proceeds arising therefrom belong to the husband, and are therefore liable to execution by his creditors. "The proposition then, is," as stated by Chancellor JOHNSON, in Hall vs. Hall, 4 Md., Ch. 283, "that though the [**12]  real estate of the wife may not be liable for the husband's debts during the life of the wife, if for any purpose it becomes necessary to convert that real estate, the protection of the law is withdrawn, and the creditors of the husband, so far as his interest is concerned, may seize upon it. If this be so, it would follow in many cases that the law which was intended to shield the real estate of the wife during life from the claims of the husband's creditors, would be illusory and ineffectual, as it frequently happens that a sale for the purpose of partition is absolutely necessary, and may be enforced against the consent of the wife." And the Chancellor further says:
"In this case the wife is still living, and therefore, if there had been no sale, the creditors of the husband could not now resort to his interest in her land to pay their claims against 

 [*352]  him, and as the money, the proceeds of the land, must be regarded as standing in the place of the land, it appears to me the Act of Assembly extends to and protects it."
We are of opinion therefore, that the proceeds arising from the sale of the wife's real estate, must be regarded as standing in the place of the real [**13]  estate, and that only so much thereof as may be allowed to the husband, in lieu of his interest as tenant by curtesy, is liable to his creditors upon the death of the wife.
Order affirmed. 

113 of 144 DOCUMENTS 

WILLIAM W. MAUGHLIN vs. JAMES D. PERRY and LAWRENCE J. WARREN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 352; 1872 Md. LEXIS 38 

March 15, 1872, Decided 

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

The bill in this case was filed by the appellees against the appellant, and Richard Wells, the administrator of John Wells. The facts of the case, together with the object of the bill, are sufficiently set out in the opinion of the Court. The Circuit Court, (PINKNEY, J.,) after hearing, decreed that the complainants should pay, or bring into Court, to be paid to the respondent Maughlin, within thirty days from the date of the decree, the sum of fifteen hundred dollars with interest thereon from the 9th of March, 1870; and that upon compliance with such requirement, the respondents should convey the property in question to the complainants.

From this decree the respondent Maughlin appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Specific Performance of an Agreement.

W on the 9th of March, 1864, rented certain premises of which he was owner, to H, for three years, renewable for a like period, and covenanted for himself, his heirs and assigns, to sell and convey said property to H, his heirs and assigns, for the sum of $ 1,500, at any time before the expiration of the lease or tenancy. It was further covenanted that W should give H at least three months notice in writing before the expiration of the lease, of his intention not to renew, and in default of such notice, the lease was to continue for another term of three years, as also the privilege to purchase the property. On the 15th of March, 1867, W contracted to sell the property to M for $ 1,600, payable in instalments, which were paid as they became due. W died intestate before the termination of the lease, which by its provisions had become renewed for three years. The rights of H by mesne assignments, became vested in the appellees. On a bill filed on the 3d of March, 1870, six days before the expiration of the lease, by the appellees against the appellant, and the administrator of W, alleging that the complainants were ready to pay the stipulated sum, and desired to have a conveyance of the property, and asking for the specific performance of the agreement, it was HELD:

That the filing of the bill, and the offer to pay the price stipulated, was such a substantial compliance on the part of the assignees of H, with the terms of the covenant, as to entitle them to have it specifically executed.  

COUNSEL:
L. M. Reynolds and T. A. Linthicum, for the appellant, argued,

That the payment or tender of the money named in the agreement was a condition precedent to the appellees' right to a conveyance of the property, and there was no averment in the bill of any such payment or tender within the time within which the right was to be exercised--nor did it appear from any matter of fact stated that there was any excuse or [**2]  reason why such tender was not made. Benedict vs. Lynch, 1 Johns. Ch., 370; Westerman vs. Means, 1 Jones, 12 Penn., 97; Davis vs. Thomas, 1 Russell & Mylne, 506; Newman vs. Rogers, 4 Bro. Ch., 284.

As a matter of fact it was shown by the bill that the proper parties to whom tender or payment should have been made, were known to and within the reach of the complainants-- and no reason or excuse alleged why, before the filing of the bill, such payment or tender was not made.

The complainants, knowing the interests of Wells and Maughlin in the property, should have made a tender of the fifteen hundred dollars either to both or one of them, in order to have shown not only their willingness but ability to perform the condition of the contract, or should have paid the money into Court upon filing of the bill, and notified the defendants.

The filing of the bill six days before the termination of the lease, was no compliance, nor such an offer of compliance with the condition of the contract, as entitled the complainants to the relief prayed. Ranelagh vs. Melton, 34 L. Journal, Equity, 227; Weston vs. Collins, 34 L. Journal, Equity, 353.

The facts set forth in the bill,  [**3]  as ground for the relief prayed, having been denied by the answer, and the complainants not having entered a general replication to such answer, and having put their case solely upon the bill, answer and exhibits, are concluded by the averments and denials of the answer. Rogers vs. Saunders, 16 Maine, 97; Warren vs. Twilley, 10 Md., 39; Mason vs. Martin, 4 Md., 24.

No title to or right of property in the reversion vested in the appellees under the lease, and they forfeited no estate or right of property by their failure to make the tender. The right to acquire the reversion was dependent upon their performance of the precedent condition of paying or tendering the sum agreed upon. Coke Litt., secs. 325, 350; Davis vs. Thomas, 1 Russell & Mylne, 506; City Bank vs. Smith, 3 G. & J., 265, 281; Earle vs. Dawes, 3 Md. Ch. Dec., 230.

William H. Cowan, for the appellees.

In the contract in this case, fairness, certainty, mutuality and adequacy of consideration are embodied. These principles constitute the elements of a contract to be enforced as a right. 2 Story's Eq. Juris., secs. 751, 769; Hall vs. Warren, 9 Ves., 608; Greenway vs. Adams, 12 Ves., 395, 400; King vs. Hamilton,  [**4]  4 Peters, 311-328; Brashier vs. Graty, 6 Wheat. R., 528; Hopper vs. Hopper, 1 Green, (N. J.,) 147; Schroeppel vs. Hopper, 20 Barb., 425; Herbert vs. Brewer, 30 Md., 301.

Time is not of the essence of the contract, unless the parties themselves in making the contract have clearly considered time an important part thereof.

None of the authorities disregard the acknowledged principle of equity, that time will not be considered of the essence of a contract. To override this principle some fact must be invoked, which would show a decree for a specific execution to be inequitable. No such fact is to be found in this case. All the circumstances of the case appeal to a Court of Equity, to exert its power to prevent forfeiture. The idea of compensation is not in the case, because no delay or negligence is chargeable to the plaintiffs. The parties are in statu quo. 2 Story's Equity Juris., sec. 776; Hipwell vs. Knight, 1 Younge & Coll, 415; Coslake vs. Till, 1 Russell, 376; Doboret vs. Rothschild, 1 Simon & Stu., 390; King vs. Wilson, 6 Beavan, 124; Seton vs. Glade, 2 Lead. Cases in Eq., notes 18, &c.

By special terms, or peculiar circumstances being embodied in the contract,  [**5]  time may be of its essence. The circumstances that will make time an essential part of the contract must be such, that the party resisting a decree for a specific performance cannot be placed in statu quo by a decree for a performance. Ahl vs. Johnson, 20 Howard, 511; Williston vs. Williston, 41 Barb., 635; Richmond vs. Robinson, 12 Mich., 193; Hudson vs. Bertram, 3 Madd., 440; Williams vs. Edwards, 2 Sim., 78; Lloyd vs. Rippingale, 1 Y. & C., 410.

The filing of the bill of complaint, with the offer to comply with the terms of the covenant to purchase, and the expression of a readiness to pay the consideration, was a sufficient equitable tender to bar a default. Scarborough vs. Arrant, 25 Texas, 129; Saint Paul Division vs. Brown, 9 Minn., 157.  

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

OPINIONBY:
STEWART 

OPINION:

 [*356]  STEWART, J., delivered the opinion of the Court.
This cause having been heard on the bill and answer, without replication, and the agreements of the counsel of the parties filed, the facts alleged in the bill and admitted by the answer, together with the whole of the answer susceptible of proof, have been taken as true, and from the [**6]  proceedings we glean the following facts which seem to be material:
John Wells, on the 9th of March, 1864, rented the property, of which he was the owner, to William Hyson for three years, renewable for a similar period, with the following covenant, which has occasioned the controversy in this case: "And the said party of the first part, for himself, his heirs and assigns, doth hereby covenant and agree with the party of the second part, his heirs and assigns, to sell and convey unto the party of the second part, his heirs and assigns, the above described property and premises, for the sum of $ 1500, at any time before the expiration of this lease or tenancy."
On the 15th of March, 1867, Wells contracted to sell the property to Maughlin for $ 1600, payable in short instalments, all of which have been paid.
Wells died intestate before the termination of the lease, which by its provisions had become renewed for three years; and Richard Wells, one of the respondents, is his administrator.
All the rights of Hyson now belong to Perry & Warren, the complainants. Under these circumstances, six days before the expiration of the lease, this bill was filed, alleging that the complainants [**7]  were ready to pay the stipulated sum, and desired to have a conveyance of the property, and praying for the specific performance of the covenant.
This is resisted by Maughlin, on the ground that the acceptance of the terms proposed in the covenant has not been in time, nor in accordance with the covenant; and that the mere offer in the bill to pay the money is not a sufficient compliance with the provisions of the covenant.
The only question to be determined from these facts disclosed by the record is, whether the filing of the bill and the 

 [*357]  offer to pay the price stipulated, is such a substantial compliance with the terms of the covenant, as to entitle the complainants to a specific performance of the contract on the part of the lessor and his assigns.
Courts of Equity do not, ordinarily, regard time as of the essence of a contract, but will enforce it where there has not been a literal compliance with the terms, without inexcusable laches of the party insisting upon its performance. This is the case where the rights and remedies are mutual; Courts of Equity, rather inclining to uphold than to forfeit contracts, where there has been no culpable negligence, and where [**8]  they can do full justice between the parties; but where there is a want of mutuality in the obligations arising from the transaction, time is essential as well in equity as at law, because it is not the province of a Court of Equity more than a Court of Law, to relieve parties from the substantial performance of their contracts.
Their power to decree a specific performance of contracts is not a matter of absolute right, but rests in the sound discretion of the Court, which is guided by well established rules regarding the infirmities of all human transactions, and designed to sustain the substantial merits of the case, and promote the ends of justice between the parties.
As a part of the consideration of the lease constituting the contract between the parties, Wells, the lessor, covenanted to sell the property to Hyson, his lessee, for $ 1500, at any time during the existence of the lease. This was a continual obligation running with the lease on the part of the lessor, with the option in the tenant to accept the same or not, within that time.
But, it seems Wells, before the right of Hyson to make his election had determined, made sale of the property to Maughlin, and died. Maughlin,  [**9]  with notice of the recorded contract between the parties, can acquire no greater right than possessed by Wells.
The contract has no express provision in regard to the casualty of death, or a transfer of the property by Wells, the 

 [*358]  lessor. Courts of Equity must determine the rights of parties according to the broad principles of justice and fair dealing, and not by technical and refined distinctions; and the two events--the death of Wells, and the transfer of the property antecedent thereto--afford just ground for the complainants to go into a Court of Equity, and have all the parties interested brought in, so that upon payment of the money they may be able to obtain a valid conveyance. This they could do at any time within the continuance of the tenancy. Upon the filing of the bill and tendering themselves ready to comply with the stipulation, they made their election.
The mere fact that the money was not paid when such an offer is tendered to the Court, is immaterial. This Court, in the case of Smoot, et al. vs. Rea & Andrews, 19 Md. 398, 406, when adjudicating upon a bill for specific performance, have said, that although relief in a Court of Equity [**10]  will not be granted where there has been gross laches or neglect; yet, "if there has not been a strict legal compliance with the terms of the contract, and the non-compliance does not go to the essence of the contract, relief will be granted," referring to 2 Story's Eq., sec. 771. In the same case, it is further stated, that it is well settled that time is not generally deemed in equity as of the essence of the contract.
Some question was also made in that case as to the nature of the tender, to enable a party to claim specific performance of the contract, and the Court says, "in such cases, the technical rules covering pleas of tender in actions at law are inapplicable. To entitle a purchaser to demand a deed, it is sufficient that he is ready and offers to comply with the contract on his part, and has the ability to perform it." See also Oliver vs. Palmer, 11 G. & J. 426. The liberal rule of construction adopted in that case will apply to this.
In secs. 775, 776 of Story's Eq, it is said "that where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with; still, if there has not been gross [**11]  negligence in the party, and it is conscientious 

 [*359]  that the agreement should be performed; and if compensation may be made for an injury occasioned by non-compliance with the strict terms; in all such cases Courts of Equity will interfere, and decree a specific performance. For the doctrine of Courts of Equity is, not forfeiture, but compensation; and nothing but such a decree will, in such cases, do entire justice between the parties. Indeed, in some cases, Courts of Equity will decree a specific performance, not according to the letter of the contract, if that will be unconscientious; but they will modify it according to the change of circumstances."
"One of the most frequent occasions on which Courts of Equity are asked to decree a specific performance, is where the terms for the performance and completion of the contract have not, in point of time, been strictly complied with. Time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. It is true that Courts of Equity have regard to time, so far as it respects the good faith and [**12]  diligence of the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or if he comes, recenti facto, to ask for a specific performance, the suit is treated with indulgence and generally with favor by the Court."
We have referred to these sections as shewing the spirit and aim of a Court of Equity in all cases to sustain and perfect substantially the contracts of parties when made in good faith, and attempted, with due diligence, to have them consummated. We do not understand that they will go to the extent of changing the contract the parties have chosen to make, but they will carry out and perfect their contracts according to the real intention of the parties under any given state of circumstances that may arise, independent of any narrow and technical rules of construction.
Where it is manifest the parties have contracted with reference to time, and that constitutes one of the elements of the 

 [*360]  contract, a Court of Equity, as well as Law, will carry out the contract accordingly.
Under the circumstances of this case we think the time material, and that the tenant was bound to make his election whether he would or not [**13]  purchase the property before his lease expired; but as to the payment of the money after Wells had made another sale, and had died, it was especially proper, in order to procure such a title as Wells had contracted to give him, that he, or his assignees, should within the prescribed time, invoke the aid of a Court of Equity, as has been done in this case.
The circumstances referred to, after the execution of the contract, rendered such a step advisable, and certainly afford a sufficient excuse for the non-payment of the money--after they had accepted the terms proposed, and tendered himself ready to pay in the manner indicated. It is not perceived upon what grounds of equity this conclusion can be resisted, or in what way the respondents can be injured by such interference of a Court of Equity.
We fully concur in the ruling of the Circuit Court, and may refer, in addition, to the authorities cited by the learned Judge in giving his opinion: O'Neil vs. Jones, 1 Rid. 170; Page vs. Hughes, et al., 2 B. Mon. 439; Magoffin vs. Holt, 1 Duvall's Ky. R., 95.
Decree affirmed. 

114 of 144 DOCUMENTS 

MARCUS DENISON, Administrator of HENRY C. DENISON, vs. GEORGEANA B. DENISON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 361; 1872 Md. LEXIS 39 

March 15, 1872, Decided 

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

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

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Marriage -- Evidence inadmissible under the Acts of 1864, ch. 109, and 1868, ch. 116 -- Exceptions to the admissibility of Evidence -- Practice in the Court of Appeals.

A marriage contracted in this State merely per verba de proesenti, or per verba de futuro cum copula, is not lawful. To constitute a lawful marriage, some religious ceremony must be super-added to the civil contract.

In a controversy between the alleged wife of an intestate and his administrator, involving her right to a distributive share of the intestate's estate, her testimony is inadmissible under the Act of 1864, ch. 109, as modified by the Act of 1868, ch. 116, to prove her marriage with the deceased.

On appeal from an order of the Orphans' Court, exceptions to the admissibility of evidence or to the competency of testimony, may be taken and insisted on in the Court of Appeals, though not taken in the Court below.  

COUNSEL:
A. Stirling, Jr., and I. Nevett Steele, for the appellant.

By the ancient common law a marriage was invalid unless celebrated in the face of the church. Coke Litt., 33a, n. 10; Paynes' Case, 1 Sidf., 13; Foxcrofts' Case, 1 Rolles' Abrid., 359; Del Heiths' Case, cited from Harl. MSS., in a note to the Queen vs. Millis, 10 Cl. & Fin., 550; 2 Bright's Husb. and Wife, App., 369, et seq.; Hayden vs. Gould, 1 Salkeld, 119; Welde vs. Chamberlaine, 2 Shower, 300; Holder vs. Dickeson, 1 Freeman, 95.

The most ancient legislation in England on marriage will be found in the law of Edmund, 10th century--1 Ancient Laws, 257 cited in Beamish vs. Beamish, 9 Ho. of Lords, 312--which, after describing the espousals, provided:

8. "At the nuptials there shall be a mass priest by law, who shall, with God's blessing, bind their union to all prosperity."

9. "Well is it also to be looked to that it be known that they through kindship be not too nearly allied, lest that be afterwards divided which before was wrongly joined."

This [**2]  was the state of the law from the earliest time to the time of Queen Anne, when by a dictum, Lord HOLT held that "a contract per verba de proesenti was a marriage, and not releasable." Jesson vs. Collins, 2 Salk., 437 and 6 Mod., 155; Wigmore's Case, 2 Salk., 437.

This dictum of Lord HOLT's was the origin of all the subsequent opinions expressed by different judges to the same effect. The Queen vs. Millis, 10 Cl. & Fin., 670.

In 1861 the case of The Queen vs. Millis, was affirmed by the unanimous opinion of the English Judges and lords in the case of Beamish vs. Beamish, 9 House of Lords Rep., 274 to 360.

In this last case it was held, that the fact that the bridegroom is himself a clergyman in holy orders, there being no other clergyman present, will not make the marriage valid. Semble, that the decision in The Queen vs. Millis, is not to be applied to a case where the presence of a minister is impossible.

The common law required the presence of a clergyman at a marriage, because:

1st. A religious ceremony had by custom immemorial been superadded to the contract.

2d. The clergyman acted as a trustworthy witness, preserving evidence of and giving notoriety [**3]  to the contract.

3d. The clergyman had the power to forbid and to prevent illegal and incestuous marriages. Beamish vs. Beamish, 9 Ho. of Lords, 302 et seq.

In The Queen vs. Millis, all the authorities are reconciled upon the theory that a contract per verba de proesenti was an incomplete marriage under the ecclesiastical law, enabling either of the contracting parties to apply to an Ecclesiastical Court, and compel the other, under penalty of clerical censure, to have a marriage solemnized in facie ecclesioe; and until such marriage was solemnized, dower, curtesy and administration could not be obtained by either party.

Marriages by promise cum copula and per verba de futuro are ecclesiastical figments, and are only known to the common law, as giving the woman a right to an action for damages for seduction in the former case, in the latter either party a suit for breach of promise. 2 Parsons on Cont., 79.

The idea of marriage by cohabitation and repute, arose from a misinterpretation and misapplication of those authorities, where on a collateral issue, evidence of general reputation, cohabitation and acklowledgment when uncontradicted, has been held as sufficient [**4]  proof of marriage, upon a presumption, that a marriage at some time had been actually solemnized. 2 Parsons on Cont., 77.

The common law required that the religious service prescribed by the church should be substantially performed, and did not nullify a marriage on account of the omission of an immaterial part of the service. Catterall vs. Catterall, 1 Robertson, 580; Catterwood vs. Coslen, 13 Mees. & Wels., 264; Catterall vs. Sweetman, 1 Robertson, 304.

Such being the rule of the common law, determined after a long, patient, laborious and thorough examination of all the authorities by the most eminent legal minds in England, that no marriage is valid unless celebrated by a clergyman of the established church of that country, in holy orders, it follows, that if the people of Maryland are entitled to the common law of England as they are declared to be entitled by Article 3 of their Bill of Rights, and by the judgment of this Court in the case of Harrison vs. Harrison, 22 Md., 487, that such must be the rule of law in force here, except in so far as it has been modified by law, custom and practice.

By the laws of the United States, there is no established church, and [**5]  it is a source of pride to Marylanders, that early in the colonial history, by the Act of Toleration, perfect freedom of conscience and of religious belief was allowed.

The conclusion irresistably follows, that the rule of the common law has been relaxed and modified in Maryland to the extent of legalizing any marriage solemnized by the ceremony of any religion recognized as lawful. Fornshill vs. Murray, 1 Bland, 479.

Cheseldine's Lessee vs. Brewer, 1 H. & McH., 152, (ejectment,) and Sellman vs. Bowen, 8 G. & J., 54, (a bill in equity for mesne profits after complainant had recovered dower at law,) are cases where the question of marriage was collaterally involved, and uncontradicted evidence of general reputation, cohabitation and acknowledgement was held sufficient proof of marriage.

In the latter case the question of the admissibility of the evidence was not before the appellate Court. See Ray vs. Garrell, No. 149, April term, 1868, recorded in Liber G. E. & J. S. F., No. 1, fo. 90, &c., of "Opinions Unreported."

The Legislature, in prescribing that persons shall marry according to the rites and ceremonies of the religious denomination to which they belong, certainly [**6]  never contemplated any other kind of marriage than that celebrated by a minister of the Gospel, or attended by some religious solemnity. Code of Pub. Gen. Laws, Art. 60, sec. 4; Act of 1865, ch. 130; Act of 1868, ch. 42, sec. 1; 2 Debates of Constitutional Convention, 1864; Harrison vs. Harrison, 22 Md., 468; Crane vs. Meginnis, 1 G. & J., 474; Wright vs. Wright's Lessee, 2 Md., 448.

The general doctrine prevailing throughout the different States of the Union is, that in those States where there are statutes regulating marriage, their provisions must be substantially complied with, or the marriage will be null.

In no States, except New York and Pennsylvania, can a legal marriage be contracted without a religious or magisterial ceremony. 2 Parsons on Contracts, 74, et seq. Chancellor KENT says: "If the contract be made per verba de proesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary"--2 Kent Com., 87. The words italicised were introduced into the text after the decision in the case of Jewell's Lessee vs. Jewell, 1 How., 219, 234,  [**7]  which came before the Supreme Court of the United States, on error from the Circuit Court for the District of South Carolina. The Court below cited the above passage from KENT, from an early edition, and without the important clause italicised, and instructed the jury that this was law. Upon exception and appeal, TANEY, C. J., in giving the opinion of the Court, says: "Upon the point thus decided, this Court is equally divided; and no opinion can therefore be given." The case was decided on other exceptions.

Bishop differs from all other text-writers and authorities on the law of marriage--in regarding marriage as a status and not as a contract. 1 Bishop on Mar. and Div., sec. 3.

The statute regulations of marriage in Vermont are similar to those of Maryland, and the Supreme Court of that State, in referring to the New York authorities, says--"In these, (Fenton vs. Reed, 4 Johns., 51; Van Buskirk vs. Clare, 18 Johns., 346,) and other New York cases, stress is laid upon the fact, that a marriage per verba de proesenti is valid in that State, and also at common law, if followed by cohabitation. This, I think, could hardly be regarded as law in this State, without virtually [**8]  repealing our statute upon that subject. It certainly has never been so regarded under English statutes, 26 Geo. II, and 4 Geo IV, ch. 76; and I see no reason why it should be here, when it is clearly a dispensation with all the requisitions of the statute upon the subject, wherever that rule, in regard to the law of marriage, prevails, as it does in Scotland, cohabitation as man and wife is marriage; since it implies in the strongest sense, a contract in proesenti to be husband and wife." Northfield vs. Plymouth, 20 Vermont, 591; Compiled Statutes of Vermont, 392, Tit. Dom. Relations.

For a similar doctrine in other States, see Millford vs. Worcester, 7 Mass., 48; Londonderry vs. Chester, 2 N. H., 268, 279; State vs. Kean, 10 N. H., 347; Dunbarton vs. Franklin, 19 N. H., 257; Clark vs. Field, 13 Vermont, 460; Mangue vs. Mangue, 1 Mass., 240; Commonwealth vs. Spooner, 1 Pick., 234; Roberts vs. State Treasurer, 2 Root, (Conn.,) 381; Pearson vs. Howey, 6 Halstead, (N. J.,) 13; State vs. Samuel, 2 Dev. & Bat., 177; State vs. Robbins, 6 Ired., 23; State vs. Bray, 13 Ired., 289.

In Kuhl vs. Knauer, 7 B. Monroe, 130, (Ky.,) the Court held that while proof of cohabitation and recognition [**9]  by the parties of each other as man and wife, is for most purposes deemed sufficient proof of marriage, subject however to be rebutted, where the issue is marriage, vel non, such evidence is insufficient, and a marriage in fact must be proved.

In Tennessee, strict compliance with the statute is required under a penalty of nullity of marriage. Bashaw vs. State, 1 Yerg., 177; Grisham and Ligan vs. State, 2 Yerg., 589.

As to the law in other States, see: Nichols vs. Stewart, 15 Tex., 227; Sapp. vs. Newsom, 27 Tex., 537; State vs. Willis, 4 Eng., (Ark.,) 197; Letters vs. Cady, 10 Cal., 533; Johnson vs. Johnson, 30 Mo., 72.

James A. Buchanan and E. Beatty Graff, for the appellee.

At the time this marriage was contracted, entered into and consummated, viz: the 17th January, 1863, the common law relative to marriage, was in force in Maryland, and was (and always had been and now is) a part of the organic law of the State, by virtue of the Declaration of Rights of 1851, Art. 3. Said law was not abolished by said Declaration of 1851, nor repealed prior to 1863 by the Legislature adopting the Code, Art. 60--Marriage--and secs. 124 to 133, of Art. 30; nor has it since been [**10]  abolished or repealed; common law marriages are not declared to be null and void by any statute or other law of Maryland.

This common law was, previously to the said Declaration of Rights of 1851, in force in Maryland, by the Declaration of 1776, Art. 3.

The Legislature, by the Act of 1777, ch. 12, known as the Maryland Marriage Act, did not repeal the common law, nor did it declare common law marriages to be void in this State. See Declaration, &c., 1776, Arts. 3 and 33; Act of 1777, ch. 12; Declaration, &c., 1851, Arts. 3 and 33, and Code, Art. 60, Marriage--and sections 124 to 133, of Art. 30.

The common law was also in force by the Declaration of Rights of 1864, Arts. 4 and 36; and it is now in force by the Declaration of Rights of 1867, Arts. 5 and 36, in all of which the original language is used with but slight variation.

In law, marriage is a civil contract, and has always been so held, treated and considered; it is also held to be so by churches and religious persuasions generally. "Every minister is left to the direction of those laws in every thing that regards the civil contract between the parties." First Rubric, Book of Common Prayer, Matrimony.

Only [**11]  in the Roman Catholic Church, in places in which the decrees of the Council of Trent are in force, is marriage considered one of the sacraments in addition to being a civil contract. In speaking of clandestine marriages (and the marriage now under consideration was to a certain extent clandestine,) this Church declares, "In the United States, where the decrees of the Council of Trent have not yet been published, these marriages, although sinful, are valid."

The fact that Courts and Legislatures have the power and authority by law to grant divorces, shows marriage to be a civil contract; a divorce is the annulling, by law, of the marriage contract, notwithstanding the Divine law prohibits it in cases where human law grants it. Marriage is a civil contract, and common law marriages are valid. Cheseldine vs. Brewer, 1 H. & McH., 152; Fornshill vs. Murray, 1 Bland, 479, 482; Sellman vs. Bowen, 8 G. & J., 50; Crawford vs. Blackburn, 17 Md., 49; 2 Kent Com. (8 Ed.,) 51, 52; Jewel vs. Jewel, 1 Howard, 219; Hallet vs. Collins, 10 Howard, 181, 182; Gaines vs. N. Orleans, 6 Wallace, 642; Fenton vs. Reed, 4 Johnson, 52; Jackson vs. Claw, 18 Johnson, 346; Clayton vs. Wardell, 4 Comstock,  [**12]  230; 3 Bradford, 151, 369, 373, 509; Ferris vs. Pub. Admr., 4 Bradford, 28; Jackson vs. Winns, 7 Wendell, 47; Rose vs. Clark, 8 Paige, 574; Starr vs. Peck, 1 Hill, 270; Christy vs. Clark, 45 Barbour, 529; Bissel vs. Bissel, 55 Barbour, 325; Van Tuyle vs. Van Tuyle, 57 Barbour, 235; Hayes vs. The People, 25 N. Y., 393; Thorndell vs. Morrison, 25 Penna., 326; Vincent's Appeal, 60 Penna., 228; Lehigh Valley R. R. vs. Hall, 61 Penna., 361; Parton vs. Hervey, 1 Gray, 119; Holmes vs. Holmes, 6 Lou. R., 470; Dumaresly vs. Fishly, 3 A. K. Marshall, 369, 1198; Henderson vs. Cargill, 31 Miss., 367; Graham vs. Bennett, 2 Calf., 503; People vs. Anderson, 26 Calf., 129; Hervey vs. Hervey, 2 Wm. Blackstone's R., 877; McAdam vs. Walker, 1 Dow., 148; Jesson vs. Collins and Wigmore's case, 2 Salkeld, 437; Jesson vs. Collins, 6 Modern, 155; Catteral vs. Sweetman, 1 Robertson Ecc. R., 314; The King vs. Birmingham, 8 Barn. & Cres., 29; 4 Burrows, 2,057; Dalrymple's Case, 4 Eng. Ecc. R., 485; Birt vs. Barlow, 1 Douglas, 174; 1 Bishop on Mar. and Div., chaps. 12, 13, secs. 217, 218, 226 to 229, 233, 252, 269, 272, 274, 275, 278, 280, 283 to 289; Reeves' Dom. Rela., 195, 196, 197, 198, 199, 200, and notes;  [**13]  Swinburne on Espousals, 286, 287; Weightman on Marriage, 50, 51.

Art. 60, and secs. 124 to 133, of Art. 30, of the Code, and the Act of 1868, ch. 42, do not make it obligatory upon persons to marry as provided by said laws; said laws do not in express terms or otherwise declare all or any marriage (other than mentioned in secs. 1 and 8, of Art. 60,) contracted, entered into, celebrated and consummated contrary to said laws, to be null and void, nor do they say that no other form or rite of marriage shall be valid when marriage is entered into in Maryland.

These laws relating to marriage are not compulsory; they are only directory to the minister, and were enacted for the convenience of such persons who are "citizens and inhabitants" of Maryland, who elect to be married by a "minister of the Gospel;" they were also passed to create a revenue to the State (another instance or authority showing marriage to be a civil contract,) from licenses and from "fines" and penalties after "conviction." It is optional, in the absence of any express prohibition or repeal of the common law, with persons about to marry, to marry either under the common law (when not within the expressed prohibited [**14]  degrees, or for causes named in secs. 1 and 8, of Art. 60,) or under the statute laws, and whether or not "convicted" or "fined," the marriage is valid, as much so as any other civil contract which is not expressly by statute or other law declared to be void for want of license; as valid as contracts of bargain and sale, and contracting without first having taken out a license to do so, in cases where licenses are required, but for the want of it the contract is not expressly declared to be void, the penalty being a money penalty or "fine."

The statute laws of Maryland are directory only to the minister who is authorized to celebrate the rites, and not to persons marrying. Dumaresly vs. Fishly, 3 A. K. Marshall, 369, 1198; Holmes vs. Holmes, 6 Lou'a R., 462, 470; State vs. Murphy, 7 Ala., 765; Rodenburg vs. Sanks, 2 Watts, 9; Londonderry vs. Chester, 2 N. H., 268; Parton vs. Hervey, 1 Robertson Ecc. R., 119; Milford vs. Worcester, 7 Mass., 48; Crane vs. McGinnis, 1 Gill, 463; 1 Bishop on Mar. and D., secs. 284, 285, 286, 287, 288, 289; Reeves' Dom. Rela., 195, 196, 197, 198, 199, 200, and notes; Tyler on Infancy and Cov., p. 816, secs. 625-627, 629-631--p. 859, secs. 652, 653.

There [**15]  are four valid and legal modes of marriage under the common law, viz: By cohabitation and repute; by promise cum copula; by promise per verba de proesenti; by promise per verba de futuro followed by cohabitation. McAdams vs. Walker, 1 Dow., 148.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*369]  ALVEY, J., delivered the opinion of the Court.

 [*370]  The first question to be decided in this case arises upon the motion of the appellee to dismiss the appeal. The ground of the motion is, that the record has not been made up as required by law; that the Act of 1867, ch. 373, sec. 3, which provides for taking testimony in the Orphans' Court of Baltimore city by a stenographer, has not been complied with, inasmuch as the depositions have not been signed by the witnesses who testified, nor by the stenographer, or the presiding Judge of the Court. But in answer to this motion it is enough to say, that the record discloses nothing to indicate to this Court with certainty that the testimony was taken under the authority of the Act referred to. It may, for aught that appears, have been taken in the ordinary way; or, what is more [**16]  likely, judging from the statement of counsel, it may have been taken under an agreement of the parties, whereby the signatures of witnesses, and of the stenographer and Judge were all waived. The mere fact that in the summary of costs, indorsed on the record, an item occurs for the services of a stenographer, is not such evidence that the testimony was attempted to be taken under and by authority of the Act of 1867, as will justify this Court in regarding it. The motion to dismiss therefore must be overruled.
The case being before us, the record presents questions of great and most delicate interest to society, and which would seem to be presented for the first time for direct adjudication in this State.
The appellee alleges herself to have been the lawful wife of Henry C. Denison, who lately died intestate, and, as his widow, entitled to the one-half of his personal estate; the intestate dying without children.
It is not pretended that there was ever any solemnization of marriage between the appellee and the deceased; but it is alleged by the appellee, that from the 17th of January, 1863, until the death of the intestate, he and she were husband and wife, they having mutually [**17]  agreed from that time thenceforth to be and regard each other as such. That, in pursuance of 

 [*371]  such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased, up to the time of his death, as his wife; and that they both acknowledged, recognized and acted towards each other in all things, as husband and wife, and were known, treated and reputed to be such, among their friends and acquaintances.
Upon proof taken, the Orphans' Court decided that the appellee had been lawfully married to the deceased, and that, as his widow, she was entitled to share in the distribution of his estate. It is from such decision that the present appeal is taken.
Without any special reference to the evidence, as to whether the allegations of the appellee are fully proved, the first question that presents itself is, whether such marriage as is here set up and relied on, can be maintained by the laws of this State?
It is contended on the part of the appellee that such marriage is good and effectual at the common law, or rather by the canon law; and that, as we have adopted the common law of England, of which the canon law forms part,  [**18]  this marriage must be sustained, having been contracted by the parties, as it is alleged, per verba de proesenti. This proposition, on the other hand, is controverted by the appellant, by whom it is contended, that such marriage, even if contracted as alleged, was not valid and binding, because it was not duly celebrated according to the rites of any church, or religious denomination of any kind whatever; and that the common law gives no sanction to any such marriage as that attempted to be established by the appellee.
In order to determine this question, we shall, in the first place, endeavor to ascertain and show what the common law of England required to make a valid and binding marriage, prior to the Marriage Act of 26 Geo. II, ch. 33; and, in the second place, what is required, either by the common or statute law of Maryland, in that respect.

 [*372]  By the canon law of Europe, founded mainly upon the Roman civil law, prior to the Council of Trent, in the sixteenth century, the contract of marriage was regarded as simply of a consensual nature, only differing from other contracts in its being indissoluble even by the consent of the parties. In form, a contract per  [**19]   verba de proesenti, or a promise per verba de futuro cum copula, constituted a valid marriage, without the offices of a priest, till the decrees of the Council of Trent, which required the intervention of the parish priest to give validity to the marriage. The promise per verba de futuro, when followed by carnal intercourse, was considered as equivalent in legal effect to the contract per verba de proesenti. In the matrimonial law, as administered by the canonist, it was a maxim, consensus, non concubitus facit nuptias; and this remains the law to the present day in some parts of Europe, where the civil and canon law prevail, and where the decrees of the Council of Trent have not been accepted,--as in Scotland. Dalrymple vs. Dalrymple, 2 Hag. C. 54.
But the civil and canon laws, as such, never had force in England. They were regarded and accepted only as part of the common or unwritten law. Blackstone, in speaking of the subordinate character of these laws, says, that "it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some Courts, are only subordinate, and leges sub graviori lege; and that, thus admitted,  [**20]  restrained, altered, new-modelled and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the King's Ecclesiastical Law." 1 Com., 84. And so Professor Wooddesson, in his Lectures on the Laws of England, (Lect. 5, p. 78,) says: "Many of our present ecclesiastical laws are undoubtedly of foreign extraction, and some are entirely of English origin. But now they all alike depend, as to their general binding authority, on the same foundations as the whole body of our English laws, 

 [*373]  immemorial custom, and express Act of Parliament." The decrees of the Council of Trent, however, were never accepted or recognized to be of any force whatever in England.
The civil and canon laws, therefore, have no operation in England, except only as they may have been incorporated into the system of the common law; and in ascertaining what was the law of England in regard to the mode and manner of contracting marriage prior to or independently of the marriage Act of 26 George II., passed in 1753, we do not appeal to the civil or canon law as such, but to the common [**21]  law as a system peculiar to England and her institutions.
What then, by the law of England, prior to the marriage Act, was the effect of an engagement of matrimony, such as is alleged to have been entered into by the parties here, merely per verba de proesenti? or, in other words, a contract of present marriage, without any solemnization or celebration whatever?
We can best answer this question by resorting to and quoting from some few standard authorities, which have been approved and repeatedly relied on by all the highest Courts in England, as containing a true and correct expression of the law.
Perkins, an author of high repute, who wrote in the time of Henry VIII, in his Treatise on the Laws of England, secs. 194, 195, 306, stated it as unquestionable law, that after a contract of marriage between a man and a woman, they were not one person in law, inasmuch as in case of the woman's death before the marriage solemnized between them, the man to whom she was contracted should not have her goods as her husband. And so again, he says, that if a man, seized of land in fee, make a pre-contract of matrimony with J. S. and die before the marriage is solemnized, [**22]  she shall not have dower, for she never was his wife.
Swinburne, an author of the time of Queen Elizabeth, in his Treatise on Espousals, sec. 17, says: "Spousals de proesenti, 

 [*374]  though not consummate, be in truth and substance very matrimony. Although by the common law of this realm, (like as it is in France and other places,) spousals, not only de futuro, but also de proesenti, be destitute of many legal effects wherewith marriage solemnized doth abound, whether we respect legitimation of issue, alteration of property in her goods, or right of dower in the husband's lands." And again he says: "Other effects there be of spousals, whereof some respect the issue or children begotten before celebration of the marriage betwixt those which have contracted spousals, and some have relation to their lands and goods. Concerning their issue, true it is that by the canon law the same is lawful; but by the laws of this realm, their issue is not lawful, though the father and the mother should afterwards celebrate marriage in the face of the church. Likewise concerning lands, by the canon law the foresaid issue may inherit the same; but it is otherwise by the laws [**23]  of this realm, for, as the issue is not legitimated by subsequent marriage, no more can he inherit his father's land; and as he cannot inherit, no more is she to have any dower of the same lands, for whereas, by the laws of this realm, a married wife is to have the third part of her husband's lands, holden in fee-simple or fee-tail, either general or special, for her dower after her husband's death, during her life, so that she be above the age of nine years at her husband's death, yet, a woman having contracted matrimony, if the man to whom she was betrothed die before the celebration of the marriage, she cannot have any dower of his lands, because as yet she is not his lawful wife, at least to that effect. Concerning goods, the like may be said of them as hath already been spoken of lands, that is to say, that although by the civil and canon laws, where the man doth gain any of the woman's goods, or the woman gain any of the man's goods, by reason of marriage, spousals de proesenti or de futuro, consummate with carnal knowledge, have the same effect as hath matrimony solemnized, yet by the laws of this realm it is otherwise; so that neither spousals de proesenti, 

 [*375]   [**24]  neither spousals de futuro consummate, do make her goods his or his goods hers; and hence it is that a woman contracted in matrimony, dying before the celebration of the marriage, may make her testament, and dispose of all her goods at her own pleasure, which after solemnization of the marriage she cannot do without his license and consent. And on the other side, the man dying intestate before celebration of the marriage, the woman to whom he was betrothed surviving cannot obtain the administration of his goods as his widow, which otherwise, the marriage being solemnized, she might do. And the like I read to be observed in divers other countries, as in France and Saxony, where neither he nor she gain any part of the other's goods by being affianced, unless the marriage be solemnized, if not consummate also."
The principle stated by Perkins and Swinburne, as to the inchoate nature of the marriage contract per verba de proesenti at the common law, is distinctly recognized by Lord HALE, in a manuscript note, which was incorporated by Mr. Hargrave among the notes to Co. Litt., 33 a.
This distinction between the common law of England and the canon law of Europe,  [**25]  unaffected by the decrees of the Council of Trent, as to the force and effect of the contract of marriage per verba de proesenti, has been very distinctly recognized to exist by the most distinguished Judges of the Ecclesiastical Courts of England. In the case of Scrimshire vs. Scrimshire, 2 Hag. C. 395, a cause for the restitution of conjugal rights, decided in 1752, by Sir EDWARD SIMPSON, that learned Judge, in declaring against the legality of the marriage in that case, said: "And I apprehend, unless persons in England are married according to the rites of the Church of England, they are not entitled to the privileges attending legal marriages, as thirds, dower, &c." So, in the case of Dalrymple vs. Dalrymple, before referred to, Sir WILLIAM SCOTT, in the course of the celebrated judgment delivered by him in that case, involving the marriage law of Scotland, as distinguished from the law of England, after citing 

 [*376]  Swinburne in support of his positions, said, that "the common law had scruples in applying the civil rights of dower and community of goods and legitimacy, in the cases of these looser species of marriage," meaning the marriages recognized [**26]  by the civil and canon law, as it prevailed in Scotland, unaffected by ecclesiastical decrees.
Perhaps the law is found nowhere better or more clearly stated than in Park on Dower--a very learned and reliable authority. He says, page 8, that, "By the ecclesiastical law, as it stood previous to the Marriage Act, (26 George II., C., 33,) and as it still stands as to cases falling within the exceptions of that Act, the existence of matrimony involved a two-fold consideration; comprising, within that general name, the distinct facts, 1st. the espousals, or personal contract between the parties to become husband and wife; and, 2dly. the celebration of that contract in facie ecclesioe. The espousals, or matrimonial contract, which, though requiring no set form or ceremonial, was the substance or bond of the nuptial relation, was of two kinds, viz: per verba de proesenti, or per verba de futuro. The former of these, in the contemplation of the ecclesiastical law, amounted to very matrimony, the contract being indissoluble by any agreement of the parties; and rendering any subsequent marriage of either of them with any third person absolutely void. But though espousals, [**27]  or affiance, as it is sometimes termed, was thus the very substance of matrimony, and even by the temporal lawyers, the terms affiance and marriage were often promiscuously used, yet it does not seem to have been allowed that espousals alone, unaccompanied by celebration, should confer the civil rights of dower or legitimacy; but to obtain these temporal advantages it was requisite that the contract of matrimony should be celebrated in the face of the church. And though in one case a woman who had made a contract of marriage per verba de proesenti, but whose marriage had not been celebrated till after the alienation of the husband, recovered her dower upon the ground that the alienation of the land by the husband in 

 [*377]  the interval between a sentence of the Ecclesiastical Court for execution of the contract, and the celebration of matrimony pursuant to that sentence, was a fraudulent alienation, quoad the wife, yet this recovery was reversed coram rege et concilio, because neither the contract nor the sentence was a marriage by the temporal law, and so the husband had no seisin during his marriage with the demandant." The author cites the note of Lord HALE,  [**28]  to Co. Little 33 a.
From all the common law authorities it would appear that the contract per verba de proesenti, or per verba de futuro cum copula, could be carried into effect and execution by the Ecclesiastical Courts. But until such contract was sanctioned by religious ceremony, duly performed, the marriage was incomplete, and did not confer the civil rights incident to the married state.
In 1843, the celebrated case of Reg. vs. Millis, 10 Cl. & Fin. 534, involving the legality of a marriage not celebrated according to the rites of the Church of England, was brought into the House of Lords, on appeal from the Queen's Bench in Ireland. It was a case to which the Marriage Act of 26 George II did not apply. The appellee, Millis, having contracted two marriages, and being indicted for bigamy, the question was whether the first marriage was legal and complete, not having been celebrated according to the rites of the Church of England, to which the accused belonged. The case was most elaborately argued, both at the bar and by the Judges who participated in the decision. All the learning upon the subject was fully developed and illustrated. The [**29]  opinion of the Judges of England was taken, and by their unanimous opinion, as delivered by Chief Justice TINDALL, it was declared "that by the law of England, as it existed at the time of the passing of the Marriage Act, a contract of marriage per verba de proesenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties, by application to the Spiritual Court, the power of compelling the solemnization of an actual marriage; 

 [*378]  but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders." The judgment of the Court below being against the validity of the first marriage, and the law Lords being equally divided in opinion, the rule "semper proesumitur pro negante" applied, and judgment was affirmed.
The same question, but in a different form, was again presented to the House of Lords in 1861, in the case of Beamish vs. Beamish, 9 H. L. Cas. 274; and by the unanimous opinion of the Judges and the law Lords who heard the case, the decision in Reg. vs. Millis was reaffirmed. In these cases [**30]  will be found all the learning upon the subject of what is called canon law marriages, as distinguished from marriages celebrated with religious solemnity.
Such then being the law of England upon this subject, prior to and independently of the Marriage Act of 26 George II, which was never adopted in this State, in what does that law differ from the law as it has heretofore existed and still exists, in this State?
It is true the common law of England has been adopted by the people of this State; but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions. The ecclesiastical polity of England forms no part of the common law as we have adopted it. We have in our system no tribunal, as in England, clothed with power and jurisdiction to enforce the solemnization of marriages between parties contracting per verba de proesenti. Unless, therefore, there be something in the law of this State, apart from the common law of England, to render such contracts valid without solemnization, it follows, necessarily, that they can, at most, only be valid to the extent that they are good at the common law without solemnization; and, as we have [**31]  seen, such unsolemnized contracts are incomplete, and are not effectual to confer legitimacy upon the issue, nor the rights of property upon the parties,--a right that is attempted to be enforced in this case.

 [*379]  But is there any principle or provision of law peculiar to this State, that would render valid and effectual the marriage here set up, so that it would confer the rights of property and carry the other legal incidents of a valid marriage? We know of none. On the contrary, we think we are safe in saying, that there never has been a time in the history of the State, whether before its independence of Great Britain or since, when some ceremony or celebration was not deemed necessary to a valid marriage. In the early days of the province it was not absolutely necessary that a minister of religion should officiate,--a judge or a magistrate could perform the ceremony,--but still, in all cases, some formal celebration was required. Act 1715, ch. 44, sec. 24. The whole subject was particularly regulated by the Act of 1717, ch. 15, so far as the members of the Church of England were concerned. Persons of other denominations were allowed to be married according [**32]  to preexisting law. But these acts clearly show that no such marriage as that here alleged to have been contracted was ever contemplated by the Legislature, or was ever supposed for a moment to be good. The Act of 1777, chap. 12, concerning marriages, and which forms Art. 60, of the Code, plainly indicated the understanding of the Legislature to be that no marriage was to be thereafter good and valid, unless celebrated by some religious rites and ceremony. It expressly provided that the rites of marriage should not be celebrated by any person within this State, unless by some ordained minister, or in such manner as was used and practised by the Society of Quakers. It moreover provided that no person within the State should marry without first obtaining a license, to be directed to a minister or other person qualified by law to celebrate marriage in the State; or, until after banns published in some house of religious worship, or by a minister, as therein directed; and it prescribed a penalty upon parties going out of the State to be married contrary to the provisions of the Act. Why this latter provision, if valid marriages could be contracted in the manner contended for by the [**33]  counsel for the appellee?

 [*380]  It is true, the Act contains no express prohibition or declaration of absolute nullity of marriages contracted per verba de proesenti; but it is plainly to be perceived that such marriages, if allowed, would contravene the spirit and policy of the Act. The implication from the provisions of the Act are exceedingly strong against such marriages, and the practice and custom of the people of the State have been so universally in conformity with what would appear to have been the policy and requirement of the law, that such custom has acquired the force and sanction of law; even though a question could be made as to the technical construction of the Act itself. Besides, as we have seen, an unsolemnized contract of marriage, at the common law, is inchoate merely, or incomplete, being ineffectual to confer many of the most important rights of the matrimonial state; and to supply the defect of solemnization, positive law was required. Such positive law has never been provided, and, consequently, a marriage contracted in this State merely per verba de proesenti, or per verba de futuro cum copula, has no sanction in our law, whatever may be [**34]  the law upon this subject elsewhere. To constitute lawful marriage here there must be superadded to the civil contract, some religious ceremony. The law, however, does not prescribe the form, nor according to the rites of what Church the marriage shall be celebrated.
The case of Cheseldine vs. Brewer, 1 H. & McH. 152, decided in 1739, relied on by the appellee, is not entitled to the authority attributed to it. It was a case occurring at the Assizes for St. Mary's County, and it is not shown by what Judges it was decided, nor upon what ground the decision on appeal proceeded. It would appear that the question raised was simply as to the effect of evidence to give rise to the presumption of legal marriage. The case is very shortly and imperfectly reported, and there is nothing in it to give it the force of authority.
So far as we are informed, this is the first instance in which a marriage contract of the nature of the one here set up, 

 [*381]  alleged to have been made in this State, has ever been attempted to be maintained, as constituting a valid marriage, in any of our Courts. These loose and irregular contracts, as a general thing, derive no support from [**35]  morals or religion, but are most generally founded in a wanton and licentious cohabitation. Hence the law of the State has given them no sanction.
In this case, however, if the law were different from what it is, the claim of the appellee could not be sustained. The appellee is objected to as an incompetent witness, and without her testimony, the evidence is insufficient to prove clearly the alleged marriage. The other alleged contracting party being dead, and this being a controversy with his administrator, the appellee is clearly incompetent under the Act of 1864, as modified by the Act of 1868. The appeal being from the Orphans' Court, exceptions to the admissibility of evidence or the competency of witnesses are not required to be taken in the Court below, but may be taken and insisted on in this Court. Stewart vs. Pattison, 8 Gill 46. In no view therefore could her pretensions be supported.
The decision of the Orphans' Court will be reversed, and the cause remanded that the petition of the appellee be dismissed.
Order reversed and cause remanded.
NOTE.--Judges GRASON, MILLER, and ROBINSON who did not sit at the hearing of the aforegoing case, have [**36]  directed the Reporter to say, that having considered the questions involved, and united in the consultation with the other Judges, they concur in the opinion of the Court.  

115 of 144 DOCUMENTS 

HESTER COALE, and others, vs. LEWIS MERRYMAN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 382; 1872 Md. LEXIS 40 

March 15, 1872, Decided 

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

DISPOSITION:
Decree reversed, and case remanded for further proceedings.  

HEADNOTES:

Power of Courts of Equity to correct mistakes in Deeds, upon Parol Evidence.

A Court of Equity will correct mistakes in a deed, upon parol evidence sufficient to satisfy the mind of the Court of the existence of the mistakes; and will interpose the more readily where the deed is a voluntary settlement, and all the parties interested in it, who are sui juris, are willing that it should be reformed and corrected. 

COUNSEL:
James McGolgan and Wm. M. Merrick, for the appellants.

No appearance for the appellees.  

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

OPINIONBY:
BRENT 

OPINION:

 [*382]  BRENT, J., delivered the opinion of the Court.
This case has been argued only on the part of the appellants, no oral or written argument having been submitted by the appellees.
The bill was filed by Hester Coale, and her three daughters, Sarah B., Martha E. and Jemima O. Coale to correct certain alleged mistakes in a deed from Hester Coale to Lewis Merryman, dated the 10th of February, 1865, conveying to him in trust certain leasehold property, and bank stock of the Howard Bank, in Baltimore city.
The power of Courts of Equity, to reform upon parol evidence mistakes in deeds, is so well settled, that it may be assumed as a concession in this case. The only difficulty is in questions of this character, the certainty and extent of the proof required to establish the mistake. While there is to be found much conflict in the cases upon this point outside of 

 [*383]  our [**2]  own State, the rule here is, that only such full and strict evidence is required as will be sufficient to satisfy the mind of the Court. This rule is established in 6 Md. 485, and affirmed in Schaeffer and Wife vs. Burk, an unreported case decided at April Term, 1871.
The inquiry therefore in the present case is, does the evidence fully establish a mistake? The deed is a voluntary settlement of property, the legal title to which was in Hester Coale, but in which the three daughters had an equitable interest as their means had contributed to purchase it. It conveys this property to a trustee upon certain limitations, uses and restrictions, which Mrs. Coale and two of her daughters, who were examined as witnesses, concur in stating were not designed and intended. These constitute the mistake complained of. The conveyancer, on the other hand, who prepared the deed, thinks it conforms to the instructions which he received from Mrs. Coale, but while she cannot possibly be mistaken, without the imputation of false swearing, when she testifies what she did purpose and intend at the time she directed the deed to be prepared, he may have misunderstood, and no doubt [**3]  did misunderstand and mistake her wishes and intention. Her testimony is explicit as to the character of the conveyance she designed to make, and the time when the mistake in the deed, she had executed, was discovered. It is coroborated by the testimony of her daughters, and we can perceive no reason to doubt it. The deed, as before said, is not one of bargain and sale, but is a voluntary settlement, and all the parties interested in it, who are sui juris, are willing that it should be reformed and corrected. Not to allow it to be done under such circumstances would be inequitable. The reason why it has not been corrected by consent is apparent from the record. There are minor grandchildren of Mrs. Coale who have a possible contingent remainder under the deed as it now is, and this occasions the difficulty which can only be removed by the aid of a Court of Equity.

 [*384]  We are satisfied that the deed ought to be corrected, and such a one decreed to be executed by Mrs. Coale as will conform to the intention of the parties as shown by the evidence in the case. Although there is some difference between the proof and the specific relief prayed, we think this can be done under [**4]  the prayer for general relief, inasmuch as the main object of the bill is to correct the deed upon the ground of mistake.
In our opinion, therefore, the decree of the Court below should be reversed, and the case sent back, that a decree may be passed, annulling and vacating for mistake the deed described in the bill, and directing Hester Coale to execute a new deed of the leasehold property, mentioned therein, to Lewis Merryman in trust:
First, For her own use and benefit during her life, with power to the trustee, with her direction and the consent of her daughters, Sarah B. Coale and Martha E. Coale or the survivor of them, to mortgage or sell absolutely said leasehold estate and without responsibility in the trustee or purchaser to see to the application of the purchase money.
Secondly, After the death of Hester Coale, in trust for her daughters, Sarah B. Coale and Martha E. Coale, during their joint lives, and upon the death of either of them the whole estate to go to the survivor, provided however that either and each of them during their joint lives shall have the power to dispose by deed or will absolutely of one moiety of the estate.
And upon the further trust,  [**5]  that in case both of the daughters shall die before the mother the whole estate shall revert absolutely to her.
These provisions will carry out the design and intention of the parties as disclosed by the proof, and correct the mistake in the trusts and limitations of the deed of the 10th of February, 1865.
The name of Jemima O. Coale, one of the complainants, is omitted from the directions to be decreed for the new deed, because of her death since the commencement of these proceedings. 

 [*385]  The bank stock is also omitted, because it has been disposed of under a power, which we have decided should have been contained in the deed.
The costs in this case are to be paid by the appellants.
Decree reversed, and case remanded for further proceedings. 

116 of 144 DOCUMENTS 

JESSE WALTER vs. THE COUNTY COMMISSIONERS OF WICOMICO COUNTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 385; 1872 Md. LEXIS 41 

March 15, 1872, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed and leave to have a new trial, if the appellant so elects.  

HEADNOTES:

Construction of Act of 1868, ch. 50, incorporating the County Commissioners of Wicomico County -- Nuisance -- Continuance of Nuisance when erected by another -- Powers of County Commissioners as to Highways -- Practice.

If one in possession erect a nuisance, his successor is not liable, unless he either fails, after request, to remove it, or does some act to continue it.

To constitute a continuance of a nuisance erected by another, there must be some active participation in the continuance of it, or some positive act evidencing its adoption.

There is nothing in the Act (1868, ch. 50,) incorporating the County Commissioners of Wicomico county, which renders them the successors of the Commissioners of Somerset county in any sense which can charge them with liability for tortious acts of the latter.

It is the right and duty of County Commissioners in Maryland to make necessary and proper repairs upon the highways, and when such repairs are judiciously and reasonably done, the Commissioners are exempt from liability for consequential damages.

It is error to enter a final judgment, after demurrer overruled to a plea, when there are pending issues upon other pleas.  

COUNSEL:
J. W. Crisfield and Isaac D. Jones, for the appellant.

The appellees are the successors of the Commissioners of Somerset county, and are subjected to all their duties and obligations. Act 1868, ch. 50.

It is the duty of one who erects a nuisance to abate it. The Commissioners of Somerset county were bound to remove the nuisance placed in the stream by them; if then, their successors, with the duty and knowledge charged, neglected to remove it, and permit the water to flow, it is a continuance of the nuisance, and subjects them to damages for all consequential injuries.

A person who takes premises, upon which a nuisance exists, and continues it, takes them subject to all restrictions imposed on his predecessors. An action on the case lies against one erecting a nuisance, and one continuing a nuisance erected by another. Every continuance of a nuisance makes it a fresh one. Salmon vs. Bensley, 21 E. C. L. R., 414; Brent vs. Haddon, Cro. Jac., 555; Ryppon vs. Bowles, Cro. Jac., 373; Same [**2]  vs. Barwish, Cro. Jac., 231; Staple vs. Spring, 10 Mass., 72; Plumer vs. Harper, 3 New Hamp., 88; Moore vs. Browne, Dyer, 319.

An easement for a highway is more or less absolute, according to the terms of the grant or dedication. It may be conceded, with or without condition, absolutely or only partially, and the public must take secundum formam doni. And where a dedication or grant is inferred from the user, it must be limited by it. Woolrych on Ways, 14; Marquis of Stafford vs. Coyney, 7 Barn. & Cress., 257, (14 Eng. C. L. R., 39;) Davies vs. Stephens, 7 Car. & Payne, 570, (32 E. C. L. R., 634.) This is the common law doctrine, and there is no statute of this State abrogating it, or forbidding the public to accept an easement for a highway on condition. Code, Art. 28; Day vs. Allender, 22 Md., 527, 528.

The final judgment was entered for the defendants improvidently and erroneously. To the first, second and fourth counts the defendants pleaded eighteen pleas; the first three to all of the said counts, the remaining fifteen to the fourth count only. The plaintiff joined issue on all these pleas, except the thirteenth, fifteenth and seventeenth, to which he demurred. The [**3]  Court sustained the demurrer, and the case went to trial on the issues of fact, and the verdict was for the plaintiff. On the motion of the defendants the Court ordered a new trial. The defendants, then, on leave of the Court, filed their "additional plea" to the fourth count; the pleas already in, on which issues were made up, were not withdrawn, and the filing of the additional plea is not a withdrawal of those pleas. Gardiner vs. Miles, 5 Gill, 94. They remained without change, and the plaintiff was entitled to have them tried by the jury. To the "additional plea" to the fourth count, the plaintiff demurred. The Court overruled the demurrer, and immediately proceeded to render final judgment without noticing the issues of fact already framed, and which were never withdrawn or waived. This unquestionably was erroneous. Smith vs. Wood, 31 Md., 301; Horner vs. O'Laughlin, 29 Md., 470.

John H. Handy, for the appellees.

The appellees are not tenants, nor alienees; there is no privity whatever between them and the County Commissioners of Somerset; they are not the successors of these Commissioners; they are a corporation created independently, with the powers conferred, not [**4]  devolved, on them of all the other County Commissioners in the State. They succeed to neither the sins nor the virtues of the Board who erected the nuisance; their powers and duties are original, conferred on them de novo. They are liable, if at all, then, under the pleadings, because of some general duty imposed on them by their official capacity. But had they been the successors of the County Commissioners of Somerset, they could not be held without notice and demand to remove. 1 Hilliard on Torts, p. 574, sec. 16c.; Morris Co. vs. Ryerson, 3 Dutch., 457; Pickett vs. Condon, 18 Md., 412; Caldwell vs. Gale, 11 Mich., 77; McDonough vs. Gilman, 3 Allen, 264; Hughes vs. Mung, 3 H. & McH., 441.

There is no averment that the dam was older than the highway, and no facts averred from which it must be necessarily inferred.

But supposing there was such an averment, could the original donor encumber the highway with such an easement across and on it as the plaintiff claims? It is contended he could not. Moreover, the nar. avers that the road is a highway. But, if the donor had charged the donation with such an easement, it would have been void as a dedication, as a highway, and have [**5]  been only a license revocable. Angell on Highways, secs. 140, 141; Poole vs. Huskinson, 11 M. & W., 827.

In the exercise of their legitimate powers, the County Commissioners may open new roads or alter old ones. Had the land below the plaintiff's mill been in the original owner, and application made to lay out and locate a public road across it, just in the place where this road runs, there can be no doubt of the powers of the County Commissioners to so locate and open it, notwithstanding it might be necessary to entirely destroy the plaintiff's mill rights. Yet the plaintiff could get no compensation, much less damages.

The County Commissioners would be indictable if they permitted such a nuisance to exist on the public highway unabated. The loss of the appellant is damnum absque injuria. Ely vs. Rochester, 26 Barb., 133; White vs. Yazoo, 27 Miss., 357; Dermont vs. Detroit, 4 Mich., 435; St. Louis vs. Gurno, 12 Mis., 414; Lambar vs. St. Louis, 15 Mis., 610; St. John vs. New York, 6 Duer, 315; Commonwealth vs. Upton, 6 Gray, 475; 1 Hilliard on Torts, ch. 19, sec. 19, p. 579, note (a;) James vs. Hayward, Cro. Car., 184; Angell on Highways, sec. 223, note 2.

The Court [**6]  below did not err in rendering judgment on the demurrer of the plaintiff to the additional plea, whilst the issues of fact framed on the first, second and other issues on the pleas to the fourth count, were still untried and unwithdrawn.

The plaintiff did not object to the entry of the judgment, nor dispute the jurisdiction of the Court below to render such judgment. The point was not made below, and therefore cannot be raised here. O'Brien vs. Hardy, 3 H. & J., 434.  

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

OPINIONBY:
BRENT 

OPINION:

 [*389]  BRENT, J., delivered the opinion of the Court.
This is an action brought against the Commissioners of Wicomico county to recover consequential damages for injury to the appellant's mills and dam from back water, occasioned by obstructions placed in the stream below the mills.
The principal questions arise upon demurrer, and involve the validity of the third count in the declaration, and the defendants' additional plea to the fourth count.
The third count charges that a public highway passed over and across the bed of the stream or water course below the dam and mills of the plaintiff,  [**7]  over which highway the waters of the said water course, after supplying the said mills, was accustomed to run and flow, and of right ought to run and flow, without obstruction, for the convenience, use and benefit of said mills, and for the protection and safety of said dam; that both mills and dam and public highway were in Somerset county, and so being in Somerset county, the commissioners of said county on the 10th day of June, 1864, &c., wrongfully, illegally and injuriously erected the obstructions complained of upon and across the bed of the said stream, &c., in the said highway; that afterwards that portion of Somerset county in which the premises were located became a part of Wicomico county, which was created after the obstructions were erected; that the defendants were afterwards created 

 [*390]  a corporation by law, entitled to all the powers and charged to perform all the duties conferred by law upon the County Commissioners in the several counties of the State, and by reason thereof "it became and was the duty of the defendants to remove said obstructions so as aforesaid put and erected in the bed of the said water-course at the said highway, but the defendants well [**8]  knowing the premises, have wholly neglected to remove the said obstructions, and permit the water of the said stream to flow freely from and below, &c.; wherefore the plaintiff during all that time, &c."
While the demurrer admits the facts stated in this count, it does not admit the legal conclusion to be drawn from them. Whether it became and was the duty of the defendants to remove the obstructions which had been erected by the Commissioners of Somerset county is a question of law to be determined from the facts alleged, and is not a matter confessed by the demurrer. Nor is it to be taken as admitted, that the law creating them a corporation with the powers and duties conferred upon the commissioners of the several counties imposed upon them this duty.
It is said in the brief of the appellant, if one in possession erect a nuisance, his successor is not liable, unless his conduct amount to a continuance, and if no act of continuance be shown, there must be notice to remove, and neglect or refusal to remove before action. We entirely concur in this statement of the law, and think it is fully sustained by the authorities. Before an action can be maintained against a party who has [**9]  not erected the nuisance, it must be established that he either failed, after request, to remove it, or has done some act to continue it. If one or the other averment is not contained in the declaration, it is as fatal upon demurrer to the maintenance of the action, as would be the omission to prove it upon the trial.
As it is insisted that this count of the declaration contains a sufficient averment of the continuance of the nuisance by the defendants, it is important to see what it is that will constitute, 

 [*391]  in contemplation of law, the continuance of a nuisance. In Moore vs. Browne, Dyer, 319, (p. 17,) the action was for diverting the water from a conduit pipe. The husband during his life had committed the wrong by attaching a smaller pipe to the main, thereby diverting the water to his house. After his death, the defendant, who was his wife, continued in possession of the house, and used the water by means of a stop-cock which had been attached to the pipe at the time of its erection. Upon the case being carried up before the Judges in banc, it was held that the action could be maintained as the defendant had used the water, and thereby adopted the wrongful [**10]  act of him who had erected the nuisance. In Beswick vs. Cunden, Cro. Eliz., 402, where the action was for the continuance of a nuisance, it was held that it could not be maintained, because the defendant had done no act to continue the nuisance after the title of the plaintiff had been acquired. In Hughes vs. Mung, 3 H. & McH. 441, the action was for diverting a water-course. The obstructions had been erected by the father of the defendant, and the latter, after his acquisition of title to the land, used the stream of water in the channel, to which it had been diverted, by watering his stock therein, by enclosing it within his fences, and by throwing the water occasionally upon his meadow. The Court below were of opinion, and it was affirmed by the Court of Appeals, "that an action will lie for the diversion of the water-course against the person who diverted it, and against any person who keeps up the obstruction which changed the water-course; but no adventitious, accidental advantages derived from the use of the water running in its present course will amount to a continuance of the nuisance, without some act done by the defendant to keep up the obstructions [**11]  occasioning the diverting of the course of the stream, and that the action could not be maintained without showing those acts were done since the title of the plaintiffs accrued to their lands." In McDonough vs. Gilman, 3 Allen 264, where there was no act done contributing to the continuance of the 

 [*392]  nuisance, it was held that the action could not be maintained, because there had been no sufficient request made to remove it. And the same was held by this Court in Pickett and Wife vs. Condon, 18 Md. 412.
From these authorities, and we believe there is not a single one to the contrary, it is very clear, that a failure to remove a nuisance, erected by another, does not alone constitute a continuance of it. There must be some active participation in the continuance of it, or some positive act done evidencing its adoption. As argued by the counsel for the appellees, the rule is, not that the nuisance continues, but that the person continues it. A number of authorities have been cited by the appellant to support the doctrine that "every continuance of a nuisance makes it a fresh one." The rule is unquestionably so, and adds strength [**12]  to the view we have just expressed. The continuance referred to in those cases is by some act of user or otherwise as distinguished from passiveness and a mere failure to remove.
We find nothing in this count, which alleges, even by way of inference, that any act has been done on the part of the defendants contributing to the continuance of the nuisance complained of. On the contrary any such act is negatived by the averments it contains. After setting forth that the defendants were created a corporation by law, &c., it is averred, "and thereupon it became and was the duty of the defendants to remove, &c." That is eo instanti of their creation they became liable in this action to the plaintiff.
We think by a true construction of the averments of this count, the liability of the defendants is placed upon the ground, that the duty of removing the nuisance, complained of, devolved upon them by the terms of the law creating them a corporation and clothing them with certain powers and the performance of certain duties. This special duty is certainly not required of them by any provision of the law, nor can we find it among any general powers and duties, which they are required to [**13]  perform. They are not the successors of the 

 [*393]  commissioners of Somerset county in any sense, which can charge them with a liability for any tortious act which those commissioners may have committed, or which can require them to remove any nuisance they may have erected. They are a new and independent corporation, placed upon an equality with the other County Commissioners of the several counties of the State, clothed with the same powers and charged with the same duties for the protection of the property and rights committed to their care as public trustees. If they are responsible at all in this action it must be under the general rules of law, which prohibit the erection of a nuisance, or which hold a party responsible for continuing it, if it has been erected by another, or for failing to remove it after request. As no one of these averments is contained in the count demurred to, we think it was fatally defective, and that the Court was right in sustaining the demurrer.
The fourth count is similar to the third, except that it contains an allegation that the defendants "wrongfully and injuriously continued, maintained and used" the obstructions erected in the highway by [**14]  the County Commissioners of Somerset. To this count the defendants pleaded, as an additional plea, that the erections "complained of by said plaintiff in said count, were reasonable and necessary improvements, and were useful and beneficial to the said highway, and were constructed with ordinary care and skill; and that they were maintained, continued and used by the defendants with like ordinary skill and care, and without malice, and in such manner only as was necessary to keep said highway in good order and condition for the public use. And, &c." The sufficiency of this plea is raised by demurrer. We do not think it necessary to examine the law, which has been referred to in the argument, as to the different modes by which highways may be established. It is sufficient to say that the declaration charges that the obstructions complained of were placed in a public highway by the commissioners of Somerset county, and the demurrer to the plea admits that 

 [*394]  they were necessary for the beneficial use of the road, appropriate for that purpose and skilfully and honestly placed there. It is one of the duties imposed upon the County Commissioners to keep the public highways in order,  [**15]  and where this duty is discharged skilfully and honestly, and the improvements made are reasonable and necessary, although a private party may be injured thereby, it is damnum absque injuria. The law in regard to this question was carefully examined in the case of Tyson vs. The Commissioners of Baltimore County, 28 Md. 510. This Court there held, "that if, by a reasonable or necessary improvement to a highway, a party suffers consequential damage, it is damnum absque injuria, and no right of action accrues to him." This doctrine rests upon the general principle "that individual rights must be held and enjoyed in subordination to those of the public." The allegation that the water was accustomed to flow over the public highway at the point where it is charged these obstructions were placed, even if proved, would not strengthen the case of the plaintiff. If it subjected the public to inconvenience and injury, it would in itself be a nuisance for which no right by prescription or otherwise can exist. In the case just referred to, the Court say "the duty of the County Commissioners was to keep the highway in good order and condition for the use of the public,  [**16]  and this duty required them to adopt the necessary means to prevent it from being overflowed by water. They would not be justified in the neglect of this duty merely because the natural flow of water had been allowed, for an indefinite period, to submerge the highway, to the inconvenience and detriment of the public." And further on, "the plaintiff could not lawfully claim the right to cause the public highway to be overflowed, nor deny to the defendants the use of the means necessary for its preservation." These general principles were announced in this case as applicable to the public highways in this State, which are placed by the law under the care and management of the commissioners of the several counties.

 [*395]  Although some of the peculiar circumstances of that case were referred to in the opinion of the Court, it is very clear the decision did not rest upon them. The case was decided upon the broad doctrine of the right and duty of the Commissioners to make the necessary and proper repairs upon the public highways, and when reasonably and judiciously done, their exemption from any action for consequential damages. We think the plea in question was a sufficient answer [**17]  to this count in the declaration, and that the demurrer to it was properly overruled.
It was stated at the argument by the appellees' counsel, that it was understood at the trial if the demurrer to this plea was overruled by the Court, that judgment should be entered for the defendant. We are confined to the record in the case, and as no such agreement appears in it, we feel bound to notice the objection made to the judgment below, upon the ground that there are issues of fact still open and undecided. This appears to be so. There are two other counts in the declaration to which several pleas have been filed, and upon which issues are joined. In this condition of the case the judgment must be reversed, as it was error in the Court to enter a final judgment, after demurrer overruled to a plea, when there were pending issues upon other pleas filed to other counts in the declaration.
Judgment reversed and leave to have a new trial, if the appellant so elects. 

117 of 144 DOCUMENTS 

MARY ANN FRAZIER, by her next friend D. W. PATTERSON, and A. F. MUSSELMAN, Trustee, vs. HUGH GELSTON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 298; 1872 Md. LEXIS 32 

March 14, 1872, Decided 

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

The bill of complaint in this case, filed on the 27th of April, 1864, charged that on the 23d of June, 1831, John Frazier and Mary Ann, his wife, executed a deed, in fee simple, of all that lot of ground in the city of Baltimore, bounded on the north by Baltimore street, on the east by Front street, on the south by Plowman street, and on the west by Jones' falls, known as the "Washington Hall Property," (being a portion of the real estate allotted to the said Mary Ann, in the division of the real estate of her father, Bryan Philpot, deceased,) to Joseph Cabot, of the city of Philadelphia, his heirs and assigns, in trust, for the sole and separate use of the said Mary, so that she, during the joint lives of her husband and herself, might hold, use and enjoy the said ground, or receive the clear rents thereof, and apply the same to such uses as she might think proper, or with the consent and approbation of the said Cabot, or his heirs, testified by his or their uniting in the due execution of any deed or deeds of conveyance, and with or without the concurrence of her said husband, might sell and dispose of absolutely, or of any less [**2]  estate therein, the whole, or any part of the aforesaid parcel of ground, for such price or consideration as the said Mary Ann might deem fit, &c., &c., so that neither the said ground nor the rents thereof should, during the life of the said Mary Ann, be subject to the power of her husband, nor be liable for his debts or contracts; and from and after the decease of either of them, then, as to so much of said trust estate as might remain undisposed of by the said Mary Ann, by deed as aforesaid, in trust, for the use of the survivor of them and the heir of the survivor in fee, to be forthwith conveyed, so that the trust should be ended; and for no other use, trust, intent or purpose whatsoever. That in execution of the powers conferred by the aforesaid deed of trust, the said Joseph and Mary Ann, on the 13th of May, 1833, did lease all of the aforesaid lot of ground to one William C. Harris, for the period of ninety-nine years, renewable forever, at and for the annual rent of $ 1,100, payable in equal semi-annual instalments of $ 550, on the first days of May and November, in each and every year.

That on or about the 7th of October, 1837, by decree of Baltimore County Court, passed [**3]  in a cause between Gable, et al., against said Harris, and others, the said leasehold was decreed to be sold; and the same was sold, and on payment of the purchase money, conveyed by deed, duly executed and recorded, to the defendant, H. Gelston, subject to all the rents reserved.

The bill then stated that an agreement in writing, or writings, then in possession of Hugh Gelston, was entered into in 1843, signed by Joseph Cabot, trustee, John Frazier and B. M. Heighe, with Mr. Gelston, by which said annual rent of $ 1,100, due to the said Mary Ann, was reduced to $ 1,000 per annum; that from 1843, down to 1863, inclusive, said Gelston paid, in fact, but $ 1,000 per annum rent, and no more, viz: $ 500 on the first days of May and November, in each and every year, to said Mary Ann; and that $ 100 was retained from her by said H. Gelston down to 1863.

The bill stated that there was due to the said Mary Ann the balances of ground rent unpaid, viz: $ 100 per annum for each year, from 1843 down to May, 1863, on account of said ground rent, over due and unpaid, with interest thereon, from the first days of May and November of each year, when the said $ 100 per annum, in sums of $  [**4]  50, each, on said first days of May and November, respectively fell due, but were retained by said Gelston; that said Mary Ann never consented to, or acquiesced in said retention of said balances of ground rent, viz: $ 100 per annum, from year 1843 to 1863, by said Gelston; but she had since 1862, by her attorney, orally and in writing, demanded payment of the same, with interest thereon.

The bill further charged that the said Gelston had possession of the original paper writings signed by the said Cabot, John Frazier and B. M. Heighe, consenting to the reduction of the ground rent from $ 1,100 to $ 1,000 per annum; also his original books of account of payments of said rents; and that said writings contained material and necessary evidence; that the complainant could not safely proceed to the trial of the cause without benefit of this testimony.

The bill prayed that Gelston and John Frazier might answer the bill; that Gelston might be required to produce the original paper writings signed by Cabot, John Frazier and B. M. Heighe, Esq., and also the original books of account disclosing all payments on account of said rent made by him to the complainant, or to her agent or [**5]  attorney, from 1840 or 1841, down to May, 1863, or to furnish copies of the same, certified to be true by a justice of the peace; that said Gelston might render an account, verified by his oath, &c., of all payments of money on account of said rent made by him to the complainant, with the year, month and day of each payment, and the several amounts of money paid on said several days, commencing from 1840 or 1841, down to May, 1863; that an account might be taken, under direction of the Court, of the said several balances of ground rent due each year, with interest thereon; and that a decree might be passed for the payment of the same to the complainant. The bill also prayed for general relief.

The bill was subsequently amended by making the trustee Cabot a party defendant, and Amos F. Musselman, who had been substituted trustee in place of Cabot, by a decree of the Court, a complainant. John Frazier answered the bill, admitting some of its allegations, avering a want of knowledge of others, and denying that he had any interest in the controversy. Joseph Cabot likewise answered, admitting the execution of the deed of trust, and of the lease to Harris, and the assignment of the [**6]  latter to Gelston; he also admitted his removal from the trust, and the appointment of Amos F. Musselman in his stead.

Gelston, in his answer, admitted the deed of trust, the lease to Harris and its assignment to himself; he likewise averred that said lease contained a covenant on the part of the complainant and her husband to execute, or cause to be executed and delivered to said Harris, his heirs or assigns, a deed in fee of the said trust property, free and discharged from the rent reserved by said lease, on his or their tendering in payment to the said complainant and her husband, or the survivor of them, and the heirs of the survivor, the sum of $ 18,333.33 1/3 over and above all rents accrued by virtue of said lease, and then in arrear; that in virtue of said covenant, on the 30th of October, 1843, he tendered the complainant and her husband, through their agent and trustee, Cabot, the sum stipulated for the redemption of said property, and demanded a conveyance in fee of the same; that said trustee, acting for the said complainant and her husband, and by their authority, requested the respondent to withdraw said tender, and agreed that if he would do so, and continue the [**7]  payment of the rent for two years longer, viz.: to the 1st of November, 1845, he should be allowed $ 35 out of each half yearly payment; that consequently the respondent withdrew his tender, and continued to pay the rent according to the agreement for two years longer; that on the 2d of December, 1845, through B. M. Heighe, acting by authority of Cabot, trustee, and the complainant and her husband, the agreement was further extended from the 1st of November, 1845, until the 1st of November, 1850, and afterwards from the 1st of November, 1849, to the 1st of November, 1852; and then to the 1st of November, 1855; that after the 1st of November, 1855, it was agreed that the deduction from the rent should be $ 18.75 out of each half yearly payment, which agreement continued in force until May 1st, 1860; that the full rent, $ 550, was paid to said Heighe the 1st of November, 1860, and the 1st of May, 1861; that the rents, in accordance with said agreements, were fully paid to B. M. Heighe, agent and attorney, from whom they were received and accepted in full satisfaction by the complainant up to the 1st of November, 1861, when she notified the respondent not to pay the rent any longer to [**8]  Heighe.

The respondent denied that any agreement for the reduction of said rent, other than the aforesaid, had ever been made; he denied that any agreement was ever made by which said rent was reduced by the sum of $ 100 per year, and that he had in his possession any paper writing or writings containing or evidencing any agreement for the reduction of said rent by the sum of $ 100 as alleged in the bill; he further denied that there was any sum of money due and owing to the complainant for rent, as charged in the bill; but on the contrary, the complainant has, from time to time, received all of said rent as the same was paid to her agent by the respondent; and that until the year before the filing of her bill, she never expressed any dissatisfaction with the aforesaid deduction and agreements; but, on the contrary, that she had fully and unequivocally ratified, confirmed and adopted the agreements aforesaid, as they were from time to time made. The answer also denied that the case made by the complainant entitled her to relief in a Court of Equity; and averred that the claim set up by her was illegal and inequitable, stale and antiquated, and barred by limitations.

With [**9]  the answer was filed an account under oath as called for, showing payments from 1st of November, 1849, to 1st of May, 1864.

A commission was issued, and the testimony of the complainant, the defendant Gelston, and Musselman the trustee, was taken. Exceptions to testimony were taken by either side, and Gelston also excepted to the jurisdiction of the Court and to the sufficiency of the allegations of the bill.

After argument, an order was passed by the Court (PINKNEY, J.,) on the 2d of July, 1870, dismissing the bill.

From this order the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Lapse of Time as a defence in Equity -- Acquiescence -- Equitable Estoppel.

A bill of complaint, filed on the 27th of April, 1864, charged that on the 23d of June, 1831, a deed was executed by the complainant and her husband conveying certain property, in trust for her sole and separate use, so that during the joint lives of herself and husband, she might hold and use the same, or receive the clear rents thereof and apply them as she might think proper, or with the consent of the trustee to sell and dispose of said property absolutely, or of any less estate therein, for such price or consideration as she might deem fit; that in execution of the powers conferred by the deed of trust, the trustee and the complainant, on the 13th of May, 1833, leased said property for the period of ninety-nine years, renewable forever, for the annual rent of $ 1100, payable in equal semi-annual instalments of $ 550; that in 1839, under a decree in Equity the leasehold property was assigned to G; that during the year 1843, an agreement in writing signed by the trustee, the husband and an agent of the complainant, was entered into with G by which the annual rent was reduced to $ 1,000, being $ 100 less than the complainant was entitled to receive; that from that time to 1863, G paid only $ 1000 rent per annum; that the sum of $ 100 balance of rent due and in arrear was retained by the said G in each and every year down to the year 1863; that there was due to the complainant the sum of $ 100 per annum, from 1843 to 1863, with interest thereon, from the time the same fell due; that the complainant never consented to or acquiesced in said retention, but on the contrary, since 1862, the complainant had repeatedly demanded payment of the rent so withheld, with interest thereon, but that every effort to adjust her lawful claim had been in vain -- that the balance of rent so accruing year by year remained due and unpaid by G. The bill also charged that G has in his possession or under his control certain writings consenting to said reduction of rent, also certain books of accounts of payments of said rents, all of which contained material and necessary evidence to the trial of the cause. The bill prayed in substance for a discovery as to the true condition of the dealings between the parties as to the rents, and that a decree might be passed for the payment of the amount ascertained to be due to the complainant, and for general relief. G answered the bill, and among other things, averred the execution by the complainant and her husband, of a covenant annexed to the lease, and bearing equal date therewith, whereby they covenanted to sell the fee simple estate in the property to the lessee, his heirs or assigns, at any time during the continuance of the lease, upon his paying or tendering payment of the sum stipulated therein; and charged that as assignee of the lease, he tendered in October, 1843, to the complainant and her husband, the sum stipulated for the redemption of the property; that their trustee acting for them requested him to withdraw said tender, and in consideration thereof agreed to make a deduction of $ 70 a year from the rent for the two following years; that said tender was accordingly withdrawn; that this deduction from the annual rent was extended, by successive agreements, to 1st of November, 1855, from which time until the 1st of May, 1860, by further agreement, he was allowed a discount from the annual rent of $ 37.50; of all which the complainant had knowledge; that since said last mentioned date he has paid said rent in full. G denied that any agreement was ever made for the reduction of the rent by the sum of $ 100 a year, and insisted that he had fully paid and satisfied all the rent to which the complainant was entitled; and denied that the case made by the complainant entitled her to any relief in a Court of Equity; and relied upon the staleness of the demand, and limitations. HELD:

1st. That the execution by the complainant of the covenant annexed to the lease, her continued acquiescence in the receipt of the diminished rent, with full knowledge, her failure to make any effort at law or in equity to recover the rents alleged to be in arrear and unpaid, she having, during the while, a trustee and other agent to look after her interests, and lapse of time, combine to make a case where the doctrine of equitable estoppel should be applied, and the claim of the complainant could not be allowed.

2d. That the complainant having failed to make out a case of conscience, good faith and reasonable diligence, was not entitled to the interposition of a Court of Equity.  

COUNSEL:
A. F. Musselman and W. S. Waters, for the appellants.

All the agreements for the reduction of the semi-annual payments of rent, signed by Cabot trustee, Heighe and John Frazier, founded on the covenant annexed to the lease to Harris, and on an alleged tender, were without consideration and void as against the complainant. Mr. Cabot trustee, was guilty of a breach of trust; Mr. Gelston instigated the same, with knowledge of the trust estate in Cabot, and having refused to refund the balances on request, he is in equity, guilty of fraud upon the trust, and of collusion with Mr. Cabot. Mr.  [**10]  Gelston has no interest in the covenant annexed to the lease. It is not a covenant running with the land, and has none of the requisites of such. The covenant is not in the body of the deed. It is personal to Mr. Harris and to his assignees thereof. Wheelock vs. Thayer, 16 Pick. R., 68; Plymouth vs. Carver, 16 Pickering, 183; Keppel vs. Bailey, 2 Mylne & K., 517-530; Webb vs. Russell, 3 Term Rep., 393; Flight vs. Gossop, 2 Bingham N. S., 125.

Mrs. Frazier has her remedy in equity for a discovery and an account of the balances of rents, with interest thereon, retained from her by Mr. Gelston by collusion with Cabot, her trustee. She is a cestui que trust, with an equitable estate; and the legal estate standing in a trustee, who has been guilty of breach of trust and collusion, her husband John Frazier having assented to said breach of trust, &c., she has no adequate and complete remedy at law for the old arrearages. Separate equitable estates of married women are peculiarly protected by Courts of Equity. 1 Story's Eq. Jur., secs. 63 a., 64 a., 67; Johns vs. Reardon and Wife, 11 Md., 465; Dugan vs. Gittings, 3 Gill, 162, 163, 164.

The complainant is not barred by lapse of time,  [**11]  laches or negligence. She is an innocent party, and without her own default, has sustained a loss. Mr. Cabot trustee, Mr. Gelston and John Frazier assenting, were all guilty of breach of trust, fraud and collusion. The bargains for reducing the rents by said parties, were frauds upon Mrs. Frazier's rights; and she had at any time within twenty years, or within twenty years after the discovery of the frauds, a right to call her trustee or Mr. Gelston into Court to account for said arrears, with interest. Lowry vs. Tiernan, 2 H. & G., 34-40; Miller vs. Williamson, 5 Md., 220-235; Dugan vs. Gittings, 3 Gill., 138-162; Bowie vs. Stonestreet, 6 Md., 418; Hanson vs. Worthington, 12 Md., 418; Johns vs. Reardon and Wife, 11 Md., 465.

Mr. Gelston, by breach of trust, fraud and collusion with the trustee, is, in equity, a trustee of the balances of rent and interest thereon; and in such case he cannot set up the plea of limitations in bar of Mrs. Frazier. Rolfe vs. Gregory, 11 Jurist., N. S., 98; Ernest vs. Croysdill, 2 De Gex, Fisher & Jones, 175, 194, 198.

Mrs. Frazier is not bound by acquiescence. No one is bound by this unless it appears clearly to the Court that the party had,  [**12]  at the time, full knowledge of all her rights, legal and equitable, and intended to make that valid and good which she knew to be void. Adams vs. Clifton, 1 Russ., 297; Walker vs. Symonds, 3 Swanston, 1; Randall vs. Ewington, 10 Ves., 423; Tarrant vs. Blanchford, 1 De Gex, I. & S., 119; Cockerell vs. Cholmely, 1 R. & M., 425; Marker vs. Marker, 9 Hare, 16; Hoffman Co. vs. Cumberland Co., 16 Md., 456, 508; Lewin on Trusts, 663.

The complainant's receipts in full of each half yearly payment, when in fact only part of the same was paid to her, cannot bind her. Receipts are only prima facie, and may be rebutted. A release or payment in full only could discharge. Payment of a less sum of money for a greater sum of money, is no satisfaction of a debt without a release. 1 Greenl. Ev., sec. 305; Geiser vs. Kershner, 4 G. & J., 305; Jones vs. Ricketts, 7 Md., 108-116; Campbell vs. Booth, 8 Md., 107-115; Hardy vs. Cox, 5 Gill, 189-197.

Isaac D. Jones, for the appellee, Gelston.

The bill shows no ground for equity jurisdiction. It cannot be maintained on the allegation of rent in arrear. The lease shows that the remedy at law was complete by re-entry, distress, or by action of [**13]  debt, or covenant. And the evidence shows that both distress and covenant had been repeatedly and successfully resorted to. Each of these recoveries for rent then due, is a conclusive admission that all prior rent had been paid and satisfied.

Acceptance of rent after forfeiture of lease is a waiver; so is an acquittance expressly as rent; so is a distress for rent; and so is an action of covenant brought subsequent to the forfeiture, and the tenant pays the money into Court. Bacon Abr. Rent, (I.) note a.

There is no remedy in equity where the remedy at law is lost by the party's own neglect. So, if he destroy his own remedy to distrain for rent, and debt would not lie for the arrears of rent, he would not be relievable in equity. 1 Story Equity, sec. 684, (a.)

The alleged want of discovery does not confer jurisdiction. The equity does not originate in the mere want of discovery; but in that such want has been caused by the defendant's fault. It will not lie by an agent against his principal, for it is the agent's duty, not the principal's, to keep the account. It will not lie against an agent, as to a single transaction not tainted by fraud, and where a legal remedy [**14]  existed. Adams' Equity, top 503, 507, note.

And by the Code, discovery may be had at law as well as in equity.

The prayer for an account does not confer jurisdiction, as no sufficient grounds are alleged to entitle the complainant to an account.

There was no actual or constructive trust or other relation subsisting between the complainant and Gelston to justify discovery in aid of an account, and no right to an account is shewn by the bill. Gelston was merely a tenant under a lease to pay rent to Cabot, the owner of the fee, who only by the terms of the lease, had the right to resort to legal remedies to enforce payment. By the express terms of the lease, Mrs. Frazier, being cestui que trust, might receive the rents, and her receipts therefor were to be a protection to the tenant, and also to the trustee. Mr. Heighe was her agent in the collection of the rent from the date of the lease.

Even if the bill presented a case cognizable in equity, the demand is barred by the statute of limitations. Wilhelm vs. Caylor, 32 Md., 151.

The rule that trusts in general, are not barred by limitations only holds as between cestuis que trust and trustees; not between cestuis [**15]  que trust and trustees on one side, and strangers on the other. 10 Bacon Abr. Uses and Trusts, A., 192.

In this case, the trust was between Cabot the trustee, and Mrs. Frazier, and does not affect Gelston. Adams' Equity, 237, 238; 1 Story's Equity, sec. 684, A. and C.; Hill on Trustees, 504; Wych. vs. East India Company, 3 P. Wms., 309.

The acquiescence of Mrs. Frazier is a complete bar to her claim. 7 Simons, 1; Gouet vs. Richmond, 9 Cond. English Ch. Rep., 449; Hercy vs. Dinwoody, 2 Ves., 92-93; Funk vs. Newcomer, 10 Md., 302-317.

The facts of the case show that the agreements for the reduction of rent were bona fide made, and may be sustained as a fair and valid "compromise." "To support a compromise it is sufficient that the parties entering into it, thought at the time that there was a bona fide question between them, though it may eventually turn out there was in fact no such question." Hartle vs. Stahl and Wife, 27 Md., 157.  

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

OPINIONBY:
STEWART 

OPINION:

 [*309]  STEWART, J., delivered the opinion of the Court.
The bill of complaint in this case substantially alleges the right of the [**16]  complainant, a feme covert, under a deed of trust and lease, in pursuance thereof, to receive the rent of her property to her exclusive use; that she had a trustee to attend to her interest in the matter, and that she had full authority to discharge her trustee, and the lessee and his representatives from all claims, on account thereof, by her own receipts.
It further avers, that during the year 1843, "an arrangement, contract or agreement, evidenced by a paper writing, signed by Cabot, her trustee; her husband John Frazier, and Benjamin M. Heighe, (who acted as her attorney and agent,) was entered into with Hugh Gelston, the lessee, (and now the respondent,) by which the annual rent was reduced $ 100 less than she was entitled to receive; that from that time to 1863, Gelston, under the agreement, paid less, by that amount, than she was entitled to; that she never executed any writing, consenting to such reduction; that she never acquiesced in the same, but, on the contrary, by the employment of a different attorney, Gelston was compelled, in 1863, to pay the full rent; that since 1862, she has repeatedly demanded payment of the balance of the rent."
That this balance of rent, [**17]  accruing year by year from 1843, when the said arrangement was made, to the year 1863, remains due and unpaid by the respondent.
The bill also alleges, that the respondent is in possession of writings and books of account in regard to the rent; that they contain evidence material to the trial of the cause.

 [*310]  The prayer of the bill, amongst other matters, is that the books of account and writings may be produced by the respondent, and an account of the rents rendered by him, and for general relief. In substance, for a discovery as to the true condition of the dealings between the parties as to the rents.
Upon the ground of discovery, and the settlement of an account of the rents, and upon the theory of an implied trust between the parties relating thereto, the interference of the Court of Equity is invoked.
The bill contains no allegation of fraud against the respondent for the non-payment of the rent; nor does it allege that she was ignorant of the true character of her claim, as stated in the bill; nor want of capacity on her part to comprehend her rights, or any excuse for the failure to have asserted them more promptly.
The respondent, by answer, insists that he has [**18]  fully settled for all the rents due to which the complainant is entitled, according to his understanding; and denies that the case made by the complainant entitles her to any relief in a Court of Equity, and relies upon the staleness of the demand and limitation.
The bill, in its whole scope, merely claims to recover for the arrears of rent; and it does not appear, but that resort might have been had to legal proceedings for their collection, without the intervention of a Court of Equity, if reasonable diligence had been used by the complainant after she had knowledge of the reduction, made according to her own testimony.
It is well settled, as a general rule, that the complainant must recover upon the case made by the bill, secundum allegata et probata, and if that does not contain matters cognizable in equity, or the allegations are not sustained, the bill must be dismissed.
There is no averment of any fiduciary relation between the parties, nor do any of the allegations or proofs make out a case of fraud or collusion, by which a constructive trust between the parties can arise.

 [*311]  The law never presumes a trust but in case of absolute necessity, for if a Chancery [**19]  Court presume a trust unnecessarily, or construe a trust by implication of law, any man may be construed out of his estate. Per Lord NOTTINGHAM, in Cook vs. Fountain, 3 Swanston 592.
There is no doubt "that in cases of fraud, constructive or actual, Courts of Equity have adopted principles broad and comprehensive, in the application of remedial justice, by converting the offending party into a trustee." Hill on Trustees, 203; but their exercise depends upon the meritorious circumstances of each case.
Giving to this case the utmost latitude of construction, we do not understand it as establishing any implied trust.
Assuming that the Court has jurisdiction upon the ground of discovery, and an account of the rents, we do not think the complainant has made out a case entitling her to relief.
The complainant, with her husband, executed the covenant annexed to the lease, between Cabot her trustee, herself and Harris, bearing equal date with the lease and its acknowledgment, to wit: on the 13th of May, 1833.
All the rights under this case, with its appurtenances, in the year 1839, became vested in Hugh Gelston, the respondent. Gelston, regarding the covenant as a part of [**20]  the lease, (to use the language of the Court of Appeals in the case of Gelston vs. Frazier, et al., 26 Md. 329,) and as succeeding to the rights of Harris, proceeded to obtain a title to the reversion, by tendering to Frazier and wife the sum stipulated in the covenant, and demanding a conveyance in fee for the property. This tender was made in 1843, and for a consideration, having been withdrawn, his relation as lessee continued to April, 1864, when he again proposed to extinguish the rent, by paying the sum specified in the covenant, and demanding a deed in fee-simple.
This being declined, unless paid in gold and silver, and Gelston insisting upon paying in legal tender notes, and having 

 [*312]  paid the rent to the 1st of May, 1864, he filed his bill for a specific performance of the covenant. The Court of Appeals decided that Gelston was not entitled to the relief he asked--the specific performance of the covenant between himself and the complainant and her husband, because her trustee, Cabot, was not a party thereto, which was necessary under the provisions of the deed of trust.
The Court, in delivering its opinion, uses the following language: "Applying [**21]  this test to the contract or covenant entered into with Harris by Frazier and his wife, in relation to the fee-simple interest in the property, we find that the trustee is no party to it, and cannot be bound by it. It is an agreement by Mrs. Frazier (with the concurrence of her husband only,) to sell and dispose of the entire fee-simple estate in the property, to the lessee, his heirs or assigns, at any time during the continuance of the lease, upon his paying or tendering payment of the stipulated price; but it lacks the consent and approbation of the trustee.
The deed conferring the power of sale and disposition, requires it to be testified by his uniting with the wife, in the due execution of the instrument; unless the trustee consent to the sale, in the way specified in the deed, (in the absence of fraud) a Court cannot treat him as a party to it, and decree him to perform it, and his execution of the deed would be necessary to convey to the purchaser the fee which is legally in him. The agreement is, therefore, without one essential party to it--the trustee."
This covenant was made with Harris, and, according to the testimony in the cause, it was supposed by the parties interested [**22]  in its performance, to have been a stipulation entitling the lessee to a conveyance of the fee, when its terms were complied with, until its character was legally defined by the decision of the Court of Appeals.
The complainant, Mrs. Frazier, was one of the parties to that instrument, before the rights of the original lessee had been assigned to Gelston, who it seems, relied upon it as a 

 [*313]  valid proceeding. To this extent, at least, she has been instrumental in affecting his conduct in regard to the rent, and such a proceeding involves a question of good faith and equitable estoppel.
Certainly, so far as there was any infringement of the provisions of the deed of trust, or a deviation from its strict requirements to her prejudice, the complainant can claim no superior equity to the respondent, and it would not be just, under such circumstances, to permit her to take advantage of her own wrong and have the settlement of the rent revised in order to give to her what she, after such a lapse of time, claims.
Although that covenant was not sufficient to bind her trustee in regard to the disposition of the property, yet the circumstance of its execution and annexation to the [**23]  lease to Harris, when other parties are to be affected by her acts, must be considered by a Court of Equity in adjusting the rights of the parties according to the principles of justice and fair dealing, and ought to have its due weight upon the merits of her claim.
The parties, complainant and respondent, seemed to have confided in the validity of this covenant, and to have acted accordingly, until its true character became known to them. This may account for the omission of the complainant to take any steps towards enforcing full rent, knowing the reduction had been made under a compromise, induced by the construction given to the covenant by the respective parties.
"A Court of Equity does not, in general, relieve for mistake of law. Where a transaction is founded in mutual ignorance or mistake, not of fact, but of law, the Court will not relieve the parties from the consequences." Story's Eq. Jur., sec. 136; Hill on Trustees, 220.
We think the doctrine of equitable estoppel may very justly be applied to the complainant, as to the recovery of any rent beyond that paid and accepted and acquiesced in as an acquittance between the parties.

 [*314]  Especially ought she [**24]  be estopped after the lapse of such time and failure to make any effort, at law or in equity, to recover these rents now demanded. The Supreme Court, in Bowman, et al. vs. Wotten, 42 U.S. 189, 11 L. Ed. 97, 1 How. 189, has said, and it is worthy of all commendation, "that nothing can call forth a Court of Equity into activity, but conscience, good faith and reasonable diligence. Where they are wanting the Court is passive and does nothing." There is a failure here to make out a case of conscience, good faith or reasonable diligence.
This Court, in the case of Crook, et al. vs. Glenn, et al., 30 Md. 55, determined that lapse of time would defeat the demand of a cestui que trust, although a feme covert or an infant, where there was a trustee competent to sue, but failed to do so in reasonable time. An infant or a feme covert may be bound by an equitable estoppel. Hale vs. Timons, 2 Rich. Eq. 120; Davis vs. Tingle, 8 B. Mon. 539; Wright vs. Arnold, 53 Ky. 638, 14 B. Mon. 638.
Where the complainant and her trustee and agents, with knowledge that her claim for full [**25]  rent, according to the lease, was refused by the respondent, have repeatedly acquiesced, through a long succession of years, and other interests involved, there is no sound reason why the remedial justice of a Court of Equity should be exercised for the relief of a party under such circumstances. It certainly is not the province of such a Court to encourage litigation by the support of claims stale and of doubtful equity at best, even if more industry had been employed to recover them.
The complainant's claim is not objectionable alone upon the ground of the staleness of the demand, nor the want of due diligence in its prosecution; but these circumstances considered with the other features of the case, have their due weight.
The fact of the complainant's execution of the covenant, although insufficient to accomplish the purpose designed, and her continued acquiescence in the receipt of the diminished rent of which she had full knowledge--the fact that she had 

 [*315]  a trustee and other agents learned in law, to look after her interests, and being entitled herself beneficially to the property, with power to execute acquittances to her trustee or lessee--must, to some extent at [**26]  least, operate to conclude her by her own acts, from successfully invoking the aid of a Court of Equity, and we think the equitable doctrine of estoppel may with justice be applied to her demand. We concur with the ruling of the Circuit Court, that the bill ought to be dismissed.
Decree affirmed. 

118 of 144 DOCUMENTS 

THE ORANGE, ALEXANDRIA AND MANASSAS RAILROAD COMPANY vs. MATTHEW P. PLACIDE and THOMAS CLARK, use of PATRICK MCCOLGAN, Trustee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 315; 1872 Md. LEXIS 33 

March 14, 1872, Decided 

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

The facts are stated in the opinion of the Court. At the trial below the plaintiffs, Placide & Clark, offered six prayers, the first and second of which were conceded, the fourth was rejected as unnecessary, and the following were granted:

3d. If the jury find that the whole amount of money due the plaintiffs by the defendant, for work and labor performed and materials furnished by them under such contract, as they may find to have been the contract between the parties, has not been paid to the said plaintiffs, then they are entitled to recover in this action the difference between the value under said contract of said work and labor performed and materials furnished by them, as shown by the evidence in the cause and amount so paid; notwithstanding they may find that there was a provision in such contract, as they may find as aforesaid, that the said plaintiffs were to receive the proportion named in the paper dated 16th August, offered in evidence, of the bonds of the Company, at seventy-five cents in the dollar; provided they believe that the defendant has never issued or tendered to said plaintiffs said bonds.

5th.  [**2]  If the jury find from the evidence that the plaintiffs were delayed in the execution of the contract offered in evidence, by the default of the defendant, or by their failure to comply with the undertaking in said contract on the part of the defendant to be performed, and were thereby damaged, then the plaintiffs are entitled to recover in this action whatever sum of money they may find that the said plaintiffs have been damnified by said default or failure.

6th. If the jury find from the evidence, that after the commencement of the work in question under the plans and specifications furnished by the defendant, the said plans and specifications of the defendant in regard to the height of the trestles at Narrow Passage Bridge were altered, and the dimensions of the timbers therein were changed, and that thereby the quantity of materials furnished by the plaintiffs was increased, and the labor required to be performed was greater than called for by the contract, which the jury may find to have existed between the parties, then the plaintiffs are entitled to recover whatever sum the jury may find from the evidence to be the value of such increase of materials and labor; provided [**3]  they find that said labor and materials were so performed and furnished by the plaintiffs, and accepted by the defendant.

And the defendant asked the Court to grant the two following prayers:

1st. That if the jury find that subsequent to the making of the contract offered in evidence, and dated the 16th of August, 1867, the plaintiffs agreed, in the letter of the 18th of August, to receive, in lieu of the bonds mentioned in said paper, the price thereof, at the rate of sixty-five cents in the dollar, and that said agreement was not revoked or altered between them; and if they shall further find, that sometime subsequently the plaintiffs arranged with the defendant that the defendant should assume such debts of the plaintiffs as might be certified to the defendant by the plaintiffs or their agents; and if they shall further find, that said defendant did in fact assume and pay such obligations to an amount equal, together with cash advances to the plaintiffs, to the whole amount of the plaintiffs' compensation, at the rates prescribed by said paper, as modified by the agreement, to take money in lieu of bonds, then the plaintiffs are not entitled to recover anything on account [**4]  of the non-delivery of said bonds after such new agreement.

2d. That the plaintiffs are not entitled to recover for any loss they may pretend that they have sustained by reason of any failure of the defendant; provided the jury shall find that the plaintiffs, by the use of all reasonable and proper exertions, in the use and disposition of their own means, might have saved themselves from such loss.

The Court (DOBBIN, J.,) granted the first prayer and rejected the second.

To the granting by the Court of the third, fifth and sixth prayers of the plaintiffs, and to the refusal to grant the defendant's second prayer, the defendant excepted, and the verdict and judgment being for the plaintiffs, took this appeal.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Contract -- Measure of Damages.

P and C contracted to do certain work for the Orange, Alexandria and Manassas Railroad Company, at certain prices, receiving their pay at stipulated times, and two-thirds thereof in bonds of the company, at a fixed rate. The contractors recovered a verdict for damages for an alleged breach of contract by the company and for extra work, whereupon, the company appealing, it was HELD:

1st. That, in the absence of proof as to the market value of the bonds, the measure of damages was the difference between the value, under the contract, of the work done and materials furnished by the contractors, and the amount paid to them.

2d. That if extra work was required by changes in the original plans of the company, and was done at its instance, the contractors were entitled to compensation therefor.

3d. That if the contractors were delayed in the execution of their contract by the default of the company, or its failure to comply with its contract, and they were thereby damaged, they were entitled to recover to the extent of such damage.

4th. That the fact that either of the contractors had private means sufficient to carry out the contract, although not paid promptly by the company according to contract, would not release the latter from liability.  

COUNSEL:
F. H. Hack, Charles Marshall and William A. Fisher, for the appellant.

John P. Poe and William Schley, for the appellees.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*318]  BARTOL, C. J., delivered the opinion of the Court.
This is an appeal by the defendant. The only questions presented arise upon the third, fifth and sixth prayers of the plaintiffs, which were granted by the [**5]  Court below; and the second prayer of the defendant, which was refused.
The claim of the plaintiffs was for damages for an alleged breach of contract by the defendant, and for extra work and materials done and furnished at the instance of the defendant.
It appears that a written agreement was made between the parties, containing specifications of the work to be done, with the prices and terms; this agreement was dated the 16th day of August, 1867, but not signed by the plaintiffs until October 28th, 1867. They proceeded however in the meantime, in execution of the work.
The contract stipulated that the prices were to be paid upon monthly estimates made by the company's engineer, as the work progressed, as follows, viz.: one-third in cash, one-third in the bonds of the company, estimating them as worth seventy-five cents on the dollar, and the remaining third in bonds at the same rate, to be retained by the company until the work was done. Evidence was offered by the defendant 

 [*319]  tending to prove that the contract was modified and changed by the plaintiffs agreeing to accept money in lieu of the bonds, estimating them at sixty-five instead of seventy-five. In accordance [**6]  with the proposal made by the plaintiffs in their letter of the 18th of October, 1867, Mr. Barbour, who testified on this subject, construed that letter in that way, that is, as a proposal to take cash in lieu of the bonds, estimating them to the company as worth sixty-five cents in the dollar, while the plaintiffs accounted for them at the rate fixed by the contract, viz.: at seventy-five cents in the dollar.
We think it by no means clear that such is the real meaning or true construction of the letter. But it is immaterial now to discuss that question; for there was conflicting evidence before the jury as to whether the proposition in the letter was actually accepted, or any such modification or change in the contract made. This last was not signed till ten days after the letter was written, and Thomas Clarke, the plaintiff, (who testified as a witness,) stated that "when he went to sign the contract, he asked Mr. Barbour, the president what the company were going to do about a proposition made by Placide & Clarke about the bonds mentioned in the contract. Barbour said the company had not acted on it, and Clarke signed the contract, remarking that he supposed the bond proposition [**7]  was rejected."
But this question was for the jury, and was properly submitted to them by the first prayer of the defendant, which was granted. This gave it the benefit of its defence under the contract as modified, provided the jury should find from the evidence that such modification had been agreed on by the parties.
It has been argued that there was error in granting the plaintiffs' third prayer, fixing the measure of damages.
The appellant contends, that if two-thirds of the contract price was payable in the bonds of the company, and they were not tendered, the true measure of damages was the difference between the money actually paid, and the value of the part payable in bonds at the time when the bonds ought to 

 [*320]  have been paid. In other words, that the market value of the bonds, at the time when they ought to have been delivered, was the true standard of the plaintiffs' right to recover.
This general proposition is no doubt supported by the decisions of the Supreme Court in Hopkins vs. Lee, 19 U.S. 109, 6 Wheat. 109, 5 L. Ed. 218, and Robinson vs. Noble's Admin., 8 Peters 181; and has been sanctioned by the Court of Appeals [**8]  in Cannell vs. M'Clean, 6 H. & J. 297; Alexander & Tyson vs. Macauley, 6 Md. 359.
In this case however there was no evidence showing what was the market value of the bonds at the time the plaintiffs were entitled to receive them, or that they were of less value than the price stipulated at which the plaintiffs agreed to take them. In the absence of such proof, there was no error in assuming that they were worth the price put upon them by the parties; that is prima facie evidence of their value, and there being no proof to the contrary, the defendant cannot justly complain that the Court below did not submit to the jury to find a fact of which there was no evidence. In such a state of the proof, the third prayer of the plaintiff stated the true measure of damages; which was the difference between the value under the contract, of the work and materials done and furnished by the plaintiffs, and the amount which had been paid to them. There could be no other standard of the plaintiffs' right to recover, except the value fixed by the contract; the fact that the bonds of the company were to be taken in payment at a stipulated price, could make no difference,  [**9]  unless it was shown by the proof that they were of less value than the price agreed on at the time when the plaintiffs were entitled to receive them.
We do not understand this prayer as confining the consideration of the jury to the contract of the 16th of August, 1867; on the contrary, it leaves the whole question open for the jury to find upon the evidence what was the real contract between the parties; and fixes as the standard the value of the work and labor, "under such contract, as they may find to have been the contract between the parties."

 [*321]  We can discover no well founded objection to the fifth and sixth prayers of the plaintiffs; they announce very plain and familiar principles.
If the plaintiffs were delayed in the execution of the contract by the default of the defendant, or its failure to comply with the contract on its part, and were thereby damaged; they were entitled to recover such damages. And in the same manner the instruction given to the jury in the sixth prayer, with respect to extra work and materials done and furnished by the plaintiffs beyond that stipulated for in the contract, was correct. If it was required by changes in the original plans [**10]  made by the defendant, and done at the instance of the company and accepted by it, the plaintiffs were entitled to be compensated therefor.
We think there was no error in refusing the defendant's second prayer; for the reason that there was no evidence proper to be submitted to the jury, "that the plaintiffs by the use of all reasonable and proper exertions in the use and disposition of their own means, might have saved themselves from the loss occasioned by the defendant's default." It has been argued that there was evidence that Clarke, one of the plaintiffs, had private means or money of his own, which might have been employed in fulfilling the contract, and therefore the plaintiffs ought not to recover for loss occasioned by the failure of the company to pay them promptly according to the contract; but that is not a sound argument; nor does it follow that the second prayer ought to have been granted, because there was evidence that some of the delay in the work was caused by the negligence of the contractors. Under the instructions given to the jury the plaintiffs were not entitled to recover for any loss occasioned by such delay, but only for such as resulted from the failure [**11]  and default of the defendant.
Finding no error in the rulings of the Court below, the judgment will be affirmed.
Judgment affirmed. 

119 of 144 DOCUMENTS 

FRANCIS B. GROFF, Executor of ABRAHAM GROFF, deceased, and others, vs. EDWIN ROHRER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 327; 1872 Md. LEXIS 35 

March 14, 1872, Decided 

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

This suit was brought by the appellants for the purpose of setting aside two deeds, the first, from Abraham Groff and Susan, his wife, to Amon Richards, and the other from Amon Richards and wife to Susan Groff, wife of said Abraham Groff.

The facts in this case are as follows: On the 28th of April, 1858, Abraham Groff being seized in fee of the lands described in the two deeds above referred to, applied to Amon Richards, to prepare a conveyance from himself to his wife, Susan Groff. Richards advised him, that he could not convey the property directly to his wife, and that it had better be done through the intervention of a third person. Under Abraham Groff's instructions, Richards prepared the aforesaid deeds, and on the 28th of April, 1858, the deed from Abraham Groff and wife to Amon Richards was executed, and on the 29th of April 1858, Amon Richards and wife executed a deed to Susan Groff for the same land which had been conveyed to him the day before. On the same day the deed last named was executed, Susan Groff executed a will in form to pass real estate, devising said land to her husband, Abraham Groff, during [**2]  his natural life, and after his death, in fee to her son, Edwin Rohrer, the appellee in this cause. Abraham Groff, her husband, consented in writing to this will of his wife. Susan Groff died before her husband, and in April, 1862, Abraham Groff died, having executed a will, in which, among other things, he directed that proceedings should be taken to set aside the two deeds above mentioned.

The bill alleged that the deeds were procured by fraud and undue influence, and that by a mistake of Richards a larger interest had been conveyed to Susan Groff than was intended by her husband; and prayed that the deeds be cancelled, and that Edwin Rohrer be decreed to hold the property subject to a resulting trust in favor of the devisees of Abraham Groff.

The other facts are sufficiently given in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

When equity will not Reform a contract for Mistake or ignorance -- Voluntary conveyance by Husband to wife -- Resulting Trust -- Parol testimony to alter or explain a Written instrument -- Res gestae -- Evidence.

Mistake or ignorance of facts in parties, is a subject for relief where it constitutes a material ingredient in the contract of the parties, and disappoints their intention by a mutual error, or where it is inconsistent with good faith.

But where each party is ignorant, and there is no concealment of facts, which the other party has the right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral is treated as laying no foundation for equitable interference.

Where a husband executes a voluntary conveyance to his wife without qualification or reservation, equity will not presume a constructive trust in his favor.

On the 28th of April, 1858, Abram Groff and Susan, his wife, conveyed a tract of land for the expressed consideration of $ 1000 to Amon Richards; and, on the following day, Amon Richards and wife re-conveyed the tract for the same consideration to Susan Groff. These conveyances were prepared by Richards at the request of Abram Groff, for the purpose of conveying the property to Susan Groff, his wife. At the same time Richards prepared a will, which was duly executed by Susan Groff, and consented to in writing by her husband, devising the same tract of land to her husband, Abram Groff for his natural life, and at his death to Edward Rohrer her son by a former marriage. Susan Groff died before her husband. He died in 1862, leaving a will in which he declared that by a mistake of the person (Richards) who prepared the above mentioned deeds and will, they did not carry out his intention which was to convey only a life estate to his wife, and directed proceedings to be instituted to set aside said deeds. For this purpose suit was brought by his executor and devisees. The bill alleged the mistake, charged fraud and undue influence on Susan Groff and Edwin Rohrer in procuring the conveyances, and prayed the cancellation of the deeds, and a decree of the Court that Susan Groff and Edwin Rohrer, the defendants, held the property subject to a resulting trust in favor of Abram Groff and his devisees. The testimony of Richards was taken showing that no valuable consideration passed between the parties to the deeds; and that of N. Lloyd and F. B. Groff, in reference to the general character of the relations between Abram Groff and his wife. HELD:

1. That no resulting trust will be presumed in favor of Abram Groff and his devisees.

2. That the declarations of Abram Groff contained in his will were inadmissible in evidence, to show his intention in having the deeds executed.

3. That the testimony of Richards in relation to the consideration was admissible as part of the res gestae.

4. That the testimony of N. Lloyd and F. B. Groff was irrelevant and inadmissable.  

COUNSEL:
Arthur W. Machen and A. F. Musselman, for the appellants.

Abraham Groff did not intend to convey an immediate interest to his wife, nor did he mean that she should ever take the fee. His assent to the will of his wife was merely formal, without consideration, and done under the advice and direction of Richards.

Courts of Equity grant [**3]  relief in cases of mistakes in writings, whether made by both or only by one of the parties, by reforming the writings or rescinding them, and whether the instrument of conveyance or contract, be executed, or executory, of realty or personalty, within or without the Statute of Frauds. Parol evidence is admitted to prove such mistakes. 1 Greenl. Ev., sec. 296, (a;) 3 Greenl. Ev., secs. 360, 362, 363; Wycht vs. Greene, 11 Georgia, 169, 170, 171.

Where, by mistake of the draftsman as to fact or law, the written instrument does not fulfil the intention of the parties previously ordering it, or violates said intention, equity will correct the mistake so as to produce a conformity to the agreement. 1 Story's Eq., sec. 115; Wake vs. Harrop, 1 Hurl. & C. Ex., Ch. 202, 206; Heacock vs. Fly, 14 Penn., 541.

Where a solicitor in drawing a deed exceeds his instructions by mistake, equity will reform the deed, and put the parties in the same situation as before the mistake was made. Walker vs. Armstrong, 8 D. M. & G., 531, 542, 544; Cook vs. Husbands, 11 Md., 492, 510, 511; Langley vs. Brown, 2 Atkyns, 195; Wesley vs. Thomas, 6 H. & J., 24, 28; Broughton vs. Hurtt, 3 De G. & J., 501; Saxon [**4]  Life Ass. Co., 2 John & Hem., 408, in Re.

The declarations of Abraham Groff and his will were admissible in evidence, after the death of himself and wife, to show his dissatisfaction with the deeds, and so-called will of his wife, and that the true legal effect of them was not explained to, and understood by him, at the time of their execution. Phillipson vs. Kerry, 32 Beavan, 628.

Where a settlement is not shown to carry out the intention of the settlor, who executed it in ignorance of its legal effect, a Court of Chancery will order it to be cancelled. Lister vs. Hodgson, L. R., 4 Eq., 30; Wollaston vs. Tribe, L. R., 9 Eq., 44; Forshaw vs. Welsby, 30 Beav., 243; Coutts vs. Acworth, L. R., 8 Eq., 558; Phillipson vs. Kerry, 32 Beav., 628.

Upon the execution of the deed from Groff to Richards, without consideration, a trust instantly resulted in favor of the grantor. For "where the legal estate in lands is conveyed to a stranger without any consideration, there arises a resulting trust to the original owner; in conformity to the old doctrine, that where a feoffment was made without consideration, the use resulted to the feoffor." 1 Cruise Dig. Tit. XII, ch. 1, sec. 52;  [**5]  Grey vs. Grey, 2 Swanst., 598; Attorney General vs. Wilson, 1 Cr. & Ph., 22; Lady Tyrrell's case, Freem., 304; Hicksam vs. Witham, Freem., 308; Hayes vs. Kingdome, Vern. 34.

Richards, being thus seized in trust for Abraham Groff, could not convey the equitable fee, which remained in Groff undisposed of to the time of his death.

It was competent to show the absence of consideration from each of the two deeds in question. Parol evidence is always admissible to establish a resulting trust. Dryden vs. Hanway, 31 Md., 254; Greer vs. Baughman, 13 Md., 257; Dorsey vs. Clarke, 4 H. & J., 556; 1 Cruise Dig. Tit. XII, ch. 1, sec. 53; Carr vs. Hobbs, 11 Md., 293, 294; Childers vs. Childers, 1 De Gex & Jones, 482.

William S. Keech, for the appellee.

The evidence excepted to by the appellee is inadmissible, because declarations subsequent to the execution of the deed cannot be given in evidence to impeach it. Cooke vs. Cooke, 29 Md., 538; Powles vs. Dilley, 9 Gill, 222, 234; 1 Greenl. on Ev., sec. 180; Hill on Trustees, 103, 112.

And also, because the evidence as to the intention of the grantor must be confined to the time when the deed was executed. Adams' Eq., 102; Murless [**6]  vs. Franklin, 1 Swans., 13; Grey vs. Grey, 2 Swans., 594; Sidmouth vs. Sidmouth, 2 Bea., 447; Mutual F. I. Co. vs. Deal, 18 Md., 26; Hill on Trustees, 94, notes 97 and Y; Finch vs. Finch, 15 Vesey, 51; 1 P. Wms., 112; Cartwright vs. Wise, 14 Ill., 417.

This is not the case of a resulting trust; resulting trusts are only of three kinds--1st. Where, upon a purchase of property, the conveyance of the legal estate is taken in the name of one person, while the consideration is given or paid by another, the parties being strangers to each other. Hill on Trustees, 91; 2 Story's Eq. Juris., 1196-1206; Young vs. Peachy, 2 Atkyns, 254; Adams' Eq., 31; Sewell vs. Baxter, 2 Md. Ch. Dec., 447 and S. C., 3 Md., 334; Mutual Ins. Co. vs. Deal, 18 Md., 26.

2d. Where there is a voluntary conveyance without any trust being declared. Hill on Trustees, 106.

But it is by no means the rule that where a voluntary conveyance is made, a trust shall arise by implication. Hill on Trustees, 106; Saunders on Uses, 227; Dyer vs. Dyer, White's Eq. Cas., 65 Law Lib., 67; Young vs. Peachy, 2 Atkyns, 256; 2 Stor. Eq. Juris., 1202, 1204.

And the donee need not bring proofs to keep his estate, but [**7]  the plaintiff must bring proofs to take it from him. Hill on Trustees, 107; Cook vs. Fountain, 3 Swanston, 590.

3d. Where there is a disposition of property upon trusts which are not declared, or are only partially declared, or fail. Hill on Trustees, 113.

The evidence to prove a resulting trust must be clear and positive. Adams on Equity, 33, n.; Sewell vs. Baxter, 2 Md. Ch. Dec., 447, and 3 Md., 334; 2 Sugden on Vendors and Purchasers, 395, 911, Ed. of 1851; Hill on Trustees, 95; Farringer vs. Ramsey, 2 Md., 365.

The evidence to prove a resulting trust must be stronger after the death of the grantee. Adams on Equity, side-paging 33, note and cases cited; Unitarian Society vs. Woodbury, 14 Maine, 281; Neill vs. Keese, 5 Texas, 23; Harden vs. Harden, 2 Sandf., Ch. 17; Harrisburg Bank vs. Tyler, 3 Watts and Sargent, 373.

The presumption of resulting trusts may be rebutted in various ways. Botsford vs. Burr, 2 John., Ch. 405; Page vs. Page, 8 N. H., 189; Baker vs. Viney, 30 Me., 126; Elliott vs. Armstrong, 2 Blackf., 199; McGuire vs. McGowan, 4 Desaussure, 487; Sewell vs. Baxter, 2 Md. Ch. Dec., 447, and 3 Md., 334; Adamson Equity, 34; Hill on Trustees, 96, and note [**8]  2 on same page; Dow vs. Jewell, 1 Foster, 470.

A purchase in the name of a wife or child will be considered an advancement until the contrary is proved. Livingston vs. Livingston, 2 John. Ch., 537; Sampson vs. Sampson, 4 S. & R., 329; Taylor vs. James, 4 Dessau., 1; Partridge vs. Havens, 10 Paige, 618; Knouff vs. Thompson, 16 Penn. St., 357; Dudley vs. Bosworth, 10 Humph., 12; Taylor vs. Taylor, 4 Gilm., 303; Adams on Eq., 101; Mutual Ins. Co. vs. Deal, 18 Md., 26; 2 Sugden, 399; Hill on Trustees, 97, 98, 101, 103; Murless vs. Franklin, 1 Swanst., 17.

Upon the question of fraud, mistake and undue influence, etc., see Adams' Eq., 170, 171, 176, 184.  

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

OPINIONBY:
STEWART 

OPINION:

 [*333]  STEWART, J., delivered the opinion of the Court.
The bill was filed in this case, to vacate certain deeds, upon the ground of undue influence exercised over the grantor, and mistake on his part as to the true character and effect of the instrument.
Exceptions were taken to portions of the testimony adduced, which will be disposed of in the progress of this opinion.
There is no doubt "wherever a person is entrapped [**9]  into the execution of an instrument through a conspiracy, or combination for that purpose; or by surprise, oppression, intimidation, or any other practice at variance with fair dealing, he is entitled to equitable relief." Hill on Trustees, 145, 146, (margin.)
Judge STORY, in his Eq. Juris., sec. 151, commenting upon the various distinctions, where Courts of Equity grant relief, in cases of mistake, extracts the principle that "the general ground that mistake or ignorance of facts in parties, is a proper subject of relief only when it constitutes a material ingredient in the contract of the parties, and disappoints their intention by a mutual error or where it is inconsistent with good faith. But where each party is equally innocent, and 

 [*334]  there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum absque injuria."
There is no proof in the record that any undue or fraudulent influence was exerted over the grantor in this case; and according to the testimony, he seems [**10]  to have been a man fully capable of comprehending the transaction in which he was engaged, and to have very clearly expressed his purposes in regard to the conveyance to be made to his wife, the grantee. The two deeds, the one from Groff to Richards, and the other from Richards and wife to the grantee, the wife of Groff, executed by the parties, conveying the property in dispute to the wife, and her will, made about the same time, in pursuance of the purposes of the parties, Groff and wife, appear to have completed the transaction the husband and wife had in view, and should be considered as constituting component parts thereof.
They both appear to have fully understood the purport of the arrangement; and Richards, the scrivener employed, prepared the deeds and will, strictly according to their wishes, and they were read over to the parties, grantor and grantee, and they were fully satisfied.
It seemed to have been an arrangement, designed on the part of Groff, the grantor, and the owner of the property, to have the same conveyed and vested in his wife, and for her benefit, and for no other purpose.
There being no proof of fraud or undue influence, the only question to be considered [**11]  is, whether, under the circumstances and growing out of the transaction, there was any resulting trust to the grantor?
There is no question, a resulting trust may be implied or presumed from the supposed intention of the parties, and the nature of the transaction; or it may be raised independently of any such intention, by equitable construction and the 

 [*335]  operation of law--they are known in either case as constructive trusts, and are exempted from the operation of the eighth section of the Statute of Frauds.
Where upon a purchase of property, the conveyance of the legal estate is taken in the name of one person, whilst the consideration proceeds from another, the parties being strangers to each other, a resulting trust arises by virtue of the transaction, and the grantee will be but a trustee for the party from whom the consideration proceeds. Hill on Trustees, 91, 92; Story's Eq. Juris., sec. 1201.
This doctrine applies only to purchases; and if a person in actual possession of property make an actual gift or transfer of it to another, as a general rule the presumption of a resulting trust will not arise. "Resulting trusts of this nature are strictly [**12]  confined to cases where the purchase has been made in the name of one person, and the consideration paid by another." Hill on Trustees, 93-96.
The doctrine of the Courts, as to trusts, has been well stated in the old, but great case of Cook vs. Fountain, which affords a landmark in these cases, and may always be safely referred to, and is this, that "all trusts are either, first, express trusts, which are created by act of the parties, or implied trusts, which are created by act or construction of law; again, express trusts are declared either by word or writing; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is, when the Court, upon consideration of all circumstances, presumes there was a declaration, either by word or writing, though the direct proof thereof be not extant. In the case in question, there is no pretence of any proof that there was a trust declared, either by word or in writing; so the trust, if there be any, must either be implied by the law, or presumed by the Court. There is one good, general and infallible rule that goes to both of these [**13]  kind of trusts; it is such a general rule as never deceives--a general rule to which there is no exception, 

 [*336]  and that is this: The law never implies, the Court never presumes a trust but in case of absolute necessity. The reason of this rule is sacred; for if the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate; and so at last, every case in Court will become casus pro amico."
According to these well settled and established principles governing Courts of Equity, we discover no facts in this case upon which a resulting trust to the grantor can be founded. On the contrary, they very clearly shew that Groff, the grantor, designed, and has carried into execution, that the grantee, his wife, should have the beneficial use of the property conveyed to her, with power to dispose of it, as she did by her will, and that it did not enter into his conception to make her a trustee of the same for his benefit.
"It has been the settled doctrine that a voluntary conveyance, or assignment, of real or personal estate, if duly [**14]  executed and acted upon, will be valid and binding upon the original owner, and subsequent volunteers claiming under him." Hill on Trustees, 106.
In a Court of Equity certainly, this was a transaction between husband and wife, not between strangers; the grantor was under a moral obligation to make provision for the comfort, support and maintenance of the wife; and the principles governing in the case of strangers do not apply. Her relation was similar to that of a child to the parent in its analogies, and is to be treated accordingly. The relation of these parties, husband and wife, if there were no proof of a valuable consideration in the deeds, furnished ground of meritorious consideration, to prevent the implication that the husband merely intended that she should be a trustee of the property conveyed, for his benefit, and it would be against any just principle of equity to imply a constructive trust under such circumstances.

 [*337]  To sustain such a view, in the place of a Court of Equity aiming to effectuate the honest purposes of parties, it would in truth pervert their meaning and defeat the objects the parties had in contemplation.
Hill on Trustees, 97, 98,  [**15]  very clearly recognizes the distinction. He says, "the rule respecting resulting trusts is not of universal application. If the person in whose name the conveyance of property is taken, be one for whom the party paying the purchase money is under a natural or moral obligation to provide, no equitable presumption of trust arises from the fact of the payment of the money; but on the contrary, the transaction will be regarded prima facie as an advancement for the benefit of the nominee. This doctrine of advancement obtains equally in the case of a purchase by a husband in the name of his wife." This exception is made in cases where the principle of a resulting trust applies; that is, as we have stated, where the purchase of property is made; and yet no such constructive trust in such case will be fastened upon a wife.
But this was a very different case from that of one person advancing money and another taking the deed for the property purchased. It was a transaction, as we comprehend it, designed to make provision for the wife, and whether it is to be considered as simply a voluntary conveyance of the property without any consideration, or, as founded on valuable or meritorious [**16]  consideration, her rights are not to be destroyed by construction in a Court of Equity. See Mutual Ins. Co. vs. Deale, 18 Md. 26, 45.
In Adams' Equity, 285, treating of the subject of meritorious or imperfect consideration, thus plainly is its nature explained: "The doctrine of meritorious consideration originates in the distinction between the three classes of consideration on which promises may be based; viz., valuable consideration, the performance of a moral duty, and mere voluntary bounty. The first of these classes alone entitles the promisee to enforce his claim against an unwilling promissor; 

 [*338]  the third is for all legal purposes a mere nullity until actual performance of the promise. The second is termed meritorious, and is confined to the three duties of charity, of payment of creditors, and of maintaining a wife and children; and under this last head are included provisions made for persons, not being children of the party promising, but in relation to whom he has manifested an intention to stand in loco parentis, in reference to the parental duty of making provision for a child."
"It may therefore be stated as the clear result of [**17]  the authorities, that where a person, being a stranger in blood to the donor, and a fortiori if connected with him by blood, is in possession of an estate under a voluntary conveyance, duly executed, the mere fact of his being a volunteer, will not of itself create any presumption that he is a trustee for the grantor; but he will be considered entitled to the enjoyment of the beneficial interest, unless that title is displaced by sufficient evidence of an intention on the part of the donor to create a trust: and, as was observed by the Lord Chancellor in the case of Cook vs. Fountain, 3 Swanston 591, he need not bring proof to keep his estate, but the plaintiff must bring proof to take it from him." Hill on Trustees, 107.
"A grantor may fairly intend to give away his property, and if he were never allowed to do so effectually, it would produce mischief equally great with those which the Statute of XIII Elizabeth, ch. 5, was intended to prevent." Adams on Equity, 147; see Hays vs. Hollis, 8 Gill 357, 369.
Besides, the grantor here seems to have considered himself under a legal obligation, independent of the meritorious consideration to which [**18]  we have adverted, to re-pay his wife for claims upon him, according to his own statement, on account of her release of her interest in property that he had sold and conveyed.
He had the right without any such consideration, to make a voluntary conveyance of the property to her for her beneficial enjoyment of the same, absolutely in fee, and if that was 

 [*339]  his purpose without qualification or reservation of any interest to himself further than expressed in the instrument, there can be no constructive trust.
"Where any valuable consideration is expressed in the deed itself, the Court will not look narrowly into the consideration. Where the conveyance is expressed to be for a valuable consideration, parol evidence cannot be received to shew that the purchaser was intended to be merely a trustee for the vendor." Hill on Trustees, 112. In a case of accident, mistake or fraud, parol proof may be resorted to for the purpose of establishing a resulting trust in property real, when conveyed. The rule is operative in equity, as well as at law, that parol evidence cannot be admitted to contradict, qualify, extend, or vary a written instrument, except in such cases. It is allowed [**19]  to rebut a presumption, or an equity arising out of written instruments, not to repel the proper construction of the instrument, but only the rules of presumption which Courts have created, or applied to cases uncertain, in order to effect the true intent of the parties. Story's Eq. Jur., sec. 1531. "Where a case of fraud is made by the bill, parol evidence will be admitted for the purpose of establishing the case; even though the effect of the evidence be to alter or vary a written instrument, and although the benefit of the statute be insisted upon by the defendant. For as was said by Lord THURLOW, "The moment you impeach a deed for fraud, you must either deny the effect of fraud on a deed, or you cannot but be under the necessity of admitting parol evidence to prove it." And the same rule prevails where relief is sought on the ground that, through mistake, surprise, or accident, the instrument is framed contrary to the intention of the parties. "How," observed Lord HARDWICK, in Baker vs. Paine, 1 Vesey 157, "can a mistake in an agreement be proved but by parol evidence?" However, even in the case of fraud, parol evidence is not regarded with favor, and the [**20]  Court will not act upon it, if it be not strong, irrefragable evidence; or if it be contradicted by other testimony. 

 [*340]  Hill on Trustees, 166, 167; see Greer vs. Baughman, 13 Md. 257, 269.
That is, as we understand the doctrine, the proof must be clear of all reasonable doubt; or as Judge STORY, in his Eq. Juris., sec. 152, expresses the same view: "If the mistake is made out by proofs entirely satisfactory, equity will reform the contract; but if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief; upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy."
The declarations of the parties to the deed, made cotemporaneously with the transaction in regard to the same, are admissible, merely as a part of the res gestae, for the purpose of explaining the intention of the parties, and the character of the instrument, (Cooke vs. Cooke, Ex'rs, 29 Md. 538;) therefore the will of Abraham Groff, which was simply his declaration as a grantor, was inadmissible,  [**21]  being long subsequent to the execution of the deeds in question.
But the testimony of Amon Richards, which was objected to by the appellees upon the ground that it undertook to prove the absence of a valuable consideration which the deeds contained, being but a part of the res gestae, was admissible.
When the deed was impeached, as not being in accordance with the intention of the grantor, and the respondent relied upon the evidence of Richards, objected to by the complainant, for the purpose of confirmation of the instrument, the declarations of the grantor thus introduced to sustain and support the claim of the grantee under the deed, were admissible. Hill on Trustees, 103.
The exceptions of the appellant were properly overruled, and those of the appellee well taken, except as explained above.
Nimrod Lloyd and Francis B. Groff's testimony was immaterial and not relevant in any aspect of the case, and therefore not admissible, and properly excepted to.

 [*341]  From a consideration of the whole case, we discover no grounds for the allegation of undue influence, nor the charge of mistake on the part of the grantor, nor any evidence from which an implied or resulting [**22]  trust can arise, according to any principles governing Courts of Equity, of which we are aware; and therefore the allegations of the original and supplemental bills are not sustained, and the Circuit Court committed no error in dismissing the bill of complaint.
Decree affirmed. 

120 of 144 DOCUMENTS 

WARFIELD T. BROWNING, Trustee, vs. CHRISTIAN PASQUAY, Surviving Partner of PASQUAY & GEMUNDT, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 294; 1872 Md. LEXIS 30 

March 13, 1872, Decided 

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

An attachment was issued under the Act of 1864, ch. 306, by the appellant against Christian Pasquay, surviving partner of Charles Gemundt and ----- Pasquay, trading as Pasquay & Gemundt, and laid in the hands of John M. Frazier, who appeared and entered a plea of non assumpsit in behalf of the defendant, and a plea of nulla bona for the garnishee. Frazier died, and his executors were made parties. They moved to quash the attachment, and assigned several reasons in support of the motion. The Court (DOBBIN, J.,) passed an order quashing the attachment. The plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Attachment under the Act of 1864, chap. 306 -- Motion to quash.

The short note described the cause of action as dated 1st of June, 1867, and the cause of action filed with the attachment was dated the 1st of June, 1864; the variance was held fatal, and the attachment was quashed on motion.

Any substantial variance between the cause of action filed with the attachment and that described in the short note will be fatal. 

COUNSEL:
John C. King, for the appellant.

Wm. Shepard Bryan and Allan B. Magruder, for the appellees.  

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

OPINIONBY:
GRASON 

OPINION:

 [*294]  GRASON, J., delivered the opinion of the Court.
The appellant obtained an attachment under the Act of 1864, chap. 306, which was laid in the hands of John M. 

 [*295]  Frazier, and he having afterwards died, his executors filed a motion to quash, and assigned several reasons therefor, which it is not necessary [**2]  to pass upon, as the proceedings are fatally defective in another respect. The cause of action set out in the attachment is in the nature of a promissory note, bearing date the first day of June, 1864, for the payment of five thousand dollars on the first day of June, 1869, with legal interest payable semi-annually. The short note describes the cause of action as a promissory note bearing date June 1st, 1867, payable on the first of June, 1869, with interest semiannually from date. In the case of Pearce vs. Boarman, Garnishee of Kendig and Brillinger, decided at October Term, 1870, and not reported, it was held by this Court that the short note is a substitute for, and performs the office of a declaration, and, like a declaration, it must substantially set forth the cause of action against the defendant, and any defect in this respect that would be fatal on demurrer will be fatal to the short note on motion. In Dean vs. Oppenheimer, 25 Md. 368, it was also held that an attachment would be quashed for a defect in the short note. The cause of action described in the short note is not the same as that exhibited in the attachment proceedings, the first [**3]  being dated the first of June, 1867, and the latter the first of June, 1864. The variance is fatal in a suit at common law. 1 Chitty on Plead., 304, 306, 307; 1 Greenl. Ev., secs. 66, 67, 68; Gragg vs. Frye, 32 Me. 283. And as the variance appears on the face of the proceedings in this case, the attachment cannot be sustained, and the judgment of the Court below will be affirmed.
Judgment affirmed. 

121 of 144 DOCUMENTS 

DIAMOND INGALLS and JOHN A. WRIGHT vs. LEVI CROUCH and WILLIAM CLEARY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 296; 1872 Md. LEXIS 31 

March 13, 1872, Decided 

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

This was a suit instituted by the appellees to recover a balance claimed to be due for curbing and dimension stone furnished the appellants at sundry times during the year 1869. With the declaration was filed an account verified by affidavit, in accordance with the provisions of the Act of 1864, ch. 6. The defendants pleaded the general issue with an affidavit. On the day of trial the plaintiffs amended their declaration, and by consent the pleas theretofore filed, were made applicable to the amended narr. After the evidence was closed, the case was submitted to the jury, by agreement, without argument. The counsel for the defendants then handed to the jury the plaintiffs' original and amended declaration without the account. The Court (DOBBIN, J.,) then said that the jury were entitled to have the account filed by the plaintiffs with their original declaration; to which the defendants objected, but the Court overruled the objection, and allowed the jury to take the account with them into their room. The defendants excepted, and the verdict being against them, they appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

The Account filed with the Declaration under sec. 8, of the Act of 1864, ch. 6, no part of the Pleadings in the cause.

Where a plaintiff, with a view of bringing his case within the provisions of the Act of 1864, ch. 6, files with his declaration, as the cause of action, an account verified by affidavit, showing the true amount that the defendant is indebted to him over and above all discounts, such account is no part of the pleadings, and should not be allowed to go into the hands of the jury.  

COUNSEL:
Samuel [**2]  Snowden, for the appellants.

A. Sharp and O. F. Bump, for the appellees.  

JUDGES:
The cause was submitted to BARTOL, C. J., STEWART, BRENT, BOWIE, GRASON, MILLER and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*297]  BRENT, J., delivered the opinion of the Court.
There is but a single question presented upon this appeal. As the jury was about retiring to consider upon their verdict in the case, the Court below directed the account, with an affidavit of one of the plaintiffs upon it, which had been filed with the declaration as a cause of action under the Act of 1864, ch. 6, relating to Baltimore City, to be handed to them together with the declaration. To this the defendant objected, but the objection was overruled and the jury allowed to take the account with them to their room. This account does not appear to have been offered in evidence at the trial, and the only ground upon which it is claimed there was no error in allowing it to go to the jury is that it constituted a part of the pleadings. Whether it would have been proper to allow them to have taken it, had it been a part of the proof, is not a question before us.
The rule seems to be well established that the jury is entitled to the [**3]  pleadings in the cause, and the reason assigned for it is that they may be informed what is in issue between the parties. Mr. Evans, in his work on Maryland Practice, recognizes the rule as existing in this State, and says, on page 400, "if they (the jury) withdraw from the bar, they have the right to take with them the pleadings in the cause, and the written directions of the Court." At common law the declaration and several pleas, until the case is at issue, constitute what is technically the pleadings, and we do not understand that the account, which was given to the jury in this case, can be regarded as a part of them. The special law, under which it was necessary to file it with the declaration at the time of bringing the action, does not make it a part of the pleadings, but a different purpose is contemplated. It is to enable a plaintiff to require the pleas of the defendant to be filed under 

 [*298]  oath by a day certain, and, in the event of a failure to do so, to entitle him to a judgment by default. To allow a paper of this sort, with the affidavit of the plaintiff upon it, to go to the jury, as a part of the pleadings, would be productive of dangerous consequences,  [**4]  and the rule should not be enlarged so as to embrace it. It very clearly could not, under the rules of evidence, be even read to them until after it had been established by proper proof; yet, if they had a right to take it as a part of the pleadings, it would reach them indirectly, without any proof whatever, and might have an influence in shaping their verdict. It is apparent that such was the effect produced by the account given to the jury in this case, for if the several sums, shown by the receipts offered in evidence to have been paid by the defendant, are deducted from the amount of the account, it will be seen that the balance is the precise sum found by the verdict to be due.
We do not think the account should have been allowed to go into the hands of the jury. The judgment must, therefore, be reversed, and the case sent back for a new trial.
Judgment reversed and new trial ordered. 

122 of 144 DOCUMENTS 

HENRY SITTIG vs. HENRY BIRKENSTACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 273; 1872 Md. LEXIS 27 

February 28, 1872, Decided 

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

First Exception--This exception is stated in the opinion of the Court.

Second Exception--The plaintiff to support the issue on his part, proved that H. Austermuhle had applied to him for a loan of $ 1500, and that not having the money, he offered to procure a Building Association note for the amount, and exchange it with Austermuhle for his note, with the defendant for an endorser; that the plaintiff and Austermuhle together, visited Sittig, who after some conversation, at the request of Austermuhle endorsed his note at two months; that in exchange for this note the plaintiff procured the Building Association note and gave it to Austermuhle, who obtained the money on it from the German Savings' Bank, on the plaintiff's account; that when the note of Austermuhle fell due, he asked for a renewal for one year, to which the plaintiff consented, and told him to get the defendant to sign the note; and such note is the cause of action in this case.

The defendant, to maintain the issue on his part, being sworn, proved that he was asked by Austermuhle, in the presence of the plaintiff, to endorse the note in controversy, that he at first refused,  [**2]  but that Austermuhle told him, he ran no risk--that there was no danger, that he was only the second endorser--that Mrs. Austermuhle was the first endorser, and that he was to put his name under hers--and that with this understanding he put his name on the back of the note.

The testimony being closed, the plaintiff offered the two following prayers:

1st. If the jury find from the evidence, that the name of the defendant was written by him (as maker) upon the back of the note, offered in evidence, at the time said note was signed by H. Austermuhle, or shortly afterwards, that then the defendant is liable in this action, and the plaintiff is entitled to recover, provided the jury find that the $ 1500 was paid to Austermuhle by the plaintiff, as testified to.

2d. If the jury shall find that the defendant expressly admitted any sum of money to be due to the plaintiff, then they shall find for the plaintiff such sum as they may find the defendant admitted to be due.

The defendant offered the following prayers:

1st. That the plaintiff cannot recover, in this present action, upon the promissory note in evidence in this case, because said promissory note has upon its [**3]  back, as last endorser, the name of the plaintiff himself.

2d. That the plaintiff cannot recover in this action upon the first, second, third, fourth, fifth and sixth counts of his declaration, because no evidence has been offered as to those six counts.

3d. That the plaintiff cannot recover upon the seventh count in his declaration, because by said count the defendant and one H. Austermuhle are set forth as joint makers of the promissory note therein described; but that no such note was offered in evidence to sustain said count, and no evidence was offered as to the signature of said H. Austermuhle, to any paper, either filed in this case originally, or put in evidence during the trial.

4th. That the plaintiff cannot recover upon the eighth count in said declaration, because no evidence was offered that the defendant was a guarantor of any note, nor that he guaranteed the payment of the note set forth in said count.

5th. That the plaintiff cannot recover upon the ninth count of his declaration, although the jury should believe all the evidence offered by the plaintiff to maintain the issue on his side, to wit: that Sittig, the defendant, signed the note in evidence,  [**4]  and that Austermuhle got the money for it; because there was no evidence of presentment for payment and protest offered.

6th. That if the jury find from the evidence that the defendant was requested by Astermuhle to endorse the note, (the cause of action in this case,) and that he wrote his name on the back of the said note in consequence of the said request, and as endorser, then the jury must find for the defendant, it having been admitted in this case, by both sides, that the space for the name of the payee of said note was left blank, and the name of H. Birkenstack was inserted in the body of the note at the trial table, at the time of the trial of this cause, at the last term of this Court, and long after the maturity of said note.

7th. That if the jury believe from the evidence that Catherine Austermuhle was the wife of H. Austermuhle, and that it was the intention of the plaintiff, and was so represented to the defendant that she should be the first endorser, and that the defendant endorsed the note as second endorser to her, that then the jury must find for the defendant, for the reasons assigned in the defendant's fifth prayer, and also because a note so drawn would [**5]  be void ab initio.

8th. That no admission of indebtedness by the defendant to the plaintiff, after the endorsement of said note, can be taken against the positive evidence of the plaintiff that the money for said note, the cause of action in this case, was paid to Austermuhle, but that all such admissions, and even promises, subsequent to the making of said note, were not binding upon the defendant, and were nudum pactum unless they were in writing, properly executed, and that there is no evidence in this case of any such writing.

The Court granted the first and rejected the second prayer of the plaintiff; and granted the second, third and sixth prayers of the defendant and rejected his other prayers. After the Court announced its ruling upon the prayers, the counsel for the plaintiff stated that he had conceded the fourth, fifth, seventh and eighth prayers of the defendant; but the Court adhered to its decision, and said that these prayers were not law, and should not be used by the defendant's counsel as the law of the Court, but it would not interfere with any admissions of the parties in relation thereto. To the granting of the plaintiff's first prayer, and to the rejecting [**6]  of the defendant's first, fourth, fifth, seventh and eighth prayers, the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Effect of the Concession of the Correctness of a Prayer -- Practice.

What is admitted to be law by either party at the trial of a cause, is binding upon him, and if it be accepted by the opposite party, it becomes the law of the particular case; and it is error in the Court to reject a prayer the correctness of which has been conceded.  

COUNSEL:
J. B. Wentz, Jr., for the appellant.

John Henry Keene, Jr., for the appellee.  

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

OPINIONBY:
BRENT 

OPINION:

 [*276]  BRENT, J., delivered the opinion of the Court.
The cause of action in this case is a promissory note for $ 1500, signed by H. Austermuhle, and endorsed by Catherine Austermuhle, Henry Sittig and Henry Birkenstack. The declaration contains nine counts--the first six being the 

 [*277]  common money counts, the seventh charging the appellant as maker, the eighth as guarantor, and the ninth as endorser, with notice of presentation and non-payment.
After the testimony was closed, two prayers were offered by the plaintiff and eight by the defendant. The first prayer of the plaintiff was granted, and the first, fourth, fifth, seventh and eighth prayers of the defendant, as it appears by the record, were rejected. The record also discloses that these prayers of the defendant, with the exception [**7]  of the first, were conceded by the plaintiff's attorney.
The rule is well established, that what is admitted or conceded to be law by the plaintiff or defendant, as the case may be, at the trial of a cause, is binding upon him, and if it is accepted by the other side, it becomes the law of the particular case. This doctrine is very concisely stated in The Balt. & Ohio R. R. Co. vs. Resley, 14 Md. 424, where it is said: "What is admitted to be the law of a case cannot be gainsayed before the jury." The learned Judge below stated that these prayers should not be used as the law of the Court, and very properly added, "but that the Court would not interfere with any admissions of the parties in relation thereto." It would have been inferred from this statement of the rule, that the prayers had been allowed to stand upon the admissions of the parties, and had not been acted upon by the Court with a view either to their rejection or approval, but as they are marked "refused," and also so certified in the bill of exceptions, we are obliged to treat them as having been rejected by the Court, and to conclude that the defendant did not have the benefit of them before [**8]  the jury. To this he was clearly entitled, and as there was error in depriving him of the benefit of prayers which the plaintiff had conceded, the judgment must be reversed and the case sent back for a new trial.
The plaintiff was not entitled to have the first prayer, which he offered, granted by the Court, for it is inconsistent with the third prayer offered by the defendant, which he conceded, 

 [*278]  and which is not included among those rejected by the Court. That prayer instructed the jury, that the plaintiff was entitled to recover if they found from the evidence that the defendant had written his name upon the back of the note as maker, while the third prayer of the defendant instructed them "that the plaintiff cannot recover on the seventh count in his declaration, because by said count the defendant and one H. Austermuhle are set forth as joint makers of the promissory note therein described, but that no such note was offered in evidence, &c." This is the only count in which the defendant is charged as maker of the note, and the concession by the plaintiff of the correctness of this prayer, so entirely opposite to the one he presented, is a sufficient reason why his [**9]  prayer ought to have been rejected.
The exception to the refusal of the Court to grant the defendant's first prayer, was very properly abandoned at the hearing, and the only remaining exception to be considered is the first, which is taken to the admissibility of evidence. The plaintiff having proved that Austermuhle had applied to him for a loan of $ 1500, and that he, having no money, had procured a Building Association note for $ 1500, which he gave Austermuhle in exchange for the note sued upon, and that Austermuhle had obtained the money upon it from the German Savings' Bank on his, the plaintiff's account, then offered in evidence a Building Association note for $ 1500, which was cancelled and crossed with lines of red ink. To the introduction of this note as evidence, which was admitted by the Court, the defendant excepted. It is very apparent that this note was introduced to show the consideration of the note upon which the plaintiff was seeking to recover, and its cancellation was no objection to it for that purpose. The note held by the plaintiff prima facie imported consideration, and there was perhaps no necessity for offering proof to support it, as its validity in [**10]  this respect had not been attacked by the defendant. But as there could be no objection in proving positively, if the plaintiff so desired, what already 

 [*279]  appeared presumptively, the Court could not refuse to admit the testimony, provided it was accompanied with the further proof that it was the identical note upon which Austermuhle had obtained the money. This further proof does not appear to have been given, and, as the note stands in the record, it seems to be wholly unconnected with the case, and ought not, therefore, to have been admitted in evidence. But as there is no positive injury, which we can perceive, done to the defendant by its introduction, the judgment would not be reversed upon this exception.
The rulings of the Court upon the second prayer of the plaintiff and the second prayer of the defendant, are obviously correct.
But for the error, as before stated, in rejecting the prayers of the defendant which had been conceded by the plaintiff, the judgment below will be reversed and a new trial ordered.
Judgment reversed and new trial ordered. 

123 of 144 DOCUMENTS 

LEWIS JONES, SR., and LEWIS JONES, JR., vs. JOSEPH BARNETT and JOSEPH S. BARNETT, trading as BARNETT & SON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 258; 1872 Md. LEXIS 25 

February 27, 1872, Decided 

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

The facts of the case, so far as necessary, are given in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Construction of Act of 1864, ch. 6, sections 6, 7 and 8 -- Notice to Plead -- Bill of particulars -- Statute of Limitations -- Time of obtaining judgment.

The appending to a declaration under the Act of 1864, ch. 6, of a notice requiring the defendant to plead within fifteen days, does not take the case out of the operation of the statute.

A bill of particulars furnished upon the demand of the defendant, need not be verified by affidavit, the plaintiff having made affidavit of the true amount of the indebtedness of the defendant, and filed the same at the time of the institution of the action.

The plea of the Statute of Limitations comes both within the letter and the spirit of the 7th section of the Act of 1864, ch. 6.

Under the Act of 1864, ch. 6, in default of a plea verified by affidavit, the plaintiff may take his judgment either "on the first day of the term, or at the return day next succeeding the appearance of the defendant, whichever shall first occur," or at any time during the term.

A mere discrepancy between the amount stated in the affidavit of the plaintiff and the bill of particulars subsequently furnished, does not necessarily impeach the bona fides of the former.  

COUNSEL:
John A. Reed and John C. Fay, for the appellants,

Cited Thompson vs. Towson, 1 H. & McH., 504; Hall vs. Sewell, 9 Gill, 146; DeSobry vs. DeLaistre, 2 H. & J., 192, 223; King vs. Hicks, 32 Md., 465; Benson vs. Davis, 6 H. & J., 273; Lamott vs. McLaughlin, 3 H. & McH., 324.

J. Southgate Lemmon, for the appellees,

Relied on King vs. Hicks, 32 Md., 464, 469; Knickerbocker Life Co. vs. Hoeske, 32 Md., 324; Horner vs. O'Laughlin, 29 Md., 472; Jones vs. Freeman, 29 Md., 276, 277; Greff vs. Fickey, 30 Md., 79; State, use of Bouldin, vs. Steibel, 31 Md., 36; Kemp vs. Cook, 18 Md., 138; Hanson vs. Campbell, 20 Md., 233.  

JUDGES:
The cause was submitted on notes to BARTOL, C. J., BOWIE, BRENT, ALVEY and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*259]  ROBINSON, J., delivered the opinion of the Court.
This is an appeal from an order of the Superior Court of Baltimore city, overruling a motion to strike out a judgment 

 [*260]  entered in pursuance of sections 6, 7 and 8, of the Act of 1864, ch. 6.
The following reasons are assigned [**2]  in support of the motion:
1. That the notice attached to the declaration, requiring the defendant to plead thereto, within fifteen days, took the case out of the operation of the statute.
A party has the election either to bring his suit in the ordinary way or under the provisions of the Act of 1864. If under the latter, and the cause of action be a contract, the plaintiff, on filing with his declaration an affidavit stating the true amount of indebtedness, together with the cause of action by which the same accrued, is entitled to a judgment on the first day of the term, or at the return day, next succeeding the appearance of the defendant, whichever shall first occur, unless the defendant shall file a plea, containing a good defence, and make oath that the said plea is true, and that he verily believes he will be able at the trial of the cause to produce sufficient evidence to support the same.
In this case, the suit was brought on an account, and the plaintiffs filed with the declaration the affidavit prescribed, together with the account by which the indebtedness accrued. The requirements of the Act were thus fully complied with on their part. The defendants filed their [**3]  plea within the time prescribed, and both parties seem to have regarded the suit as having been brought under the Act of 1864.
It is not pretended the defendants were misled by the notice thus attached to the declaration, into the error, of supposing that the action was brought in the ordinary way, or that their rights were in any manner prejudiced thereby, and we are at a loss to imagine, upon what grounds such a notice can be held to take the case out of the operation of the Act.
2. That the bill of particulars ought to have been verified by affidavit.
The 8th section requires the plaintiff to make affidavit of the true amount of indebtedness, and to file at the same time 

 [*261]  the cause of action, but a bill of particulars which is furnished subsequently upon the demand of the defendant, does not come within this requirement of the section. Having already made oath as to the true amount of indebtedness, there is no reason why the bill of particulars should be verified by affidavit.
3. That the plea of the Statute of Limitations, is not within the operation of the 7th section.
In regard to this point, I must confess I entertain some doubts, but the majority of the [**4]  Court are of opinion that inasmuch as there is no exception made in favor of any plea, and in view of the fact that a defendant might even plead the Statute of Limitations falsely, it comes within both the letter and spirit of the Act.
4. It is contended that under the 7th section, the plaintiff must take his judgment either on the first day of the term, or on the return day next succeeding the appearance of the defendant, and cannot claim it afterwards. The purpose of this Act was to enable parties to obtain judgment, in all cases in which there was no valid defence, at the earliest practicable moment, and to effect this, the defendant is required to plead under oath within a certain time, and upon failure to do so, the plaintiff is entitled as of right to his judgment. Until default, the plaintiff is not entitled to judgment, but the Act does not restrict the right to claim judgment to the day of default. Upon a fair construction of this Act, we think, the plaintiff may take his judgment either on the first day of the term, or at the return day next succeeding the appearance of the defendant, whichever shall first occur, or at any time during the term.
It is hardly [**5]  necessary to say, that in making affidavit in regard to the amount due, the plaintiff swears to the best of his knowledge and belief, and a mere discrepancy between the amount therein stated and the bill of particulars subsequently furnished, does not necessarily impeach the bona fides with which the affidavit was made.

 [*262]  In this case the defendants failed to file a plea verified by oath as required by the Act, and the plaintiffs were therefore entitled to their judgment. The rule laid upon them to reply to a plea, which the law did not recognize as a valid plea, could not deprive them, nor in any manner affect their right to judgment.
We think the Court was right in overruling the motion to strike out the judgment.
Order affirmed. 

124 of 144 DOCUMENTS 

THE BALTIMORE CITY PASSENGER RAILWAY COMPANY vs. THOMAS SEWELL, JR., and RICHARD SEWELL, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 238; 1872 Md. LEXIS 24 

February 23, 1872, Decided 

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

This action was instituted in the Superior Court of Baltimore city by the appellees against the appellant, to recover damages for its refusal to issue to them certificates of its stock in lieu of three certificates for certain shares of an unincorporated association out of which the appellant was formed, and which certificates had been assigned to the appellees by a member of the association prior to its becoming a body corporate.

The declaration contained three counts, one upon each of the certificates, and all in the same form. The first count is as follows:

For that whereas heretofore, to wit, on the 11th day of May, in the year 1860, certain Jonathan Brock, (and others, naming them,) being the assignees of certain City Passenger Railway franchises, acquired under an ordinance of the Mayor and City Council of Baltimore, entitled "An Ordinance empowering William H. Travers, and others, to build and lay down tracks for a Passenger Railway on Baltimore and other streets," approved March 28th, 1859, and being also the holders of certain estate and property, real and personal, in the city of Baltimore, did by certain articles [**2]  of agreement, under seal, bearing date on the day and year aforesaid, and duly executed, acknowledged and recorded to affect real estate in said city of Baltimore, constitute themselves into an association, under the name of the Baltimore City Passenger Railway Association, for the purpose of using and operating the railway franchises, conferred by said ordinance, under the provisions, terms and stipulations contained in said articles; and did, thereby, among other things, provide that the beneficial interest in the properties, rights and franchises of said association, should be divided into forty thousand equal parts or shares, of the par value, when paid up, of $ 50 per share; which parts or shares should be, and they were thereby declared to be personal estate, and transmissible as such to the personal representative of a deceased shareholder, and transferable only on the books of said association, in person or by attorney, as the by-laws of said association might provide; and did thereby apportion to the said Jonathan Brock, as representing fully his separate interest in said association, six thousand eight hundred and forty of said parts or shares, and did thereby prescribe the [**3]  form of certificate, to be issued by said association, for a share or shares of said stock; which form of certificate was so framed as to make the certificates, which might be issued for a share or shares of said stock, transferable only in the manner and under the conditions and qualifications set forth in a certain deed, executed by William S. Taylor to Jonathan Brock and others, and which deed, the plaintiffs aver, bears date, &c.

And the plaintiffs further say, that in and by said deed, it is provided that said certificates shall be transferable only on the books of the association, in person or by attorney, as the by-laws of said association might provide. And that in and by said by-laws, it was provided that certificates of stock should be issued to the stockholders, and transfers made when required, said certificates to be signed by the president and treasurer, and authenticated by the seal of the company. And that in and by said articles of agreement, provision was made for procuring the passage, by the General Assembly of Maryland, of an Act incorporating the said association; upon the passage of which, and the acceptance thereof, by shareholders holding a majority of [**4]  the shares, all the parties to said articles of agreement, were, by the terms thereof, to be bound by such acceptance, and to unite in all such acts and proceedings as might be necessary to the incorporation of said association, and its efficient action as such.

And thereupon, afterwards, to wit, on the 21st day of May, in the year 1860, the said Baltimore City Passenger Railway Association, under and by virtue of, and in conformity with, said articles of agreement, did issue and deliver to the said Jonathan Brock, a certificate in the form prescribed in said articles, sealed with the seal, and signed by the president and treasurer of said association, numbered 195, for twenty shares of the capital stock of said association, in which it was acknowledged, that upon each of said shares, the sum of $ 15.75 had been paid. And thereupon, afterwards, to wit, on the 20th day of August, in the year 1860, the said Jonathan Brock, by a certain assignment under his hand and seal, did authorize the plaintiff to transfer to any person or persons forty shares of said capital stock, and did then deliver the said certificate, and another like certificate for other twenty shares of said capital [**5]  stock, numbered 196, with the said assignment attached thereto, to the plaintiffs. And afterwards, by a certain Act of the General Assembly of Maryland, passed on the 13th day of February, in the year 1862, entitled, "An Act to incorporate the Baltimore City Passenger Railway Company," certain Henry Tyson, and others, their associates, assignees of all the rights, powers and privileges conferred by the aforementioned ordinance of the Mayor and City Council of Baltimore, were incorporated by the name and style of the Baltimore City Passenger Railway Company, for the purposes and with the powers and subject to the restrictions and limitations set forth in said Act; and it was by said Act declared, that upon the acceptance thereof by the said persons last named and others, their associates, all the property of every description acquired and held by them, for the purposes mentioned in, and to carry out the provisions of the aforesaid ordinance, should become vested in said corporation. And it was also thereby enacted, that the capital stock of said corporation should consist of forty thousand shares of the par value of $ 25 per share, to be distributed among the said persons last named [**6]  and others, their associates, in proportion to their respective interests in and under the said ordinance, to be by them ascertained at the time of their acceptance of said Act, and that the property of the persons last named and others, their associates, by said Act vested in said corporation, should be estimated as of the value, and taken and accepted by the said corporation as a payment of $ 15.75 per share on the capital stock of said corporation, and that the said corporation should have power from time to time to call in such further instalments on said capital stock, but none other, as should be found necessary to carry into effect the purposes of said Act--the said instalments to be paid by the holders of the said capital stock at the time and times at which such calls should be actually made; provided such further instalments, with the payment of $ 15.75, to be made by the transfer of the property of the said persons last named and others, their associates, as aforesaid, should not exceed, in the whole, the sum of $ 25 per share. And it was thereby also further enacted, that the said Act should go into operation immediately after the passage thereof, and after the said persons [**7]  last named and others, their associates, or their attorneys or agents, should declare their acceptance thereof, by writing under their hands, or the hands of their attorneys or agents, to be executed in duplicate, and should file one of said duplicates with the clerk of the Superior Court of Baltimore city, for enrolment among the Land Records of said city, and deliver the other to the register of the city of Baltimore.

And the plaintiffs further say, that the said Act of Assembly was afterwards duly accepted, as required thereby, and all the prerequisites to making the same operative, and constituting the said Baltimore City Passenger Railway Company, which is the defendant in this action, a body corporate clothed with the powers, rights and liabilities contemplated by said Act, were duly complied with, and by reason thereof, all the franchises, property and interests represented by the shares of stock, for which certificates had been issued by the Baltimore City Passenger Railway Association, became and were vested in the defendant. And that subsequent to its incorporation, as aforesaid, and prior to the 11th day of October, in the year 1862, the defendant, as authorized by [**8]  said Act of incorporation, did call in a further instalment of $ 1 per share upon its capital stock, and did, subsequent to such call, to wit, on the day last named, receive from the plaintiffs in respect of the twenty shares of said capital stock, to which they were entitled by reason of the assignment to them, as aforesaid, of the said certificate No. 195, for twenty shares of the capital stock of the Baltimore City Passenger Railway Association, and the transfer to the plaintiffs, as hereinbefore stated, of the property and franchises represented by said twenty shares of stock, the said sum of $ 1 per share, and did by its treasurer, endorse a receipt for the same upon said certificate, thereby recognizing the plaintiffs as the rightful holders or owners of twenty shares of the capital stock of the defendant. And the plaintiffs thereupon, afterwards, to wit, upon the 24th day of June, in the year 1867, and on divers days thereafter, and before the bringing of this suit, being, at said times, the holders of the certificate aforesaid, did apply to and require the defendant to issue to them in lieu of said certificate, which they then offered to surrender, a certificate for an equal [**9]  number of shares of the capital stock of the defendant, in accordance with the formalities required by its charter, which they then offered and expressed their willingness in all things to observe, and did also then require the defendant to pay to them all dividends declared by it upon said shares of stock; but the defendant not regarding its duty and liability in the premises, did wholly refuse, at the respective times of such application and requirement, and still doth refuse to issue and deliver to the plaintiffs a certificate for the said twenty shares of its capital stock, or to pay to them the dividends declared thereon.

The verdict being for the appellees, the appellant filed motions for a new trial and in arrest of judgment, which, under the then existing law, (February, 1870,) were heard by the Supreme Bench of Baltimore city, and overruled. The appeal was taken from this order.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Construction of Section 33 of Article 4 of the Constitution -- Appeal -- New Trial -- Arrest of Judgment -- Action against a Corporation for refusal to issue its Stock in lieu of Shares of an association out of which the corporation was formed -- Transfer of shares -- Dividends recoverable as part of the Damages for the refusal to transfer stock.

The granting or refusing a new trial by the Supreme Bench of Baltimore city, under Art. 4, sec. 33 of the Constitution, is a matter resting in the sound discretion of the Court, and its action thereupon is not the subject-matter of review upon appeal or writ of error.

Where a cause of action is defectively stated in a declaration, such defect is cured by verdict, but where no cause of action is stated, such defect is fatal, and the Court will on motion arrest the judgment.

An action will lie against a corporation for wrongfully refusing to issue certificates of stock to a party entitled.

The assignees of certain street railway franchises entered into articles of association, in contemplation of incorporation, wherein it was provided inter alia that the beneficial interest in the properties, rights and franchises of the association should be divided into a fixed number of shares of a certain par value, transferable only on the books of the association. By the terms of the Act of incorporation, the associates became entitled to the stock of the company, so formed, in proportion to their respective interests in the association, to be ascertained at the time of acceptance of the charter. One of the associates assigned certain of his shares before the incorporation, and his assignees having brought suit against the corporation for its refusal to issue to them certificates of stock in lieu of their shares it was HELD:

1st. That the right of an associate or his assignee to sue for such refusal does not differ in principle from that of an ordinary assignee of stock.

2d. That the transfer from the assignor, although not made on the books of the association, passed his title and interest in the shares, to the assignees, and they became thereby entitled to the stock of the corporation.

3d. That the shares thus assigned were personal property, the title to which would pass by transfer and delivery.

4th. That the assignees could, in their own names, maintain an action for the refusal to deliver the stock.

5th. That where the declaration avers an assignment under seal, accompanied by a delivery of the certificates of stock, the Court will, on motion in arrest of judgment, presume that the assignment was made for a bona fide consideration, and that the jury so found.

Semble that such a declaration would be good even on demurrer.

6th. That a failure to ascertain the interest of the associate or his transferee at the time of the acceptance of the charter, could not affect the right of either to the stock of the company in lieu of their shares.

7th. That defences based on the ground of issual of stock to the assignor prior to notice and demand by his assignee, or of indebtedness of the assignor to the association, should have been made at the trial below.

In an action at law against a corporation for refusing to issue or transfer stock, the plaintiff may claim in the same suit the value of the stock, together with the dividends due thereon, and in such a case the measure of damages is the value of the stock at the time of the demand, together with the dividends accrued thereon at that time, with interest to the day of trial.  

COUNSEL:
Arthur W. Machen and S. Teackle Wallis, for the appellant.

Upon the motion in arrest of judgment, it was argued that upon the face of the pleadings, the plaintiffs had no right of action.

There are precedents for an action by an assignee of shares, against a corporation [**10]  which has wrongfully refused to make the assignment effectual by a transfer on the books. But here the stock, of which a transfer is demanded, did not exist before May, 1862, when the Company became incorporated; while the alleged acts of assignment all took place one year, or two years, previously.

How can a corporation be required to regard as an assignment of shares in its capital stock, an instrument which does not even purport to speak of such stock? In 1867, a writing is produced by a third party, dated long before the corporation was in existence, purporting to have reference only to shares or interests in an unincorporated company or partnership, and silent as to any shares in the stock of the Baltimore City Passenger Railway Company. If that power of attorney indicated an assignment of the property from Brock to Sewell, why did not the latter appear and claim his place as one of the associates, at the time of the acceptance of the charter, and incorporation under it? If it was to avail at all, it was to avail during the period of the association. When that time is allowed to go by, and no use made of the power, does not the presumption arise that all legal rights under [**11]  it have been waived? Had the company made the transfer to Sewell, and Brock the next day appeared and claimed the right to transfer his stock to some one else, what sufficient answer could the company have given?

If it be contended on behalf of the plaintiffs that they are not claiming in the character of assignees from Brock of any shares of his in the stock of the company, but found their right to recover upon the fact that whilst he was a member of the association he completely assigned his interest to them, so that they themselves, and not he, became shareholders in the company upon its organization, the declaration furnishes a conclusive answer to the position. The articles of association, and deed of trust referred to in them, (as stated in the declaration,) provided, that the certificates of shares in the association should be "transferable only on the books of the association." The declaration discloses that the certificates in question were not so transferred. It is not even averred that any attempt was made to effect such transfer. The powers of attorney were never presented, nor any use made of them, during the existence of the association. Thus, by the showing of the [**12]  plaintiffs themselves, the condition on which their right to establish an interest in the association depended was not fulfilled. Walkers' Case, Law Rep., 2 Eq., 556; Fisher vs. Essex Bank, 5 Gray, 378-83; Blanchard vs. Dedham Gas Light Co., 12 Gray, 215; Northrop vs. Newtown and Bridgeport Turnpike Co., 3 Conn., 544; Walworth, C., Commercial Bank of Buffalo vs. Kortright, 22 Wendell, 352, 353; Union Bank vs. Laird, 2 Wheat., 390; Williams vs. Mechanics' Bank, 5 Blatchf., 59.

The last recorded stockholder is the only recognized and legal owner of the shares. Shaw vs. Spencer, 100 Mass., 388.

At no time before the 24th of June, 1867, could the company, it is clear, have insisted on regarding Sewell, and not Brock, as the legal holder of the shares. The relation could not exist without mutuality. East of England Banking Co., ex parte Bugg, 2 Drewry & Smale, 452.

Even between the parties--Brock and the plaintiffs--the transaction did not amount to an assignment. As the declaration discloses, there was no writing, except a mere power of attorney. And it does not even appear that the power was coupled with an interest; for it is not averred that any consideration passed between [**13]  Brock and the plaintiffs. The right of the latter is rested merely on the possession of a certificate issued to Brock by the association, and a power of attorney which it is not pretended was ever put in exercise. McNeil vs. Tenth National Bank, 55 Barb., 59, 65; Boyd vs. Rockport Steam Cotton Mills, 7 Gray, 408.

The act of incorporation, as set forth in the declaration, required that the capital stock of the new company should be divided amongst the associates "in proportion to their respective interests in and under said ordinance, to be by them ascertained at the time of their acceptance of said act." It is, therefore, indispensable, that any one claiming a transfer of shares in the company, should show, either that he (or his assignor,) was the actual holder, upon the books of the company, of the shares in question, or that he, or his assignor, had such an interest by an ascertainment so made by all the associates, at the time of the acceptance of the charter, in the property of the original partnership, or association, as entitled him, by virtue of the charter, to the specific shares demanded.

The declaration discloses a further and independent ground for arresting the [**14]  judgment. In all the counts the claim of damages embraces not only compensation for the stock, but the dividends declared upon it. But it is clear that the dividends are no part of the damages consequent upon the defendant's refusal of the plaintiffs' demand. That the subsequent dividends cannot be recovered along with the value of the stock itself is too plain for discussion. It is perfectly clear also that the loss of dividends which had accrued before a transfer of the shares was demanded can form no part of the plaintiffs' damages. Those dividends were payable to Brock, were liable to be applied by the company to the payment of his debts to the company, and were subject to be attached by his creditors. Gray vs. Portland Bank, 3 Mass., 382, 386; Bates vs. N. Y. Insurance Co., 3 Johns. Cas., 238; Union Bank vs. Laird, 2 Wheat., 390; Fisher vs. Essex Bank, 5 Gray, 377, 378; Shaw vs. Spencer, 100 Mass., 388; Coleman vs. Spencer, 5 Blackf. (Ind.) 197; Williams vs. Mechanics' Bank, 5 Blatchf., 59.

Where a declaration claims, in addition to legitimate damages, other damages which are not proper to be recovered, and the jury assess damages generally, the judgment must be arrested.  [**15]  Stirling vs. Garritee, 18 Md., 468; Hambleton vs. Veere, 2 Wms. Saund., 169, 171; Harbin vs. Grene, Moore, 887, and other cases cited in note 1; Sicklemore vs. Thistleton, 6 M. & Sel., 9, 12; Parke B., Sheen vs. Rickie, 5 M. & W., 181.

Daniel M. Thomas and Wm. Pinkney Whyte, for the appellees.

The first reason assigned in support of the motion in arrest of judgment, namely: that the declaration sets forth no cause of action whereupon the plaintiffs can recover against the defendant, cannot be maintained. If (which is denied) any fact or facts be imperfectly stated or omitted in the declaration, the issues joined were "such as necessarily required on the trial, proof of the facts so imperfectly stated or omitted," and therefore, any such supposed "imperfection or omission will be cured by the verdict." Code, Art. 75, sec. 9; Merrick vs. Trustees of Bank of Metropolis, 8 Gill, 75, 76; Coulter vs. Trustees of West. Theol. Seminary, 29 Md., 75.

But this declaration does in fact contain everything "necessary to constitute a ground of action" in the plaintiffs, and this is all that is required by the Code. Art. 75, secs. 2, 3.

The facts stated in the nar. show the right [**16]  of the plaintiffs to demand the issual to them by the defendant of certificates for certain shares of its stock, and the refusal of the defendant so to do, and for such refusal the present action is maintainable. The King vs. The Bank of England, Douglas, 526; Kortright vs. Buffalo Com. Bank, 20 Wend., 91; Shipley vs. Mechanics' Bank, 10 Johns., 484; Ex parte Firemens' Ins. Co., 6 Hill, 243; Sargent vs. Franklin Ins. Co., 8 Pick., 98; Building Association vs. Sendmeyer, 50 Penn., 67-75; see also The Schuyler Case, 34 N. Y., 80 et seq.

The owner of shares of stock in a company, and entitled to a certificate therefor, may bring assumpsit against the company for its refusal to deliver to him such certificate. Wyman vs. Am. Powder Co., 8 Cush., 168, 180; Hussey vs. Bank of Nantucket, 10 Pick., 423.

And his having no certificate of ownership will not prejudice his claim, as it was not in his power to get one without the assent of the company. Ellis vs. Proprietors of Essex Merrimack Bridge, 2 Pick., 243.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*249]  ROBINSON, J., delivered the opinion of the Court.  [**17]  
This is an action to recover damages for the refusal on the part of the appellant, to issue and deliver to the appellees certain certificates of its capital stock, to which they claim to be entitled, as set forth in the declaration.
The plaintiffs obtained a verdict below, and the defendant filed motions for a new trial and in arrest of judgment, both of which were overruled by the Supreme Bench of Baltimore city, and this appeal is taken from the order overruling said motions.
I.--The motion for a New Trial.
In Sauer vs. Schulenberg, 33 Md. 288, and Merrick vs. Balt. & Ohio R. R. Co., 33 Md. 481, it was held, that the granting or refusing a new trial by the Supreme Bench under section 33 of Article 4, of the Constitution, was a matter resting in the sound discretion of the Court, and its action thereupon was not the subject-matter of review upon appeal 

 [*250]  or writ of error. We find nothing in the case before us to exempt it from the operation of this well established rule.
II.--The motion in Arrest of Judgment.
The question on this motion is, whether the facts averred in the declaration and found to be true by the jury,  [**18]  constitute a sufficient cause of action to entitle the plaintiffs to a judgment. If the cause of action be defectively stated, such defect is cured by the verdict, because to entitle the plaintiff to recover, "all the circumstances necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial, and it is therefore a fair presumption that they were proved." Gould on Pleadings, 497; Coulter vs. Trustees of West. Theol. Sem., 29 Md. 69. Where however, no cause of action is stated, such a defect is fatal, and the Court will on motion arrest the judgment.
It is contended, that the cause of action set forth in the pleadings, is defective, because although precedents may be found for an action by an assignee of shares against a corporation for wrongfully refusing to perfect an assignment or transfer of the same on its books, yet in this case the stock, of which a transfer is demanded, did not exist prior to May, 1862, when the company became incorporated, while the alleged acts of assignment all took place one or two years previously. We start then, with the concessum, that an action will lie against a corporation [**19]  for wrongfully refusing to issue certificates of stock to a party entitled. Let us see then, how far the case before us differs in principle from the one thus admitted. The appellees, it is true, do not sue as subscribers, nor in the character of assignees of stock of the appellant, but found their right to recover upon the fact, that Brock, whilst a member of the association, assigned to them certain shares of the latter, whereby they claim to be entitled upon its incorporation, to a given number of shares of the company.

 [*251]  The declaration avers that Brock and others, being assignees of certain City Passenger Railway franchises acquired under an ordinance of the Mayor and City Council of Baltimore, constituted themselves into an association for the purpose of using and operating said railway franchises, and did by articles of association, provide, among other things, that the beneficial interest in the properties, rights and franchises of the association should be divided into forty thousand equal shares of the par value of $ 50 per share; that these shares were transferable on the books of the association; that provision was made for its incorporation; that in [**20]  pursuance thereof it became duly incorporated, whereby all the property and rights and franchises of the association became vested in the new company; and that by the express terms of the Act of incorporation, the associates became entitled to the stock of the appellant, in proportion to their respective interests in the association. Under these averments, the right of the associates to stock of the company in lieu of their shares in the association, is beyond all question, and we think it is equally clear that, upon a refusal to issue the same, an action at law would lie. If so, why should a bona fide assignee stand upon a different footing? If the association, upon demand and presentation of his muniments of title, had refused to transfer the same upon its books, a Court of Equity would have enforced it, and if the association had in the meantime become incorporated, capable of suing and being sued at law, there is no reason why the assignee should be obliged to seek relief in equity. The right then, of an associate or his assignee to sue the appellant for its refusal to issue certificates of stock to which he is entitled, does not differ in principle from that of an ordinary [**21]  assignee of stock. If any equities existed at the time of the assignment, or have intervened subsequent thereto, and prior to the demand of the assignee, affecting the interest of the assignor in the shares thus assigned--if the latter was indebted to the association, and such indebtedness was under the articles of the association 

 [*252]  or by-laws, a lien on the shares of the assignor, these and other like defences could be relied on in an action at law as well as in a suit in equity.
But it was insisted, that if the appellees claim as assignees of shares of the association, the declaration upon its face shows that the transfer was not made on its books in pursuance of the articles and by-laws of the association. The legal effect of a provision in the charter or by-laws of a corporation, requiring a transfer of its stock to be made on its books, has often been the subject matter of controversy, and although a literal construction has been given in Connecticut to such clauses, yet in other States, and in the Supreme Court of the United States, a more liberal construction, and one far more in accordance with their spirit and meaning, has been adopted. In regard to such provisions,  [**22]  says Angell & Ames on Corporations, sec. 354: "As they are intended merely for the protection of the interests of the corporation, no effect is given to them further than is necessary to effect that purpose. It is necessary that an incorporated company should have the means of knowing who are stockholders and members, in order that they may know to whom dividends are to be paid, and who are entitled to vote upon the stock; and where the company has a lien upon the stock for debts due to it from a stockholder, that it should have the means of preventing a transfer in derogation of its own rights. To secure this knowledge, and to enable corporations to avail themselves of their lien upon the stock of the company without danger to the rights of purchasers, these clauses are usually inserted in their charters, or form a part of their by-laws. Accordingly, where transfers of stock are made without conforming to the requisitions of the charter or by-laws in making them, or having them registered on the books of the company, the better opinion decidedly is, that the transfer passes to the purchaser all the right that the seller had; and that such provisions do not incapacitate the owner [**23]  of the stock from transferring it at his pleasure, by way of equitable assignment of his interest in 

 [*253]  it, subject to the charter rights of the corporation. In other words, such provisions, whether by charter or by law, apply solely to the relation between the corporation and its stockholders--to the questions, who shall vote, to whom dividends shall be paid; and enable the corporation to protect any lien it may have upon the stock, or equity in it, as between itself and the stockholder transferring it." And in considering this question, Redfield on the Law of Railways, vol. 1, 113, says, "the assignee need only make his right known to the company, and require the transfer to be entered upon the books, and his title becomes perfected." In accordance with these views, it has been repeatedly decided that an assignee may sue a corporation for refusing to issue or transfer certificates of stock, although the assignment was not made on its books, in pursuance of the charter and by-laws. Bank of Utica vs. Smalley, 2 Cow. 770; Sargent vs. Franklin Ins. Co., 25 Mass. 90, 8 Pick. 90; Mechanics' Bank vs. N. Y. and N. H. R. R. Co., 13 N.Y. 599; [**24]  N. Y. and N. H. R. R. Co. vs. Schuyler, 34 N.Y. 30; Gilbert vs. Manchester Iron Manufacturing Co., 11 Wend. 628; Kortright vs. Buf. Com. Bk., 20 Wend. 91. In the cases relied on by the appellant, the question was whether such an assignment would pass title against a creditor of the assignor who had attached the stock in the hands of the company prior to a transfer on its books; or against a subsequent purchaser without notice; or against the lien of the company on the stock for an indebtedness of the stockholder. Fisher vs. Essex Bk., 5 Gray 378; Blanchard vs. Dedham Gas Light Co., 12 Gray 215; Union Bk. vs. Laird, 15 U.S. 390, 2 Wheat. 390, 4 L. Ed. 269; Pinkerton vs. Manchester and Lawrence R. R., 42 N.H. 424.
If such is the effect of a provision of this kind in the charter or by-laws of a corporation, we see no reason why the same effect should not be given to such a provision in the articles or by-laws of the association, and more particularly as the association was formed and the articles adopted with a view of being incorporated.  [**25]   It is not to be presumed that such a provision was intended to better the right of transfer by 

 [*254]  unreasonable and unnecessary restraints, but on the contrary, in providing that the shares should be transferable, to afford every facility for the sale and convertibility of the same, consistent with safety to the association.
If then, the transfer from Brock, although not made on the books of the association, passed his title and interest in the shares to the appellees, and in lieu thereof, they became entitled to the stock of the appellant, we think it is equally clear that upon a refusal to issue the same an action may be maintained in their names. The shares thus assigned may differ in some respects from an ordinary chose in action, and may be regarded as the muniments and evidence of the holder's title to a given number of shares in the property and franchises of the association, yet nevertheless, they are personal property, the title to which will pass by a transfer and delivery. If the transfer is not made on the books of the association, as required by the articles and by-laws, the transferee acquires at least an equitable title, which it was the duty of the association [**26]  to recognize and permit to be ripened into a complete legal title, and, if prior to a demand it had become incorporated, it was equally the duty of the company. For a breach of this duty, a duty imposed by the very terms of its charter, we are of opinion that an action at law may be maintained in the name of the transferee.
But it is further contended, that it does not appear upon the face of the pleadings that the appellees are bona fide assignees. The declaration however avers an assignment under seal by Brock, accompanied by a delivery to the plaintiffs of the certificates of shares attached to said assignment, and further, that under a call subsequently made by the appellant, the appellees paid to its treasurer authorized to receive the same, one dollar per share on the capital stock to which they were entitled by reason of the assignment as aforesaid. These averments, however, it is said, are not inconsistent with a mere naked power, not coupled with an interest, to which it may be replied they are equally consistent with an interest 

 [*255]  under the power. Moreover, this objection is not made on demurrer, but on a motion in arrest of judgment, and on [**27]  the ground that these averments do not constitute a sufficient cause of action to entitle the plaintiffs to a judgment upon a verdict, in support of which, every fair legal intendment is to be made. It may be true, that the appellees must be bona fide assignees to entitle them to recover, but where the declaration avers an assignment under seal, accompanied by a delivery of the certificates of stock, the Court will, on a motion in arrest of judgment, presume that the assignment was made for a bona fide consideration, and that the jury so found. We are not to be understood however, as intimating that the declaration would have been bad even on demurrer, because it does not aver an assignment for a valuable consideration. Crawford vs. Brooke, 4 Gill 213; McDowell vs. Goldsmith, 6 Md. 319.
But it is also contended, that the Act of incorporation, as set forth in the declaration, required the capital stock of the new company to be divided among the members in proportion to their respective interests in the association, to be by them ascertained at the time of the acceptance of the charter, and that a party claiming a transfer of shares [**28]  of the company, should either show that he or his assignor was the actual holder of the stock upon the books of the company, or that he or his assignor had such an interest, by ascertainment made at the time of the acceptance of the Act of incorporation. We do not understand however, it is contended, that this ascertainment was a condition precedent to the organization of the company. On the contrary, it was admitted, and the declaration avers, that the charter was accepted, and all the pre-requisites to making the same operative, and constituting the defendants a body corporate, were duly complied with. Can it then, be construed as a condition precedent to the right to sue the company for its refusal to issue to a member certificates of stock to which he claims to be entitled? Clearly not. The Act provided that an acceptance thereof by a majority 

 [*256]  of the members should be binding on all, and various causes might operate to prevent an ascertainment at the time of its acceptance. In fact, the very majority thus accepting might refuse to make the ascertainment at that time, and not being a condition precedent to the incorporation of the company, the latter would be [**29]  entitled to all the property of the association, and according to the view of the appellants, the members would be obliged to seek relief in equity. And why in equity? The articles of association provided that the beneficial interest in the properties, rights and franchises thereof should be divided into a given number of shares, of a fixed and determinate value, and the Act of incorporation provided, that the associates should be entitled to the stock of the company in proportion to their interests in the association. There is no reason why this interest could not be ascertained, subsequent as well as prior to the acceptance of the charter. True, the ascertainment ought to have been made at the time of the acceptance of the charter, but the mere failure to do so could not in any manner affect the right of an associate or his transferee to the stock of the company to which they were entitled, under its charter, in lieu of their shares in the association. If, prior to notice and demand by the appellees, the company had ascertained the number of shares to which Brock was entitled as an associate, and had issued the same to him, or any one claiming under him, or if by reason of an indebtedness [**30]  by him to the association, he was not entitled to the stock claimed by the appellees, these, and other like defences, could and ought to have been relied on at the trial below.
This brings us to the last reason urged in support of this motion, namely: that in all the counts of the declaration the claim of damages embraces, not only compensation for the stock, but the dividends accrued thereon. It does not occur to us as being very unreasonable, that in a suit against a corporation for refusing to issue certificates of stock to a party entitled to the same, he should, in addition to the value 

 [*257]  of the stock, be allowed the dividends which had accrued thereon prior to the demand. If he is entitled to the stock, he is also entitled to the dividends, and we know of no rule of pleading which forbids his claiming damages in the declaration for wrongfully withholding the same. An action at law against a corporation for refusing to issue or transfer stock, is a convenient common law remedy to obtain compensation in damages, in lieu of a proceeding in equity for specific performance. In The King vs. The Bank of England, Doug., 523, Lord MANSFIELD refused a mandamus to compel [**31]  the bank to enter a transfer of stock on its books, upon the ground that an action would lie at law for complete satisfaction, equivalent to the specific remedy by mandamus. Now it is very clear, that in cases where equity has jurisdiction, Courts have not only decreed that the certificates of stock should issue or be transferred, but in addition, have decreed payment of the dividends which may have accrued. In Lowman Chew and Wm. Goldsborough vs. The Bank of Balt., 14 Md. 299, this Court decreed, that the bank should make the transfer as prayed in the bill of the complainant, and also pay the dividends accrued thereon, with interest on the same. In an action at law, a party may not be able to enforce a specific performance, yet he ought to be entitled to complete satisfaction, equivalent to specific relief in equity, and if he can only recover the value of the stock at the time of the demand, with interest to the day of sale, it is very clear he gets no compensation for dividends which have accrued prior thereto, for the interest allowed is in lieu of dividends accruing subsequent to the demand. A party would therefore be compelled to bring a suit for [**32]  the value of his stock, and another suit to recover the dividends declared thereon.
In the cases cited by the appellant, the question was as to the measure of damages, in regard to the stock itself, whether the plaintiff was entitled to recover the value of the same at the time of the demand, or the value at the time when the same ought to have been transferred; or the value at the time 

 [*258]  of the trial, or at any intermediate period. In such cases, the general rule is, that the plaintiff is entitled to recover the value of the stock at the time of the demand, with interest thereon. The question however as to the right to recover in addition thereto, the dividends which may have accrued prior to the demand, did not arise, and was not considered in any of these cases.
We see nothing, therefore, either on principle or upon authority, to prevent a party from claiming in the same suit, the value of the stock, together with the dividends due thereon; and in such a case, the measure of damages would be the value of the stock at the time of the demand, together with the dividends accrued thereon at that time, with interest to the day of trial. And such is the [**33]  claim made in the plaintiff's declaration. It was said in argument, that damages were allowed by the jury to the day of trial, but they are assessed generally, and it is not for us to say, on a motion in arrest of judgment, that the jury have assessed other damages not claimed in the declaration.
Order affirmed. 

125 of 144 DOCUMENTS 

THE BALTIMORE AND HAVRE DE GRACE TURNPIKE COMPANY vs. THE UNION RAILROAD COMPANY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 224; 1872 Md. LEXIS 21 

February 16, 1872, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

A Legislative grant of Power to a Railroad Company to cross a Turnpike not a condemnation of the Turnpike's franchise -- Such Grant does not impair the Contract of the State with the Turnpike Company implied in its Charter -- Ultra vires -- Only powers necessarily Incident to those conferred will be Implied.

The legislature, in the exercise of the right of eminent domain, can empower a railroad corporation to cross another railroad or a turnpike road, on making compensation; and, whatever damage may result therefrom, the exercise of such a right cannot be considered as the condemnation of a franchise, nor the impairment of a contract within the meaning of the Constitution of the United States.

A legislative grant of powers to a corporation, sanctions only such implied powers as are necessarily incident to those expressly bestowed.

The U. R. R. Co. was empowered by its charter to construct a railway between two termini so situated as to make it necessary to cross the B. and H. Turnpike road. In addition to the main stem, the R. R. Co. built a lateral road, which also crossed the Turnpike road, in order to connect with the P., W. & B. R. R. HELD:

That the right to build the lateral road across the turnpike could not arise by implication from a provision in the charter of the U. R. R. authorizing all railroad companies upon equal terms, to run their locomotives and cars over the tracks of the U. R. R. Co.  

COUNSEL:
Arthur W. Machen and Geo. H. Williams, for the appellant.

There is no warrant in the charter of the appellee for the second crossing at grade, and any attempt so to do would be ultra vires.

Whilst in the exercise of the power of eminent domain, a franchise may be condemned, it must be as an entirety, and cannot be fractionalized. West River Bridge vs. Dix, 6 How., 529; 1 Redf. on Railw., sec. 70; Bridge Proprietors vs. Hoboken Co. 1 Wall., 116.

If the apprehensions of the appellant be well founded, and the uncontradicted testimony of all the witnesses be true, that the tolls will not suffice to keep up the road, the Turnpike Company would be without legal defence to any scire facias issued by the State, and the duration of their corporate existence would depend on a contingency. Wash. & Balto. Turnpike Co. vs. State, 19 Md., 239; 3 Wall., 213, 214.

The appellant's charter is a contract with the State for an unobstructed highway in perpetuity, and not for a crippled road, with revenues so diminished as to make [**2]  the life of the corporation precarious, and its existence a mere probability. Binghampton Bridge, 3 Wall., 73.

The State cannot impair a contract, and the extent of impairment, if the act done amount to impairment, is a matter of no consequence. 4 G. & J., 109, 149; Boston Water P. Co. vs. B. & Worc. R. R., 23 Pick., 394; 17 Conn., 54; 11 Leigh, 81; 21 Ver., 595.

The charter of the Union Railroad Company contains no provision for compensation for such an interference with the easement enjoyed by the Turnpike Company, or for the taking of a portion of its franchise. The power to condemn land or materials, does not extend to an encroachment like this, upon an incorporeal right. And as the Act does not provide for compensation, the railroad company cannot exercise its powers in such manner as to interfere with the Turnpike Company's franchise, without first obtaining the consent of the latter company. Boston and Lowell R. R. Co. vs. Salem and Lowell R. R. Co., 2 Gray, 37.

Wm. A. Fisher and Bernard Carter, for the appellee.

The Legislature, in the exercise of the right of eminent domain, can authorize and empower a railroad corporation to cross another railroad or turnpike [**3]  road, on making compensation, and the grant of such power is not a violation of the Constitution of the United States. Boston Water P. Co. vs. Bos. and Worc. R. R. Co., 1 Amer. Railw. Cases, 323-7, or 23 Pick., 360; White River T. Co. vs. Vermont C. R. R., 21 Ver., 591, 592-4; Enfield Bridge Co. vs. Hart. & N. H. R. R., 17 Conn., 461, 462; Tuckahoe Canal Co. vs. Tuckahoe R. R. Co., 11 Leigh, 70, 71, 73, 74, 75; West River Bridge Co. vs. Dix, 6 How., 529, 535, 541, 544; Richmond, &c., R. R. Co. vs. Louisa. R. R. Co., 13 How., 78, 80; 42 Barb., 120, 122; Backus vs. Lebanon, 11 New Hamp., 22-4; New Castle R. R. Co. vs. Penn. R. R. Co., 3 Ind., 468, 469, 470; The Bellona Co's Case, 3 Bland, 449, 450.

It is the easement in the land, and not the franchise, which is condemned. 6 How., 541; 3 Bland, 449, 450; Peirce on Railw., 152, n. 1.

The Legislature has granted the power to the appellee to make the crossings. Nothing was necessary except to fix the termini, and the appellee could then select its route between the given points. 1 Amer. R. W. Cases, 328, 329, 331; 11 Leigh, 79; 17 Conn., 464, 465; 3 Ind., 467; 13 How., 78; 4 Cush., 72; Peirce on Railw., 155.

These cases abundantly [**4]  show that the power to cross all intermediate roads results from the fixing of the termini; this is sufficient for our purposes, especially as it is physically impossible to build a road between the termini fixed by the Legislature, without crossing the appellant's road. But, if it were necessary, the power is expressly confined to cross all roads, by the 16th section of the Baltimore and Ohio Railroad Charter, made part of that of the appellee. White River T. Co. vs. Ver. C. R. R. Co., 21 Verm., 596; Rogers vs. Bradshaw, 20 Johns., 742, 743.

The power to cross being conferred, there is sufficient provision in the charter for the condemnation of the appellant's easements. The term "land," in such charters, includes every possible interest in lands. 17 Conn. 462, 463; 1 Amer. Railw. Cases, 327; 11 Leigh, 77, 78; 21 Ver., 597; Peirce on Railw., 152, n. 1, and 154.

And in fact, so far as the viaduct crossing was concerned, there was no necessity for a condemnation. The appellant has merely an easement, and that and the easement of the appellee can well coexist. Peirce on Railw., 178, 216; 11 Leigh, 81.

The only remaining proposition is in regard to the power of the appellee,  [**5]  under the terms of the charter, to build the switch across to the Baltimore, Philadelphia and Wilmington Railroad. The 10th section of the Act of 1870, ch. 412, authorizes all railroads to run their cars and locomotives over the railroad of the appellee, when constructed. The road was to be a trunk road, as all roads so built through a city should be, for all railroad companies that might wish to use it. The roads which it would cross and connect with at present, and which were more immediately in the contemplation of the Legislature, were the Baltimore, Philadelphia and Wilmington Railroad, the Northern Central Railway, the Baltimore and Potomac Railway, and the Western Maryland Railway; but the Legislature thought best to make use of language which would be applicable as well to those as all other railroad companies which might in the future come in contact with the Union Railroad. There could be no doubt that, had the 10th section expressly provided that the Philadelphia, Wilmington and Baltimore Railroad Company, should have the right to run its cars and locomotives on the tracks of the Union Railroad, that language, with that of the 9th section, would have fully authorized the [**6]  construction of such a switch, and it is difficult to see how the grant of a power to use the tracks for its locomotives and cars, by the Philadelphia, Wilmington and Baltimore Railroad, in connection with other companies, could be less effectual. State vs. Mansfield, 3 Zabr., (N. J.,) 512-14; N. O. R. R. vs. N. O., 1 Lou. Ann., 128; 11 Hump., 348, 351; Chicago, &c., R. R. vs. Wilson, 17 Ill., 124; State vs. N. C. R. R., 18 Md., 217, 218; 17 Conn., 465; 11 Leigh, 52.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*228]  ROBINSON, J., delivered the opinion of the Court.
The bill alleges that the complainant was empowered by its charter, granted in 1813, to build a turnpike road from Baltimore to Havre-de-Grace; that by subsequent legislation the road was suffered to terminate twenty-three miles from the city; that the road was accordingly built at a cost of about $ 100,000, and licensed for taking tolls; and that the tolls received therefrom have averaged for some years past seven thousand dollars per annum; that there are now but three tollgates on the road--one near the City of Baltimore, another about ten miles therefrom,  [**7]  and the third about sixteen miles; that the portion of the turnpike between the second and third mile-stones, and beyond the first gate, is nearly or quite level, and is preferred by those having fast horses to any other similar road anywhere in the vicinity of said city, and that with other advantages peculiar to said road, constitutes a great inducement to the use thereof and the travel thereon, and is a great source of profit; and that the tolls received from the first gate are the main source of revenue to the complainant.
The bill charges that the appellee was chartered by the Acts of 1866, 1867 and 1870, for the purpose of making a railway with its terminus on tide-water at Canton, and that under its supposed powers for condemnation has summoned a jury and condemned two crossings over the turnpike road of the complainant, and selected for the same the part of the road above mentioned--one of said crossings being by a viaduct twenty feet high, intended for the termination of the railroad at Canton, and the other a grade crossing, to form a lateral connection 

 [*229]  with the Philadelphia, Wilmington and Baltimore Railroad, and that the jury have awarded  [**8]  five thousand dollars as damages for such crossings.
The bill then charges that the second crossing is ultra vires, and that either or both of said crossings will irreparably injure the complainant's franchises; that the verdict of the jury is a mere pittance; that the complainant apprehends and charges that if either or both of the crossings be made, the travel would be so banished as not to leave receipts sufficient, probably, to keep the road in repair, as required by its charter, and, therefore, places in probable peril and jeopardy its corporate existence, and destroys all hopes of future dividends.
The complainant avers that its charter is a contract with the State of Maryland, and while it does not dispute that in the exercise of the power of eminent domain, the State has a right to provide for the condemnation of the road and franchises as an entirety, yet the State can pass no law impairing the obligation of contracts; that the complainant's contract with the State was for a free and unobstructed road, and they are not bound to work a road so crippled as to furnish insufficient revenue to keep the same in proper condition, and necessarily to [**9]  be managed in future under difficulties not now existing, and at constant peril of the forfeiture of its charter; nor can the State itself, nor any corporation professing to be by it authorized, fractionalize said contract or in any manner impair its validity.
The bill then prays that the appellee may be compelled to condemn the charter of the complainant as an entirety, if it resorts to condemnation; that the proceedings already taken may be declared a nullity, and the company enjoined from making said crossings.
It is conceded then, that the State may, in the exercise of the power of eminent domain, condemn the franchise of the complainant, but it is insisted that such condemnation must be of the entire franchise and not a fractional part thereof. Whatever force there may be in this view, it is sufficient to 

 [*230]  say, that no attempt has been made on the part of the State, nor by the appellee, to condemn the franchise of the appellant. In authorizing the appellee to build a railroad between the termini fixed by its charter, the Legislature did not intend to condemn or revoke the franchise of the appellant, nor is such the effect and operation of the grant. If in the construction [**10]  of the road of the appellee to tide-water at Canton, it is necessary to cross the turnpike road of the appellant, such a crossing cannot in any proper legal sense be considered as a condemnation of the franchise of the latter. On the contrary, its franchise--its corporate existence--its use of the turnpike road, with the right to collect tolls thereon--still remain, and the grant to the appellee is but an appropriation of the land, over which the franchise of the former is used, to another distinct public use, not inconsistent with the user and easement of the appellant. This subsequent appropriation, it is true, may interfere with the travel on the road of the appellant to the extent of diminishing the tolls received on account thereof, but the injury and damages accruing therefrom, be they ever so great, are matters for the consideration of the jury in awarding compensation.
Whether adequate compensation has been awarded in this case, is not a question before us in this appeal. We deem it unnecessary to extend this opinion by a review of the many cases in which these questions have arisen, or of the principles upon which they have been decided. It is sufficient to say, that after [**11]  an examination of all the cases referred to, we are of opinion that the Legislature, in the exercise of the right of eminent domain, can authorize and empower a railroad corporation to cross another railroad or turnpike road, on making compensation, and whatever damage may result therefrom, the exercise of such a right cannot be considered as a condemnation of a franchise, nor the impairment of a contract, within the meaning of the Constitution of the United States. Boston Water Power Co. vs. Boston and Worcester R. R. Co., 1 American Railway Cases, 323; Tuckahoe Canal Co. vs. Tuckahoe 

 [*231]  R. R., 11 Leigh 42, 70; White River Turnpike Co. vs. Vermont C. R. R., 21 Vt. 590; Enfield Bridge Co. vs. Hart. and New Haven R. R., 17 Conn. 454, 461; West River Bridge Co. vs. Dix, 47 U.S. 507, 6 How. 507, 529, 12 L. Ed. 535; Richmond, &c., R. R., Co. vs. Louisa. R. R., 54 U.S. 71, 13 How. 71, 14 L. Ed. 55; Backus vs. Lebanon, 11 N.H. 19; New Castle R. R. Co. vs. Penna. R. R., 3 Ind. 464; Peirce on Railways, 152, note 1.  [**12]  
But in addition to the viaduct crossing, intended for the railroad termination at Canton, the appellee claims the power under its charter, to build a lateral road connecting with the Philadelphia, Wilmington and Baltimore Railroad, and as incident thereto, the right to condemn a grade crossing over the turnpike road of the appellant. The grant of a right to take private property for a public use, or to subject property already appropriated to a public easement, to other and distinct easements and uses, is the highest exercise of legislative power, and such a grant ought to be conferred in language clear and unequivocal. The authority in this case to build a lateral road, we do not understand as being claimed under an express grant, but is said to arise by necessary implication under the 10th section of the Act of 1870, chapter 412, which authorizes all railroad companies upon equal terms, to run their locomotives and cars over the tracks of the appellee. It may be true, that every grant is intended to be beneficial, and carries with it such incidental powers as may be necessary to its exercise or enjoyment. If the exercise of the power granted draws after it some other right  [**13]  necessarily incident, the law may be said to contemplate and sanction the exercise of that right. Now, what is the right granted by the 10th section of the Act of 1870? It is, that all railroad companies shall have the right upon equal terms to run their locomotives or cars over the railroad of the appellee. By its original charter, Act of 1866, chapter 119, this right was conferred only upon the Northern Central and the Western Maryland Railroad Companies, but the charter was amended by the Act of 1870, and all railroad companies were authorized 

 [*232]  to use its tracks. The question is not whether these railroads are authorized to build lateral roads connecting with the railroad of the appellee, as incident and necessary to the beneficial enjoyment of the right to use the tracks of the appellee, but whether this section confers upon the latter the power to build lateral roads in every direction, connecting with all railroads running to Baltimore city. We are of opinion that it does not. No such power is expressly conferred, nor does it arise by necessary implication from the exercise of the right and privilege granted to the railroad companies--nor from the application [**14]  of this section to the purposes and objects for which the appellee was chartered.
We are of opinion, therefore, that the injunction ought to have been granted, so far as respects the condemnation of the grade crossing on the lateral road connecting with the Philadelphia, Wilmington and Baltimore Railroad, and the decree of the Court must be reversed and the cause remanded, in order that another decree may be passed in conformity with the opinion of this Court.
Decree reversed and cause remanded. 

126 of 144 DOCUMENTS 

JAMES POST and FRANCIS O. BARRETT vs. THOS. BOWEN, Garnishee of JOHN T. TURNER and HENRY T. TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 232; 1872 Md. LEXIS 22 

February 16, 1872, Decided 

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

The appeal in this case was taken from an order of the Circuit Court for Calvert county, of the 8th of May, 1871, directing the judgment of condemnation entered against the appellee, to be stricken out on his motion. The case is stated in the opinion of this Court.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Writ of Attachment -- Clerical error -- Laches -- Practice -- Remittitur -- Judgment against Garnishee without an Inquisition.

A writ of attachment was issued out of Baltimore City Court, and directed to the sheriff of Calvert county. The case was regularly placed upon the docket of the Circuit Court for said county; the writ was served upon the garnishee, and he was summoned to appear; upon his failure to appear, judgment was entered against him and execution was issued thereon, and the sheriff returned, "Levied as per schedule and sold for $ 50." Two years after the judgment, the garnishee appeared and moved that it be stricken out, assigning as one of the reasons therefor, that it had been rendered by a Court having no jurisdiction of the case. This reason was based upon the language of the writ of attachment, which commanded the sheriff to whom it was directed, to return the same "to the said Court to be held at the Court House in Prince Frederick on the first Monday of February next;" and it was argued that because Baltimore City Court only had been before mentioned in the writ, the words, "the said Court," necessarily imported Baltimore City Court; and this error rendered the subsequent proceedings void. HELD:

1st. That the error in the form of the writ was a mere misprision of the clerk, or at most only an irregularity, not going to defeat the jurisdiction, and did not render the proceedings in the Circuit Court coram non judice.

2d. That the garnishee having failed to appear and make his objection until two years had elapsed from the rendition of the judgment, his motion to strike out came too late.

Where a judgment of condemnation is erroneously entered for an amount greater than that claimed in the writ of attachment, a remittitur may be entered for the excess, and the judgment stands for the balance; and the correction of the error in such manner furnishes no ground for impeaching the judgment either on writ of error, appeal, or by motion.

Where a garnishee is summoned and fails to appear, a judgment of condemnation may be entered against him without an inquisition to ascertain the amount of his liability.  

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

Joseph N. Wilson, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*234]  BARTOL, C. J., delivered the opinion of the Court.
The appellants obtained a judgment against John T. Turner and Henry T. Turner in "Baltimore City Court," at September Term, 1868. A writ of fieri facias having been issued thereon and returned nulla bona by the sheriff of Baltimore city, a writ of attachment was issued thereon by the same Court, directed to the sheriff of Calvert county on the 20th day of January, 1869.
The case was regularly docketed against John T. Turner and Henry T. Turner on the 24th of January, 1869, for the February Term, 1869, of the Circuit Court for Calvert county, and the writ of attachment placed in the sheriff's hands,  [**2]  who returned the same to the February Term, 1869, as follows:
"Laid in the hands of Thomas Bowen January 30th, 1869, for debt, interest and costs, and garnishee summoned." The garnishee did not appear, and the case against him was continued to the May Term, 1869; the garnishee not appearing at that Term, a judgment of condemnation was entered against him; and on the 14th of June following, a fieri facias was issued thereon and returned to the July Term next following, "levied as per schedule and sold for $ 50."
At May Term, 1871, the garnishee appeared by attorney, and moved to strike out the judgment, assigning in support of the motion two reasons:
1st. Because the writ of attachment was made returnable to Baltimore City Court, and not to the Circuit Court for Calvert county, and therefore the latter Court had no jurisdiction to render judgment of condemnation.
2d. Because the judgment of condemnation was erroneously entered for an amount greater than that claimed in the writ.
Whereupon a remittitur was filed by the plaintiffs' attorneys for the sum of $ 173, that being the excess of the judgment over the amount claimed in the writ of attachment.

 [*235]  There [**3]  is no doubt that the remittitur was a full answer to the objection based upon the error in the amount for which the judgment had been entered, even if that objection had been made in due time, such errors may always be cured in that way, and when so corrected, they furnish no ground for impeaching the judgment either on writ of error, appeal or by motion. It is the uniform practice for the Court to allow a party to release the excess, and the judgment stands for the balance.
The first reason assigned in support of the motion, is based upon the language of the writ of attachment, which commands the Sheriff of Calvert county, to whom it is directed to return the same, "to the said Court to be held at the Court House, in Prince Frederick, on the first Monday of February next." And it is argued that because Baltimore City Court only had been before mentioned in the writ, the words "the said Court" necessarily imported Baltimore City Court; and that this error rendered the whole of the subsequent proceedings void; that the judgment of condemnation was rendered by a Court having no jurisdiction of the case, and ought to be set aside on motion made at any time thereafter.
To [**4]  this proposition we cannot give our assent, the error in the form of the writ was a mere misprision by the clerk, or at most only an irregularity, not going to defeat the jurisdiction, and does not render the proceedings in the Circuit Court coram non judice.
The record shows that the case was regularly placed upon the docket of that Court, the writ was served upon the garnishee, and he was actually summoned to appear in that Court; and the writ was returned to the Circuit Court for Calvert county, which took cognizance of the case and acted upon it, without its attention being called to the clerical error in the form of the writ.
If the garnishee, in obedience to the summons, had appeared and made his objection in due time, he would have been heard, and if the defect alleged had been considered 

 [*236]  really material or substantial, the writ would have been quashed. But having failed to appear and make his objection, until two years had elapsed after the judgment had been rendered, his motion comes too late. Laches and unreasonable delay are always fatal to motions of this character.  Kemp vs. Cook, 18 Md. 130; Dorsey vs. Kyle, 30 Md. 512. [**5]  
It has been argued for the appellee, that the judgment of condemnation was irregular and unauthorized, because there was no inquisition to ascertain the amount of the garnishee's liability. But in Freidenrich vs. Moore, 24 Md. 295, it was decided that the failure of the garnishee to appear entitled the plaintiffs to the judgment nisi, which in such case, is a motion of course, and no inquisition is necessary. On this point we refer also to 13 Md., 58; 13 Md., 196; 14 Md., 564; 17 Md., 195; 17 Md., 501, and Evans' Practice, 87, 99.
Judgment reversed. 

127 of 144 DOCUMENTS 

WILLIAM WINNER vs. NICHOLAS G. PENNIMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 163; 1872 Md. LEXIS 13 

February 15, 1872, 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 granted.  

HEADNOTES:

Trover by one Joint owner of a Promissory Note against the other, for its Conversion -- Prayer and Instruction.

Where two persons are jointly interested in a promissory note, and one of them deposits it with the other for collection, and he without authority surrenders it to the drawer to be cancelled or destroyed, such surrender is a conversion, and trover will lie therefor, by the other joint owner of the note.

Where an instruction is asked upon certain facts offered in evidence, the conclusion arrived at in the instruction, must be consistent with the truth of the other facts offered in evidence; for if these latter, while not inconsistent with the truth of the facts upon which the instruction is based, would in conjunction with them establish in law a different theory and a different result, the prayer ought not to be granted.  

COUNSEL:
Wm. Pinkney Whyte, for the appellant.

Robert A. Dobbin, for the appellee.  

JUDGES:
The cause was submitted to BARTOL, C. J., BRENT, BOWIE, GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*164]  BRENT, J., delivered the opinion of the Court.
This action was brought by the appellant to recover damages from the appellee for the conversion of a promissory note, given to the appellant by the Rockland and Venango Coal Oil Company, for $ 5,000, dated the 21st of January, 1865, and payable sixty days after date. The appellee pleaded the general issue, and also "that he did what is complained of by the plaintiff's leave."
That part of the proof in the case to which it is necessary more particularly to refer for a proper understanding of the question presented by this appeal, is as follows: The appellant, it appears, had sold to the Rockland and Venango Coal Oil Company certain oil lands, known as the Blakely Well, for twenty thousand dollars, of which ten thousand dollars were to be paid in cash on the delivery of the deed, five thousand [**2]  to be secured by the note of the Company at sixty days, and five thousand dollars to be paid in the stock of the Company at $ 2.50 a share. The sale was duly consummated according to these terms. A deed was executed, the cash payment made, and the note in question delivered to the appellant. This note was afterwards placed by him in the hands of the appellee for collection. While so held certain disputes and difficulties arose between the Company and the appellant--the 

 [*165]  Company alleging that the property did not turn out as represented, but was entirely valueless for the purpose for which it had been purchased. They not only refused to pay the note, but demanded that the cash payment of ten thousand dollars, which had been made, should be returned. These difficulties, the appellee testifies, were afterwards the subject of compromise between the parties, and that he in accordance with the terms of such compromise and with the consent of the appellant, surrendered to the Company the note in question. The appellant, on the other hand, who was also examined as a witness, testifies that he had not entered into any such compromise with the Company, and that the note was surrendered [**3]  without his leave or authority. It was also in proof that the appellee was interested in the note to the extent of one-half or one-fourth.
Upon this state of the proof the defendant's counsel prayed the Court to instruct the jury, "that if they shall find from the evidence that the plaintiff and the defendant were jointly interested in the note, for the conversion of which this action of trover is brought, and that the said note was left by agreement between them in the hands of the defendant for collection, then the plaintiff cannot recover." This instruction the Court granted, and the propriety of so doing forms the subject of inquiry upon this appeal.
It is undoubtedly the general rule, that a tenant in common cannot maintain trover against his co-tenant. The right of possession lies at the foundation of the action, and where two are equally entitled to possession, he who has it cannot be guilty of a conversion by retaining it. But there may be such an use, or rather misuse, of the joint property as will constitute a conversion, and enable a plaintiff to support trover against a party who is jointly interested with him in the ownership. Where there has been a destruction [**4]  of the joint property by one of the parties, all the authorities concur in the right of the other to maintain this form of action to recover such damages as will compensate him for the loss of 

 [*166]  his share or proportion. But whether any act short of destruction will amount to a conversion has been doubted, and the decisions upon this point have not been uniform. Some of the English cases, coinciding with the intimation thrown out by Lord ELLENBOROUGH, in Heath vs. Hubbard, 4 East., 128, hold that a sale of the entire property by one of the joint or common owners does not constitute a conversion. But in Barton vs. Williams, 5 Barn. & Ald. 395, it was otherwise held by two of the Judges who heard the cause, and although its final decision did not turn upon this point, the soundness of their views seems to be conclusive of the question. ABBOTT, C. J., says: "It is laid down by Lord Chief Baron COMYN, that if a bailee sells the goods of another, the very act of sale on his part is such a conversion as to entitle the owner to maintain trover, and if that be so, it follows that if a bailee, in possession of undivided shares belonging to two persons [**5]  sells the whole, it must be a conversion as to the undivided part belonging to one, over which he has no right or title whatever." And BAYLEY, J., says: "There may be cases in which the indivisible nature of the subject-matter of the tenancy in common, may raise an implied authority in one to sell the whole. But unless there be such authority, either express or implied, a sale of the whole by one tenant in common is, with respect to the other, a wrongful conversion of his undivided part." This doctrine is found to be fully supported by the weight of American authorities. In Wilson vs. Reed, 3 Johns. 175, it is said: "Tenants in common of a chattel have each an equal right in the possession, and the law will not afford an action to the one dispossessed because his right is not superior to that of the possessor; but tenants in common are not like partners--the latter may dispose of chattels by virtue of an implied authority to sell, without being liable as for a tort, whilst the former cannot dispose of them without violating the right of their co-tenants; for a sale therefore of a chattel, an action of trover will lie by one tenant in common against another.  [**6]  " To the same effect are the cases of Hyde vs. Stone, 9 Cowen 231, and Gilbert 

 [*167]  vs. Dickerson, 7 Wendell 450. In Weld vs. Oliver, 38 Mass. 559, 21 Pick. 559, this question appears to have been distinctly presented for the first time in the Supreme Court of Massachusetts, and they also held that trover could be maintained. The reasoning of the Court in this case is very clear and satisfactory, and we think places the doctrine upon a foundation which cannot be shaken. Other authorities might be cited in support of this view, but those referred to sufficiently establish the rule; which entirely accords with the definition of conversion as given by Lord HOLT--"for what," he says, "is a conversion but an assuming upon oneself the property and right of disposing of another's goods." Baldwin vs. Cole, 6 Mod. 212; McCombie vs. Davies, 6 East., 540.
It is not controverted, that trover may be maintained for choses in action as well as for other personal property. It therefore follows from what has been said, that this action could have been maintained against the appellee,  [**7]  assuming he was joint owner of the note with the appellant, if he had either sold or destroyed it. Certainly the surrender of it to the Rockland and Venango Coal Oil Company, who were the drawers of it to be by them cancelled or destroyed, (for that was the purpose of the surrender,) if done without the authority of the appellant, is as much an assumption of the right of disposing of another's property as could have resulted from its sale or destruction. This being so, the authority to make the surrender became an important question of fact. Testimony upon this point had been produced by both of the parties, and the instruction of the Court should not have precluded the jury from passing upon it. If the surrender was made by the authority or with the consent of the appellant, he was not entitled to recover, but if otherwise, and the note was surrendered without authority, the action should have been maintained. But by the instruction of the Court the consideration of this branch of the case was entirely withdrawn from the jury, and their inquiry limited to the question only of a joint ownership of the note--for the direction given them is, that the plaintiff cannot recover if they [**8]  find 

 [*168]  "that the plaintiff and defendant are jointly interested in the note." Upon the proof in the case this instruction is manifestly error.
It is true, as was held in Whiteford vs. Burckmyer & Adams, 1 Gill 127, that a party may segregate certain facts offered in proof, and ask an instruction upon them from the Court. But when so segregated the conclusion arrived at in the instruction must be consistent with the truth of the other facts offered in evidence. In other words, if found to be true they must support the theory of the prayer, non obstante the truth of other facts offered in proof; for if these latter, while not inconsistent with the truth of the facts upon which the instruction is based, would in conjunction with them establish in law a different theory and a different result, the prayer ought not to be granted. Riggin vs. Patapsco Ins. Co., 7 H. & J. 279, 291; Bosley vs. Chesapeake Ins. Co., 3 G. & J. 450, 462; McTavish vs. Carroll, 7 Md. 352; Adams vs. Capron, 21 Md. 186. In the present case the fact of the surrender of the note in question, without the authority [**9]  of the appellant, is not inconsistent with a joint ownership by him and the appellee, but it is wholly inconsistent with the instruction of the Court directing the jury, that the plaintiff cannot recover if they shall find that he and the defendant are jointly interested in the note. Such a result does not follow, if it be true, as the instruction in the form in which it is granted must assume, that the surrender of the note to the Coal Oil Company was without authority, for, as we have seen, it is then no sufficient answer of the appellee, to the charge of a tortious conversion of the appellant's property, to say that he is not liable in trover simply because the thing converted was the subject-matter of a joint ownership between the parties.
For these reasons the judgment of the Court below will be reversed and a new trial directed.
Judgment reversed and new trial granted. 

128 of 144 DOCUMENTS 

THE STATE OF MARYLAND, use of HENRIETTA OCKERME, vs. JOHN S. GITTINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 169; 1872 Md. LEXIS 14 

February 15, 1872, Decided 

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

This suit was brought by the appellant against the appellee, and the summons made returnable at the April return day, 1870, under the Act of 1864, ch. 6, secs. 1 and 2. The appellee was returned summoned. On the return day, which occurred on the 11th of the month, the appellee appeared in his own proper person, and was placed under rule to plead, within fifteen days thereafter. On the ninth of May following, being the first day of the May Term, 1870, the appellee moved for a non pros., claiming to be a resident of Baltimore county, which motion, on the 21st of May, was overruled. On the same day, the appellee appeared by attorney, and the appellant thereupon moved for a judgment by default for want of plea, and, simultaneously therewith, the appellee prayed for leave to plead. The appellant's motion for a judgment was overruled and the appellee granted leave to plead, whereupon he filed a formal plea, to the jurisdiction of the Court, by his attorneys, who appeared for him. On the 28th of May, the appellant moved to strike out said plea and for a judgment by default; this motion was granted in so far as it related to the plea, but in so far [**2]  as it related to the judgment by default, was overruled; and the Court, at the same time, rescinded its order of the 21st of May, 1870, overruling the motion for a non pros., and granted leave to the appellant to reply thereto, and, thereupon, on motion, by leave of the Court, the appearance of the appellee's attorney was stricken out. The appellant thereupon filed a replication, alleging that the defendant, at the time of the institution of the suit, resided in the city of Baltimore, and claimed a jury trial of the issue thus presented. The Court passed an order directing the trial of the issue by a jury. From this order the defendant appealed. This Court dismissed the appeal, but stated in its opinion pronounced at the time, (vide 33 Md., 463,) that the Court of Common Pleas should have determined the matter in issue in a summary way, without the intervention of a jury. The defendant then proceeded in the Court below, on the 6th of May, 1871, to join issue on the plaintiff's replication. The plaintiff thereupon moved to strike out the motion of the defendant for a non pros. for the reason that it was not filed upon the return of the writ--this motion the Court overruled. The plaintiff [**3]  then filed an affidavit, alleging that the defendant had a residence on St. Paul street, in the city of Baltimore, where he and his family resided at the time of the institution of the suit, and when the summons was served upon him--that his only place of business was in the city of Baltimore, where he had been found in almost daily attendance for several years. The defendant excepted to this affidavit, and the Court, (GAREY, J.,) for the reason that it had not been previously filed, and no notice of its contents had been given to the defendant, ordered that it be stricken out as having been filed improperly, and that it be not allowed as evidence. After hearing the testimony of numerous witnesses for the plaintiff, the motion for a non pros. was sustained, and the plaintiff thereupon appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice -- Motion for a Non pros. on the ground of the Defendant's non-residence.

A suit was brought in the Court of Common Pleas, and the summons made returnable to the April return day, being the 11th of the month. The defendant was returned summoned, and placed under rule to plead within fifteen days. On the 9th of May following, being the first day of the May Term, the defendant, without pleading, moved for a judgment of non pros., on the ground that he was not a resident of the city of Baltimore. HELD:

That the motion for a non pros. was made in time -- the defendant not being bound to make it on the very day of the return of the writ.

A motion for a non pros. by a defendant on the ground of his non-residence, should not be allowed after the time within which dilatory pleas can be filed.

Pending the question whether a suit can be maintained in the Court where it is brought, by reason of the alleged non-residence of the defendant, there can be no judgment against the defendant by default for want of a plea.  

COUNSEL:
C. D. McFarland, for the appellant.

George H. Williams, for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*171]  ALVEY, J., delivered the opinion of the Court.
The order from which the present appeal was taken, non prossing the plaintiff's case, presents no question to this Court for review.  [**4]  It was passed upon oral evidence taken in Court, and there was no exception taken to present to this Court the evidence upon which the Court below acted. It is impossible, therefore, for this Court to determine whether the judgment complained of was warranted by the facts of the case or not. If an exception had been taken, as might well have been done, it would have been the right of the plaintiff to have her case reviewed by this Court. But as the facts are not before us, of course we can have no judgment in regard to them.
There is one question, and one only, that would seem to be properly presented here by this appeal, and that is, whether the motion for the non pros. was made in time. That motion was made on the first day of the term next succeeding the return day of the writ, (as prescribed by the Act of 1864, ch. 6,) and before any defence was made to the action by way of plea. The motion was overruled on the 21st of May, 1870, but again re-instated by the Court seven days thereafter. The plaintiff replied to the motion, and afterwards moved to strike it out, because it was not filed upon the 

 [*172]  return of the writ; that is, as we take it, on the return day of the [**5]  writ.
This motion by the plaintiff to strike out the motion to non pros. was overruled by the Court, and we think properly. Before this motion to strike out was made, the case had been in this Court on the appeal of the defendant, and although the appeal was dismissed as prematurely taken, we said that it was the duty of the Court below to hear and decide the motion to non pros. in a summary way, instead of submitting the matter to a jury, as that Court had decided to do upon the motion of the plaintiff. It was not until after that appeal had been acted upon by this Court that the motion to strike out the defendant's motion to non pros. was made in the Court below. Up to that time the question had been as to the manner of presenting the question of non-residence, and the mode of trying it. 33 Md. 458.
Looking to the object contemplated by the 87th section of Article 75 of the Code, that of preventing a party from being liable to suit away from his home, and, as it might be, in a county remote from that of his residence, the provision should be applied in such a reasonable manner as not practically to render it useless. The rule to be adopted must apply [**6]  to all cases alike, and cannot, of course, be made to have any special reference to the peculiar circumstances of this case. And so applying the section of the Code, we can perceive no good reason for saying that the defendant was bound to appear and move for non pros. of the plaintiff's action on the very day of the return of the writ, or otherwise forego the protection intended to be afforded him by the law. In former times, when the capias ad respondendum was used instead of the present summons, and the defendant was either taken into custody or required to give bail for his appearance, according to the exigency of the writ, he very naturally and properly appeared in Court on the return day of the writ to move for his release from custody or bail, if sued out of the county of his residence; but we are not aware of any 

 [*173]  decision or established practice that would deny to the defendant the benefit of the exemption afforded by the Statute if not moved for on the very day of the return of the writ. The old case of Hoffman vs. Prout, 4 H. & McH. 165, certainly decides no such thing. In that case, the reporters say, that the defendant having been [**7]  taken on the capias, produced in Court, on the return day of the writ, an affidavit of his residence in another county, and that his counsel then moved for his discharge from arrest by the sheriff, and that the Court discharged him accordingly, with costs. But non constat that he would not have been discharged if the motion had been made a week or a month after the return day of the writ. The case only shows that the defendant availed himself of the first opportunity to obtain release from custody, and nothing more, as to the time of making the motion. In that case, moreover, it would seem, the appearance of the defendant by counsel was not regarded as a waiver of the exemption, and as a submission to the jurisdiction of the Court, as has been contended in this case.
There should be, however, a proper limitation as to the defendant's right to interpose the motion for a non pros. on the ground of his non-residence. And as he can avail himself of the privilege or exemption, either by plea or motion, the limitation that applies to one mode should equally apply to the other. As, therefore, all the Courts of the State have general rules limiting the time within which pleas [**8]  to the jurisdiction and in abatement may be filed, the same limitation should apply to motions of the character of the one made to non pros. in this case. There is no reason for a greater restriction, as applicable to such motions, than to pleas founded upon the same exemption from liability to suit, but, at the same time, from the very nature of the question involved, being of a dilatory character, they should not be allowed after the time within which dilatory pleas can be filed. It does not appear however, that by rule of Court such plea could not have been filed in this case at the time the motion for non pros. was made.

 [*174]  The Court below was clearly right in refusing to enter judgment against the defendant by default for want of plea, during the pendency of the question, whether the suit could be maintained in that Court, by reason of the alleged non-residence of the defendant. That question having been made, it was preliminary to all others.
Judgment affirmed. 

129 of 144 DOCUMENTS 

ANDREW REID vs. ANNIE B. GORDON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 174; 1872 Md. LEXIS 15 

February 15, 1872, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Conversion of a Legal estate for life, into an Equitable estate -- Power of Sale -- Power appendant -- Power in gross -- Right of a Purchaser to have his Title perfected.

A testator by the third clause of his will, devised to his wife, for life, a certain house and lot on Mount Vernon Place, in the City of Baltimore; and by the fourth clause he gave her full power, at any time, to sell and convey the same, with direction that the proceeds of sale should be invested by her, in conjunction with two other trustees named in the twelfth clause of the will, for her sole and separate use, during her life, she to receive the interest and income from the investment, and the purchaser should not be bound to see to the application of the purchase money. By the tenth clause of the will the testator directed that all property devised to his wife for life, should, after her death, be equally divided amongst his children. By the twelfth clause the wife, together with the trustees therein named, were empowered to receive the proceeds of the estate, and invest the same in trust, for the use and benefit of the testator's children, and to sell any part of his estate, as they might deem advantageous, and generally to do all acts and things as should be most conducive to the interest of the children. Sometime after the death of the testator, his widow, for and in consideration of a contemplated marriage, and of one dollar, made and executed in conjunction with her intended husband, a deed of settlement, whereby she conveyed to one of the trustees named in the will of her deceased husband, all the estate to which she was in any manner entitled, certain specific property, other than the house and lot in Baltimore City, excepted; and the trusts and powers declared were, that the grantor should, during her life, hold and enjoy the property as a feme sole, without its being in any way subject to the control of her intended husband, or liable for his debts, and might sell, convey and assign absolutely all the estate and property conveyed, or any part thereof, for such price or prices, and upon such terms as she might think proper, without the assent or concurrence of her intended husband, or the trustee named in the deed; the proceeds of sale to be invested in other good security, to be held upon the same trusts and subject to the same powers afore-mentioned in reference to the property conveyed. It was also declared that the purchaser should not be bound to see to the disposition of the purchase money. Under the deed of settlement, the proceeds of sale were to be held to the use and enjoyment of the intended husband for life, after the death of the wife, if he should survive her, and from and after his death, or the death of the wife, if she should survive him, to the use and benefit of their children, or their descendants; and in default of such descendants, then to the use and benefit of the children of the wife by the first husband. The contemplated marriage took place, and children were born to the parties; and subsequent to these events, the wife in the exercise of the power given to her by her former husband's will, sold the house and lot in Baltimore City to the appellant, in fee simple. This sale she, together with the other trustees named in the will, reported to the Circuit Court for Baltimore County, in Equity, for ratification under the Act of 1870, ch. 370. Upon objections to the ratification of the sale by the purchaser, it was HELD:

1st. That by the deed of settlement, which operated as a bargain and sale, the legal estate for life of the wife in the house and lot, under the will, was converted into an equitable estate for life, and the legal estate became fixed in the trustee. But in the contemplation of a Court of Equity, the wife was actually seized of the freehold, and was the beneficial and substantial owner; and in the absence of any disability she could alien it, and any legal conveyance by her would have the same operation in equity upon the trust as it would have had at law upon the legal estate.

2d. That the power of sale reserved in the deed of settlement had no reference whatever to that existing under the will; it had reference to and could only operate upon the property actually conveyed by the deed.

3d. That the power of sale given to the wife under the will was partly appendant and partly in gross; it was appendant, as it overreached and affected the life estate of the wife, and in gross as to the estate in remainder or reversion.

4th. That the conveyance of the naked legal estate for life, the donee of the power of sale under the will still holding the equitable estate, did not operate either to suspend or extinguish such power as to such life estate.

5th. That the purchaser had the right to insist upon a title that was good and defensible in a Court of Law, as well as in a Court of Equity; and before he could be compelled to accept the title, the outstanding legal estate for life must be conveyed or extinguished; and to this end the trustee would be required to join in the conveyance to the purchaser. 

COUNSEL:
Frederick J. Brown and Geo. Wm. Brown, for the appellant.

The conveyance by Annie Barnum (now Gordon) of her life estate in the house and lot on Mount Vernon Place, by her deed of marriage settlement, extinguished her power of sale under the twelfth clause of the will for the following reasons:

The power of sale given under said clause of the will, is a power to sell in fee; this is clear from the object of the sale, which is to invest the proceeds of sale of the entire estate for the benefit of the wife for life, and for the children and descendants of the testator in remainder; and such is the power which the said Annie in connection with her co-trustees attempted to exercise. 2 Washb. on Real Prop., (313 marg.,) top, 603; 1 Sugden on Powers, 476.

The power vested in the wife is a power appendant. A power appendant is where a person has an estate in the land, and the estate to be created by the power is to (or may) take effect in possession during the continuance of the estate to which the power is annexed, as [**2]  a power to a tenant for life in possession to make leases. A power in gross is where the person to whom it is given has an estate in the land, but the estate to be created under or by virtue of the power, is not to take effect until after the determination of the estate to which it relates. A power simply collateral, is one given to a person who has no interest in the land, and to whom no estate is given. 4 Kent, 317; 1 Smith's R. & P. Prop., 4th ed., 346, Part II, tit. 9, ch. 3.

This power appendant in the wife, was extinguished by the deed of marriage settlement; because the power cannot be exercised without defeating or prejudicing the interest granted, to wit: the interest granted to the husband, and the children of the marriage. The interest of the husband and children was to arise in case of sale, but the property has actually been sold, and in such a manner as to deprive the husband and children of all interest in the proceeds. Such a sale being in derogation of the rights created by the deed, is absolutely void.

"A total alienation of the estate operates as an extinguishment of a power appendant, where it cannot be exercised without defeating or prejudicing the interest [**3]  granted. Thus, if a tenant for life with power to grant leases in possession, conveys away his life estate, the power is extinguished, because the donee could not exercise it without derogating from his own grant." 1 Smith's R. & P. Prop., (4th ed.) 358, (89 Law Lib., 264, marg.;) 1 Sugden on Powers, 47, (marg.,) sec. 2, (15 Law Lib., 51, marg. 52;) 1 Sugden, 48, Goodright vs. Cator, Doug., 460; 1 Sugden, 48, Noel vs. Henley, McClell. & Yo., 302; 1 Sugden, 49, 50, 51, Bringloe vs. Goodson, 4 Bing., N. C., 726; 1 Sugden, 53, 56, 58, Long vs. Rankin; 1 Sugden, 59, 68, 73, 84, 85; 2 Washb. Real Prop., 309, sec. 4; 4 Kent's Comm., 347; Burton on Real Property, secs. 175, 177, 178, and note.

The rule is believed to be without an exception, that if a party holding an estate with a power appendant, makes a grant, he shall not defeat, prejudice or derogate from the grant by a subsequent exercise of the power.

Formerly it was held that a power appendant was destroyed by a mortgage, or charge upon the estate to which the power is appendant. Vincent vs. Ennys, 3 Vin. Abr., 432, pl. 10; Cocker vs. Ennys, 3 Vin. Abr., 432, pl. 10.

But since the decision of Lord MANFIELD, in Ren vs.  [**4]  Buckley, 1 Doug., 292, in which the equitable principle that a mortgage is only a security, was invoked to qualify a doctrine of the Common Law, it has been held that a power appendant is not destroyed by a mortgage, security or charge, but it may be suspended, controlled or qualified thereby. Smith's Real & Pers. Prop., marg., 264, (89 Law Lib., 201.)

A mortgage, security, or charge on an estate to which a power is appendant, is therefore always held good, and the power remains unextinguished only so far as it can be exercised in strict subordination to the estate previously granted.

If the estate conveyed by the deed of marriage settlement be respected, it is impossible for the power under the will to be carried out.

Under the deed and will, 1st, the estate to be sold is different; 2d, the trustees are different; and 3d, the appropriation of the proceeds of the sale is different; so that if the deed stands, the power under the will is destroyed, and if the power under the will remains and is exercised, it destroys the deed. Bringloe vs. Goodson, 4 Bing., N. S., 276.

By virtue of the deed of trust, all the property was conveyed to the trustee for the benefit of [**5]  the wife, and afterwards to her husband and children in remainder, and the legal title was therefore vested in the trustee for the benefit of wife, husband and children, and although a power of sale is given to the wife, the legal title remains in the trustee and cannot be passed without his joining in the conveyance. The contract therefore by the wife without the concurrence of the trustee under the deed, and a deed executed by her would not convey a good title to the purchaser. Ware vs. Richardson, 3 Md., 505.

The deed being a deed of bargain and sale, the legal estate remains vested in the trustee, and under the power only a trust estate can be granted. The Statute of Uses cannot vest the estate in any bargainee not expressly named, because where the persons are altogether uncertain and the terms unknown, there can be no consideration. Sugden on Powers, 160, 15 Law Lib., 86; Cornish on Uses, 89, 3 Law Lib.; Watkins on Conveyancing, 238.

John P. Poe and Wm. Pinkney White, for the appellees.

By no fair construction of the marriage settlement can it be shown that Mrs. Gordon intended to extinguish, or, in fact, did extinguish, her previously existing undoubted power [**6]  to sell the property in question.

She did not thereby sell her property, or any part of it, but, owning a considerable estate--real, personal and mixed--some in fee simple, some absolutely, and some (including this house and lot) for her life, she settled the whole of it upon certain trusts, reserving, however, as full and complete a power of sale over the whole or any part of it as she had before she executed the deed.

If the sale be treated as made in execution of the power under Mr. Barnum's will, then the marriage settlement does not affect it at all.

If, on the other hand, the marriage settlement be interpreted as reserving to her the same power with reference to this property as the will gave her, there can then be no objection, so far as the mere sale is concerned, to this exercise of the power.

In either event the sale is valid, and transfers the whole estate to the purchaser. In the one case the marriage settlement is left entirely out of view. In the other, it confers the very power which is executed.

How then a sale subsequent to the marriage settlement, in execution of the power which such marriage settlement reserves, can defeat the marriage settlement [**7]  containing such power, it is difficult to perceive.

The sale to the appellant is not a sale within the contemplation of the marriage settlement--it is not a sale of Mrs. Gordon's life estate separate from the remainder which, under Mr. Barnum's will, belongs to his children--but it is a sale in fee simple of the whole estate in execution of her power under his will.

By her marriage settlement she conveys, in trust, the fee in what she owned in fee, and the life estate in what she held for life, reserving the power to sell, at her pleasure, the fee as to what she owned in fee, and the life estate as to what she held for her life. She makes no provision in it for the case of her selling, under the power in the Barnum will, the whole fee simple estate in the property in which she had a life estate; but the marriage settlement relates (so far as this property is concerned) exclusively to her own life estate, distinct from the estate which she did not own, but still had the power to dispose of.

Now, if in execution of the power reserved in her marriage settlement, she had sold to the appellant her life estate in the property in question for $ 10,000, as she undoubtedly might [**8]  have done, she could have executed a valid deed to him for the life estate so sold to him, and this $ 10,000 would have passed to her trustee under her marriage settlement, to be invested for herself for life--then for her surviving husband, Mr. Gordon, for his life, then for her children by him, and then upon certain contingencies for her Barnum children.

If she had died the next day after making such supposed sale of her life estate, the title so bought would have ceased eo instanti, and her Barnum children would immediately have become entitled to the whole property.

Instead, however, of making a sale of so much of the estate as belonged absolutely to her, and the proceeds of which she had a right to dispose of as she pleased, she has undertaken to sell, under the power given to her in Mr. Barnum's will, the whole interest in the property in question. This of course converts a piece of real estate into cash; and the appellant maintains that she is entitled absolutely to a certain aliquot part of this cash, to be ascertained according to the rule by which a potential dower is estimated--which aliquot part is to be deducted from the whole purchase money, and handed over [**9]  to her trustee to be invested as provided in the marriage settlement. The appellees on the other hand, insist that the whole proceeds of the sale so made by her, are to be invested for her during her life, and that immediately upon her death, the whole proceeds belong to her Barnum children. The theory of the appellees, however, is in conformity with the express terms of Mr. Barnum's will.

Mrs. Gordon is to have the whole rents and profits of the property during her life. If she sells it, then the whole proceeds are to be invested for her in some other shape, for life. In other words, she is still to have a life estate in the whole proceeds in case of sale, precisely as she had a life estate in the whole property before sale. Bisset on Estates for Life, 213-226, (42 Law Lib.;) 1 Sugden on Powers, 56-80.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*181]  ALVEY, J., delivered the opinion of the Court.
Zenos Barnum, by the third clause of his will, devised to his wife, Annie Barnum, for life, his house and lot on Mount Vernon Place, in the city of Baltimore; and, by the fourth clause, he gave her full power and authority,  [**10]  at any time, to sell and convey the same, with direction that the proceeds of sale should be invested by her, in conjunction with two other trustees named in the twelfth clause of the will, for her sole and separate use during her life; and that her own receipts should be sufficient to entitle her to receive the interest and income from the investment; and further, that the purchaser of the property should not be bound to see to the application of the purchase money.
By the tenth clause of the will, the testator directed that all the property devised to his wife for life, should, after her death, be equally divided amongst his children. And, by the twelfth clause, the wife, together with F. W. Bennett and 

 [*182]  S. H. Tagart, were constituted trustees, with power to receive the proceeds of the estate, and invest the same in trust, for the use and benefit of the testator's children. They were also authorized and empowered to sell and convey any of the testator's estate when, in their opinion, such sale might be advantageous; and, generally, to do all acts and things which in their judgment should be most conducive to the interest of such children.
A few years after the death [**11]  of the testator, his widow, Annie Barnum, contemplating a second marriage, made and executed, in conjunction with her intended husband, David C. Gordon, for and in consideration of the intended marriage, and of one dollar, a deed of settlement, whereby she conveyed to S. H. Tagart, one of the trustees named in Zenos Barnum's will, all the estate and property, real, personal and mixed, of which she, the grantor, was in any manner entitled, except certain specific property other than the house and lot on Mount Vernon Place; and the trusts and powers declared were, that the grantor should, during her life, hold and enjoy the property as feme sole, without its being in any way subject to the control of her intended husband, or liable for his debts, with full power to sell, dispose of, convey and assign, absolutely or otherwise, all the estate and property conveyed, or any part thereof, for such price or prices, and upon such terms as she might think proper, without the assent or concurrence of either her intended husband or the trustee named in the deed; the proceeds of sale to be invested in other good security, to be held upon the same trusts, and subject to the same powers before [**12]  mentioned, in reference to the property conveyed. It is also declared that the purchaser shall not be bound to see to the disposition of the purchase money. The deed contains the further limitations, as to the proceeds of sale, that they shall be held to the use and enjoyment of the intended husband for life, after the death of the wife, if he should survive her, and from and after his death, or the death of the wife, if she should survive the husband, 

 [*183]  to the use and benefit of their children or their descendants; and in default of such descendants, then to the use and benefit of the children of the wife by her first husband, Zenos Barnum.
The marriage, in the contemplation of which the deed was executed, took place, and children have been born to the parties; and since which events, Mrs. Gordon, the devisee for life under her former husband's will, in the exercise of the power given her, has sold the house and lot on Mount Vernon Place to the appellant, in fee simple, to take effect in immediate possession, for the sum of $ 50,000. This sale she, together with the other two trustees named in the will, have reported to the Circuit Court for Baltimore county, as a Court [**13]  of Equity, for ratification, under the Act of 1870, ch. 370. The purchaser objected to the ratification, but the Court overruled his exceptions, and ratified the sale, and it is from the order of ratification that the purchaser has appealed; and the question is, was the sale legally made, and such as will secure to the purchaser a good and sufficient title to the property?
The deed of settlement operated as a bargain and sale, and conveyed, of course, only such right and estate in the property as the bargainor had. It was not made in execution of the power of sale conferred by the will. The legal estate for life, therefore, in the house and lot on Mount Vernon Place was conveyed by the deed, and nothing more, as to that particular property. The legal estate for life devised by the will was converted into an equitable estate for life in Mrs. Gordon by the deed. The deed operating as a bargain and sale, the legal estate became fixed in the trustee; as a use upon a use is never executed by the Statute of 27 Hen. VIII., ch. 10, known as the Statute of Uses. In the case of a bargain and sale, the Statute expends its whole force in transferring the legal title to the bargainee; and the [**14]  second and subsequent uses can only take effect as trusts, to be enforced in equity. Matthews vs. Ward, 10 G. & J. 443; Croxall vs. Shererd, 72 U.S. 268, 5 Wall. 268, 18 L. Ed. 572. Hence Mrs. Gordon has but an equitable life 

 [*184]  estate under the deed, instead of the former legal estate for life under the will. But, in the contemplation of a Court of Equity, she is actually seized of the freehold, and is the beneficial and substantial owner; and, in the absence of any disability, she could alien it, and any legal conveyance by her would have the same operation in equity upon the trust, as it would have had at law upon the legal estate. 10 Gill & John., 443; 5 Wall., 268; Burgess vs. Wheat, Eden., 226; Boteler, vs. Allington, 1 Bro. Ch. Cases 72. The trustee holds the mere dry legal title, and his conveyance is of importance to the purchaser of the equitable title only as it may be required to give the latter a standing in a Court of Law.
The power of sale reserved in the deed of settlement has no reference whatever to that existing under the will; it has reference to and can only operate [**15]  upon the property actually conveyed by the deed. If it be exercised, the right and estate conveyed by the deed can be sold under it, and that alone. If the power under the will had been reserved, and the right and estate of the devisee in the property conveyed subject to the exercise of such power, there could be no such question raised as is presented in this case. Such power could then have been effectually exercised notwithstanding the deed. The question in this case is produced by what is supposed to be a conflict between the estate granted by the deed, and the subsequent attempt to exercise the power of sale under the will.
Powers, it is said, are either appendant, or in gross, or altogether collateral; appendant, when the exercise of them is in the first instance to interfere with, and to a certain extent, to supersede the estate of the donee of such power; in gross, when they do not commence until the determination of the estate of the donee; and collateral, when the donee has no estate at all in the property which is the subject of the power. 1 Sand. on U. & T., 177; 1 Sugd. on Pow., 40, 41, 42.

 [*185]  In this case, the power of sale given to the wife, under [**16]  the will, was partly appendant, and partly in gross; it was appendant as it overreached and affected the life estate of the wife, and in gross as to the estate in remainder or reversion.
With respect to powers, says Mr. Sanders, (1 vol., U. & T. 179,) "so far as they are appendant, it may be considered as a principle, that the donee of a power shall not be allowed, by the exercise of such power, to defeat any charge, estate or incumbrance, which he himself had previously made or created; and therefore, if a tenant for life, having a power of leasing, previously conveys his legal estate, the power of leasing, to the extent of such conveyance, will be defeated. So, in the case mentioned of an estate being limited to A for life, with remainder to B in tail, with remainder to A in fee, with a general power of revocation reserved to A, if A by lease and release, not executed according to the forms required by the power, convey to C in fee, he cannot afterwards exercise his power as to his own life estate, and his remainder in fee; but the power will remain as to the estate tail of B."
The ground upon which a party is denied the right of exercising a power, after he has [**17]  conveyed away his estate to which the power is appendant, is, that it would derogate from his grant, and operate a fraud upon his grantee. But, in this case, as we have seen, nothing passed by the deed of marriage settlement, in respect to this particular property, except the bare legal estate for life, the beneficial estate remaining in the donee of the power under the will. No fraud or injury, therefore, could be done by the exercise of the power of sale, so far as the tenant for life of the legal estate is concerned. The execution of such power was perfectly effective as to the estate in remainder or reversion, (1 Sudg. on Pow., 49 to 53; Sand. Uses & Trusts, 182; Long vs. Rankin, 2 Appendix to 2 Sugd. on Pow., 519; Jones vs. Winwood, 4 M. & Wels. 653,) and the only question is, whether the conveyance of the naked legal estate for life, the donee of the power still holding the equitable estate, necessarily operates either to suspend or extinguish 

 [*186]  the power of sale under the will, as to such life estate? That such is not the operation of the conveyance in equity, we think is entirely free from doubt. On the contrary, it would seem to be plain [**18]  that, in the contemplation of a Court of Equity, this power has been well executed, whatever technical difficulty may exist in the contemplation of a Court of Law, in reference to the outstanding legal estate for the life of the donee of the power. In the view of a Court of Equity, the bare outstanding legal estate for life creates no difficulty; and as that Court looks rather to the substance of things than to technical distinction, it will not treat the power as either suspended or curtailed by the mere conversion of the legal into an equitable estate. But, while this is the light in which a Court of Equity may view the matter, it is, nevertheless, the right of the purchaser to insist upon a title that is good and defensible in a Court of Law as well as in a Court of Equity; and as the exercise of the power, so far as it affects the life estate of the donee, can only have an equitable operation, before the purchaser can be compelled to accept the title, the outstanding legal estate for life must be conveyed or extinguished. This, however, can be easily done, by requiring the trustee to join in the conveyance to the purchaser. Holding the bare legal estate, in trust for the donee [**19]  of the power, a Court of Equity will compel him to join in the conveyance, at the instance of such donee, in order to render perfect her execution of the power under the will. Such joining of the trustee will remove all objection founded upon the conflict between the legal estate for life, and the exercise of the power of sale under the will of Zenos Barnum.
In 2 vol. of Chance on Powers, sec. 3166, it is said: "Tenants for life, under settlements containing powers of sale, exchange, &c., to be exercised by them, or with their consent, sometimes mortgage their estates, or convey them in trust. It seems that whether the mortgage or conveyance comprises the reversion in fee or not, the powers may, in general, be exercised 

 [*187]  with the consent of the mortgagees or grantees and all proper parties. The forms of the mortgage or conveyance, or other circumstances, may present distinctions. So on a reconveyance it seems that the powers revive in their original state." See, also, 1 Sugd. on Pow., 74, 76, particularly the latter page.
It is insisted, however, that in the event of sale under the power in the deed, the limitations and declarations of trusts, in respect of the [**20]  proceeds, are different in the deed from the limitations of trusts in respect of the proceeds of sale declared in the will. But it may be replied to this objection, that the event of a sale of this particular property, under the power in the deed, is but a bare possibility, if the sale to the appellant had never been made. The power might be exercised or not. The mere option to exercise it is certainly not a trust, the execution of which could be enforced. It is mere matter of discretion, and, therefore, not of any positive right on the part of those in whose favor the trusts of the proceeds of sale are declared. By the sale to the appellant, Mrs. Gordon has made her election not to exercise the power of sale, as to this particular property, under the deed. That power, not being a mere collateral authority, to be exercised exclusively for the benefit of others, she is at liberty to bar, release or disclaim; and any dealing with the estate, inconsistent with the exercise of the power, determines and precludes the option to exercise it. 1 Sugd. on Pow., 90-102.
As, however, it is necessary, in order to secure to the appellant a good legal title in possession, that the legal estate [**21]  for life, now outstanding in a trustee, should be united with the equitable estate of the donee of the power under the will, we shall reverse the order appealed from, but without setting aside the sale; leaving the donee of the power at liberty to take the proper proceedings in equity, if it shall become necessary, to secure the joining of the trustee holding the legal estate for life, in the conveyance to the purchaser. The decree of reversal will be without prejudice to such proceeding.

 [*188]  The other trustees named in the will, with power under the twelfth clause to sell any part of the testator's estate, may well join in the conveyance, although the sale to the appellant appears to have been made by Mrs. Gordon under the power conferred upon her alone, by the fourth clause. They simply concur in and recommend the ratification of the sale, as having been judiciously made, looking to the rights of those interested in the proceeds of sale, after Mrs. Gordon's death. These proceeds will, of course, be invested as directed by the will, but with that the purchaser has nothing to do.
Order reversed and cause remanded. 

130 of 144 DOCUMENTS 

CATHERINE V. EMERICK vs. DANIEL COAKLEY, and others, trading as COAKLEY BROTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 188; 1872 Md. LEXIS 16 

February 15, 1872, Decided 

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

In 1869, William H. Emerick and Catherine V. Emerick, his wife, assigned a policy of life insurance upon the life of the former, for the sole and separate use of the latter, in the Charter Oak Life Insurance Company, to Coakley Brothers, for the purpose of securing to them the payment of certain notes of William H. Emerick, given in liquidation of an indebtedness of the firm of which he was a member, and in consideration of an extension of time for the payment of the same. In 1870, William H. Emerick died, and thereupon his widow and Coakley Brothers both claimed the whole amount of the insurance, the latter, however, agreeing to pay over to the widow the balance remaining after the settlement of the liquidated indebtedness of the decedent to them. The Insurance Company filed a bill of interpleader against both parties, and paid the money into Court. The widow was then made complainant, and Coakley Brothers defendants, and after proceedings, a final decree was passed adjudging to Coakley Brothers the amount of their claim, and the balance, after paying costs, to Mrs. Emerick. From this decree the latter appealed.  

DISPOSITION:
Decree affirmed.  [**2]  

HEADNOTES:

Assignment by a Wife of a policy of Insurance upon her Husband's life -- Construction of Article XLV, sections 8, 9 and 11 of the Code of Public General Laws -- Wife's power of disposal of her Separate property -- Forbearance -- Consideration.

An assignment by a wife and her husband, for the benefit of his creditors, of a policy of insurance on his life, obtained for her sole and separate use, and made payable to her and her assigns, is valid.

The forbearance of the creditors of the husband, and the granting an extension of time for the payment of his debts, is a valid consideration for an assignment by the wife.  

COUNSEL:
Sebastian Brown and William A. Fisher, for the appellant.

Bernard Carter and Thomas M. Lanahan, for the appellees.  

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

OPINIONBY:
GRASON 

OPINION:

 [*189]  GRASON, J., delivered the opinion of the Court.
The question presented upon this appeal is, whether the assignment by the appellant and her husband to the appellees, of a policy of insurance on her husband's life, obtained for her sole and separate use, is valid.
Its validity is questioned upon several grounds, and first, because it was not understood by the appellant, and was without consideration.
We have carefully examined and considered the evidence contained in the record, and we think that it clearly shows 

 [*190]  that the firm of Ross & Emerick, of which William H. Emerick, the husband of the appellant, was a member, was indebted to the appellees, and that in order to obtain an extension of time for payment, he proposed to them to give his individual notes for the payment thereof, to be secured by an assignment of the life policy. This offer was accepted by the appellees; the notes were given, the assignment was prepared and fully explained [**3]  to the appellant, who thereupon freely and voluntarily executed it, and in view of these facts, it cannot be said that she did not fully understand the nature and effect of her act.
An agreement to forbear, for a time, proceedings at law or in equity to enforce a well founded claim is a valid consideration for a promise. 1 Parsons on Cont., 365, (5th ed., 440.) Nor is it material that the party making the promise, in consideration of such forbearance, should have a direct interest in the suit to be forborne, or be directly benefitted by the delay; for the benefit to the defendant will be supposed to extend to him, and it would be enough to make the consideration, valid that the creditor is injured by the delay. 1 Pars. on Cont., 368, (5th ed., 443.) The forbearance of the appellees, and the granting to William H. Emerick an extension of time for payment of the debt, constitute a good and valid consideration for the assignment, and it must be supported unless there is some statute or principle of law which forbids it.
That a wife may assign or incumber her separate property for her husband's debt, is fully established by the decisions of this Court in the cases of [**4]  Tiernan vs. Poor, 1 G. & J. 216; Brundige, et al., vs. Poor, 2 G. & J. 1; Price vs. Bigham, 7 H. & J. 296; Berrett vs. Oliver, 7 G. & J. 191.
But it is said that an assignment of a life-policy is not authorized by sections 8 and 9 of Article 45 of the Code, inasmuch as those sections are, in their nature and character, enabling, and do not expressly authorize the wife to assign the policy. It is true that the wife was not, before the enacting 

 [*191]  of those sections, authorized to insure the husband's life; yet, those sections must be construed with the other sections of the same Article, as well as with reference to the decisions of this Court in regard to the rights of married women to, and disposition of, their separate property. By section 11 of Article 45, they are empowered to dispose of their separate property, both real and personal, by conveyance, in which their husbands join; and, therefore, it was not necessary, in sections 8 and 9, to again give the power of disposition, which they already possessed, with respect to all their property of every description, under section 11. In the case of The New York Life Insurance Co. vs. Flack, 3 Md. 341-354, [**5]  this Court has said, that a life-policy is like any other chose in action, assignable by the person in whose favor the contract is made. See also Harrison vs. McConkey, 1 Md. Ch. 34; Mutual Protection Ins. Co. vs. Hamilton, 5 Sneed's Rep., 269. It has also been held by this Court, that a married woman may act as a feme sole with reference to her separate property, and that the right to dispose of it accompanies the ownership, unless she is restrained from so doing by the express language of the instrument under which she holds.  Cooke vs. Husbands, 11 Md. 492; Koontz vs. Nabb., 16 Md. 549; Michael vs. Baker, 12 Md. 158, 169; Chew vs. Beall, 13 Md. 348, 360. So far from an assignment being prohibited by the terms of this policy, the amount of the insurance is made payable to her and her assigns, and the Insurance Company, by which the policy was issued, has endorsed thereon its approval of the assignment, made by the appellant and her husband to the appellees.
It is urged, however, that the power given to the wife to insure the life of the husband for her [**6]  sole use, was intended to provide the means of support for the wife and children after the husband's death, and that, therefore, such a policy stands upon a different footing from all other separate property of the wife, and that an assignment of it is against public policy; and the case of Eadie vs. Slimmon, 26 N.Y. 9, 11, 15, 17, 18, 

 [*192]  is relied upon as conclusive authority upon this point, especially as the statute of New York, in regard to such life-policies, is substantially the same as ours. In view, however, of the 11th section of Article 45 of the Code, and the decisions of this Court respecting the disposition by married women of their separate property, to which we have before referred, we cannot recognize the decision in Eadie vs. Slimmon as law in this State. We think that the correct rule of law is announced in the case of Pomeroy vs. Manhattan Life Ins. Co., 40 Ill. 398, 402. In that case, a policy was issued to the wife upon her husband's life, payable to her and her assigns, and during the husband's life, she assigned $ 600 of the amount to a creditor of the husband, to secure the payment of the debt. After her [**7]  husband's death, the widow and the assignee both claimed payment; the widow of the whole amount insured, and the assignee the amount assigned to him; the Insurance Company filed a bill of interpleader, and the decree was in favor of the assignee; so that the facts in that case are almost identical with those in the case now before us. The widow appealed, and the decree was affirmed, and Chief Justice WALKER, in delivering the opinion of the Court, after reciting the provisions of the Illinois statute, which is very similar to section 11 of Article 45 of our Code, says: "The application for this policy was in the name of Mrs. Pomeroy, and it was issued to her, and it is not denied that it was her sole and separate property, and if so, under this act it was at her disposal and under her control, and no reason is perceived why her assignment to appellee was not binding in equity, and if so, she cannot repudiate her act. Under the statute, she is entitled to the benefits it confers, and must be held liable for her acts performed in pursuance of the authority it confers."
But it was also contended, upon the authority of Godsall vs. Boldero, 9 East., 72, that a life policy is a [**8]  contract of indemnity, and therefore is not assignable until the loss has occurred; 

 [*193]  that is, until after the death of the party upon whose life the policy is granted.
The decision of Lord ELLENBOROUGH in that case has been reviewed and overruled in the cases of Law vs. The London Indisputable Life Policy Company and Robertson, 1 Jur., N. S. 180, and Dalby vs. The India and London Life Ins. Co., 80 Eng. C. L. Reps. 386. In the latter case, PARKE, Baron, in delivering the opinion of the Court says, "the contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the payment of a certain annuity for his life; the amount of the annuity being calculated, in the first instance, according to the probable duration of the life, and, when once fixed, it is constant and invariable. The stipulated amount of annuity is to be uniformly paid on one side, and the sum to be paid in the event of death is always (except when bonuses have been given by prosperous offices) the same on the other. This species of insurance in no way resembles a contract of indemnity."
The [**9]  doctrine upon this point, as announced in Godsall vs. Boldero, seems also to have met the decided disapproval of this Court in the case of Whiting, use of Sun Mutual Ins. Co. vs. Independent Mutual Ins. Co., 15 Md. 297, 326.
We are of the opinion that the decree of the Court below is correct, and it will be affirmed.
Decree affirmed.
STEWART, J., dissented.  

131 of 144 DOCUMENTS 

JOSEPH E. BOYD vs. TRUEMAN CROSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 194; 1872 Md. LEXIS 17 

February 15, 1872, Decided 

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

Sometime in November, 1868, the appellant appeared at the counter of the Commercial and Farmers' National Bank in Baltimore city, and presented a check on said bank, purporting to have been drawn by Cox & Brown, commission merchants in said city. The teller of the bank to whom the check was handed, noticing that the amount called for in the body of the check, was different from the amount indicated by figures, remarked that there was something wrong about it; to this the appellant responded, yes, he thought so too--that he wanted information about it, and thereupon handed to the teller a letter addressed to himself, in which the check had been enclosed, and which he alleged he had received that morning through the mail. The teller then presented the letter and check to the appellee, the cashier of the bank, remarking that he thought it a case of forgery as Cox & Brown had no account in the bank. The appellee came out of his room and requested a director of the bank to procure a police officer. An officer was brought in immediately, who after conversing with the appellant and appellee, took the former into custody and carried him [**2]  to the counting room of Cox & Brown, where the check was pronounced a forgery, and a member of the firm stated that he had known the appellant for eight or nine years, and had alwaws found him a very correct man, and was satisfied that he had nothing to do with the forgery of the check--that some one was trying to play a trick on him. The officer returned to the bank with the appellant, and reported to the appellee what had thus been said. Shortly thereafter the officer took the appellant to the Station House, where he was charged with attempting to pass a check upon the Commercial and Farmers' National Bank, knowing the same to have been a forgery. He was detained at the Station House until the next morning, when he was committed to jail, whence after a brief detention, he was released on bail; and was finally discharged by order of the Grand Jury, in February, 1869, the real forger in the meantime having been convicted upon confession.

In March, following, the appellant instituted an action for malicious prosecution and false imprisonment, in Baltimore City Court, against the appellee and the Commercial and Famers' National Bank. The defendants pleaded the general issue. The [**3]  case was removed upon the suggestion and affidavit of the plaintiff to the Circuit Court for Baltimore County, where it was tried as for malicious prosecution alone. During the trial the plaintiff admitted that the evidence offered by him was not sufficient to establish a case against the bank, and the jury rendered a verdict for the other defendant, and judgment was entered thereon. The plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Malicious Prosecution -- Malice -- Absence of Probable cause -- Definition of Probable cause.

To support an action for malicious prosecution, the plaintiff must prove affirmatively that he was prosecuted, or that a prosecution was instigated by the defendant; that it terminated in his discharge or exoneration from the accusation against him; and that it was both malicious and without probable cause on the part of the defendant.

Malice is a question of fact for the jury, and its existence may be, and most generally is inferred from the want of probable cause for the prosecution; but the absence of probable cause is not conclusive of the presence of malice. The presumption of malice, resulting from the want of probable cause, is only prima facie, and may be rebutted by the circumstances under which the defendant acted. But from the most express malice, the want of probable cause cannot be implied.

The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case is a question of law for the Court.

Probable cause, is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing that the accused was guilty.  

COUNSEL:
John Henry Keene, Jr., for the appellant.

C. B. Slingluff and John P. Poe, for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*196]  ALVEY, J., delivered the opinion of the Court.
This was an action instituted by the appellant against the appellee and the Commercial and Farmers' National Bank, for malicious prosecution and false imprisonment; the case being tried as for malicious prosecution alone.
All the prayers on the part of the defendants, except the 7th and 8th, were conceded by the plaintiff. He also conceded that the evidence offered by him failed to make any case against the bank; and the Court, by granting the 8th prayer of the defendants, instructed the jury that [**4]  there was no evidence of malice or want of probable cause as against either of the defendants, for the alleged malicious prosecution, and that, therefore, the plaintiff was not entitled to recover; and as this Court fully concurs in the correctness of that instruction, it becomes unnecessary to examine the questions raised by other prayers, whether offered by plaintiff or defendants.
To have entitled the plaintiff to recover for malicious prosecution, it was incumbent upon him to prove affirmatively, that he had been prosecuted, or that a prosecution had been instigated, by the defendants, or one of them; that such prosecution had terminated in his discharge or exoneration from the accusation against him; and that such prosecution was both malicious and without probable cause on the part of the defendants. All of these propositions must concur, and be established by the plaintiff, to entitle him to maintain his action. If the evidence adduced be legally insufficient to be submitted to the jury to prove each and all of these elements of the plaintiff's case, his action could well be pronounced groundless, and the defendant not be called on for his defence. 

 [*197]  Turner vs. Walker, 3 G. & J. 377; [**5]  Cecil vs. Clarke, 17 Md. 508; Williams vs. Taylor, 6 Bing. 183; Wheeler vs. Nesbitt, 65 U.S. 544, 24 How. 544, 16 L. Ed. 765.
Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution; but it does not necessarily follow that because there is an absence of probable cause, the defendant must have been actuated by malice. The presumption of malice, resulting from the want of probable cause, is only prima facie, and may be rebutted by the circumstances under which the defendant acted. But from the most express malice, the want of probable cause cannot be implied.
The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court. The jury, in our practice, are always instructed hypothetically as to what constitutes probable cause, or the want of it, leaving to them to find the facts embraced in the hypothesis.
What [**6]  will amount to such combination of malice and want of probable cause, as will entitle a party to maintain an action, says Chief Justice TINDALL, (Williams vs. Taylor, 6 Bing. 183,) is so much a matter of fact in each individual case, as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Perhaps the most accurate definition of probable cause is that given by Judge Washington, in Munns vs. De Nemours, 3 Wash. C. C. 31, 17 F. Cas. 993, as being such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused to be guilty.
In this case, however innocent the plaintiff may have been of any intention to defraud either the bank or the parties 

 [*198]  whose names were forged, the presentation of the check, under all the circumstances, was well calculated to excite suspicion. The plaintiff was a stranger at the bank; and the bank was not the proper place to obtain information in regard to the genuineness [**7]  of the check, or, if genuine, the circumstances under which it was drawn. The house of the firm whose name was forged, was but a short distance off, and was well known to the plaintiff; and it very naturally struck the bank officers as strange that the plaintiff did not apply there for information instead of presenting the check at the bank. The officers might well suspect that it was an experiment upon the bank; and the production of the letter, in which the check had been enclosed to the plaintiff, was most likely regarded by the officers simply as a cunning device to meet the contingency of detection of the forgery, inasmuch as it was not first placed in the hands of the teller to whom the check was handed. The defendant, Cross, as the cashier of the bank, was certainly justified in sending the plaintiff, in the custody of the police officer, to the house of the firm by whom the check purported to be drawn, that he might be confronted by those parties, and that their statement could be heard in regard to the matter. They at once pronounced the check a forgery, and the plaintiff was then in the predicament of a party found holding a forged check which he admitted he did not receive [**8]  in the course of business, and of the party from whom he received it he could give no account whatever. In this state of things, however unfortunate for the plaintiff, it was clearly incumbent upon him to furnish satisfactory explanation of all the circumstances creating suspicion, and he could not complain if his own mere statement, after the check was pronounced a forgery, was not taken and acted on as in all respects true. He was detained in custody of the police officer, and upon hearing before a magistrate he was held to answer the charge before the grand jury; and it was not until after the real forger had confessed and was convicted, that the plaintiff was finally discharged. Cross, the defendant, did not 

 [*199]  pursue the prosecution further than to place the matter in the hands of the officers of the law. He never appeared as a witness, either before the magistrate or the grand jury. He appears to have been content to leave the plaintiff to the disposition of the law, without any agency of his to sustain the prosecution. In his conduct we can perceive no evidence of malice whatever. Nor can we discover in all the facts of the case evidence of the want of probable cause. [**9]  On the contrary, we think any reasonable man, acting in the capacity of the defendant Cross, and looking as well to the protection of the bank as to the good of the public, would likely have done as the defendant in this case did.
"In the trial of actions of this nature," said Judge WASHINGTON, in the case before referred to, "it is of infinite consequence to mark with precision, the line to which the law will justify the defendant in going, and will punish him if he goes beyond it. On the one hand, public justice and public security require that offenders against the law should be brought to trial, and to punishment, if their guilt be established. Courts and juries, and the law officers, whose duty it is to conduct the prosecution of public offenders, must in most instances, if not in all, proceed upon the information of individuals; and if these actions are too much encouraged--if the informer acts upon his own responsibility, and is bound to make good his charge at all events, under the penalty of responding in damages to the accused, few will be found bold enough, at so great a risk, to endeavor to promote the public good. The informer can seldom have a full view of the whole [**10]  ground, and must expect to be frequently disappointed, by evidence which the accused only can furnish. Even if he be possessed of the whole evidence, he may err in judgment; and in many instances a jury may acquit, where to his mind the proofs of guilt were complete." These observations apply to this, as they do to most of the cases of this character. While the plaintiff may have been entirely innocent of any improper intention in regard to the check, the circumstances surrounding 

 [*200]  him were unfortunate, and were well calculated to create suspicion in the minds of those to whom he was a stranger. Investigation was certainly proper, and the placing the plaintiff in the hands of the officers of the law was the only course by which full investigation was likely to be had. And if the circumstances of the case in Cecil vs. Clarke, 17 Md. 508, were not legally sufficient to be submitted to the jury to prove malice, we entirely fail to discover the evidence of malice, or the want of probable cause in this case.
In closing this opinion, we cannot forbear expressing our entire disapproval of the very loose and imperfect manner in which the bill of exception appears [**11]  to have been prepared in this case. Instead of incorporating the evidence, or such parts of it as were deemed material to the questions raised by the prayers, in an orderly and intelligible manner, the mere loose, disconnected notes of the evidence, taken by counsel in the course of the trial, were inserted without revision, and without the least reference to order, clearness or brevity. This is a mode of preparing a bill of exception that is not to be tolerated. If cases are of sufficient importance to be brought here for review, it is certainly not too much to exact of counsel that they take proper care in preparing the exceptions. We must express the hope that the Judges in the circuits will strictly enforce the fifth rule for the regulation of appeals, in regard to the manner in which bills of exception shall be prepared. The judgment appealed from will be affirmed.
Judgment affirmed.
NOTE.--The counsel for the appellee request the Reporter to state that the bill of exception in the aforegoing case was not submitted to them before it was signed and sealed by Associate Judge YELLOTT of the Court below, and that they had no knowledge of it whatever until they found the case [**12]  on the Docket in this Court.  

132 of 144 DOCUMENTS 

THE SCHOOL COMMISSIONERS OF WICOMICO COUNTY vs. THE SCHOOL COMMISSIONERS OF WORCESTER COUNTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 201; 1872 Md. LEXIS 18 

February 15, 1872, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Quasi Corporation created by bestowing powers on Boards of School Commissioners -- Rights and liabilities of Counties out of which new Counties are formed.

The Act of 1868, ch. 407, transferred and vested in Boards of School Commissioners of the several counties and their successors, all the property, money, and funds of every sort existing for the use and benefit of the public schools of the several counties; and charged them with the duty of administering and supervising the affairs of the public schools in their respective counties; but did not, in terms, incorporate these Boards. HELD:

That while not incorporated as legal entities in the full sense of the term, these Boards were quasi corporations, with full power to sue and liable to be sued, in respect to all matters within the scope of their duties and obligations.

If a part of the territory and inhabitants of a county or town, are separated from it by annexation to another, or by the creation of a new county, the remaining part of the county or town retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties; unless some express provision be made by the Act authorizing the separation.

The Legislature of Maryland, by several Acts, (1812, ch. 79; 1813, ch. 122; 1817, chs. 16 and 93,) made provision to raise a fund for school purposes. This fund was subsequently divided among the several counties equally, without reference to inequality of territory or population. (1816, ch. 256; 1817, chs. 16 and 93; Code, Art. 84, sec. 6) After the division, the proportion of each county was controlled by the officers of the county under local laws; and was recognized as the separate property of the county by the Acts of 1865, 1868, 1870, providing for a general system of education in the State. Article 13 of the Constitution of 1867, erected the county of Wicomico out of portions of the counties of Somerset and Worcester, and provided that on the creation of the new county, "the inhabitants thereof shall cease to have any claim to, or interest in the county buildings and other public property of every description, belonging to said counties of Somerset and Worcester, respectively." On a bill filed by the School Commissioners of Wicomico against the School Commissioners of Worcester county, praying an account and a decree for such proportion of the aforesaid fund as was justly due those of the inhabitants of Wicomico county, who were formerly inhabitants of Worcester county, HELD:

1st. That neither the new county nor that part of it which was formerly part of Worcester county, is entitled to a division of the fund.

2d. That a Court of Equity has no power or jurisdiction over the subject-matter, that power being in the Legislature alone.  

COUNSEL:
Isaac D. Jones, for the appellants.

J. H. Handy and T. A. Spence, for the appellees.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*202]  ALVEY, J., delivered the opinion of the Court.
The Board of County School Commissioners of Wicomico County, as constituted under the Act of 1868, ch. 407, filed the present bill against the Board of County School Commissioners of Worcester County, as constituted under the same law, for an account and division of the school fund of the latter county; and the first question that naturally presents itself, under the demurrer of the defendants to the complainants' bill, is, whether the proper parties, either complainants or defendants, are now in Court to represent the subject-matter in controversy, according to the theory upon which the bill is framed?
Since the filing of the bill in this case, the Act of 1868, ch. 407, has been repealed and displaced by the Act of 1870, ch. 311. The Act of 1868 did not, in terms, incorporate the [**2]  Boards of County School Commissioners for the several counties; 

 [*203]  but all the property, money and funds of every sort existing for the use and benefit of the public schools in the several counties, were transferred to and vested in such boards, and their successors in office, and they were charged with the duty of administering and supervising the affairs of the public schools in their respective counties. They were, therefore, while not incorporated as legal entities in the full sense of the term, quasi corporations, with full power to sue and liable to be sued, in respect to all matters within the scope of their duties and obligations. This results as well from the objects and purposes of such bodies, as the mode and manner of their organization.  O'Neal vs. School Commissioners of Washington Co., 27 Md. 227; Levy Court vs. Coroner, 69 U.S. 501, 2 Wall. 501, 17 L. Ed. 851. The Act of 1870, however, by express provision, incorporated the present Boards of School Commissioners in the several counties, and clothed them with full corporate powers, with respect to their office and duties. This Act, while it repealed the Act of 1868,  [**3]  contains no saving as to pending suits, and makes no reference whatever to the mode and manner of succession of the present to the former boards, except to declare that all the property, money, funds and State donations then by law vested in the public school authorities of any county, for the use and benefit of the public schools, should be transferred to and vested in the Board of County School Commissioners, and their successors in office. Whether, then, upon the repeal of the Act of 1868, this suit did not abate, and, in order to its further prosecution, it did not require new parties to be made, would be, if it were necessary to decide it, a question of some doubt and difficulty. But, with the opinion entertained by this Court in regard to the main question involved, the question as to the technical parties to the record is of small importance. For the purposes of the case, we will assume that the present Boards of School Commissioners of the two counties are parties to the record; and, upon that assumption, we shall proceed to the main and direct question intended to be raised by the bill for decision.

 [*204]  The school fund, of which account and division are claimed, had [**4]  its origin in the Acts of 1812, ch. 79, and 1813, ch. 122, providing for the extension of certain bank charters. By the latter Act, every incorporated bank in the State was required, annually, to pay into the treasury of the State, the sum of twenty cents on every hundred dollars of the capital stock of each bank actually paid in, as a condition upon which its charter was extended; and by the 9th section of the Act, the treasurer of the State was required to invest the money received from the banks in stock, and to keep a separate account thereof, to be denominated a fund for the establishment of free schools; and, by the 10th section, the fund, thus created, was inviolably pledged for the establishment of a general system of free schools throughout the State, to be used or appropriated for no other purpose whatsoever, and which should be equally divided among the several counties of the State. By the Act of 1816, ch. 256, provision was made for distributing this fund to the several counties. Commissioners were appointed for each county, and the treasurer was directed to pay to such commissioners the county's legal proportion of the fund. Then came the Acts of 1817, chs. 16 and [**5]  93, incorporating certain other banks, in which were similar provisions to those in the Act of 1813, in reference to the amount to be paid into the treasury of the State, and the purposes to which such fund was to be applied. In each and all of these Acts the fund provided for is declared to be for the establishment and support of free schools in the several counties, and the division directed was to be among the several counties equally, without reference to their inequality of territory or population. The money received from these sources was paid over to the counties accordingly, and it has been mainly from the money thus paid over to the counties that their present school funds have accumulated. Each county has controlled and administered its fund without reference to the manner in which other counties had administered and applied theirs. In some of the counties, the fund 

 [*205]  has been variously administered; sometimes by school commissioners or trustees; at other times by the Levy Courts or county commissioners. From the time of the distribution to the counties, the funds became the subject of local legislation exclusively, until the enactment of the general school system [**6]  of 1865; and in all such local legislation upon the subject these county funds have been treated and dealt with, not as matter subject to general State supervision, but as exclusively pertaining to and concerning the counties in their public political capacity. The several Acts of 1813, 1816, and 1817, before referred to, make distinct appropriation, apportionment and distribution of these funds to and among the several counties, and it would be contrary to all previous understanding if it were now held that these funds were not the public property of the several counties in which they have accumulated. They have been so treated and regarded by both the counties and the State at large. Hence, in the adoption of the Code, (1 vol., Art. 84, sec. 6,) the treasurer was directed to pay, as theretofore, to each of the counties and the city of Baltimore the proportion of the free school fund to which such county or city was entitled, under the provisions of the laws and resolutions existing at that time, and that such payment should be made to any person authorized to receive such proportion of the fund by the local laws of the several counties and the city of Baltimore. The Acts of 1865,  [**7]  1868 and 1870, providing for a general system of education in the State, treat the county school funds as separate and distinct from the revenue to be raised by general or local taxation, and clearly recognize them as belonging to the several counties in their separate corporate capacities. Indeed, the theory upon which the present claim is based, is wholly at variance with the principle upon which the apportionment and distribution of the funds were originally made.
It is certainly true, in one sense, that, as the county of Worcester is an integral part of the State, established for public political purposes connected with the administration of 

 [*206]  the State government, the property that she may hold in that character is subject to be governed and controlled by the State, and may be said to belong to the State. But this is true only in a qualified sense. The money that the county has received by the State's appropriation belongs to her as public property, to be applied exclusively to the purpose for which it was appropriated, and in promotion of the policy for which the fund was created. The inhabitants of the county have no individual interest in the money thus appropriated [**8]  by the State. The State may control it by legislation; indeed, it would be entirely competent to the State to withdraw the appropriation altogether and apply the money to other purposes. But in the absence of legislation having for its object such change and re-direction of the fund made up of the money heretofore appropriated by the State, that fund remains the public property of the county, and which is held by her in her political corporate capacity; and, in that capacity, she still holds it, although it is now administered under the regulations of a general system applicable to the whole State.
Such then being the relation of Worcester county to the fund in controversy, what effect was produced upon this relation by the separation from that county of that part of it which now, together with what was formerly a part of Somerset county, form the new county of Wicomico, as authorized by the 13th Article of the Constitution of 1867? Did that separation entitle the new county, or that part of it which was formerly a part of Worcester county, to a division of the fund? We think not, and for most obvious reasons.
Upon general principles of law, as well as upon the reason of the thing,  [**9]  if a part of the territory and inhabitants of a county or town are separated from it, by annexation to another, or by the creation of a new county, as in the present instance, the remaining part of the county, or town, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties; unless some express provision 

 [*207]  be made by the act authorizing the separation. This is a well established principle.  Windham vs. Portland, 4 Mass. 384; County of Hampshire vs. County of Franklin, 16 Mass. 76, 86. If, therefore, the constitution had made no provision in reference to the rights and obligations of these counties, it is clear that no such claim as that now presented could be maintained. But the constitution is not silent upon the subject. It expressly provides that, upon the creation of the new county, "the inhabitants thereof shall cease to have any claim to, or interest in the county buildings, and other public property of every description, belonging to said counties of Somerset and Worcester, respectively." By electing to form part of the new county, the inhabitants so electing renounced [**10]  all benefit of the public property of the county from which they separated. This was the express condition of the separation. And as the school fund in controversy is part of that public property, it follows that the claim made by the bill in this case is wholly unfounded.
Suppose, however, it was conceded that the theory of the complainants be correct as to the relation of the State and county to this particular fund; still we do not perceive upon what principle a Court of Equity could afford the relief sought by the bill. There are many reasons why such relief could not be granted, but there is one that is conclusive beyond question, and that is that the Court has no such power or jurisdiction over the subject matter as that prayed to be exercised by it. That power is with the Legislature, and the Legislature alone.
The decree appealed from, sustaining the demurrer, and dismissing the bill, will be affirmed, but without costs.
Decree affirmed. 

133 of 144 DOCUMENTS 

WM. WILKINS GLENN vs. ALLEN BOWIE DAVIS, Trustee, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 208; 1872 Md. LEXIS 19 

February 15, 1872, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Order reversed and bill dismissed.  

HEADNOTES:

Estoppel -- Extinguishment and abandonment of an Easement -- Constructive Notice -- Power of Lessee to bind Reversioner -- Construction of Deeds -- Appeals -- Construction of Article V, Section 23, of the Code of Public General Laws.

Where G having been a party to a chancery suit for the partition of real estate, wherein was included a certain dominant tenement, afterwards became seized of the servient tenement, it was HELD:

That G was not estopped, as party to the chancery suit, from maintaining that, either by the true construction of the title deeds creating the easement, or by subsequent agreement of the parties in interest, the easement had been extinguished.

An agreement by a lessee for years to abandon an easement cannot bind the reversioner, unless he be a party to it, or it be made with his acquiescence.

Where a paper is not entitled by law to be recorded, placing it upon record does not operate as constructive notice.

A deed from W to B, made in 1823, conveying a lot on the principal street, in the City of Baltimore, contained a stipulation that notwithstanding a deviation of the existing partition wall from the true dividing line between the lot therein described, and the adjoining lot belonging to W, the said wall should remain undisturbed, "so long as the said houses shall endure." The houses then existing, were two-story brick dwellings. In 1870, many radical changes having meantime been made in the condition of the houses, and the house of the party claiming under B having become incapable of safe and beneficial occupation, he sought to build a new wall upon the true dividing line. Upon appeal from an order granting an injunction against the disturbance of the old wall, the true construction of the clause above quoted being disputed, it was HELD:

1st. That this provision must be taken most favorably for the grantee.

2d. That the evident design of this provision was, that whenever the grantee should find it necessary, either by reason of the decaying condition of his house, or its unfitness for the locality, to erect in its stead a more substantial structure, suitable for the business purposes of that part of the city, his enjoyment of the property according to its true lines should no longer be restricted.

After an appeal has been taken from an order granting an injunction, it rests exclusively with the Appellate Court to determine the effect and operation of the order.

The effect of an appeal from an order granting an injunction, when an appeal bond has been filed and approved according to law, is to stay the operation of the order.  

COUNSEL:
Thos. W. Hall, Jr., and S. Teackle Wallis, for the appellant.

In no proper sense of the word, can both of said houses be said any longer to "endure."

It is upon the duration of both houses, not of one, or of either of them, that the right to remove the division wall is made to depend. Gale on Easements, 557.

If by "endure" be meant to "last" in the sense of preserving its identity, to be, as was argued in behalf of the appellees in the Court below--"alter et idem, just as any person is compared to himself many years before," in this sense neither of said houses can possibly be said to endure. There is no parallelism between the preservation of the same identity in the case of an animal or vegetable through the several stages of growth and development, and the identity of a house, which, after the alteration and renovation of every part, remains the same only in respect of identity of location. There is no limit in time to the duration of a house, if its identity is not affected by the gradual and successive renewal and substitution [**2]  of every part of it. According to this argument the houses may endure forever.

If, however, by "endure" is intended to last, in the more limited and qualified sense of the rule laid down in Dowling vs. Hennings, 20 Md., 179, viz.: "as capable of continued safe and beneficial occupation," neither in this sense can both of said houses be said to endure. By "beneficial occupation" is, of course, understood occupation which is beneficial, with reference to the value of the site occupied, and the revenue capable of being derived therefrom, if judiciously improved, as an investment, and not as a mere speculation.

There can be no pretence of prescriptive right in this case based on the continuance of said walls or any use or easement connected therewith, because the very stipulation relied upon in said ancient deeds, recognizes an existing deviation of said walls from the true dividing line, and reserves the right of adjusting the same at some future time, which time the appellant insists has now arrived.

The purchase of the term and the merger being the voluntary act of the reversioners, and due regard being had to the dignity and importance (according to the law of Maryland)  [**3]  of an estate for ninety-nine years, renewable forever, as distinguished from other and lesser terms, the reversioners and the appellees after them, are bound by the covenants and conditions of the agreement between the Chappells and Boehm, which amount to an express abrogation of the stipulations in the ancient deeds, and beneficially to all parties. The common law doctrine of merger will not be allowed in a Court of Chancery to work inequitably. 3 Greenleaf's Cruise, 581-583; 2 Smith's Real and Personal Prop., 596, (or 1 vol., 446, margin, Lib. Ed.;) 2 Preston Shepp. T., 285, 286; 4 Kent's Comm., 102; Tulk vs. Moxhay, 2 Phill. Ch., 777.

There is nothing in the chancery proceedings for the partition of the estate of William Wilkins, to which this appellant was a party, and through which the appellees derive title, which can operate as a bar or estoppel in pais to the assertion by this appellant of his rights as an adjoining proprietor. He is not impugning or seeking to impugn the title of the appellees, but only to enforce a proper construction of a stipulation in ancient deeds, which are the common source of title for both of them, and which stipulation for the reason already [**4]  assigned, this appellant holds to be no longer operative. The case of Stallings vs. Ruby's Lessee, 27 Md., and other cases referred to by the appellees' counsel on this head, are wholly inapplicable.

By reference to the descriptions in the original deeds and to the dates thereof, it will be seen that the deed from Waesche to Boehm (under whom appellant derives) is the elder deed, and that in the deed from Waesche to Sweetser, appellees' predecessor, the front line of the appellees' lot is made to run to the lot of the appellant as a call.

Frederick W. Brune, for the appellees.

The argument of the counsel for the appellees was mainly addressed to the facts of the case.

On the subject of partition walls, he referred to Dowling vs. Hennings, 20 Md., 183-185, and cases cited; Richards vs. Rose, 9 Exchequer, 218; Partridge vs. Gilbert, 15 N. Y., 601; Eno vs. Del Vecchio, 4 Duer, 53; Sherred vs. Cisco, 4 Sandf. Sup., 480.

On the question of estoppel, he cited Funk vs. Newcomer, 10 Md., 316; Alexander vs. Walter, 8 Gill, 251; Stallings vs. Ruby's Lessee, 27 Md., 156.

As showing that the agreement on the part of the Chappells with Boehm did not bind the reversioners,  [**5]  he relied on Washburn on Easem'ts, 459; Webster vs. Stevens, 5 Duer, 553.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*211]  BARTOL, C. J., delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court of Baltimore city, passed upon bill, answer and proofs, confirming and continuing, with certain modifications, an injunction before issued; restraining and prohibiting the appellant from removing an alleged partition wall, between the premises owned by him, and those contiguous thereto owned by the 

 [*212]  appellees, on the north side of Baltimore street, between Charles and St. Paul streets, in the city of Baltimore.
It appears from the record that in 1823, Frederick Waesche owned both parcels of ground; and by deed dated the 18th day of March, 1823, conveyed the easternmost lot to Charles G. Boehm, under whom the appellant claims; and by deed dated the 6th of January, 1825, conveyed the other or westernmost lot to Samuel Sweetser, under whom the appellees claim.
The deed from Waesche to Boehm contains the following provisions: "Reserving however to the said Frederick Waesche, his heirs [**6]  and assigns, the use and benefit, in common with the said Charles G. Boehm, his heirs and assigns, of the alley, of the width of three feet or thereabout, and extending back about forty-five feet, as the same is now opened, between the house erected on the ground above described, and the house of said Frederick Waesche to the westward thereof, and adjoining thereto. It being the understanding and agreement of the said parties hereto of the first and third parts, that the present dividing and partition wall or walls between the said houses, shall, notwithstanding a deviation of the said wall or walls from the true dividing line between the ground above described, and the adjoining ground of the said Waesche, remain undisturbed, so long as the said houses shall endure." The subsequent deed from Waesche to Sweetser contained the same provision mutatis mutandis, with respect to the wall, and the use of the alley.
At the time of the deed to Boehm, there stood upon the lots two dwelling houses, separated to the height of the first story, by an alley about three feet wide, by which access was gained to the back yards of the two houses; and above that, by a wall nine inches thick. The [**7]  second story of the westernmost house extending over the alley to this nine inch wall, which was the west wall of the easternmost house; being the dividing or partition wall referred to in the deeds.

 [*213]  We consider it very clearly established by the evidence of the surveyors, and the plats showing by actual measurement the location of the lots described in the deeds from Waesche to Boehm and to Sweetser, that the wall in question is wholly within the lines of the lot conveyed to Boehm, and stands upon the ground owned by the appellant. The deeds themselves recognize a probable deviation of the dividing wall from the true dividing line between the lots, and contemplate an adjustment of the same at some future time. This the appellant now claims the right to do; and was about to pull down his old house and remove the nine inch wall, for the purpose of building on his lot a large and substantial warehouse, of a style and character which he considers suitable to the place and commensurate with the present value of the property. This right is denied by the appellees, who insist that the old dividing wall which still forms the eastern wall of their house shall remain undisturbed. [**8]  
One of the grounds relied on in their bill of complaint, is that their title being derived under certain proceedings in a Court of Chancery, for the partition of the estate of William Wilkins, to which the appellant was a party; he is thereby precluded and estopped from denying their title to the whole lot of ground with the improvements thereon as it had been held and occupied, extending to and including the use of the dividing wall in question. In our opinion there is nothing appearing in the chancery proceedings to support this position. The appellant is not seeking to impugn the title of the appellees to the property acquired by them under the partition; they took thereby the lot of ground which had been conveyed by Waesche to Sweetser, with the same right to have the east wall continued as an easement on the land of the adjoining proprietor, which Waesche retained under his deed to Boehm. The appellant, having acquired title to the lot conveyed to Boehm, is not estopped from maintaining, either that by subsequent agreement or acts of the parties interested, the easement has been extinguished or abandoned; 

 [*214]  or that by the true construction of Waesche's deed it has ceased [**9]  to exist. These were the conditions belonging to, and inherent in the title acquired by the appellees under the partition, and it is therefore no impeachment of their title, for the appellant to insist that these conditions shall be enforced. He is not setting up a title adverse to that acquired by the appellees under the partition; but on the contrary quite consistent with it, if his theory be correct. The cases of Funk vs. Newcomer, 10 Md. 301; Alexander vs. Walter, 8 Gill 239, 251, and Stallings vs. Ruby's Lessee, 27 Md. 149, cited by the appellees, have therefore no application to this case.
It is very clear that by the clause in the deed to which we have referred, the grantor Waesche, notwithstanding the lines of the property conveyed included the wall in question and a portion of the alley, reserved the right to the use of the alley in common, and the right to have the wall continued undisturbed, "so long as the two houses should endure." These easements, created for the benefit of his own lot, passed to Sweetser under his deed in 1825. We agree with the Judge of the Circuit Court in the opinion, that the contract [**10]  made on the 10th day of April, 1839, between Boehm and P. S. & J. G. Chappell, is not binding upon the appellees. The contract is inartificially drawn and somewhat obscure in its terms; but we think it is susceptible of easy construction, and if this were a case arising between the parties by whom it was made, we should have little difficulty in understanding and enforcing its provisions. But the appellees here do not claim title under the Chappells. At the time the contract was made, P. S. & J. G. Chappell held the westernmost lot as lessees for ninety-nine years, renewable, under a lease from Keener and wife, who in 1837 had conveyed the reversion in fee to Achsah Wilkins, Joseph Wilkins and John Glenn, executors of William Wilkins, deceased, under whom the appellees claim. It does not appear that these parties holding the reversion at the time the contract was made, were in any manner parties to it, or had 

 [*215]  any notice of it, actual or constructive. As the paper was not entitled by law to be recorded, placing it upon record could not, of course, operate as constructive notice. *

* The Reporter is directed to state, that the agreement of the 10th of April, 1839, as exhibited in the record, appeared to have been merely signed and sealed by the parties, without any certificate of acknowledgement thereof, as required by the statute, in order to entitle it to be placed on record; and the language of the Court as to the effect of recording, must be understood as applicable to such a paper. Since the decision was rendered, a complete copy of the paper has been produced, showing that in fact it had been regularly acknowledged, and in form entitling it to be recorded. But as the cause has been decided in favor of the appellant on other grounds, it becomes unnecessary to consider the effect of constructive notice arising from the recording of the agreement.

 [**11]  
We think the paper signed by Judge Glenn, one of the executors, dated April 20th, 1853, cannot affect the rights of the appellees. It does not, in terms, make any reference to the agreement of April 10th, 1839. Nor does it clearly appear to what partition wall it refers.
Then the question is presented, whether such an agreement made by a lessee, is binding upon those holding the reversion? And we think it is very clear, upon authority, that it is not. The effect of the agreement was to release and abandon the easements in the use of the alley and of the division wall, which were created by the original deed, and existed in the owners of the westernmost lot.
Such an agreement, made by a lessee for years, could operate only to the extent of his own interest and estate, and would not bind the reversioner unless he is a party to it, or it is made with his knowledge and acquiescence.
Without discussing this proposition further, we refer to Daniel vs. North, 11 East., 372; 2 Wm. Saunders 175; Webster vs. Stevens, 5 Duer 553; Gale on Easements, 174, 180; Washburn E. & S., 69, 111, 114, 459.
On the 21st day of June, 1851, the Chappells, by indenture,  [**12]  surrendered the residue of their term to the parties then holding the reversion; and thus the term was merged and 

 [*216]  extinguished; and the whole estate in fee was afterwards acquired by the appellees, through certain chancery proceedings before referred to. It has been argued by the counsel for the appellant, that because the surrender of the term was by the voluntary act of the parties, the reversioners are bound by the agreement.
It is true that a lessee for years may create charges upon his estate which will not be defeated or destroyed by his alienation of his term, even though the term itself may thereby be extinguished. The cases on this subject are collected in Smith on Real and Personal Prop., 446 m., referred to by appellant's counsel. In our judgment, neither the text of the author, nor the cases cited, support the appellant's position.
Here the agreement is not one simply creating a charge upon the term of years, or releasing a right of the tenant merely. Its effect, if it operates to bind the appellees, would be to change the rights and to limit and qualify the title of the reversion. We have found no authority to warrant us in giving to it this effect.  [**13]  
Nor do we find in the evidence any sufficient ground for saying that the easement, claimed in this suit, has been released or abandoned by the acts done under the agreement by the appellees, or those from whom they derive title, or by their acquiescence in it.
It appears that immediately after the execution of the contract between the Chappells and Boehm, the three foot alley was in fact closed, and that it has so remained ever since; and the fourteen inch wall, which was built in the centre of the alley to designate the new dividing line fixed by the parties, has also remained, and the first story of the house on the appellant's lot was extended to the fourteen inch wall, the west wall of the alley having been removed. This was the condition of the property when it passed into the possession of the reversioners, after the surrender of the lease in 1851; and so it has been held and possessed ever since.

 [*217]  To what extent do these facts amount to an abandonment of the easement?
Unquestionably, the law is well settled that an easement may be abandoned by the acts of a party indicating such an intention.
In Reg. vs. Chorley, 12 Q.B. 575, (64 E. C.  [**14]   L.,) Lord DENMAN said: "We apprehend that an express release of the easement would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without any reference to time."
And in the same case, it was held that the cesser of use, for a long space of time, would be a strong fact to show the intention to abandon the right.
On this question we refer also to Moore vs. Rawson, 3 B. & C. 332, 338, (10th ed.;) Crossley, et al. vs. Lightowler, (L. R. 2 Ch. App. 478.) Under these authorities we should have no difficulty in saying that the right to the use of the alley had been effectually extinguished and abandoned by the acts of the appellees, if that were the question here involved. But the evidence shows that after the agreement, the nine inch wall, which was the division wall mentioned in Waesche's deeds, remained as before, and continued to form the eastern wall of the appellees' house, down to the time of the filing of this bill. So far, therefore, as the right to the use of this wall is concerned, there have been no acts on the part of [**15]  the appellees, or any thing in the nature and extent of their possession and occupancy of the property, which shows any release or abandonment of their rights under the deed. Having disposed of the other questions, it remains now only to determine the true construction, operation and effect of the provision in the deed from Waesche to Boehm before cited; for upon this must depend the right of the appellees to the relief prayed in their bill.
The question is whether, according to the evidence in the cause, the houses can be said to endure in the sense meant by the deed?

 [*218]  On this question we do not agree with the Judge of the Circuit Court. When we consider the state of things existing at the time of the deed, the character of the houses as described by the witnesses, and examine the testimony showing the many and extensive changes and alterations in them since made, both in their internal structure and their external form, it can hardly be said that they endure in any sense of the word, or preserve their identity. The division wall itself spoken of in the deed has been materially changed; it stands, it is true, in the same place, but it has been raised many feet higher,  [**16]  and what is more important still, the chimneys on the side of the appellees' have been taken away, thus materially impairing its strength, and making it insufficient and unsafe as a support to any new building on the lot of the appellant, such as is needed for the beneficial and profitable occupation of his property.
But it will be observed that the expression in the deed is not so long as the division wall shall endure, but "so long as the houses (both of them) shall endure."
Applying to these words the limited and restricted construction to be found in the language of the Court in Dowling vs. Hennings, 20 Md. 179, (which, however, we think is hardly applicable to the present case)--that is to say, conceding that these words mean "so long as the two houses shall be capable of safe and beneficial occupation," we think the evidence abundantly shows that the house of the appellant had ceased to be in that condition, and consequently the time had arrived, which was in the contemplation of the parties to the deed, when the right to the easement should cease. In construing this provision of the deed, the rule of law requires that it shall be taken [**17]  most favorably for the grantee. This rule is thus stated in Gale on Easements, 375 m.: "It may further be observed that as all easements are restrictions upon the natural right of property, in every case of conflict between the interest of the owners of the dominant and servient tenements, the liberty of the latter is more favorably regarded 

 [*219]  by the law than the attempts of the former to limit it." ***
It must be borne in mind that the property in question is situated on the principal street in the business centre of a growing and prosperous city. It was well known to the parties when the deed was made, and evidently within their contemplation, that the old tenements, which then constituted the only improvements upon the property, would in the course of time become wholly unfit for the purposes for which alone the property could be beneficially and profitably occupied--that warehouses would take the place of the dwelling houses; and the evident design was that whenever the grantee, or those claiming under him, should find it necessary, either by reason of the decaying or dilapidated condition of his house, or its unfitness for the locality, to remove it and to [**18]  erect in its stead a more substantial structure, suitable to the place and required for the business wants and purposes of that part of the city; that the restriction should no longer exist upon his enjoyment of the property conveyed by the deed, according to its true lines as therein described. This, we think, is the true construction of the provision in the deed. It was not intended that the right to improve the property should be denied to the grantee until the houses, or one of them, should cease by the dilapidation of time, or actually tumble down.
The testimony shows clearly that the house of the appellant is no longer fit for safe and beneficial occupation; then he has the right to erect another, of such character as in his judgment is suitable to the place and as his interests require. It is proved that the old nine inch wall, in its present condition, is wholly insufficient to support such a building.
Under these circumstances, according to our interpretation of the terms of the deed, he has the right to remove the old division wall, and to erect a new building upon his lot, using all proper care and diligence to avoid injury to the property of the adjoining proprietors.  [**19]  

 [*220]  We think the order of the Circuit Court continuing the injunction was erroneous, and will sign a decree reversing that order and dismissing the bill.
With respect to the matters contained in the supplemental record, it is sufficient to say that there was no error in passing the order of the 17th of December, 1870. After the appeal had been taken, it rested exclusively with the Appellate Court to determine its effect and operation.
In the case of Blondheim vs. Moore, 11 Md. 365, this Court decided that under the Act of 1835 and its supplements, the effect of an appeal from an order granting an injunction, when an appeal bond has been filed and approved according to law, is to stay the operation of the order.
The provisions in the Code, Article 5, section 23, are substantially the same as the pre-existing statutes, and must have the same construction.
Order reversed and bill dismissed. 

134 of 144 DOCUMENTS 

JOANNA E. DRUMMOND, and others, vs. CORNELIUS GREEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 148; 1872 Md. LEXIS 11 

February 14, 1872, Decided 

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

This Court having decided in Green vs. Drummond, reported in 31 Md., 71, that the present appellee had contributed a sum of money exceeding $ 3,000, towards the purchase of the property in question, and was entitled to compensation therefor, remanded the cause to the Superior Court of Baltimore City, for a reference to the auditor to ascertain the precise amount, upon proof then in the cause, and other proof to be taken under the Court's order for that purpose; and for the amount so ascertained, with interest thereon, this Court decided that the present appellee would be entitled to a decree against the personal representatives of Levin J. Drummond, deceased; and in default of payment thereof out of the personal estate of said Drummond, he would be entitled, as a general creditor, by proper proceedings for that purpose, to enforce its payment out of the real estate of said Drummond, in the same manner as any general creditor might do.

The case being reinstated in the Superior Court, it was referred to the auditor to take proof and to state a proper account. Testimony was accordingly taken and the auditor stated an account, and [**2]  upon hearing, the Court, on the 28th of October, 1870, passed a decree in favor of the present appellee for $ 5,790.56, with interest thereon from the 16th of December, 1869, until paid, as against the administrators of said Drummond, and dismissed the bill as against his widow and heirs-at-law.

The property, on which the money of the present appellee had been expended, was sold, under proceedings, in the Circuit Court of Baltimore city, to enforce the vendors' lien, and after paying the claims having priority, there remained from the proceeds of the sale the sum of $ 3,782.62, for distribution under the order of the Court. On the 25th of February, 1871, the present appellee filed his petition in the proceedings in the Circuit Court, alleging that he had recovered a decree in the Superior Court of Baltimore City against the administrators of Levin J. Drummond, deceased, for the sum of $ 5,790.56, and that the said Drummond died possessed of a very small personal estate, whereby it had become necessary to resort to his real estate to satisfy the claim of the petitioner. The petition prayed a statement from the administrators of the amount of assets applicable to the liquidation [**3]  of the decree, and that so much of the proceeds of the real estate as might be necessary to discharge the decree fully, should be paid to him. Process was prayed against the administrators and heirs and widow of Drummond. The widow and heirs answered the petition, denying upon the best of their knowledge and belief that there was any indebtedness to the present appellee by Drummond at the time of his death, and also pleading the Statue of Limitations. Mrs. Drummond also claimed dower out of the real estate of her husband, without any diminution on account of the debt for which it was sold. The administrators answered the petition, showing the amount of the personal estate in their hands, and that the dividend to be paid to the petitioner from the personal estate, on account of his claim, was $ 1,340.78.

The widow and heirs-at-law of Drummond insisted that the decree of the Superior Court was not evidence against them. The Court sustained the exception to the decree of the Superior Court overruling the plea of limitations, and ordered that the surplus of the proceeds of sale be applied to the satisfaction of the debts of Drummond. The widow and heirs appealed.  

DISPOSITION:
Decree affirmed.  [**4]  

HEADNOTES:

Statute of Limitations.

Certain real estate was sold by executors in June, 1865, and D reported as the purchaser, to the Orphans' Court, who ratified the sale. D had agreed by parol with G to purchase the property jointly, each to furnish one-half of the purchase money, and to hold the property in undivided moieties. The cash payment was made to the executors, G furnishing a considerable part of the sum. Before the whole purchase money was paid D died. On a bill filed by G against the widow and heirs-at-law of D, and the executors who sold the property, asking, among other things, for a specific execution of the agreement for the purchase of the property, the Court of Appeals, while declining to decree a specific performance of the agreement, because of the plea of the Statute of Frauds interposed by the heirs-at-law of D, determined that G was entitled to compensation for the money expended by him in the purchase of the property, and remanded the cause, that the amount might be ascertained by the auditor; and decided that for such amount with interest thereon G was entitled to a decree against the personal representative of D, and in default of payment thereof, out of the personal estate, G could as a general creditor, enforce its payment out of the real estate of D, as any other general creditor might do. The cause being remanded, a decree was passed on the 28th of October, 1870, by the Court below in favor of G for $ 5,790.56, &c., as against the administrators of D, and the bill dismissed as against the widow and heirs-at-law of D. This decree was satisfied in part out of the personal estate of D. The personal assets of D being insufficient to pay his debts, the real estate in question was sold under the vendor's lien, and G, on the 25th of February, 1871, filed a petition in that proceeding, praying that the balance due on the decree might be paid out of the proceeds arising from the sale of said real estate. The widow and heirs-at-law of D answered this petition denying the indebtedness of D to G, and pleading the Statute of Limitations. HELD:

That the claim of G was not barred by the Statute of Limitations, as his right to compensation for the money paid by him on account of the purchase of the property, did not rest upon the decree of the inferior Court, but upon the decision of the Court of Appeals which was binding upon the heirs-at-law of D.  

COUNSEL:
Wm. Shepard Bryan, for the appellants.

John P. Poe and Wm. Pinkney Whyte, for the appellee.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*150]  ROBINSON, J., delivered the opinion of the Court.
We agree with the counsel for the appellants, that a decree or judgment against an administrator is not binding on the 

 [*151]  heirs-at-law. It is equally true, that "chancery follows the law, and, acting in obedience to the Statute, the plea of limitations is as available in equity, as at law, in relation to the same subject-matter," and that "wherever the Legislature has limited a period for law proceedings, equity will, in analogous cases, consider the equitable rights as bound by the same limitation." Knight vs. Brawner, 14 Md. 1, 7; Elmendorf vs. Taylor, 23 U.S. 152, 10 Wheat. 152, 173, 6 L. Ed. 289. While denying their application to the case before us, we do not understand the appellee as questioning these well established rules.
In the former appeal, 31 Md. 71, it was decided--first, that the complainant was not entitled to a specific execution of [**5]  the alleged agreement, for the purchase of the real estate mentioned in the bill of the complainant, the same not being in writing as required by the Statute of Frauds; secondly, that he was not entitled to relief on the ground of a resulting or constructive trust in the property, under the eighth section of the Statute.
"It remains to be considered," say the Court, "whether, under the pleadings and proofs in the cause, the appellant is entitled to any and what relief in a Court of Equity? A specific execution of the alleged agreement being denied, the question is, whether the bill should be retained for the purpose of awarding compensation for the purchase money paid and advanced by him?"
Inasmuch as the specific execution of the alleged agreement for the purchase of the property, could not be enforced because of the Statute of Frauds, and it was doubtful whether the appellee could recover in an action at law, the money paid and advanced under the same, it was held by this Court, after a careful review of the authorities, that he was entitled to a decree for compensation for the money thus furnished to Drummond, such relief being incidental to other relief sought by the bill.  [**6]  
The Court further say, "while in our opinion the proof is perfectly clear and conclusive, that a portion of the cash 

 [*152]  payment made to the executors was furnished by him, and that the amount so furnished exceeded $ 3,000, there is an absence of satisfactory evidence in regard to the precise amount thereof, and it will be necessary to refer the case to the auditor, so that an account thereof may be stated upon the proof now in the cause, and other proof to be taken under the Court's order for that purpose; and for the amount so ascertained with interest thereon, the appellant will be entitled to a decree as against the personal representative of Levin J. Drummond, deceased; and in default of payment thereof out of the personal estate of Levin J. Drummond, he will be entitled as a general creditor, by proper proceedings for that purpose, to enforce its payment out of the real estate of said Drummond in the same manner as any general creditor might do."
The cause was remanded, and additional proof taken, and on the 28th October, 1870, a decree was passed by the Court below, in favor of the appellee for the sum of $ 5,790.56 as against the administrators of Drummond, to [**7]  be paid by them in due course of administration, and the bill dismissed against the widow and heirs-at-law.
In the meantime, the personal assets of Drummond being insufficient to pay his debts, the real estate was sold under a vendor's lien, and the appellee filed a petition in that proceeding praying that the balance due on the decree, after applying thereto the dividend from the personal estate, might be paid out of the proceeds arising from the sale of the real estate.
To this petition the appellants filed separate answers denying any indebtedness from Drummond to Green, and at the same time plead the Statute of Limitations as a bar to the claim of the appellee. Now, if his claim rested on the decree of the Court below, the appellants might very well contend that, being against the administrators of Drummond, it was not binding on his heirs-at-law. The right, however, to compensation for the money paid on account of the purchase of 

 [*153]  the property, does not rest upon this decree, but upon the decision of this Court in the former appeal, in which it was decided that, although Green was not entitled to a specific execution of the alleged agreement because of the Statute [**8]  of Frauds, yet he was entitled under the bill and as incident to other relief sought, to a decree of compensation for the money paid and expended by him in the purchase of the property. If the proof in the case had been sufficient to establish the precise amount so paid, instead of remanding the cause, this Court would have decreed the payment of the same, and it will hardly be contended that such a decree would not have bound the heirs-at-law who were parties to the proceeding. If such a decree had been passed and filed by the appellee in the sale of the real estate, under the vendor's lien, the heirs-at-law could neither have claimed the right to compensation thus established by it, nor the amount so ascertained. If so, the decision is equally binding, so far as the right of the appellee to claim compensation is concerned, for it expressly says, the "authorities sufficiently establish the jurisdiction and power of a Court of Equity to grant relief to the appellant in the present case by decreeing compensation," and the cause was remanded to the auditor for the sole purpose of ascertaining from the proof then in the cause, and such additional proof as might be taken, the precise sum [**9]  to which the appellee was entitled.
If it be conceded, then, that the claim of the appellee, whether legal or equitable, comes within the operation of the Statute of Limitations, and that it differs from the equitable claim of the wife in Bowie vs. Stonestreet, et al., 6 Md. 418, which could not be enforced by an action at law in the life time of the husband, we are of opinion that the decision of this Court in the former appeal, to which the heirs-at-law were parties, is binding on them, and, therefore, takes the claim out of the operation of the Statute of Limitations.
The remaining question to be considered is as to the precise sum to which the appellee is entitled. We are aware of 

 [*154]  the importance of this case to all the parties interested, and have carefully examined the proof in the old record and the additional proof taken by the auditor, and are of the opinion that there is no error in the decree of the 28th of October in this respect. We think it fully establishes the sum decreed to be due. For these reasons, the decree below will be affirmed.
Decree affirmed. 

135 of 144 DOCUMENTS 

FERDINAND BODMAN and Wife, vs. JOHN MURPHY & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 154; 1872 Md. LEXIS 12 

February 14, 1872, Decided 

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

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

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Claim by Lessees for a Covenant in the Lease, exempting them from Liability for Damage by fire to the Premises, resulting from their own Negligence.

A receiver appointed to take charge of certain trust property, entered into a written agreement to lease a house and lot, part of the trust estate, for a term of five years, at a specified annual rent -- the agreement to be subject to the approval of the Circuit Court of Baltimore city. The receiver tendered a form of lease, containing the usual covenants for repairs on the part of the lessees -- together with a covenant on his part to keep the premises insured; the lessees were also to be liable for any injury by fire to the building caused by their own negligence. This form of lease the lessees refused to accept, insisting that inasmuch as the premises were to be insured by the receiver, and they were to pay the extra premium consequent upon having a steam engine on the premises, they were entitled to be exempted from all responsibility for injury by fire to the premises, though occurring by their own negligence or that of their employees; and that in case of the destruction of the building by fire, it should be rebuilt by the lessor without delay, the rent, in case of accidental fire only, to be suspended in the meantime. The Circuit Court passed an order directing a lease in the form suggested by the lessees. On appeal by a cestui que trust, this order was reversed, it being HELD:

That in the absence of previous express stipulations to that effect, the lessees were not entitled to the covenants demanded by them.  

COUNSEL:
Julian I. Alexander, for the appellants,

Argued that the appellees, dealing with the receiver, dealt with notice of the course of the Court in cases where a receiver is appointed, and as a bill for an injunction and receiver is to stop the administration of the estate and to provide only for the safety of the rents, the Court exercises but limited powers over the estate, and therefore requires from the tenant the ordinary covenants for repair, and holds him to his ordinary responsibilities. He referred to Gibbons vs. Howell, 3 Mass., 469.

He then insisted that though it might be conceded for the sake of the argument that the lessor was to insure, &c., yet this was in connection with the covenant for repair from the tenant, and was a mere oral proffer and was refused. Hence the rights of the appellees were to be sought in the agreement for lease, and the covenants to which they were entitled, were those only which were incident to the relation of tenant and landlord. It appears from Church vs. Brown, 15 Ves., 258, that neither [**2]  landlord nor tenant is entitled to a covenant which would contradict an incident of the estate of the other; but it is incident to the contract of lease that the tenant shall do no waste. Now burning a house by negligence or mischance is waste. Co. Litt., 53 b; and the English doctrine of waste is our doctrine. White vs. Wagner, 4 H. & J., 373. Next, the tenant is liable on the contract, or for use and occupation, though the premises are burned down during the term and unoccupied. White vs. Wagner, 4 H. & J., 564; Baker vs. Holtzapfel, 4 Taunt., 45. Nor do an insurance on the house and the receipt of the insurance moneys by the landlord and his non-repair out of these moneys, constitute an equitable--much less a legal defence to such an action. Lofft vs. Dennis, 1 E. & E., 474; indeed, in Leeds vs. Cheetham, 1 Sim., 146, it was held that a tenant had no equity to compel the landlord to expend insurance moneys received by him in re-building the premises after a fire, nor to restrain him from suing for the rent in the meantime. Again in Doe vs. Sandham, 1 T. R., 705, a covenant that in case the premises should be burned by lightning or other accidental fire, the lessor should rebuild,  [**3]  or the rent should cease and the tenant be discharged, was held unusual and extraordinary. So the house adjacent belongs to the trust estate. Now it has been held that a fire negligently lighted or kept by a person or his servant on his own premises which communicates with his neighbor's premises, is not within the protection of Stat., 6 Ann. c. 31, which does not apply to a case of negligence or a fire intentionally lighted. Filliter vs. Phippard, 11 Q. B., 347. Thus, if a negligent fire from Murphy & Co's premises communicates with the adjoining house, Murphy & Co. are liable therefor. Therefore, it is incident to the contract of lease, that the tenant should be liable for the consequences, whatever they are, of a fire. If the fire is waste, he is liable for waste, or if the waste is released, he must still pay rent. If he burns the premises negligently, he is liable if the fire communicates to his neighbor's house, whether his landlord or not. And a covenant by the landlord to rebuild or let the tenant go in case of accidental fire, is unusual and extraordinary. Hence, in the absence of express stipulation, the tenant is clearly not entitled to such a covenant. The consequences [**4]  of such a covenant would be frightful. And besides, it is an undoubted maxim of the law, that where there is privity, neither party can stipulate against the consequences of his own negligence or default. Martin vs. G. I. P. Railway Co., L. R., 3 Ex., 9.

Lastly, the effect of the covenant would be to avoid the insurance on the premises in question as well as the adjoining premises. In Mason vs. Sainsbury, 3 Doug., 61, it was held that the underwriter might maintain an action in the name of the assured against the hundred, where a house was demolished by rioters, and see Phillips on Ins., secs. 1711-12. And in London Assurance Co. vs. Sainsbury, 3 Doug., 245, it was held that the underwriter could not sue in his own name. But the proposed covenant would be a release of any action by the lessor for a wilful or negligent fire of Murphy & Co., and a bar to an action by the underwriter in the lessor's name. Now insurance is a contract of indemnity, but here the position of the indemnifier would be altered, and his remedies discharged by the act of the party indemified, and he would be consequently released from his contract.

S. Teackle Wallis, for the appellees.

If this Court [**5]  determine to review the action of the Court below, the only question here is, was such action reasonable or not.

In view of the well known decisions of this Court in White vs. Wagner, 4 H. & J., 373; Wagner vs. White, 4 H. & J., 564; Hess vs. Newcomer, 7 Md., 336, &c., it has been for years the recognized usage of intelligent, real estate lawyers and conveyancers in Baltimore, to provide by special clauses or covenants in leases against the rigor of the rule there laid down, which is in fact nothing more than a rigorous holding of the tenant to the obligations of an express and voluntary covenant, which, if he chooses, he may refuse to enter into. So, too, in contemplation of the risk of destruction by fire in large cities, through the negligence of servants and employees, it is equally customary to provide by special clauses in leases, for the insurance of the property, for the benefit of all parties, upon specified terms as to the payment of premium, and the re-building of the houses. Bunyon on Fire Insurance, 132. It being perfectly well recognized law in this State, as elsewhere, (Maryland Ins. Co. vs. Whiteford, 31 Md., 227,) that a loss by fire, occasioned by the fault or [**6]  negligence of the insured or his servants, without fraud or design, is a loss within the policy, there is no principle of law or public policy to be contravened by giving to the tenant, in connection with an insurance which the lessor contracts to make, and the tenant to pay for, in whole or in part, the same advantages the tenant would have if he took out the policy himself. Certainly, no insurance company could successfully deny its responsibility, on the ground of an arrangement between the parties so entirely consistent with its proper liabilities.

That the insurer of premises next door would be discharged of his liability, by such a lease, on the ground that the lessee was thereby licensed to be negligent, is a proposition which cannot be maintained. If the tenant, by the lease, were required to insure for the benefit of both parties, his negligence would be no bar to the recovery of either.

The order of the Court below is entirely free of legal objection. Its equity and reasonableness are manifest, and the question here is not as to what covenants the appellees might have compelled, on a bill for specific performance of the written memorandum, but only, at most, whether [**7]  the order of the Court below, being within the range of its powers, was, on the whole, reasonable and fair.  

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

OPINIONBY:
MILLER 

OPINION:

 [*158]  MILLER, J., delivered the opinion of the Court.
It appears from this record, that in an equity suit respecting a trust estate, pending in the Court below, a receiver was appointed to take possession and charge of the property, and whilst so in charge he and the appellees entered into a written agreement for the renting of a part of it. By this agreement the receiver as such agrees to rent to the appellees the premises No. 182 West Baltimore street, for a term of five years, commencing July 1st, 1871, for the yearly rent of $ 4,700, payable quarterly, the agreement to be subject to the approval of the Circuit Court of Baltimore city.
The appellees then filed a petition to the Court in which they charge that when this agreement was executed, the receiver 

 [*159]  expressly engaged that he would give them an entirely satisfactory lease without any objectionable clause whatever, and that in the preparation of such lease this single difficulty had [**8]  arisen, viz: It having been agreed that the premises should be kept sufficiently insured by the lessor, the lessees paying the excess of premium required by reason of their having a steam engine on the premises, they insist on a further provision that if the premises are destroyed by fire, the lessor shall re-build without delay, whereas the lessor insists that if a fire occurs through default or negligence of the lessees, they shall be bound to rebuild, even though the lessor recovers the whole insurance money; and they say that while they are willing to pay rent during the re-building, if the fire results from their negligence, it is but fair and reasonable that the lessor should re-build in that event, as negligence of the assured is no bar to the recovery of the insurance money.
In his answer to this petition the receiver denies in substance, that he ever agreed to execute a lease satisfactory to the lessees, or to admit therein any provision which he was not, by the terms of the written agreement, obliged to have inserted. He says he has tendered them a lease such as he conceives to accord with the agreement, but they have refused to accept it, insisting that as he is to insure [**9]  the premises they are entitled to exemption, by express covenant on his part, from any action, suit or responsibility for damages by fire, even though resulting from their negligence, or that of their agents or servants. He insists that such a provision is not comprehended in the agreement, and is unusual and extraordinary; that he is advised the lessees have nothing to do with any insurance he may effect on the property, and that the excess of premium agreed to be paid by them is only in respect of their having and using a steam engine on the premises, and that such a clause in the lease would be equivalent to permitting the lessors to do waste at their pleasure. He further says he has never insisted on a provision requiring 

 [*160]  the lessees in terms to re-build in case of loss by fire from their negligence or wilful act, but he submits that all the ordinary remedies of a landlord against his tenant should be expressly reserved in this case.
Certain forms of covenants and stipulations to be inserted in the lease were then proffered to the Court by the respective parties. Those proposed by the receiver and the solicitor for the appellants, were in substance that the lessees [**10]  shall keep the premises in good repair during the term, and at the expiration or determination thereof, yield and restore them in as good condition as they now are, reasonable wear and tear excepted, and casualties by fire or tempest, unless caused by negligence or default of the lessees, also excepted, and if the premises are destroyed or injured by any of the excepted causes, then the lessor shall reinstate and re-build, employing therein the insurance money, in whole or in part, within a convenient time after recovering the same, and during the time the lessees shall be unable to occupy in consequence of such re-building, the rent shall be suspended, but nothing herein shall be taken to do away with or suspend any right of the lessor to proceed against the lessees for any injuries by fire occasioned by their wilful act, default or negligence, or for the rent that may accrue during the non-occupancy of the premises in consequence thereof.
The lessees proposed the following should be inserted: "Casulaties to said building from any cause except fire, and not resulting from negligence, default or wilful act of the lessees, and casualties from fire also excepted;" and further,  [**11]  "that in case of the destruction of the said premises in whole or in part, by any cause, except fire, and not resulting from negligence, default or wilful act of the lessees, or by fire, the lessor shall repair the same without unreasonable delay, the payment of rent during such repairs to be suspended in whole or in part, as the case may be, provided there shall be no suspension of rent in any case where the destruction or injury repaired shall result from negligence, default or wilful act of 

 [*161]  the lessees." The covenant for insurance and payment of extra premium by the lessees, precedes the aforegoing.
The Court ordered the receiver to make a lease to the appellees according to the terms of the form submitted by them, adding thereto a proviso against assignment without the consent of the Court, and from this order the original complainants, parties interested in the trust estate, have appealed.
We cannot affirm this order. It requires the proposed lease to contain in effect--first, a covenant for insurance by the lessor, the lessees paying only the extra premium due to their use of a steam engine on the premises; second, an exemption of the lessees from the obligation [**12]  to keep and restore the premises in good repair, if destroyed by fire occasioned by their own negligence or default, or that of their servants, agents or employees; and third, an obligation on the lessor to re-build or repair, in case the building be destroyed or injured by fire resulting from such negligence or default. It is true that express covenants respecting the insurance of demised buildings, are now almost universal in leases. In some cases, they are obligations on the part of the landlord to insure and expend the insurance money in re-building, and the cost of so doing is taken into consideration in fixing the amount of the rent, but they are more commonly imposed upon the lessee for the benefit of the lessor. In fact, so usual is such a covenant and so common the practice to fasten it upon the tenant, that it has been held that if an agreement be made for a lease, to be executed with the usual covenants, the lessee is not entitled to have the insurance covenant omitted. Bunyon on Fire Ins., 132, 133. There is nothing in the case before us, to show that the rent stipulated for in the agreement, was then fixed in view of any obligation of this nature on the part of the [**13]  lessor, nor can we infer, from anything in this record, any subsequent assent from him to more than a simple covenant to insure, and expend the insurance money in re-building, if the premises were destroyed by tempest, or by fire not caused or occurring by the negligence or default of 

 [*162]  the lessees. Now, assuming his assent to this extent to be binding, the probable, if not the inevitable result of the exemption the lessees now claim, and the obligation they seek to impose on the lessor, would be to increase the cost of such insurance, for no underwriter, having any regard to his own interest, would knowingly insure a landlord upon property in possession of a tenant who, by the express terms of his lease, was virtually allowed to commit waste by being practically exempted from responsibility for fire occasioned by his own negligence, at the same rate as if the tenant were held to his ordinary liabilities which the insurer, by subrogation could enforce.
But apart from this, the original written agreement contains no provision whatever on the subject of covenants or exemptions. It is simply an agreement to let for a term of years at a specified annual rent. It does not even [**14]  provide that a lease shall be executed with the usual covenants, and in our opinion it is very clear, in the absence of previous express stipulations to that effect, the lessees cannot insist, as matter of right, upon the covenants and obligations they now require. If this agreement contemplated the execution of a more formal lease, and the lessees had filed their bill for specific performance, the Court would have no power to grant them this immunity, or impose on the lessor this obligation; for to do so would be in effect declaring that, in the absence of all antecedent contract to that end, a tenant shall be exempt from all responsibility for the destruction of the leased property by fire caused by his own negligence, and that the landlord shall insure and expend his insurance money in re-building in that event, and that these are among the usual and necessary incidents of the relation of landlord and tenant. Such a decision would subvert the settled law of the State on this subject, and overrule numerous well-considered and solemn adjudications of this Court.
If, then, the appellees could not obtain such a lease under a bill for specific execution of the agreement they made with [**15]  

 [*163]  the receiver, we think it quite clear their present application ought not to be granted. The Court has before it a litigation respecting a trust estate, in which the cestuis que trust, or some of them upon whom these burdens would be imposed, are merely tenants for life. The trust property has been placed and is at present in charge of a receiver, whose office the law contemplates, shall be temporary, and who is the mere hand of the Court, holding for the benefit of those ultimately entitled. In such a case it would, in our judgment, be a most dangerous precedent to permit such an officer, even if he were disposed to do so, to make a contract of leasing such as the appellees demand, without the full and free assent of all parties interested in the estate, much less ought it to be done against the wishes, and in face of the protest of any of the cestuis que trust.
Order reversed and cause remanded. 

136 of 144 DOCUMENTS 

JOHN B. MARSH, and others, vs. SYDNEY G. HAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 123; 1872 Md. LEXIS 9 

February 1, 1872, Decided 

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

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

DISPOSITION:
Reversed and new trial ordered.  

HEADNOTES:

Appeal -- Practice -- Bills of Exception -- Compulsory Writ under the Statute of Westm. 2, (13 Edw. 1,) ch. 31 -- When a proof Copy of a letter is not Evidence -- Objection to the Admissibility of Evidence.

From an order refusing to sign and seal a bill of exceptions, no appeal lies.

Where a Judge before whom a case is tried, refuses to sign and seal a bill of exception tendered in time under the rules of the Court, the party aggrieved by such refusal, may have a compulsory writ from the Court of Chancery, grounded upon the Statute of Westm. 2, (13 Edw. 1,) ch. 31, commanding the Judge to sign and seal the bill of exception; or he may apply to the Court of Appeals which has power to issue the compulsory writ under the Statute, as incident to the proper exercise of its appellate jurisdiction.

A press copy of a letter is not legal and admissible evidence, in the absence of notice to the opposite party to produce the original, and of any admission or proof that it had ever been received by him.

A press copy of a letter, without being submitted to the inspection of the plaintiffs' counsel, was offered in evidence, and partially read by the defendant's counsel to the jury, without objection from the plaintiffs, who then objected to the reading of the balance. HELD:

That the objection having been interposed in good faith and with reasonable diligence, was made in due time, and the evidence not being legally admissible, should have been excluded.  

COUNSEL:
Patrick M'Laughlin and Wm. Pinkney Whyte, for the appellants.

William A. Fisher, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*124]  BARTOL, C. J., delivered the opinion of the Court.
It appears by the record that this case was tried in the Superior Court, at the May Term, 1869; on the 27th of that month, a verdict and judgment were entered in favor of the appellee, who was defendant below, and on the 31st day of August, in the same year, an appeal was entered by the plaintiffs.
During the trial one bill of exception was taken by the appellants, which was regularly signed and sealed, and brings up for review the ruling of the Court below on a question of evidence, which will presently be considered. But before doing so, it is proper for us to advert to some other matters which appear in the transcript, and have been much argued at the bar. It appears that certain other exceptions to the ruling of the Court were taken by the plaintiffs below, in the course [**2]  of the trial; but no bills of exceptions were prepared or signed and sealed at the time. After the trial some delay occurred in preparing bills of exceptions, caused as alleged, by the absence from the country of the defendant's counsel, Mr. John H. Thomas, and after his return some disagreement arose between the counsel with regard to the exceptions which had actually been reserved at the trial. Several bills of exceptions being prepared by the plaintiffs' attorneys, and the attorney of the defendant not consenting that the same should be signed by the Judge; a petition was filed on behalf of the plaintiffs, on the 15th day of February, 1870, setting forth the causes which had produced their delay, and praying the Court "to allow them an opportunity to show that at the trial of the cause the exceptions in the draft of exceptions, prepared by them, were duly taken as claimed, and that they have not been signed or sealed at an earlier date was not caused by the petitioners, or by their attorneys." On this petition an order was passed requiring the defendant to show cause why the draft of bills of exceptions presented to the Court, should not be signed and sealed, and allowing testimony [**3]  to be taken. An answer was filed by the defendant, 

 [*125]  and testimony was taken under the rule, consisting of the sworn statements of the counsel and of Mr. Prevost the clerk.
Upon consideration of the petition, answer and proofs, the Court below, on the 28th day of March, 1870, "discharged the rule," and afterwards, on the 16th day of May, 1870, at the request of the plaintiffs' attorney, filed an opinion in writing, setting forth as the reason or ground of the Court's action, "that the requirements of the thirty-sixth rule of Court had not been complied with." This rule is set out in the record, and requires every bill of exceptions, if required by either party, to be prepared and settled before the verdict is rendered; and in every case to be prepared and submitted to the Court during the sittings of the term at which it shall have been taken, unless otherwise expressly allowed by the Court.
On the 7th day of June, 1870, the plaintiffs entered an appeal from the judgment of the Court, and also from the order of the 28th day of March, "discharging the rule" and refusing to sign and seal the bills of exceptions as prepared and presented by the plaintiffs' attorneys.  [**4]  
In this Court the appellee has moved to dismiss both appeals.
With respect to the appeal from the order refusing to sign and seal the bills of exceptions as presented, the motion must prevail; for the reason that from such an order no appeal lies.
The Statute of Westm., 2, (13 Edw. 1, ch. 31,) which provides for bills of exceptions in actions at law, prescribes the remedy and course of proceeding, if the Judges before whom a case is tried, refuse to sign and seal a proper bill of exceptions. The party grieved by such refusal "may have a writ grounded upon the Statute, commanding them to put their seals juxta forman statuti, &c. 2 Tidd's Pr., (913,) 2 Inst., 427. The Statute does not prescribe the form or nature of the writ, nor provide from what Court it may be issued. The practice in England has been to obtain it from the Court of Chancery, by analogy no doubt to the mode of suing out writs of error.

 [*126]  In the case of Briscoe vs. Ward, 1 H. & J. 165, there was a proceeding under the Statute, by a compulsory writ obtained out of chancery, commanding the Justices of the County Court to sign and seal a bill of exceptions. The form [**5]  of the writ may be found in 2 Harr. Ent. 675.
This course was open to the appellants, if their bills of exceptions had been tendered in time under the rules. Or in such case, application might be made to this Court, which under our judicial system has power to issue the compulsory writ under the Statute, as incident to the proper exercise of its appellate jurisdiction. But in appealing from the order of the 28th of March, the appellants mistook their remedy. Even if the 36th Rule of the Court below had not been relied on as an insuparable objection to granting their petition, this Court would have no power to review the order on appeal.
It has been contended on the part of the appellee, that the appeal from the judgment rendered on the 27th day of May, 1869, ought also to be dismissed; for the reason that the record was not sent up within the time prescribed by law. (1 Code, Art. 5, sec. 29.)
The appeal was taken on the 31st day of August, 1869, and the record was transmitted on the 30th day of March, 1871. Under the rule which existed at the time the case was tried below, and the appeal taken; the delay in transmitting the record, was presumptively the fault of the [**6]  clerk, not of the appellants. Allender's Lessee vs. Sussan, 33 Md. 11.
This presumption has not been rebutted by the proof taken under the motion; on the contrary, it appears that the delay was caused by the failure of counsel to agree upon the exceptions; and under the circumstances of the case, as disclosed by the evidence, we think the delay cannot be properly ascribed to the fault or laches of the appellants or their attorneys; the motion to dismiss must therefore be overruled.
The single question presented by the first bill of exceptions, (the only one properly before us,) is whether the Court below erred in permitting to be read to the jury, as evidence on the 

 [*127]  part of the defendant, a press copy of a letter from him to the plaintiffs, dated the 25th of January, 1862.
The bill of exceptions states that no notice had been given to produce the original; there was no admission or proof that the original had ever been received by the plaintiffs. It is very clear that the copy was not legal or admissible evidence. The bill of exceptions however states that it was offered, and a part of it read to the jury, when the plaintiffs' counsel made their [**7]  objection. The Court decided that the objection came too late: "that having allowed the first part of the letter to be read, the plaintiffs could not object to the reading of the balance, and that it was too late to object to the admission of the letter, in whole or in part."
In our opinion there was error in this ruling; the objection was made in due time, and the evidence ought to have been excluded.
The rule is well settled, as stated by Judge DORSEY in Dent vs. Hancock, 5 Gill 120, "that it is the duty of counsel, if aware of the objections to its admissibility, to object to the testimony at the time it is offered to be given." The same rule is stated in the recent case of the Washington F. I. Co. vs. Davison, et al., 30 Md. 91; and has been embodied among the rules of the Superior Court, referred to by the appellees, in Evans' Prac., 593, as follows: Rule 34. "Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent; otherwise, the objection shall be treated as waived."
This rule does not appear to us [**8]  to have been infringed in this case by the appellants. It must have a reasonable interpretation. Its object is to prevent a party from knowingly withholding his objection, until he discovers the effect of the testimony, and then if it turns out to be unfavorable to interpose his objection. Such a course could not be allowed. It is very obvious from reading the bill of exceptions in this case, that such a purpose could not be justly ascribed to the 

 [*128]  plaintiffs' attorneys. There is nothing to show that they waived their objection or consented to the copy of the letter being read. It was not submitted to their inspection before it was offered, as is the usual and proper course. But it appears that in the hurry of the trial, probably from a momentary inadvertance on their part, a portion of the letter had been read to the jury, when the objection was interposed in good faith and with reasonable diligence.
In our judgment it would be too strict and narrow a construction of the rule, to deny them under such circumstances, the right to make their objection: And inasmuch as the evidence was not legally admissible and ought to have been excluded, the judgment will be reversed and [**9]  a new trial ordered.
Reversed and new trial ordered. 

137 of 144 DOCUMENTS 

WM. STIRLING, WASHINGTON TALL, and others, vs. THE NEVASSA PHOSPHATE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 128; 1872 Md. LEXIS 10 

February 1, 1872, Decided 

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

At the trial below the appellants offered a plea to the third count in the appellee's declaration, averring the essential facts in the case, an abstract of which is given in the opinion of the Court. To this plea the appellee demurred, and the Court sustaining the demurrer, judgment was entered by consent for the appellee, subject to the decision of the Court of Appeals upon the demurrer. All errors, if any, in the pleadings on both sides were waived.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Duties and powers of the Master of a Ship in a Port of necessity -- General average -- Contribution -- Agency.

The master of a ship is the agent of the owners with power to bind them for repairs to the extent of the value of the ship and freight, but not further, unless expressly clothed with larger authority: there is no presumption from the law of agency to justify expenditure beyond that limit.

The owner of the cargo, in a case where expenses had been thrown upon the cargo exclusively, would have the right to call upon the owner of the ship for contribution to the extent of the value of the ship and freight, but not further; the master under such circumstances being considered as acting for the benefit of all parties interested.

Whenever exigencies require the master to act for the benefit of other parties, to that extent his authority as agent of the ship-owner is abridged.

The master cannot do what a prudent owner, if present, would not do, and the law will not assume that a prudent owner would make repairs beyond the value of his vessel, when repaired.

Where vessel, freight, and cargo are pledged towards the repairs of a ship by the master, and the entire proceeds of the vessel and freight are insufficient to pay them, it is a fair presumption, in the absence of proof to the contrary, that beyond that limit the master was acting in behalf of the owner of the cargo.

Where the cargo alone is jeopardized from causes for which the owner of the vessel is not responsible, he is not personally accountable.

Where the master acts for all parties interested, the loss falls upon the owners of the ship and cargo in the proportion of their respective interests

Under some circumstances, the master may act as the agent of the owner of the cargo, independent of his agency for the owner of the ship. 

COUNSEL:
T. W. Hall, Jr., and Geo. Wm. Brown, for the appellants.

It is a fundamental principle of the law of general average--first, that there shall be a sacrifice of a part for the benefit of the whole, as in the original case of jettison; and secondly, that the sacrifice shall be successful. 1 Parsons' Marit. L., 288; The Star of Hope, 9 Wall., 228.

Here the whole has been sacrificed, and nothing has been saved.

If the master had sold, as he had a right to do, the vessel at the port of distress, there would have been no claim to contribution, but each would have borne its own loss. 1 Parsons' Marit. L., 60, (n.) 63, 315.

In this case there was [**2]  no obligation to repair. The master may abandon to the underwriters when the cost of repairing his vessel would be equal to one-half of her value. The Amelie, 6 Wall., 18; De Cuadra vs. Swann, 16 C. B., (N. S.,) [111 E. C. L.,] 792.

A claim for contribution can properly be said to exist only where the owner of the thing sacrificed claims to be compensated by the owner of that which is saved by the sacrifice. Here not only was the vessel not saved by the sacrifice, but if any thing had been saved, it would have been the cargo, not the vessel; the latter being the primary fund to satisfy the bottomry bonds, and the cargo only secondary. The Bonaparte, 3 W. Rob., 302; The Ship Packet, 3 Mason, 255.

The vessel was in fact "the martyr of the cargo." The Gratitudine, 3 C. Rob., 240.

It is the fundamental principle of the law of general average that all the interests for which the sacrifice is made, and which are actually saved, contribute according to their value.

How shall that which is already lost contribute? The plaintiffs' claim involves the paradox of calling upon the owners of the vessel to contribute more than they had at stake, (i. e., vessel and freight,)  [**3]  and to contribute for saving that which they have lost. 1 Parsons' Ship. and Adm., 416; 1 Parsons' Marit. Law, 320.

The present suit is an attempt to fasten upon the owners, through the act of the master, indirectly, a liability which the law gave the master no power to impose upon them directly. The bottomry holders could not have sued the defendants personally for any deficiency on the bonds; but it is argued that the plaintiff, whose cargo was equally bound with the defendants' vessel, may sue. This "cannot be done." Naylor vs. Baltzell, Campb., 65, (Taney, C. J.); The Virgin, 8 Pet., 553, 554.

Under the circumstances of the case, the master had no right to repair, and no right to execute the bonds. It is admitted by the pleadings that in repairing the vessel at a cost largely exceeding her value, when repaired, with all the freight she could earn by the completion of the voyage, the master did what "no prudent owner" would have done. The Grapeshot, 9 Wall., 141; The Aurora, 1 Wheat., 96.

In making the repairs in question, and hypothecating, for the purpose, the cargo as well as vessel and freight, the master must be considered as having acted solely for the benefit,  [**4]  and as the agent of the owners of the cargo.

The capacity of agent for the owners of the cargo may be, and often is, thrown upon the master in case of necessity, and his acts in that capacity give them no claim against the owners of the vessel. The Gratitudine, 3 C. Rob., 240-257; 1 Parsons' Marit. L., 435.

By the maritime code to which we are referred for the law of the case, both as to the power of the master, and the liabilities of the owners, the liability of the latter for the acts of the former cannot extend beyond the value of vessel and freight. That fund being exhausted, or not having come to their hands, no pretence of a personal liability on the part of the owners, such as is sought to be enforced in the present action, can be set up, or exists. Naylor vs. Baltzell, Camp., C. C. R., 65; Emerigon on Maritime Loans, (Contrat a la Grosse,) 101-113; Wattson vs. Marks, 2 Am. L. Reg., 166, 167; Lloyd vs. Guibert, 1 Law R. Q. B., 124; Insurance Co. vs. Dunham, 11 Wall., 26-28; New Jersey Navigation Co. vs. Merchants' Bank, 6 How., 344; Morewood vs. Enequist, 23 How., 493; 1 Parsons' Ship. & Adm., 21, 22.

S. Teackle Wallis, for the appellee.

The validity of the [**5]  bonds is not involved in this appeal. They could not have been successfully impeached, even as against the holders. The lenders were not bound to inquire into the expediency of the repairs if apparently necessary, and the advances were made in good faith. Abbott on Shipping, 161; The Vibilia, 1 Wm. Robinson, 1.

It might have been inexpedient, looking only to the interest of the appellants, for the master to make the repairs; but it was nevertheless his duty to the appellee to make them. A prudent owner might, if present, have violated his contract, because it would cost him less to pay the damages therefor, than to fulfil it. The master owed duties to others than his principals, and as their agent rightfully discharged them, even if the interest of his owners would have been better promoted by not doing so. Pope vs. Nickerson, 3 Story, 487.

The master was bound to repair his ship and complete his voyage. If he had not done so, the ship owners would have been liable to the shippers for breach of contract. In making the repairs he was only fulfilling, as agent of the appellants, their obligation to the appellee. The Niagara vs. Cordes, 21 Howard, 24; The Maggie Hammond, 9 Wallace,  [**6]  458.

He was bound, in fulfilment of this obligation, to pay for the repairs with the money, or on the personal credit of the appellants, if possible. Nothing but the impossibility of doing so, justified him in borrowing, as he did, on bottomry of the vessel and cargo. 1 Parson's Maritime Law, 415; The Ship Packet, 3 Mason, 263; The Grape Shot, 9 Wallace, 135.

For the fulfilment of this duty, he was justifiable in executing the bonds on the ship, even if there was no possibility of her being benefitted by them.

Where the bonds cover vessel and cargo, Courts will so marshal the assets as first to take the property of the ship owner for it, being a debt which he ought primarily to bear. The Packet, 3 Mason, 267; The Bonaparte, 1 Eng. Law and Eq., 641; La Constancia, 2 Wm. Robinson, 406.

If the repairs had been paid for with the money or credit of the ship owners, without the execution of the bonds, they could have recovered from the shippers their contributory share--if with the money or property of the shippers, the latter could have recovered from the ship owners their contributory share. Why should the fact of the money having been borrowed on bottomry to pay for [**7]  the repairs, alter the relations or equities of shipper and ship owner towards each other?

That the lenders had no personal claim against the ship owners is no reason why the appellee should have none, if as between it and the appellants, it or its property paid a part of the appellants' contributory charge.

This is not a case of general average because of sacrifice, but of contribution on account of expenditure. It makes no difference, in such cases, whether the ship and freight were saved or not, though here, in contemplation of law, they were saved. Spafford vs. Dodge, 14 Mass., 64, 74, 80; 2 Arnould on Insurance, 893, 921, 925; 2 Phillips on Insurance, secs. 1319, 1356; 2 Parson's Marine Insurance, 295; Stevens and Benecke on Average, 69, 70, 196, 199, 200; Tudor's Mercantile Cases, 71, 73, 106; Duncan vs. Benson, 1 Excheq., 537, 556; Benson vs. Duncan, 3 Excheq., 644; Benson vs. Chipman, 2 House of Lords' Cases, 713.  

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

OPINIONBY:
STEWART 

OPINION:

 [*133]  STEWART, J., delivered the opinion of the Court.
The action in this case was brought by the appellee, the owner of the cargo, against the [**8]  appellants, the owners of the Brig Georgia, to recover for the contributory share for certain jettisoned cargo, and expenses chargeable to the brig and freight for certain bottomry bonds, in a general average contribution. The brig and freight being insufficient to meet this contribution, the cargo was taken for the payment of the deficiency, and the appellee claims to be indemnified by the appellants.

 [*134]  Under an agreement of the parties, the question to be determined, arises out of the facts averred in the third plea of the appellants to the third count of the appellee, to which third plea the appellee demurred.
From the allegations of the third plea, with its reference to the statements of the third count, it appears that on the 11th day of November, 1868, the appellee being the owner of 450 tons of guano valued at $ 8,000, at the Island of Nevassa, in the Caribbean Sea, shipped it on board the brig Georgia, belonging to the appellants, to be conveyed to the port of Baltimore, in the State of Maryland, under a contract of affreightment containing "the exceptions of the dangers of the sea," for the sum of $ 8 per ton freight'; that in the course of the voyage the master [**9]  of the brig jettisoned thirty-five tons of the guano, owing to the perils of the sea, for the common benefit and safety of the brig and the balance of the cargo. It then avers that whilst proceeding on her voyage the brig was greatly injured by the perils of the sea, which made it necessary for her to put into the port of Kingston, Jamaica, and afterwards into the port of Keywest, Florida, for repairs, to enable her to resume and complete her voyage, if advisable, with the remainder of the cargo on board; that the damages could not be repaired to enable the brig to proceed on her voyage, except at a cost for repairs at the port of Kingston of $ 7,599 in gold, and for the repairs at Key West, of $ 2,328 in American currency, exceeding for the first mentioned, as well as the aggregate of said sums, what would be the entire value of the brig, after such repairs, on her arrival at Baltimore, and all the freight she could earn on said voyage, in case she could, when so repaired, resume her route and safely arrive at Baltimore with the cargo on board.
It further avers, that no prudent owner would have incurred the expenses of such repairs; that the master of the brig, as to the interests [**10]  of the appellants, did imprudently cause the repairs to be done upon the brig, and that in order to obtain the funds necessary for the repairs, the master executed 

 [*135]  the two bottomry bonds in the declaration mentioned--the one at the port of Kingston for the repairs there, and the other at Key West for the repairs at that port, each of the bonds hypothecating and binding the cargo as well as the brig and freight.
That the master, in making the repairs and executing the bottomry bonds therefor, acted without any authority from the appellants, and without their knowledge and privity. That the brig resumed her voyage, and with the cargo on board, except what had been jettisoned, arrived safely at Baltimore.
That upon her arrival, by an agreement in writing entered into between the appellants and appellee, on the 24th of April, 1869, to which the master was also a party, a certain James Carey Coale, of Baltimore, was authorized to make such disposition of the brig and cargo, or their proceeds, as he might deem proper and expedient for their common benefit, and in particular to make in their name, such arrangement and agreement with the holders of the bottomry bonds, as he might [**11]  deem advisable for the satisfaction of the bonds upon the brig and cargo.
That the proceeds of the sale of the brig, together with the freight earned, were applied to the satisfaction of the bonds, but that the entire value of brig and freight were insufficient to pay the debt, and there remained due to the holders of the bonds a large sum.
That by reason of the said several matters, and of the Act of Congress in such case provided, they are not liable for the acts of the master in executing the bonds, and the consequences thereof. Under these circumstances the question arises whether the appellee, the shipper of the cargo, is entitled to recover for this excess from the appellants, the owners of the brig.
There can be no doubt the master of the brig was the agent of the owners, with power to bind them for any repairs to the extent of the value of the brig and freight, but his agency is 

 [*136]  circumscribed and defined by the nature of his business, unless expressly clothed with larger authority by the owners of the brig.
The demurrer concedes that no prudent owner would have made such repairs. To permit such expenditures to bind the owners, under the circumstances, beyond [**12]  the value of the brig and freight, it seems to us, finds no warrant in the law of agency, or in any sound principle of law or policy applicable to maritime pursuits, and that the maintenance of any such rule would be ruinous to the owner of the ship. When from the perils of the sea, the brig in this case had been so damaged that the master discovered repairs of that magnitude would be necessary to enable the vessel to resume her voyage, which no prudent owner, if present, would make or sanction; he, as master, ought not to have incurred them.
It was not his duty, and he had not the power from the character of his employment, thus to involve his principals. Under such circumstances he had the right, for the benefit of the cargo and all persons interested, to tranship the same, if a suitable vessel could be conveniently found to convey it to its destination. In such case the extra expense of transhipment of the cargo would be chargeable to the owner thereof.
The conduct of the master and the respective rights and obligations of all parties interested, under circumstances of disaster to the voyage, must be determined according to the principles of justice applicable to such case; and [**13]  the power and duty of the master may be tested by what the owner, as a discreet man, would do, if he were present acting for himself. The transportation of the cargo may derive more benefit from such expenditures than the vessel, because the master by the repairs thereof, may save the shipper from the payment of the extra freight, in case of transhipment or probable loss, if no conveyance could be had.
We find the duty of the master very clearly stated in the case of the Propeller Niagara vs. Cordes, et al., 62 U.S. 7, 21 How. 7, 24, 16 L. Ed. 41.

 [*137]  "As agent of the owners, the master is bound to carry the loads to their place of destination in his own ship, unless he is prevented from so doing by some cause arising from irresistible force over which he has no control, and which cannot be guarded against by the watchful exertions of human skill and prudence. When the vessel is wrecked or otherwise disabled in the course of the voyage, and cannot be repaired without too great delay and expense, he is at liberty to tranship the goods and send them forward so as to earn the whole freight; and if another vessel can be had in the same or a contiguous port, [**14]  or one within a reasonable distance, it becomes his duty, under such circumstances, to procure it and transport the goods to their destination, and in that event, he is entitled to charge the goods with the increased freight arising from the hire of the vessel so procured."
"That rule, however, is not obligatory in cases where the goods are not perishable, provided the ship can be repaired in a reasonable time. In that state of the case, he may, if he deem it best, retain the goods until the repairs are made, and forward them in his own vessel; and upon the same principle, and for the same end, if he have no means to tranship the goods, it is his duty to repair his own vessel, when capable of being repaired, provided it can be done in a reasonable time, and he has the means at his command, and if not, and the means cannot be obtained from the owner, or upon the security of the ship, he may sell a part or hypothecate the whole and apply the proceeds to execute the repairs, in order that he may be enabled to resume his voyage and carry the goods, or the residue, to the place of destination, and he is not entitled to recover for freight if he refuses to tranship the goods, unless he [**15]  repairs his own vessel within a reasonable time, and carries them to the place of delivery."
The owner of the cargo, in a case where the expenses had been thrown upon the cargo exclusively, would have the right to call upon the owners of the vessel for contribution or payment to the extent of the vessel and freight--any thing 

 [*138]  beyond must be borne by the cargo, the master, under such circumstances, being considered as acting for the benefit of all parties interested. It is stated in 1 Parsons on Ship. & Adm., 235, 236, "the rule, as usually expressed, is, that the master must tranship if he can, and may then charge the excess of the cost of transhipment over his freight, to the owner of the goods. The reason of this is, that as soon as such an exigency arises, the master is clothed, from necessity, with authority to act as the agent of all interested--for the ship-owner, he must do what can be done to save his freight; for the shipper, he must do what can be done to save his goods and send them to their port of destination.
It has been declared by the Supreme Court of Massachusetts, that after the owners have no longer any pecuniary interest in the ship or the [**16]  freight, because nothing of either can be saved or protected by any act of the master, he is no longer their agent, in the sense of having any authority to bind them."
Chief Justice TANEY, in Naylor vs. Baltzell, Campbell's C. C. R., 67, very clearly expresses his views: "The master has the power to pledge the ship and freight, only in cases of necessity, that is to say, where it is necessary for the interest of the owner, or there is reasonable ground to believe it to be for his interest. Now, it can never be necessary for the interest of the owner of the ship, to place upon her repairs which will more than double the amount of what she is worth after the repairs are made. There may be cases in which it may be for the interest of the cargo to do so, because the cargo may be of great value at the port of destination, and of little or no value at the port of necessity. It may be for the interest of the cargo to have repairs made upon the ship, far beyond her value, in order to enable him to transport his property to its destination. If there was any necessity which would have justified the enormous expenditures for repairs in this case, it must have been the necessity of the cargo, [**17]  and not that of the brig, for the repairs unavoidably 

 [*139]  sacrificed the vessel and freight, and nothing could be gained by them except for the cargo."
No prudent owner would make such repairs on his vessel which would more than exhaust all her value and the freight. Such hypothesis would violate all the known rules that govern human actions. The owner of the cargo might find it to his advantage, and be willing to have them incurred, upon the responsibility of the cargo, for any excess over the value of the vessel and freight.
In 2 Pars. on Ship. & Adm., 22, 23, it is stated: "Exigencies may arise, in which the master becomes, of necessity, supercargo, and is clothed with whatever agency or authority may be needed to enable him to protect the property and interests intrusted to him."
"He may sell the whole cargo, if he can neither take it on nor tranship it, and it is perishable and will be destroyed or materially diminished in value, before he can obtain instructions from the owners. He may sell a part of the cargo, in order to raise funds to pursue the voyage and carry on the remainder. But not until other means of raising money are exhausted, including the drawing [**18]  of bills on the owner, hypothecating the ship, or making other use of the owner's property or credit."
"The beneficial effect of the sale of the cargo will extend to the ship, by enabling her to earn her freight, and even if the ship profit most by it, yet if a part of the purpose and effect be to carry on the cargo that is not sold, it will be justified as an act for the common benefit."
The power of the master is simply commensurate with the duties devolved upon him, under the circumstances in which he may be placed by the fortunes of the voyage, bound to protect and subserve all the interests within the range of his employment.
Whenever exigencies require him to act for the benefit of other parties, to that extent his authority, as agent of the owner of the ship, is abridged.

 [*140]  Judge STORY, in Pope vs. Nickerson, 3 Story's R., 495, says: "There is no reason to say that a master of a ship has any more authority to bind the owners, than any other agent has to bind his principal."
In 2 Parsons on Ship. & Adm., 7, it is stated that, "to know what the authority of the master is, in general, or under any particular circumstances, we must appeal to the law of [**19]  agency, and the principles of that law which are applicable to the particular case."
Upon what principle of construction as to the powers of an agent, can it be inferred, that the owner of a vessel would, under any circumstances, authorize his agent, the master, to involve him in expense for the repairs of the vessel, from which no possible profit could be derived to him? The contract of affreightment does not compel such a course, because he is, by it, exonerated, if the perils of the sea have occasioned the disability of the vessel to transport the cargo.
"The general limitation of the power of the master to bind the owner by the contracts he makes for him, is this: they must relate to the condition, or the use and employment of the ship, and be within the usual duty and business of a master. They must not be so unreasonable in themselves as to raise the suspicion that the contracting party acted fraudulently or recklessly in making them." 2 Parsons on Ship. & Adm., 11.
"The master may certainly bind the owners for supplies and repairs, if they are necessary; but he can only procure such repairs as are properly speaking, necessary for the ship, that is such as are reasonably [**20]  fit and proper, having regard to the exigencies and requirements of the ship, for the port where she is lying and the voyage on which she is bound." Bliss vs. Ropes, 9 Allen 341, referred to in 2 Parsons on Ship. & Adm., 16.
"The only, and the reasonable rule must be, that the owner authorizes the master to do everything within the scope of a master's employment, which a rational owner would certainly 

 [*141]  do for himself if he were present at that time and place." 2 Parsons on Ship. & Adm., 18.
In the case of the Virgin, 8 Peters 538, an appeal to the Supreme Court from the Circuit Court of the United States, for the District of Maryland, where the bond merely hypothecated the ship, and questions arose as to the operation and effect of the bond, the Supreme Court decided that a bond may be good in part and bad in part, and that it will be upheld by Courts of Admiralty, as a lien to the extent to which it is valid; as such Courts in the exercise of their jurisdiction, are not governed by the strict rules of the common law, but act upon enlarged principles of equity; we think the reasoning of the Court in that case is confirmatory [**21]  of the view we have taken of this case. The Court say, "in England and America the established doctrine is, that the owners are not personally bound, except to the extent of the fund pledged which has come into their hands. In this case, the value of the ship, the only fund out of which payment can be made, falls far short of a full payment of the amount due upon the bottomry bond. But this is the misfortune of the lender, and not the fault of the owners--They are not to be made personally responsible for the act of the master, because the fund has turned out to be inadequate; since, by our law he had no authority by a bottomry bond to pledge the ship, and also the personal responsibility of the owners." Where the master is only authorized by bottomry to pledge the vessel, freight and cargo, and because the cargo is sold under the bond, to hold the owners responsible for any amount beyond the vessel and freight, would, in effect, be giving authority to the master through hypothecation of the cargo, to make the owner of the vessel responsible.
The master cannot directly or expressly, by a bottomry bond pledge the ship, and also the personal responsibility of the owner; nor can the [**22]  owner be constructively held personally bound by the execution of the bond. It is apparent, the Supreme Court, in the case of the ship Aurora, 14 U.S. 96, 1 Wheat. 96, 102, 4 L. Ed. 45, 

 [*142]  considered the master's authority limited to the value of ship and freight. They say "the master of the ship is the confidential agent of the owners, and they are bound to the performance of all lawful contracts made by him, relative to the usual employment of the vessel, and the repairs and other necessaries furnished for her use. This rule is established as well upon the implied assent of the owners, as with a view to the convenience of the commercial world. As, therefore, the master may contract for repairs and supplies, and thereby, indirectly bind the owners to the value of the ship and freight, so, it is held that he may, for the like purposes, expressly hypothecate the ship and freight, and thereby create a direct lien on the same, for the security of the creditor. But the authority of the master is limited to objects connected with the voyage, and, if he transcends the prescribed limits, his acts become in legal contemplation mere nullities."
Chief Justice TANEY,  [**23]  directly in regard to the question now involved, states the rule: (Naylor vs. Baltzell, Campbell's C. C. Rep., 641-65.)
"In the case before us then, the master had a right to pledge the ship and freight, in which case the owners are answerable no further than the amount of the pledged fund which came to their hands; or he might have pledged the personal responsibility of the owners to the value of the ship and freight, in which case if the ship had been lost on the voyage, they would have been responsible to that amount. This is the extent of the authority which the law gives to the master in a foreign port, and if he exceeds it, his acts are void. If, therefore, the master had pledged to the bottomry lender the personal responsibility of the owners to the value of the ship and freight, and cargo also, the pledge as respects the value of the cargo would have been void, and the owners not responsible. Can he then by pledging to the bottomry lender the cargo, enlarge his authority in relation to the personal responsibility of the ship owner, and indirectly bind him, not only for the value of the ship and freight, but for the value 

 [*143]  of the cargo also? The limitations [**24]  upon the power of the master, so carefully stated by the Supreme Court, are utterly nugatory, if by this circuitous mode, he is permitted to do what he cannot do directly; and by hypothecating the cargo, exercise a power over the fortunes of his owners to an unlimited extent. We think it cannot be done; and that the value of the ship and freight only were bound so far as the ship owners were concerned--and as no part of that fund has come to their hands, they are not personally responsible either directly or indirectly. We are satisfied that at this day, this is the general understanding of those who are engaged in commerce, and that the contracts are always made by both parties under that impression--and there can be no necessity or propriety in pushing the liability beyond the bounds prescribed by the general usage and understanding of the commercial world." We think there can be no doubt of the correctness of this ruling. In 2 Pars. on Ship. and Adm., 120, it seems to be taken as fully settled that "by the general maritime law, the responsibility of the owner of a vessel for the acts of the master and mariners, was limited to the value of the ship and freight."
When the master [**25]  in undertaking to act for the ship owner, finds it necessary to repair the vessel in a foreign port after she is so disabled from the perils of the sea, as to render repairs necessary to enable her to resume her voyage and carry the cargo to its destination, he is considered as guided by the interests of his principal, the owner. If a prudent owner would not make the repairs in question, the master as his agent, ought not to make them--if he does make them the owner is not bound beyond the value of the ship and freight. It is a possible case that the master when he begins the repairs, may be mistaken as to the ultimate cost. This may exceed the value of the vessel and freight. The owner, had he been present, might have committed the same error.
But there is this difference between the acts of the owner and the master--the one is the principal, and the other but an agent. If the owner had ordered the repairs himself, of course 

 [*144]  he would have been answerable, whether they were profitable to him or not, or if they exceeded the value of the ship and freight, because he would have been acting for himself; and no question could arise as to his authority to bind himself; although [**26]  in such case his conduct might not be considered that of a prudent man. On the other hand, the master acting as an agent in the absence of the owner, has not the same unlimited authority over the vessel as the owner, but his power is necessarily restricted by the nature of his employment, and he ought not to attempt to do what a prudent owner would not do if present.
When the owner of the ship is absent, and repairs are made on her by the master, exceeding the value of the vessel and freight, there is no presumption according to any principle of the law of agency applicable to his employment, to justify such expenditure on his part as an agent of the owner: and where it is conceded, no prudent owner, if present, would have made or authorized such repairs, there is no ground for inferential authority on the part of the master to make them.
The law will not assume that a prudent owner of a vessel would make repairs on her beyond her value when repaired. Such a proposition would be unreasonable.
In the case of Duncan vs. Benson, 9 Exch. 537, relied upon by the counsel for the appellee as enforcing a different principle, it is clear that the Court recognized the [**27]  rule that necessity must create an agency on the part of the master, for the shipper, and for his interest, which will bind the shipper where the sale of his cargo may be made either directly or indirectly for his benefit. Indirectly the shipper would be benefitted, where the damage to the ship and consequent repairs become necessary for the benefit of the cargo. In other cases, where, by no possibility, the shipper could derive benefit, there is no implied authority from him to the master, and the sale of the goods would be wrongful.
In Benson vs. Duncan, 3 Exch. 656, also relied upon by counsel for the appellee, it is stated, "that there was no obligation 

 [*145]  on the ship-owner as between him and the owner of the cargo, to do the repairs, and if he chose to do them through his agent, the master, acting (as the jury have found,) as a prudent, uninsured owner would have done, he voluntarily incurred the expense of such repairs for his own benefit."
To enable the Court to reach its conclusion, it will be perceived that it was upon the assumption that a prudent owner would have acted just as the master did; therefore, the authority to make the repairs is [**28]  inferred, and that consideration is an important element in the case.
So, in Benson vs. Chapman, 2 House of Lords' Cases, 720, also relied upon by counsel for the appellee, the remark is made, "that it is material to observe, that the special verdict does not state that the plaintiff, in common prudence, would not, if he had been present, have done precisely what the master did--that it is the duty of the master to repair the ship if there be a reasonable prospect of doing so at an expense not ruinous--In the absence of any finding to the contrary, we must assume that this duty was properly performed--the facts found by the special verdict are not sufficient to shew that the master acted beyond the scope of his authority; for he certainly had authority to act as a prudent uninsured owner would have done, and it is not found that an owner so situated would have acted differently."
Where vessel, freight and cargo are pledged towards the repairs of the ship by the master, and the entire proceeds of the vessel and freight are insufficient to pay them, it is a fair presumption, in the absence of proof to the contrary, that beyond that limit the master was acting in behalf of the [**29]  owner of the cargo.
Under such circumstances, to assert that the master was acting in the line of his duty as the agent of the ship-owner, is unwarranted by any sound rule of construction. The principles of distributive justice between all the parties interested, benefitted or injured, utterly ignore the conclusion that 

 [*146]  the master, in such case, would be acting solely under the authority and for the benefit of his principal, the owner of the brig.
It is a much more reasonable theory that he was acting for the parties deriving benefit from his extraordinary conduct.
In Benson vs. Duncan, 3 Exch. 654, it is stated, "that in ordering the repairs of the ship, the master acts exclusively as agent of the owner of the ship. No other person, but the owner or his agent, can have any authority to order the repairs. The owner of the cargo cannot insist on such repairs being made, for the ship-owner is absolved from his contract to carry, if prevented by the perils of the sea." There being no question as to the owner or master being the proper person to order the repairs, yet, as the master was not obliged to continue the voyage, but might have transhipped the [**30]  cargo, and required the shipper to pay the extra cost of transportation, why should not the master be considered as acting in the interest of all the parties interested?
Is it more reasonable to give a narrow view to his conduct rather than, under the circumstances of disaster and necessity, to give to his acts a more enlarged construction, and in case of a successful termination of the voyage, to adjust the relative rights and obligations of all parties, as each may be benefitted, according to the principles of equity and justice?
No doubt the master may hypothecate the cargo for the benefit of the ship, and where this is done, the owner of the ship is liable for the loss sustained by the owner of the cargo, but it is against reason to say that the hypothecation of the cargo is for the benefit of the ship where it exceeds the value of the ship and freight.
The master may act as the agent of the cargo, under some circumstances, independent of his agency for the owner of the ship.
When the cargo alone is jeopardized from causes for which the owner of the vessel is not responsible, in such cases the owner is not personally accountable, and where the master 

 [*147]  acts for all [**31]  parties interested, ship-owner and shipper, the loss falls on the respective owners of ship and cargo in the proportion of their several interests. See Douglas vs. Moody, 9 Mass. 548; Andrew vs. Marine Ins. Co., 9 Johnson 32.
As was said in Duncan vs. Benson, of the celebrated judgment of Lord STOWELL, in the case of the Gratitudine, (in which he had expressed opinions not precisely according with the reasoning of the Court in the case of Duncan and Benson,) that Lord STOWELL'S views were to be taken with some modification, and that his judgment must be understood secundum subjectam materiam. So as to these cases in the House of Lords and Exchequer, the same remark is applicable. They are all founded, as we understand them, upon the assumption that the master, under the circumstances, must be considered as having acted within the scope of his authority, there being no evidence to the contrary.
In the present case, we must determine the legal effect of the master's conduct with the conceded averment, that no prudent owner of a ship would have incurred such expenditures as these in question.
The appellants have also relied [**32]  upon the protection afforded by the Act of Congress, (1851, ch. 43,) which limits the liability of the ship-owner for certain acts of the master and mariners, to the value of the vessel and pending freight; but as we have disposed of the case upon the other grounds of defence, which we have deemed sufficient, it is unnecessary for us to express any opinion as to the operation and effect of the Act of Congress.
The Court below ought to have overruled the demurrer. Under the agreement of the parties, no new trial will be ordered.
Judgment reversed. 

138 of 144 DOCUMENTS 

ICHABOD JEAN vs. RUDOLPH SPURRIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 110; 1872 Md. LEXIS 7 

January 25, 1872, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Distress -- Regularity of proceedings.

A distress warrant directed distress to be made to satisfy rent due J. as per account, which was made out in J.'s name and sworn to by him. The warrant was signed by the Justice of the Peace before whom the affidavit was made with the letters "J. P." appended to the signature. HELD:

1st. That if the person signing the warrant was in fact the agent of the landlord, the warrant was a sufficient authority to the constable, although not signed in terms as agent, or for the landlord by name.

2d. That a distress made in the name of the landlord, even if made without precedent authority, is validated by his subsequent adoption and ratification.

A distress is not vitiated by more rent being distrained for than is due; and the avowant may recover in the action of replevin what is actually due, where he alleges a larger sum in arrear than is so in fact.

In the affidavit accompanying a distress warrant, the amount of rent due was stated to be "two hundred and fifty -----;" and the annexed account was for $ 250. HELD:

That the omission of the word "dollars" in the affidavit, was cured by the account.  

COUNSEL:
Orville Horwitz, for the appellant.

The warrant of distress is sufficient in every respect.

Before the passage of the Act of 1834, no warrant was required. The landlord can still execute his own distress. And the requirement of a warrant where a bailiff is authorized, is only inferential under the Act. The statute does not require it to be in any particular form or signed by any special party. It is perfectly good if issued by the direction of the landlord, or it would seem if it afterwards receives his sanction. Gilbert on Distress, 32; Duncan vs. Meikleham, 3 C. & P., 172; Swearingen vs. Magruder, 4 H. & McH., 347.

In this case the distress was issued by the direction of the landlord; the name of Disney was signed to the warrant by authority of the landlord and as his agent.

The fact that the amount of rent distrained for was greater than the amount for which a distraint could that day be issued, does not render the distress void.

It has been settled again and again, that no action whatever can be maintained for distraining [**2]  for more rent than was justly due and in arrear. Woodfall's Landlord and Tenant, 777; Tancred vs. Leyland, 16 Q. B., 669, 20 L. J. Q. B., 316; Glyn vs. Thomas, 11 Ex., 870, 25 L. J. Ex., 125.

The tenant, if he desires to avail himself of the error, must tender the amount due, with costs.

It follows then that the landlord is entitled to receive the amount actually due--and "this amount is always open to examination or proof on the action of replevin." Cross vs. Tome, 14 Md., 257; Forty vs. Imber, 6 East., 437.

F. P. Stevens and R. J. Bouldin, for the appellee,

Referred to Code, Art. 53, secs. 8, 16; Taylor's Land. and Tenant, 391, 573; Joynes vs. Wartman, 5 Md., 195, and Giles vs. Ebsworth, 10 Md., 333.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*112]  ALVEY, J., delivered the opinion of the Court.
This was an action of replevin instituted by the appellee against the appellant, and the latter having avowed the taking of the goods for rent in arrear, and given in evidence the distress proceeding, the only question raised by the exception of the appellant is as to the validity of the distress, which was [**3]  decided by the Court below to be illegal and void. The record presents no question as to the sufficiency of the pleading, nor as to any variance between the pleadings and proof.
To the distress proceeding there are three objections taken by the appellee: 1st. That it was not made under a proper warrant from the appellant; 2d. That it was made for a larger amount of rent than was really due at the time, and was therefore void; and 3d. That the affidavit was defective in not stating the amount of rent claimed to be due, in dollars and cents, as required by the Code, Article 53, section 8.
1. The first objection taken is founded upon the fact that the warrant to Robinson, the constable, was not signed by the appellant, as landlord, but was signed by Disney, the justice of the peace before whom the affidavit to the account of rent was made. It is clearly shown, however, that the distress was made for and in the name of the appellant, as landlord, and the warrant itself directed the distress to be made to satisfy rent due the appellant, as per account, which was made 

 [*113]  out in the name of, and sworn to by, the appellant. There was no mistake, therefore, in whose behalf the distress [**4]  was made. It is clearly shown, moreover, that the appellant recognized, and in all respects treated, the distress as having been made by his authority, and as his act. The Code, Article 53, section 8, recognizes, in express terms, the right of the landlord to employ an agent to make the distress; and if Disney, who signed the warrant, was in fact the agent of the appellant, the warrant was sufficient authority to the constable, although not signed, in terms, as agent or for the landlord by name. The mere omission of the proper designation of the right character in which the party acted, does not vitiate the warrant and render the distress void, as seems to be supposed by the appellee. The statute does not require the warrant to be signed by the landlord himself, nor is there any particular form prescribed in which it shall be signed by the agent. It was, therefore, a simple question whether Disney was authorized and acted as the agent of the landlord in signing the warrant. His appending the "J. P." to his name is not inconsistent with the fact that he may have been acting as agent. Those letters may have been placed there from force of habit in signing his name officially, or from [**5]  fancy, or some notion that an official designation imparted to the warrant some peculiar force and effect. He clearly had no authority, in his character of justice of the peace, to issue the warrant, and it is but fair to him to suppose that he did not issue it without some direction and authority, and although he may have attempted to give to it the import of an official act, that attempt was simply without effect of any kind.
But suppose there was an absence of any precedent authority to either Disney or Robinson to make the distress; seeing that it was made in the name and behalf of the appellant, his subsequent ratification and adoption of it would be all sufficient, provided the statutory forms were complied with. Such ratification would be effectual, not only as between the 

 [*114]  appellant and the party assuming to act as agent, but as between the appellant and third persons; and such ratification, the distress being in the name of the appellant, would relate back to the time of the inception of the transaction, and have a complete retroactive efficacy; or, as the maxim expresses it, omnis ratihabitio retrotrahitur. Story's Ag., secs. 244, 245. Such, said Lord Chief [**6]  Justice TINDALL, in Wilson vs. Tumman, 6 Man. & Grang. 236, "was the precise distinction taken in the Year-Book, 7 Hen. 4, fo. 35--that if the bailiff took the heriot, claiming property in it himself, the subsequent agreement of the lord would not amount to a ratification of his authority, as bailiff at the time; but if he took it at the time, as bailiff of the lord, the subsequent ratification by the lord made him bailiff at the time." And in an anonymous case in Godbolt's Reports, 109, ANDERSON, C. J., said, "If one distrain as bailiff, although in truth he is not bailiff, if, after, he in whose right he doth it, doth assent to it, he shall not be punished as a trespasser, for that assent shall have relation unto the time of the distress taken." It was upon the distinction observed in these cases, that the case of Swearingen vs. Magruder, 4 H. & McH. 347, was decided. And in the more recent case of Whitehead vs. Taylor, 10 Adol. & El. 210, which was an action of replevin, in which the defendant justified in a cognisance as bailiff of an executor, for rent due to the testator, it appearing that the [**7]  executor had given no authority for the distress, but which was recognized and adopted by him; Lord DENMAN, in delivering the opinion of the Court, said: "The executrix could ratify the act of the defendant, as testator's bailiff, though his authority was at an end; for she might have ratified the act of an entire stranger, as appears by the decision of ANDERSON, C. J., in which PERIAM concurred, in an anonymous case in Godbolt's Reports, 109, (before referred to,) cited in 4 Vin. Abr. 1, Bailiff, (D.) pl. 7. Such ratification has been held to legalize a past act, even when given after action brought." See also, Potter vs. North, 1 Saund. 347, C., note 4; Brad. on 

 [*115]  Dist., 151. The objection to the warrant, therefore, cannot be sustained.
2. Then, as to the second objection, founded upon the fact that there was more rent distrained for than was due, that we think is wholly untenable. The invariable practice has been sustained by authority, that where the avowant alleges a larger sum to be in arrear than is so in fact, he is allowed to recover the sum actually due, and for which the distress could be made. As,  [**8]  for example, where the avowry was for a half year's rent, and only a quarter's rent was due, the avowant was adjudged entitled to recover the quarter's rent. Batty vs. Trevillion, Moore, 281; Harrison vs. Barnby, 5 T. Rep. 248; Forty vs. Imber, 6 East., 435. And in the case of Tancred vs. Leyland, 16 Q.B. 669, it was held, that the mere taking of goods in distress on a claim of more rent being in arrear than was in fact due, and selling them on such claim, was not actionable, because the landlord, in distraining for rent, is not bound by the amount for which he claims to distrain, and though he takes the goods, alleging at the time that he does so for an amount exceeding the real amount due, he may sell afterwards only for that which is really due. And that case was fully sustained, in the Exchequer Chamber, by the subsequent case of Glyn vs. Thomas, 11 Exch. 870.
This right of the avowant to recover what is really due, irrespective of the amount for which the distress may have been taken, thus well established at the common law, has not been changed or modified by the statute. The amount of rent claimed is required to [**9]  be stated and sworn to, to guard against excessive distresses, as far as the oath of the party will have that effect; but it does not follow that the whole distress is to be regarded as void, because of a mistake or a misapprehension on the part of the landlord, or his agent, as to the amount of rent really due, and for which a distress can be taken. The statute must have a reasonable construction; and it should not be more strict, certainly, than that given to 

 [*116]  the statutes in regard to attachments; whereby the amount for which the attachment is sought, is required to be particularly stated in the affidavit of the plaintiff, and that too as being over and above all discounts, and yet, in construing these statutes, it has been repeatedly held, that it was no cause for quashing the attachment that it issued for more than was really due the plaintiff. Dawson vs. Brown, 12 G. & J. 53, 60; Lee vs. Tinges, 7 Md. 215. And as in the case of an attachment the plaintiff can have judgment of condemnation for less than the amount stated in the affidavit, so in the case of a distress, where the landlord avows, "the amount actually due is always [**10]  open to examination on proof, in the action of replevin." Cross vs. Tome, 14 Md. 247.
3. As to the last objection, that in regard to the supposed defect in the affidavit, we have no difficulty in saying that it is not well founded. The affidavit is, in all respects, correct, except the omission of the word "dollars." The amount of rent stated in the affidavit to be due is the sum of two hundred and fifty-five -----; and we think there can be no possible mistake as to what was meant, when the affidavit is read in connection with the account, which it was intended to verify. That account was for two hundred and fifty-five dollars; and as the account, affidavit and warrant all go together, and are read together, with reference to each other, as parts of an entire proceeding, it requires but a reasonable and fair intendment to cure such a defect as exists in this affidavit.
Judgment reversed and new trial awarded. 

139 of 144 DOCUMENTS 

THE CITIZENS' FIRE INSURANCE, SECURITY AND LAND COMPANY OF BALTIMORE CITY vs. LEANDER Z. DOLL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 89; 1872 Md. LEXIS 6 

January 19, 1872, Decided 

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

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

First Exception--The plaintiff, to maintain the issue on his part, offered in evidence the policy of insurance, the eighth condition of which is as follows:

"8. In case of loss the assured should use their best endeavors in saving and protecting the property from damage at and after the fire; if they shall fail so to do, this company shall not be liable for such damage caused by such failure. The assured shall forthwith give notice of said loss to the company, and as soon after as possible render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, the actual cash value of the property, their interest therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof was used, when and how the fire originated, and shall also produce a certificate under the hand and seal of a magistrate, notary public, or commissioner of deeds, (nearest to the place [**2]  of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate, notary public, or commissioner of deeds shall certify. And until such proofs, declarations and certificates are produced, and the examinations and appraisements permitted, the loss shall not be payable."

The policy was assigned or transferred to the appellee on the 24th of May, 1869, with the assent of the appellant. The plaintiff also offered in evidence articles of agreement between Charles W. Floeckher, John Fangmyer, George T. Castle and the appellee, trading as Fangmyer, Doll & Castle, dated the 18th of March, 1869, wherein it was agreed that Floeckher would execute to Milton G. Urner a power of attorney authorizing him to foreclose a mortgage, given by said Floeckher to said Castle, embracing the property insured. By the agreement the parties thereto were mutually released as between themselves, from liabilities under the articles [**3]  of co-partnership, dated the 1st of January, 1867, which were also put in evidence. The plaintiff then proved the destruction of the mill by fire on the 3d of June, 1869; and proved by John Heck that he had been working as a millwright for forty-two years, that he had re-built the mill in 1861, and had examined the ruins after the fire; that he was entirely familiar with the mill, which had the best machinery and was the best mill in Frederick county. The plaintiff then asked the witness how much it would have cost to replace the mill, machinery, &c., enumerated in the policy. The defendant objected; the Court (DOBBIN, J.) overruled the objection and the defendant excepted.

Second Exception--The witness Heck answered the question in the foregoing bill of exception and stated that it would cost $ 16,700, without reference to the steam engine and boiler. To the admission of this answer the defendant excepted.

Third Exception--The plaintiff then testified that on the 9th of June, 1869, he called at the appellant's office and left a copy of the proofs of loss; that on the 15th he called again and asked the secretary of the appellant if the proofs were all right, and the secretary [**4]  answered they were. On cross-examination the plaintiff stated that Charles W. Floeckher was a member of the firm of Fangmyer, Doll & Castle, at the time he executed to George T. Castle the mortgage of the insured property--that a difficulty occurred between Floeckher and his co-partners in December, 1868; that Floeckher's interest ceased at the time of the sale of the property by Milton G. Urner, attorney, to the witness--(the deed from Urner to the plaintiff bore date the 21st May, 1869;) that at the time of the formation of the partnership between Floeckher, Fangmyer, Castle and the plaintiff, the mill property was subject to a mortgage to the Farmers and Merchants' Bank of Frederick for $ 4,000. The plaintiff further offered in evidence his former claim of loss, signed and sworn to by himself, which was furnished to the defendant as preliminary proof--it stated the amount insured on each item, as described in the policy, the transfer or assignment of the policy to the plaintiff, the other insurances on the same property, the amount claimed of the defendant; that the actual cash value of the property at the time of the fire was $ 16,707.20 as set forth in detail in a schedule thereto [**5]  annexed; that the property belonged to the plaintiff, and no other person or party had any interest therein. The schedule annexed was a detailed statement of John Heck, as to what it would cost to re-build the mill. To the admission of this statement of the plaintiff, as evidence, the defendant objected, and at the same time the plaintiff produced the following letter from the secretary of the defendant:

"BALTIMORE, July 8th, 1869.

"L. Z. DOLL, Esq.:

"Dear Sir:--The proofs of loss furnished by you to this company, are wholly unsatisfactory, as to the amount of the claim, even if the company be responsible at all. The company, however, denies any responsibility by reason of material representations as to the title and property, being untrue, and for other reasons. With a reservation of all objections to your recovering in any form, and without waving any of the rights of the company under the policy, we leave you to pursue such a course as you may deem expedient.

Respectfully,

WM. SHANNON, Sec'y.

The Court overruled the objection on the ground that the letter of the secretary of the defendant, was a waiver of all objection to the proofs, and permitted the [**6]  same to be read to the jury. The defendant excepted.

Fourth Exception--The plaintiff offered in evidence a deed to himself from Milton G. Urner, as attorney, the character of which is stated in the opinion of the Court. To the admission of this deed the defendant objected; the Court overruled the objection and the defendant excepted.

Fifth Exception--The defendant then, to maintain the issue on its part, offered in evidence the original application for insurance, the signatures of which were admitted to be genuine, a certified copy of a mortgage of the insured property from Charles W. Floeckher to George T. Castle, also a certified copy of a mortgage of the same property from Floeckher to the Farmers and Merchants' Bank of Frederick, and the articles of co-partnership between Floeckher, Fangmyer, Castle and the plaintiff. The defendant then offered to read to the jury the joint answer of Fangmyer, Castle and the plaintiff to the bill of complaint of Charles W. Floeckher, filed against them in the Circuit Court of Baltimore city. The plaintiff objected and the Court refused to allow the answer to be read; the defendant excepted.

Sixth Exception--The plaintiff offered [**7]  the following prayer which was granted:

"If the jury find from the evidence in the cause, the execution of the articles of co-partnership offered in evidence, and of the deeds from Clarke to Floeckher and from Urner to Doll and that Doll went into possession of the property, and also the execution of the policy and the assignment thereof to the plaintiff, with the assent of the defendant, and that the property insured was on or about the 3d of June, 1869, destroyed by fire, then their verdict must be for the plaintiff."

The defendant offered twelve prayers, the first of which was granted with the plaintiff's prayer as a qualification, the others were rejected.

These prayers it is deemed unnecessary to insert--the questions raised by the rejected prayers were not considered by the Court.

To the granting of the plaintiff's prayer, the defendant excepted, as also to the qualification of its first prayer and to the rejection of its other prayers. Judgment was given for the plaintiff and the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Insurance -- What does not constitute a Waiver by the Underwriter of Preliminary proof of Loss by the Assured -- Statement and affidavit of Loss, not admissible as evidence in Action on Policy of Insurance -- Preliminary proofs of Loss -- Deed by an Attorney, when not valid -- Construction of a Written instrument -- Interest of Partners in Real estate contributed as part of the Capital of the concern, but not conveyed to the Firm nor to any one in Trust for them -- A void policy not rendered valid by an Assignment of the holder, with the assent of the Underwriter.

Upon the destruction of the property insured, the assignee of the policy furnished to the insurance company preliminary proofs of the loss, as required by a condition of the policy, and was informed by letter signed by the secretary of the company, that the proofs of loss were wholly unsatisfactory as to the amount of his claim, and while denying all responsibility on the part of the company by reason of misrepresentations as to title and property, it reserved all objections to his right to recover in any form; and without waiving any rights under the policy, left him to pursue such course as he should deem expedient. HELD:

That such letter could not be construed into a waiver by the company of all objections to the preliminary proof of loss.

The statement and ex parte affidavit of the assured as to the loss and value of the property insured, furnished to the insurance company as preliminary proof, under a condition of its policy, cannot be read to the jury as evidence, upon the offer of the assured, in an action by him on the policy.

The preliminary proofs of loss required by an insurance company of the assured, are not per se evidence to the jury of his loss; they are conditions precedent to his right to recover, and it is for the Court and not for the jury to decide on their sufficiency; and if in any case, it be necessary to lay the preliminary proofs before the jury, they should be cautioned against considering them as evidence of the fact and extent of the assured's loss.

A deed professing to be made under and by virtue of powers of attorney, and signed by the grantor as attorney, is invalid and therefore inadmissible as evidence of title in the grantee, the powers of attorney not being produced, and it not appearing that they were attested and acknowledged in the same manner as a deed, and recorded with the deed executed in pursuance of such powers of attorney.

Where there is doubt as to the proper meaning of an instrument of writing, the construction which the parties to it have themselves put upon it, is entitled to great consideration; but where its meaning is clear, an erroneous construction of it by them will not control its effect.

By certain articles of co-partnership entered into on the 1st of January, 1867, for the purpose of conducting the business of manufacturing and selling flour, it was agreed that three members of the firm should put in as capital of the concern so much money respectively -- the fourth member agreed to put in "his mill property, teams, &c., as his part of the capital," all of which it was agreed should be used in common between them for the support and management of the business, and their mutual benefit and advantage. The amount which each partner was to receive of the gains and profits of the business was stated. The mill property was not conveyed to the partnership, nor to any other person in trust for the partnership. On the 28th of Angust, 1868, a policy of insurance on this property was taken out in the name of the firm. On the 21st of May, 1869, a deed of this property was executed by an attorney in virtue of powers of attorney from the owner of the property and a mortgagee thereof, to a member of the firm, to whom also, on the 24th of the same month, the policy of insurance was assigned or transferred with the assent of the underwriter. On the 3d of June following, the property was destroyed by fire; previous to which event the partnership had been dissolved. In an action on the policy by the assignee, it was HELD:

1st. That there was no partnership of the mill-property itself, and the only interest that the members of the firm, other than the real owner, had in it, was its temporary use and employment.

2d. That upon the dissolution of the partnership, the partnership use of the property ceased, and the real owner resumed its exclusive use and control.

3d. That as the firm had no estate or title in the property at the time they applied to have it insured, but only a temporary use of it, and yet they represented the property as theirs, and it was so stated in the policy, the policy was absolutely void from the beginning, under its conditions which provided that if the interest of the assured in the property was not truly stated in the policy; or if such interest were any other than the entire, unconditional, and sole ownership of the property, it must be so represented to the assurers, and so expressed in the written part of the policy, or else the policy should be void.

4th. That as the parties making the assignment had no interest at the time in the subject of the policy, they could assign none. The policy being void in their hands, it was equally so in the hands of the assignee; and the mere assent of the insurers to the assignment did not render valid the policy which was before utterly void in the hands of the assignors. 

COUNSEL:
Samuel Snowden and John Carson, for the appellant.

The true rule for damages on a policy of insurance is the actual cash value [**8]  of the property at the time of the loss. The contract of insurance being one of strict indemnity for loss sustained, any other rule would enable the insured to recover more than he had lost. Elmaker vs. Franklin Ins. Co., 5 Penn., 183; Bimler vs. Nat. Ins. Co., 11 Met., 195; Commonwealth Ins. Co. vs. Sennet, 37 Penn., 208; Flanders on Fire Ins., 550.

The question put to the witness Heck, and his answer thereto, puts the recovery upon the replacing of the property lost by a new mill and complete machinery. If the mill and machinery were old and worn out, the appellee would, upon this theory, recover a new mill and new machinery. The appellee relied upon the testimony of the witness Heck, and offered no other proof of the amount of his loss. Clearly, under the foregoing authorities, the question stated in the first exception, and the answer stated in the second, should have been rejected.

The preliminary proofs are not evidence to go to the jury of the amount of the loss of the insured. Lycoming Co. vs. Schaffer, 42 Penn. S. R., 181; Newmark vs. L. & S. Fire Ins. Co., 30 Mo., 160; Yonkers & N. Y. Fire Ins. Co. vs. Hoffman Fire Ins. Co., 6 Robt., 316; Commonwealth Ins. Co. vs.  [**9]  Sennet, 41 Penn. S. R., 161; Sexton vs. Mar. Mut. Ins. Co., 9 Barb., 191.

If the letter of the secretary of the appellant was a waiver on its part of the right to demand preliminary proofs, it dispensed with them altogether, and did not authorize their use as evidence. But the letter of the secretary was not a waiver of the right to demand such proofs. It told the appellee that "the proofs of loss furnished by him were wholly unsatisfactory as to the amount of claim"--thus calling his attention to the specific objection. The condition of the policy required him to furnish "a statement of the actual cash value of the property lost," but instead of doing this, he sent a statement of what Mr. Heck said, a new mill and machinery would cost--no statement of any kind of the loss he had sustained, but only what a millwright would agree to build a new mill and furnish new machinery for. The letter warned him that the company reserved all objections to his recovering in any form, and made it his duty to prepare himself with everything necessary to fully make out his case. Edwards vs. Balt. Fire Ins. Co., 3 Gill, 186.

An attorney cannot in his own name convey the property which he [**10]  is authorized to sell, but the deed must be in the name of the principal. Harper vs. Hampton, 1 H. & J., 622; Smith vs. Perry, 1 H. & J., 700.

The deed from Urner, attorney, did not operate to convey to the appellee any interest in the insured property, and therefore was not admissible as evidence of title. The property at the time of the loss belonged to Charles W. Floeckher, and therefore no stranger to the title could maintain an action for the loss of property in which he had no interest, and the paper offered being void could be no evidence of any interest in the appellee. It is well settled, that unless the party to whom a policy of insurance is issued has some interest, either legal or equitable, in the property insured, the policy will not attach.

The Court qualified the first prayer of the defendant which embodied this proposition, by the prayer of the plaintiff, which qualification was erroneous. It assumed that the assignment from Fangmyer, Doll & Castle to the appellee, with the assent of the company, vested in him the right to collect the insurance money, although the policy was void in the hands of his assignors. No notice of the numerous changes of the title--no [**11]  knowledge, on the part of the company, of the facts which made the policy void were required to be found by the jury, but the assignment and assent only, they were told was sufficient to entitle him to recover. Thus clearly disregarding the well settled rule that no one is held to have waived his rights until it can be shewn that he has done so with knowledge of them. Angell on Ins., sec. 219; 2 Am. Leading Cases, 522.

A policy void in the hands of the holder is void in the hands of an assignee with consent of the company. Eastman vs. Carroll Co. Ins. Co., 45 Me., 307.

The firm of Fangmyer, Doll & Castle, never had any interest in the property; it was purchased by Floeckher, stood in his name, and was treated by the firm as his private and separate property. He was allowed to mortgage it and deal with it in all respects as his own, and it was all the time at his risk. As, therefore, the co-partnership had no interest at the time of issuing the policy, either legal or equitable, the policy never attached. It was void in its inception, and the mere assent of the company, without knowledge of the facts, could not create a new and independent agreement so as to revive a defunct [**12]  policy in favor of the assignee, especially when that assignee was one of the original parties.

William A. Fisher, for the appellee.

The cost of replacement of the property consumed, was some evidence to go to the jury and was properly admitted.

Both the answer of the secretary of the appellant on the 15th of June, 1869, and his letter of July 8th, 1869, constituted a waiver of the preliminary proof. Allegre vs. Md. Min. Co., 6 H. & J., 408; Edwards vs. Balt. Fire Ins. Co., 3 Gill, 176; Franklin Ins. Co. vs. Coates, 14 Md., 285; Van Deusen vs. Charter Oak Co., 1 Abb. Pr., N. S., 349; AEtna Ins. Co. vs. Tyler, 16 Wend., 401; McMaster vs. Western Ins. Co., 25 Wend., 382.

The answer of the plaintiff and others to the bill of Floeckher was inadmissible. It was offered in order to prove the construction placed by the defendant on the co-partnership articles, and this was not allowable. Ringgold vs. Ringgold, 1 H. & G., 74.

The mortgage from Floeckher to Castle worked no change in the title of the firm of Fangmyer, Doll & Castle in the property. It operated only upon Mrs. Floeckher's dower, and Mr. Floeckher's co-partnership interest in the mill property as one of [**13]  the assets of the partnership. The firm held the equitable title before, and they still retained it. Besides a mortgage could not be considered such a change in title as to effect the insurance; especially as the mortgage introduced no new party. Washington Ins. Co. vs. Kelly, 32 Md., 421; Conoon vs. Mut. Ins. Co., 1 N. Y., 290.

The assent of the appellant to the assignment to the appellee, constituted a new contract between them, and entitled the appellee to recover on the policy. Flanders on Fire Ins., 371, 437-439; Wilson vs. Hill, 3 Met., 66; Foster vs. Equity Ins. Co., 2 Gray, 216; Fogg vs. Middlesex Ins. Co., 10 Cush., 337; Harper vs. Hudson R. Ins. Co., 17 N. Y., 234; Hale vs. Mich. Ins. Co., 6 Gray, 169; Doring vs. Manuf. Ins. Co., 8 Gray, 28; City Ins. Co. of Hartford, 45 Ill., 482; Sanders vs. Hillsborough Ins. Co., 44 N. H., 338.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*99]  ALVEY, J., delivered the opinion of the Court.
This action was brought by the appellee against the appellant, upon an assigned policy of insurance, dated the 28th of August, 1868, and which was issued to the partnership firm of Fangmyer,  [**14]  Doll & Castle, against damage by fire, to a flour mill, machinery and fixtures, in Frederick county, to the amount of fifteen hundred dollars, for the period of one year from the date of the policy.
In the policy, it is declared that it was made and accepted in reference to the provisions and conditions thereto annexed, which are declared to be a part of the policy, and warranties on the part of the assured, and which are to be used and resorted to, in order to explain the rights and obligations of the parties, in all cases not otherwise specially provided for. Annexed to the policy are the conditions, and among which we find, that any omission to make known every fact material to the risk, or any misrepresentation whatever, either in the written application or otherwise, or if the premises should be occupied or used, so as to increase the risk, or become vacant and unoccupied, without the assent of the assurers indorsed on the policy; or if the property should be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance; or if the interest of the assured in the property, whether as owner,  [**15]  trustee, mortgagee, lessee, or otherwise, be not truly stated in the policy; then, and in every such case, the policy to be void. By the fifth condition it is further provided, that if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the same, for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of the policy, or otherwise the policy to be void. And, in reference to the account of the loss, and the preliminary proof thereof, it is made an express condition, that the assured should, as soon as possible after the fire, render a particular account of the loss, verified by 

 [*100]  signature and oath, and state therein the actual cash value of the property, their interest therein, for what purposes and by whom the building was used, and when and how the fire originated, &c.
The policy was assigned or transferred to the appellee, one of the members of the firm to whom it issued, on the 24th of May, 1869, with the assent of the appellant. The fire occurred, by which the mill was destroyed, on the 3d of June, 1869. And on the 9th of June, 1869, the appellee tendered [**16]  his statement and preliminary proof of loss to the company; and it is upon this that the first material question arises in the cause.
The appellee claims as purchaser of the property and assignee of the policy; and while he states in his claim of loss that he was the sole owner of the property destroyed, and that no other person or party had any interest therein, he failed to make and set forth a particular statement of his loss, as required by the condition, and simply referred to a statement of a millwright as to what it would cost to rebuild the mill. And, upon this statement being objected to by the appellant, as insufficient and therefore inadmissible, the appellee, to obviate and remove all ground of objection, produced and offered to read, in connection with the statement, the letter from the appellant's secretary, dated July the 8th, 1869. The appellant persisting in its objection, the Court overruled it, on the ground, as stated in the bill of exception, that the letter of the secretary was a waiver of all objection to the preliminary proof, and accordingly, the statement as offered was allowed to be read to the jury as evidence. It was to this ruling of the Court that the [**17]  third bill of exception was taken.
Two objections are urged to the correctness of this decision of the Court below; first, that the preliminary proof was clearly defective, and that the letter produced by the appellee did not operate a waiver of such defect; and, secondly, that it was error, even if the statement offered be admissible as 

 [*101]  preliminary proof, to allow it to be read to the jury as evidence in the cause.
1. The preliminary proof offered by the appellee was clearly defective. Indeed, it has not been contended that it was such, in all respects, as was required by the eighth condition of the policy. But it is insisted that all defects have been waived, and the letter is relied on as having that effect.
There is no doubt of the general proposition, that if the refusal to pay the loss, or to acknowledge liability, by the assurers, be placed on other and distinct grounds than the insufficient or defective proof furnished, a waiver of such proof will be implied. Allegre vs. The Md. Ins. Co., 6 H. & J. 408; The Md. Ins. Co. vs. Bathurst, 5 G. & J. 159; Edwards vs. The Balto. Fire Ins. Co., 2 Gill 176; Tayloe vs. The Merchants' Fire Ins. Co., 50 U.S. 390, 9 How. 390, 13 L. Ed. 187. [**18]  But in this case we do not comprehend how such waiver can be implied from the letter of the secretary of the company, when it expressly informed the appellee that the proofs of loss furnished by him were wholly unsatisfactory, as to the amount of his claim, and while the company denied all responsibility, by reason of misrepresentations as to title and property, it reserved all objections to the appellee's right to recover in any form; and, without waiving any rights under the policy, it left the appellee to pursue such course as he should deem expedient. The terms of this letter seem to have been taken from that sent by the insurance company to the assured, in the case of Edwards vs. The Balto. Fire Ins. Co., 2 Gill 176, in reference to which, as implying a waiver, the Court of Appeals said, that it repelled every presumption of any waiver on the part of the company, and was an explicit warning and annunciation to the assured, that they designed to waive nothing, and that on the trial of any action which he might institute against them, he must come prepared to prove every thing, which, according to the terms and conditions of the policy, it was necessary to prove,  [**19]  to entitle him to recover. The same may be said of the letter in this case; and that all ground for 

 [*102]  implying waiver is expressly excluded by the guarded terms employed. The Court was therefore in error in supposing that the letter of the 8th of July, 1869, effected a waiver of the prescribed preliminary proof of loss.
2. The Court not only decided that there had been a waiver of all defects in the preliminary proof, but that the statement and ex parte affidavit of the appellee, as to loss and value of the property, furnished to the appellant as preliminary proof under the eighth condition of the policy, should be read to the jury as evidence in the cause. In this we think there was also error, even if the defects had been waived, or if such proof had been perfect and regular. It is true, the fact as to whether preliminary proofs have been furnished, or have been furnished in time, is for the jury, in cases where such questions arise; (Franklin Fire Ins. Co. vs. Hamill, 6 Gill 87;) and questions of waiver of such proof, when they depend upon mere parol evidence of facts and circumstances, are likewise for the jury, under the instruction of the Court.  [**20]  But the preliminary proofs as such are not per se evidence to the jury, of the plaintiff's loss. They consist of the ex parte statements of the plaintiff himself, and he is not allowed, by any rule of evidence, such facility of furnishing evidence in his own behalf. These proofs are conditions precedent to the plaintiff's right to recover, and it is for the Court, and not the jury, to decide on their sufficiency. This has been repeatedly decided. In the case of The Commonwealth Ins. Co. vs. Sennett, 41 Pa. 161, the Court, in speaking of the preliminary proofs, and the manner in which they were produced and used at the trial, said: "They are conditions precedent, and for the Court, and being in writing, the question of sufficiency is to be decided by them. If they are not sufficient the cause is at an end, unless they have been expressly or impliedly waived by the defendants. If they are waived, the case proceeds without them, but here the attempt is, when they are not objected to as insufficient, to turn an entirely ex parte statement of the plaintiff into prima facie 

 [*103]  evidence of the most important part of their case. A prima facie [**21]  case uncontradicted is conclusive." See also Thurston vs. Murray, 3 Binn. 326; Lycoming Ins. Co. vs. Schreffler, 42 Pa. 188; Sexton vs. Mut. Ins. Co., 9 Barb. 191; Howard vs. The City Fire Ins. Co. 4 Denio 502. If, in any case, it be necessary to lay the preliminary proofs before the jury, they should be cautioned against considering them as evidence of the fact and extent of the plaintiff's loss. But in this case such proofs were allowed to be read in evidence generally, and without any restriction whatever, the jury being left to consider them as they thought proper.
Having disposed of the third exception, we come now to the fourth, which was taken to the admissibility in evidence of a deed from Urner, as attorney, to the appellee, for the mill property embraced in the policy. The deed is dated the 21st of May, 1869, and professes to be made by Urner, under and by virtue of powers of attorney from Floeckher and Castle. Urner is described in, and has signed the deed, as attorney, as directed by section 27, of Article 24 of the Code. But the powers of attorney were not produced, and it does not appear [**22]  that they were "attested and acknowledged in the same manner as a deed, and recorded with the deed executed in pursuance of such power of attorney." This the Code, Article 24, section 25, requires, in order to give validity to the deed; and unless the powers of attorney referred to were so attested, acknowledged and recorded, the deed is of no validity. It is only by the power of attorney that the real owner is connected with the conveyance, and it is by and through the medium of such power that the title is transferred. The deed of itself is without operation, and the recitals in it can prove nothing either as against the real owner or third persons. The Court was in error, therefore, in admitting the deed in evidence.
The fifth exception was taken to the exclusion by the Court of the answer of Fangmyer, Doll & Castle, to the bill of complaint of Floeckher, filed against them in the Circuit 

 [*104]  Court of Baltimore city. In excluding this answer, we think the Court below was in error, for reasons that will be stated in disposing of a question arising on the next exception.
By the deed in evidence from Clarke, dated the 27th of February, 1863, the title to the mill-property [**23]  is shewn to have been conveyed to Floeckher, and that he held such title at the date of the policy sued on, subject to a mortgage to the Farmers and Mechanics' Bank of Frederick county. Various documents were put in evidence, and among them were the articles of co-partnership between Floeckher, Fangmyer, Doll & Castle, dated the 1st of January, 1867, forming and providing for a co-partnership for the period of five years. Also a mortgage by Floeckher to Castle, of the mill-property embraced by the policy, dated the 29th of October, 1868; also, articles of agreement between Floeckher, Fangmyer Doll & Castle, dated the 18th of March, 1869, wherein the mill-property is expressly recognized as the separate property of Floeckher, subject to the mortgage to Castle, and by which agreement the parties were mutually released, as between themselves, from liabilities under the articles of co-partnership. The original application for insurance by Fangmyer, Doll & Castle, was also given in evidence by the appellant, wherein the applicants described the property as theirs.
Upon the whole evidence, the appellee prayed the Court to instruct the jury, that if they should find the execution of [**24]  the articles of co-partnership, and of the deeds from Clarke to Floeckher, and from Urner to Doll, and that the latter went into possession of the property, and also the execution of the policy, and the assignment thereof to Doll, the plaintiff, with the assent of the defendant, and that the property insured was on or about the 3d of June, 1869, destroyed by fire, then their verdict must be for the plaintiff. This prayer was granted, and it was to the granting of this prayer of the plaintiff, and the refusal of some eleven prayers on the part of the defendant, that the sixth exception was taken.

 [*105]  From what we have said in regard to the deed from Urner to the appellee, it necessarily follows that the prayer just recited was erroneous, and should not have been granted. It was through that deed that the appellee attempted to show title in himself at the time of the loss. But, in the view we have of this case, there is another well founded objection to this prayer, which renders it fatally erroneous, and which dispenses with the necessity of considering any of the several questions raised by the rejected prayers of the appellant.
By the articles of co-partnership already [**25]  referred to, the business of manufacturing and selling flour, was to be conducted under the firm name and style of Fangmyer, Doll & Castle. By these articles, Fangmyer agreed to put in as capital of the concern $ 5,221; Doll the sum of 11,275; Castle the sum of $ 11,565; and Floeckher agreed to put in "his mill-property, teams, &c., as his part of the capital of said concern," all of which, it was agreed, should be used in common between them for the support and management of the business, and their mutual benefit and advantage. Floeckher was to purchase grain and operate the mill in Frederick county, and make consignments of the flour to Fangmyer, Doll & Castle in Baltimore, who were to sell it on account of the firm; and the parties were required to render mutual accounts of all their transactions. Floeckher was to receive of the gains and profits of the business, the one-fifth of the whole, and the balance to be divided equally between Fangmyer, Doll and Castle.
The mill-property was not conveyed to the partnership, nor was it conveyed to any other person in trust for the partnership; and the first question that occurs, in the construction of the articles of co-partnership is,  [**26]  what right or interest did the firm of Fangmyer, Doll & Castle acquire in such property, and what right and estate had they at the date of the policy of insurance?
In the articles, no valuation was placed on the mill-property, teams, &c., but they were put in as part of the capital 

 [*106]  of the concern, to be used in common for the support and management of the business. What is the meaning of this? Was it designed and understood by the parties that the entire right and estate of this property should pass to and form part of the capital of the partnership, to which all the rights and liabilities of the partnership should attach, or was it designed that the contribution of Floeckher to the capital stock should consist only of the use and employment of this specific property for the business during the continuance of the partnership? It was not necessary to put the property itself into the common stock; the capital, in part, could well consist of the mere use of the property owned by one of the individual members of the firm. In such case, the title, both legal and equitable, remains in the individual member, subject to the particular use and appropriation, during the continuance [**27]  of the partnership, and upon its dissolution, the property is freed of such use. There is no partnership of the property itself, and the only interest that the members of the partnership, other than the real owner, have in it, is the temporary use and employment of it. Champion vs. Bostwick, 18 Wend. 183; French vs. Styring, 2 C. B., (N. S.,) 357; Parsons on Part., 44, 48, 55, in notes. This we take to be the purport, though somewhat obscurely and inaptly expressed, of the agreement of the parties in this instance. The property itself was not intended to be made partnership property, but only its use. Upon the dissolution of the partnership, which, according to the appellee's own testimony, occurred before the fire, this use of the property ceased, and the real owner resumed its exclusive use and control. This construction of the articles of co-partnership is rendered free from all doubt, if we look to the acts and conduct of the parties themselves. It appears that they never supposed for an instant that the property had become partnership property, and therefore subject to all the rights and liabilities of the partnership. They did not so treat [**28]  it; for, on the 29th of October, 1868, we find Floeckher making a mortgage to Castle of the property for $ 12,000; 

 [*107]  and in the agreement of the 18th of March, 1869, to which all the partners were parties, the mill-property is dealt with and described as belonging to Floeckher alone. And as still more decisive of the understanding of the parties, in the sworn answer of Fangmyer, Doll and Castle, to the bill in equity of Floeckher against them, they say, "that whatever may be the common import of the words contained in the compact of co-partnership, it was the meaning thereof, and the thought of the parties thereto, that the said Floeckher should contribute to the co-partnership the use of his mill-property, teams, &c., so long as it might last;" and they further averred that Floeckher "contributed nothing to the prosecution of the business but his personal services, and the rent or use of his mill, teams, &c." This answer was objected to and excluded by the Court, as we have already seen, but, as we have said, we think it was admissible, not as evidence to the jury, but as an aid to the correct interpretation of the articles of co-partnership, which, as it did not depend [**29]  upon other than written evidence, was a question exclusively for the Court. And although it is very true, as contended by the appellee, that where an agreement is plain and free from all ambiguity, it will not be construed by the acts and admissions of the parties in reference to it, yet, where the intention is obscure or doubtful, and extrinsic evidence can be invoked, no evidence is more reliable or entitled to greater consideration, as manifesting what their intention was, than the acts and conduct of the parties themselves. As was said by the Supreme Court, in the case of the Railroad Co. vs. Trimble, 77 U.S. 367, 10 Wall. 367, 19 L. Ed. 948, where there is doubt as to the proper meaning of an instrument, the construction which the parties to it have themselves put upon it, is entitled to great consideration; but where its meaning is clear, an erroneous construction of it by them will not control its effect. The same principle of construction was fully stated by Chief Justice SHAW, in the case of Fogg vs. The Middlesex Mut. Fire Ins. Co., 10 Cush. 337.

 [*108]  Seeing, then, that the firm of Fangmyer, Doll & Castle had no estate or [**30]  title in the property at the time they applied to have it insured, but only a temporary use of it, and that, notwithstanding this fact, they represented the property as theirs, and it was so stated in the policy, it follows that, by the second and fifth conditions, the policy was absolutely void from the beginning. These conditions provide, as we have already stated, that if the interest of the assured in the property is not truly stated in the policy; or, if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, it must be so represented to the assurers, and so expressed in the written part of the policy, or else the policy to be void. Here there was an entire misrepresentation as to the nature and character of the interest of the assured in the property. They even failed to disclose the name of the real owner, or that he was in any manner connected with the partnership. And the loss having occurred after the dissolution of the partnership, even the temporary interest of the firm in the mere use of the property had ceased to exist; and the appellee does not even pretend to have derived his right to the property [**31]  through the partnership, but from Floeckher, the real owner at the time the policy was obtained.
This difficulty in the case, however, is sought to be obviated and removed, upon the theory that the assignment of the policy to the appellee, with the assent of the appellant, operated as and constituted in fact and in law a new contract between the parties to this cause, and that all antecedent causes for avoiding the policy are excluded. But to this proposition we cannot assent, as being applicable to a case like the present, if it can be applied to any case, in the sense and to the extent contended for by the appellee.
In this case, the risk contemplated by the policy never attached, because of the violation of the conditions, which were fundamental to the contract. The policy was void in its very inception. The parties making the assignment had no interest 

 [*109]  at the time in the subject of the policy, and having no interest themselves, they could assign none. The policy being void in their hands, it was equally so in the hands of the assignee, who is one of the parties to whom the policy issued, and by whose misrepresentation it was rendered void from the beginning. The mere [**32]  assent of the assurers to the assignment gave no force and vitality to the policy that was before utterly void in the hands of the assignors. The policy was not assignable without such assent, and the object of obtaining it was simply to authorize the transfer for what the policy was worth. By such assent the assurers only agreed to substitute the assignee in the place of the assignors; but the causes that operated to render the policy void in its inception still adhered to it, and affected it in the hands of the assignee. He could occupy no better position than the assignors, in reference to the policy, unless it be by special contract with the assurers. It is true, as stated by writers of approved authority, that "if the assignment, taken in connection with the policy, plainly transfers the assured's whole interest, the underwriter's assent to it is evidently equivalent to his agreement to be directly answerable to the assignee. In such case, the proceedings to enforce payment may be in the assignee's name, and he becomes to all intents and purposes the substituted party to the contract." 1 Phill. on Ins., sec. 84. But this, as is manifest, pre-supposes that the policy [**33]  was at the time of assignment valid and operative; that the assured held such interest in the subject matter of the insurance as was assignable, and sufficient to keep alive and subsisting the policy, according to the terms and conditions upon which it was issued. That was far from being the case in this instance. The policy was simply void, and the assent of the assurers to its assignment was neither intended nor operated to impart to it validity and a value that it never before had.
In the case of the State Mut. Fire Ins. Co. vs. Roberts, 31 Pa. 438, in speaking of the effect of the assurer's assent to the assignment of the policy by the assured, the Court 

 [*110]  said: "The supposition that there is some magic in the assent of the underwriters to an assignment, which converts the policy into a new contract with the assignee, arises out of a misapprehension of the purpose for which such assent is required. As already stated, it is not to enlarge the engagement of the insurers, nor to enable them to waive any of the conditions, on the performance of which their liability depends. It is not to give new privileges to the assured, which without it he would not [**34]  have, but it is solely for the protection of the insurers. It would be a perversion of its design to give it any other effect." See, also, the case of Eastman vs. Carroll Co. Mut. Fire Ins. Co., 45 Me. 307, where it was decided that a void policy is not rendered valid by an assignment of the holder, with the assent of the assurers.
As the case is finally disposed of in the question just decided, we shall reverse the judgment appealed from, without awarding a new trial.
Judgment reversed. 

140 of 144 DOCUMENTS 

THOMAS M. GREEN vs. JOHN T. FORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 82; 1872 Md. LEXIS 5 

January 16, 1872, Decided 

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

This was an action of assumpsit brought by the appellant against the appellee and Edward O. Sandford and Charles Flinders, as co-partners, to recover the sum of $ 455.94, for groceries and other goods sold by the appellant, and delivered to the "New Place," a restaurant in the city of Baltimore, between the 15th of November, 1867, and the 22d of June, 1868.

The pleas were the general issue.

Exception--At the trial below, after the testimony on both sides, a summary of which is given in the opinion of this Court, was closed, the declaration by leave of the Court was amended by striking out the names of Sandford and Flinders as defendants, and the pleas of the defendant Ford were likewise amended so as to be applicable to the amended declaration.

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

If the jury shall find from the evidence that the defendant held himself out, or permitted himself to be regarded as the real party in interest in the ownership of the restaurant called the "New Place," and that relying upon such representation or appearance, the plaintiff furnished the goods mentioned in the bill offered [**2]  in evidence, at the prices therein mentioned, to the "New Place," their verdict must be for the plaintiff.

The defendant offered the following prayers:

1st. That there is no evidence in the cause to connect the defendant Ford as a partner of his co-defendants in this case, and the jury must therefore render their verdict for the defendant. (The pleadings having been amended, this prayer was withdrawn as unnecessary.)

2d. That the agreement on the part of the defendant to pay the plaintiff's bill, as testified to by him, not being in writing, cannot be considered by the jury.

The Court, (SCOTT, C. J.,) in delivering its opinion, stated that the plaintiff had testified that the defendant promised "to pay his debt if Flinders and Sandford did not pay it;" whereupon the counsel for the plaintiff submitted that the Court was in error, and had misunderstood the plaintiff's testimony, and desired to have him recalled for the purpose of stating what his testimony had been; but the Court refused to permit this to be done. To this refusal the plaintiff excepted.

Upon this statement of the testimony, the Court rejected the plaintiff's prayer and granted the second prayer [**3]  of the defendant, and also verbally instructed the jury that there was no evidence in the case to bind the defendant as the principal debtor, and their verdict must accordingly be for the defendant.

To the rejecting of the plaintiff's prayer, the granting of the defendant's second prayer and to the verbal instructions to the jury, the plaintiff excepted, and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Appeal -- Weight of Evidence to be determined by the Jury.

No appeal lies from a refusal of the Court to permit a witness to be re-called, after the testimony has been closed, for the purpose of stating what his testimony was.

Where in an action to recover for goods sold and delivered, the question was whether the defendant was the original debtor, and as such responsible for the payment of the goods as furnished upon his credit, or had merely undertaken to pay the debt of other parties in the event of their failure to do so, and the evidence offered to show that the defendant was liable as the principal debtor, was not of so light and insufficient a character, as to preclude a rational conclusion therefrom by the jury, it should have been submitted to their consideration.  

COUNSEL:
Rufus W. Applegarth, for the appellant.

Upon the testimony given on behalf of the plaintiff, the Court was in error in rejecting his prayer and instructing the jury that there was no evidence in the case to bind the defendant as principal debtor. On the contrary, the plaintiff's prayer should have been granted, leaving it to the jury to consider the facts offered in evidence, and to determine therefrom whether the defendant was so responsible. Caton vs. Shaw, 2 H. & G., 14; Ferguson vs. Tucker, 2 H. & G., 183; Gray vs. Crook, 12 G. & J., 236; Cole vs. Hebb, 7 G. & J., 39, 40; Maltby vs. The N. W. Va. R. R. Co., 16 Md., 422; Morrison vs. Whiteside, 17 Md., 452; Fulton vs. McCracken, 18 Md., 528; Myer and Ewaldt vs. Grafflin,  [**4]  31 Md., 350.

The Court erred in granting the prayer of the defendant, as it was not claimed that his responsibility was that of a guarantor or surety, and the tendency of the instruction was therefore, to mislead the jury. Hurn's Lessee vs. Soper, 6 H. & J., 276; Coale vs. Harrington, 7 H. & J., 147.

The Court was also in error in its refusal to recall the witness Green, for the purpose of re-stating his testimony, it being suggested that the Court was mistaken in its statement thereof.

T. W. Blakistone, for the appellee.

There was no evidence in the cause tending to prove that the appellant sold the goods, for which the suit was brought, to the appellee, or to any one by him authorized, as his agent, to purchase them and bind him therefor. The Court, therefore, properly rejected the plaintiff's prayer, and gave the verbal instruction to the jury.

Courts may, with propriety, be called upon to give an instruction as to the insufficiency of evidence, and will do so when there is no proof offered from which a reasonable mind may infer the existence of a fact necessary to be established in support of the issue joined. And where the evidence is so loose and inconclusive [**5]  that the jury, instead of making legitimate and reasonable inferences, would be indulging in conjecture and speculation were they to find from it the fact sought to be established--the Court may instruct them that there is no evidence of such fact. Sheppard vs. Jones, 28 Md., 634; The Spring Garden Mutual Ins. Co. vs. Evans, 9 Md., 1.

The prayer of the plaintiff was properly rejected, because there was no proof to sustain the hypothesis of it. Hamilton vs. State, use of Hardesty, 32 Md., 348; Cumberland Coal and Iron Co. vs. Scally, 27 Md., 601.

The promise of the defendant to pay if Sandford and Flinders did not, shows that the plaintiff regarded the debt as that of Sandford and Flinders. A promise by the defendant, under such circumstances, would be a promise to pay the debt of another, within the Statute of Frauds. If he were not liable without such promise there was no consideration for the assumption of such a liability, and the defendant's second prayer was properly granted.

It is entirely within the discretion of the Court to recall a witness or not, after the testimony has closed, and no appeal will lie from a refusal so to do.  

JUDGES:
The cause was argued before [**6]  BARTOL, C. J., STEWART, BOWIE, ALVEY and ROBINSON, J.  

OPINIONBY:
STEWART 

OPINION:

 [*85]  STEWART, J., delivered the opinion of the Court.
In this case the appellant excepts to the rejection by the Court below of the prayer offered by him; also to the granting of the appellee's second prayer; to the verbal instructions of the Court, that there was no evidence in the case to bind the appellee as a principal, and that the verdict must accordingly be for the defendant; also to the refusal of the Court to permit a witness to be re-called for the purpose of stating what his testimony had been.
There was no dispute as to the sale of the goods by the appellant, and their delivery at the restaurant described as the "New Place," belonging to the appellee.
The question to be determined was, whether the appellee was in truth the original debtor, and as such responsible for the payment of the bill as furnished upon his credit, or had 

 [*86]  he merely collaterally undertaken to pay the debt of other parties in the event of their failure to pay.
Considerable testimony to sustain the appellant's theory of the case, that the goods were furnished upon the credit of the appellee, had been offered [**7]  to the jury, and the evidence of the appellee was introduced to support his defence.
The following is a summary of the same:
The appellant himself stated that he delivered the goods charged, at the New Place; that the appellee promised that the bill should be paid; that he had sold the goods to one Flinders, who was then in the place in some capacity; that it was his impression that the appellee was the owner of the establishment; that he would not have sold the goods to Flinders and Sandford alone.
Medinger, another witness, testified that he sold goods to the same restaurant upon the credit of the appellee.
John A. Good, another witness, states it was hard to tell who was the proprietor of the restaurant.
Charles E. Flinders, another witness, testifies that he had charge of the New Place sometime in 1867, and left in 1869, (during which time the bill of the appellee was furnished to the place;) that he was at the same time in the employ of the appellee as barkeeper at the Holliday Street Theatre; that he had charge of the "New Place" under an arrangement with the appellee and on his invitation; that the appellee told him he did not want him to take charge of the entire establishment, [**8]  but only of the bar; that one Sandford had charge of the eating department; that he paid no rent for the place; that he gave some $ 2,800 received from the business to Sandford, at the request of the appellee; that all he got out of the place was his board; that he received a salary of $ 20 per week from the appellee for his services as barkeeper at Holliday Street Theatre, but that he never received any salary from the New Place; that he bought all the goods for the Theatre bar and also for the New Place.
The appellee, testifying in his own behalf, stated that he was the owner of the building in which the "New Place" 

 [*87]  was kept; that he spoke to Sandford and Flinders about taking the place, and told them he would not take any rent until he could see what they would be able to pay; that they conducted the business with ill-success; that he had promised to pay some of the bills incurred by Sandford and Flinders, and did pay all such bills by special arrangement with the creditors so paid; that he never shared any of the profits of the concern; that he had seen the plaintiff almost daily, and he had never spoken to him concerning his bill; that the plaintiff never asked him [**9]  concerning his responsibility before the bill was incurred.
From the tenor of the evidence we think the appellant ought not to have been denied the right to have it weighed and considered by the jury, without undertaking upon our part to say what might be the effect upon their minds.
Unless the evidence had been so slight and inconclusive as to preclude the jury from forming any rational conclusion therefrom, and we do not esteem it of such character, it ought to have been submitted to them.
However unsatisfactory it may have appeared to the mind of the Court, yet if the jury could reasonably have reached a different conclusion, it should have been considered by them. Whilst it is the prerogative of the Court to decide upon the competency and admissibility of evidence, it is the province of the jury to determine its weight and credibility. The Court should not take the case from the consideration of the jury, unless the evidence is so trivial as to admit of no rational conclusion therefrom, applicable to the issue before them.
Unquestionably there was uncertainty as to what party, under the circumstances testified to, was responsible for the goods furnished the "New Place," but [**10]  if the jury, from the facts in evidence, had found a verdict for the appellant in the absence of the instructions of the Court, there would have been no valid ground for setting the verdict aside and to have granted a new trial upon motion therefor, because there had been no sufficient evidence to warrant it.

 [*88]  If the Court would have refused a new trial under such circumstances, it ought not to take the case from the consideration of the jury, upon the ground that no sufficient evidence had been introduced.
"The Court never withdraw the testimony from the consideration of the jury but where they would set aside any verdict founded upon its assumed sufficiency." Cole vs. Hebb, 7 G. & J. 20.
We think the verbal instructions of the Court below, "that there was no evidence in the case to bind the defendant Ford, as a principal debtor, and that their verdict must be for the defendant, should not have been given.
The prayer of the appellant was properly refused. It is too indefinite in its terms, and states too broadly the grounds upon which the legal liability of a party arises in a case like the present.
The agreement of the appellee to pay the bill [**11]  of the appellant, as testified to by him, referred to in the appellee's second prayer, might, in the minds of the jury, have afforded an inference as to the appellee's liability as the original debtor.
It was the province of the jury to interpret its tendency, and if they considered it as applicable to an original liability of the appellee, it was admissible in evidence for that purpose. If, on the contrary, the jury considered the promise of the appellee as made to pay the debt of another party, in order to bind him by such promise, it was necessary it should have been in writing. Therefore this second prayer as presented, in which the Court decided as to the effect of the agreement, ought not to have been granted.
The exception to the refusal of the Court to re-call the witness for the purpose of stating what his testimony was, if it had been taken in due form, is not the subject of an appeal, but is a matter to be determined by the sound discretion of the Court below.
Judgment reversed and new trial ordered. 

141 of 144 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. THOMAS J. FITZPATRICK, by his next Friend. THOMAS J. FITZPATRICK, by his next Friend, vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 32; 1872 Md. LEXIS 2 

January 12, 1872, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Court of Common Pleas.

Plaintiff's Exception: The plaintiff gave evidence, at the trial below, tending to show, that on the night of the 29th of November, 1870, between the hours of 8 and 9, the defendant had placed a line of cars, which it had been making up from 5 to 8 o'clock, P. M., extending down Howard street from above Wayne street, to a point below Barre street, so as to obstruct the crossings of said street at Barre and Wayne streets and the intermediate space between said streets, and that the plaintiff seeing an open space some five feet wide between said cars in front of his father's door, and hearing no signal of approaching danger, and seeing no person there, attempted to cross said street to his father's door through said open space while said cars were stationary, which was suddenly and violently closed by and through the careless management of a car under the control of the defendant's servants, whereby he had his jawbone fractured and his tongue mashed and was otherwise greatly injured; and that said cars had been standing on Howard street more than one hour before said injury was occasioned; and that the plaintiff was thirteen years old [**2]  in August, 1870; and further, that the wheels of the car by which the plaintiff was struck, were not fastened or chained in any way, although it was not connected with any other car, but stood by itself. The plaintiff then read in evidence sections 1, 4, 6 and 7, of Article 39 of Ordinances relating to railroads, Baltimore City Code of 1869, 571-573.

The defendant then offered evidence tending to prove, that on the evening of the accident, and immediately after the happening thereof, the cars were standing on Howard street, as represented on the plat exhibited; that the cars were in actual service at the time, by reason of the train being in process of making up, by bringing these cars together on Howard street and coupling them to form a train to go out, as soon as made up, from the city; that the wheels of said cars had been fastened, in accordance with the city ordinance, while the train was thus being made up; and further, that the cars had not been there for one hour; and further, that there was no violation of any Ordinance of the city of Baltimore by the defendant or its agents, and that due care and diligence was exercised by the defendant's employees, and that while admitting [**3]  the injury to the plaintiff, the defendant offered evidence tending to prove that it was altogether owing to his own want of care and diligence in attempting to pass between the cars through a narrow space between four and five feet wide, instead of a regular crossing all of which were left open by the defendant at the time of the accident.

And thereupon the plaintiff prayed the Court to instruct the jury as follows:

1. If the jury shall find from the evidence that the injuries to the plaintiff resulted directly from the want of ordinary care and caution on the part of the defendant's servants, or any of them, then the plaintiff is entitled to recover; provided the jury find that the accident causing his injuries could not have been avoided by the exercise of such care and caution by the plaintiff as ought, under all the circumstances, to have been reasonably expected from one of his age and intelligence.

2. If the jury shall find from the evidence, that on the evening of the 29th November 1870, the defendant placed a number of its cars on its railroad track in South Howard street, and left two of said cars standing after nightfall on said track, with sufficient space [**4]  between them to allow the free and unobstructed passage of persons, and left the wheels of one of said cars unfastened while so standing; and if the jury shall further find, that there was a want of ordinary care and prudence on the part of the defendant in the way in which said cars, situated as aforesaid, were by it forced together and said space closed, and that such want of ordinary care and prudence directly caused the injuries complained of in this case, then the plaintiff is entitled to recover; provided the jury find, under all the facts and circumstances in evidence, that the plaintiff did not contribute to such injuries by any want of ordinary care and prudence on his part.

3. If the jury find for the plaintiff, then, in estimating the damages, they are to consider the health and condition of the plaintiff before the injuries complained of, as compared with his present condition in consequence of the said injuries; and whether the said injuries are in their nature permanent, and how far they are calculated to disable the plaintiff from engaging in those business pursuits for which, in the absence of the said injuries, he would have been qualified; and also the physical [**5]  and mental suffering to which he has been subjected by reason of the said injuries, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injuries which the plaintiff has suffered.

The Court (GAREY J.) rejected the first prayer and granted the second; the third was conceded. To the rejection of his first prayer the plaintiff excepted.

Defendant's Exception: The defendant offered the following prayers:

1. If the jury shall believe from the evidence that the boy Fitzpatrick was injured by attempting to pass between the cars of the defendant while the train was being made up, as testified to by the witness, and that such attempt was made at a place which was not a regular crossing, and was thereby injured, then the attempt to so pass between the cars was a want of ordinary care on his part, and the plaintiff cannot recover; and further, that the burden of proof is on the plaintiff to show that the accident occurred at a regular crossing of the street, and there being no proof offered by the plaintiff by which the jury can find that it did occur at such crossing, their verdict must be for the defendant.

2. If the jury shall [**6]  believe from the evidence that the happening of the accident was caused by the want of ordinary care on the part of the person injured, then the plaintiff cannot recover, although they may find that the defendant was not at the time using ordinary care; provided, that the want of ordinary care on the part of the person injured, was the proximate cause of the injury; and that the attempt of the boy Fitzpatrick to pass between the cars of the defendant while the train was being made up, as testified to by the witnesses, constituted in itself a want of ordinary care on his part that was the proximate cause of the injury, and therefore the plaintiff cannot recover.

3. If the jury shall find from the evidence that the accident in question would have been avoided by the exercise of ordinary care and caution on the part of the injured person, the plaintiff cannot recover.

4. If the jury shall believe from the evidence, that at the time of the accident, some of the cars of the defendant were standing upon Howard street, while other cars were being brought from different sections of the city to be attached to those cars so standing upon Howard street, with the object of making up [**7]  a train, and that openings were left between the cars at the regular crossings of said street, and that the boy Fitzpatrick was injured by attempting to pass between said cars at a place which was not a regular crossing of said street, then such attempt to pass through the train at a place not a regular crossing, was such a want of ordinary care on his part that the plaintiff cannot recover.

5. If the jury shall believe from the evidence, that at the time of the accident, the defendant's servants were engaged in making up a train of cars on Howard street, and that they took the precaution to leave open spaces between the cars at all the regular crossings of said street, and that the accident in question did not happen at a regular crossing, then the jury must find that the defendant was using ordinary care in the premises, and the plaintiff cannot recover.

6. If the jury shall believe from the evidence, that at the time of the accident testified to by the witnesses, the cars of the defendant, as testified to by the witness Righter, were being placed in procession in Howard street, between the hours of 5 and 9 P. M., with the purpose of being drawn from there and sent to their [**8]  regular destination, and that the plaintiff was caught between two of them, then the said cars were in actual service, within the meaning of the Ordinance of the city of Baltimore, relating to "Cars," at page 571 of Baltimore City Code, and were not obliged to be fastened together, as provided in the said Ordinance; even though the said cars, or any of them, may have been standing on Howard street, without being fastened for a period of one hour, neither was the company obliged to leave the openings in the train provided for in the same Ordinance, at page 573 of said Code.

7. That there is no evidence in the case, should the jury find for the plaintiff, of such wanton and malicious or gross and outrageous conduct on the part of the defendant, or its agents, as would warrant punitive damages, and that actual damages is all the plaintiff can recover.

The third and seventh prayers were conceded--the Court rejected the others. Thereupon the defendant excepted to the rejection of its prayers, as also to the granting of the prayer of the plaintiff. Judgment was rendered for the plaintiff for $ 8,000 and costs. Both parties appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Action for Personal injuries -- Negligence -- Reasonable care -- Negligence, or the want of Ordinary care, a question of Fact to be determined by the Jury -- Erroneous instruction -- Negligence sometimes a Question of law -- A question of Fact for the Jury.

To entitle the plaintiff, in an action against a railroad company, to recover damages for injuries sustained by him in being caught between two cars of the defendant, while he was attempting to cross a street, it must be shown that such injuries were directly caused by the want of ordinary care and prudence on the part of the defendant, and that they could not have been avoided by the exercise of reasonable care and caution on the part of the plaintiff.

If the plaintiff exercised reasonable care, though he may have been guilty of some negligence or want of caution, he is still entitled to recover for any injury sustained in consequence of the defendant's negligence.

In an action against a railroad company, to recover damages for injuries sustained by the plaintiff in consequence of the defendant's negligence, the question of negligence or the want of ordinary care, is one of fact for the consideration of the jury. The most that the Court can do in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned, with what would be the natural and ordinary course of prudent and discreet men under similar circumstances.

In an action against a railroad company to recover damages for injuries sustained by the plaintiff in attempting to pass between the cars of the defendant while the train was being made up on the street, a prayer which asked the Court to instruct the jury that the plaintiff could not recover, if they believed that the defendant left open spaces between the cars at all the regular crossings of the street, and that the accident did not happen at a regular crossing, was objectionable in that it ignored all the circumstances tending to prove negligence on the part of the defendant, and would have precluded the plaintiff's right of recovery, though his injuries had been occasioned by the grossest negligence of the defendant, provided they were inflicted at a place other than a regular crossing of the street.

There are cases where the question of negligence may be properly one of law for the Court; but such cases always present some prominent and decisive act, not dependent upon surrounding circumstances for its quality, and in regard to the effect and character of which no room is left for ordinary minds to differ.

Whether cars, which were being placed in procession on Howard street, between the hours of 5 and 9, P. M., with the purpose of being drawn away to their regular place of destination, were in actual service within the meaning of an Ordinance of the city of Baltimore, and therefore not required to be fastened as cars were required to be by said Ordinance, when left standing on the street for a longer period than an hour, could only be determined by observation as matter of fact, and was therefore a question for the jury and not for the Court.  

COUNSEL:
Ferdinand C. Latrobe,  [**9]  for the Baltimore and Ohio Rail Road Company.

The Court erred in rejecting the defendant's first prayer. The defendant clearly had the right to use its track upon the bed of the street for the purpose of making up its train, and as long as it obeyed the provisions of the City Ordinance (City Code, folio 573) by leaving the crossings open, if the jury believe it did so, it was violating no law. If the boy Fitzpatrick saw fit in crossing the street, at night, while this train was so being made up, to use a narrow space between two cars, and not the regular crossing which the law provided for him, the Court should have declared such act to be in law negligence sufficient to prevent the plaintiff's recovery in this action; and if this proposition be correct, the Court should have put upon the boy the burden of proof to show that he was injured at a crossing--and there being no evidence produced to show that the injury occurred at a crossing the Court should have directed a verdict for the defendant.

The second prayer went further than the first, and asked the Court to say that the very fact of the boy attempting to pass through the train at all while it was in the act of being [**10]  made up, constituted negligence in law.

The fourth prayer of the defendant should have been granted; it did not necessarily take the case from the jury; it stated certain facts connected with the happening of the accident as testified to by the witnesses of the defendant, and asked the Court to instruct the jury, that if they believed such facts, they would constitute negligence in law.

The fifth prayer of the defendant asked the Court to instruct the jury, that if it were complying with all the provisions of law by leaving free crossings, while engaged in the lawful business of making up its trains, it was then using such ordinary care and diligence in conducting its business as the law required, and if the cestui qui use was negligent in availing himself of the protection the law provided for him in not using a crossing, his negligence was the cause of the accident and the plaintiff could not recover.

The sixth prayer of the defendant asked the Court to construe as a matter of law the meaning of the words "actual service" used in the Baltimore City Code, page 571. What does "actual service" mean? These cars were being brought together for the purpose of forming a train,  [**11]  and, as soon as a sufficient number were brought up, they would be coupled together and started off for their destination. They were only placed temporarily on the street; left standing there, not to be loaded or unloaded, but alongside of the depot, waiting only until a sufficient number could be brought up to be sent away. Was it not the province of the Court to construe the language of the Ordinance and declare the meaning of the words "actual service?" If so, and if by rejecting the prayer the Court decided the cars were not in actual service, it erred in its ruling.

The following authorities were relied on:

Balt. & Ohio R. R. Co. vs. State, use of Miller, 29 Md., 262; Balt. & Ohio R. R. Co. vs. Shipley, 31 Md., 368; Northern Central R. R. Co. vs. State, use of Geis, 31 Md., 357; Baltimore City Passenger Railway vs. Wilkinson, 30 Md., 225.

Robert F. Brent and Robert J. Brent, for Fitzpatrick,

Relied on the following authorities in support of the plaintiff's first prayer: 22 Verm., 224; 19 Conn., 566; 30 Md., 47; 9 Allen, 557, 559; 8 C. Bench, 115; Redfield on Railways, 337; King vs. Walker, 1 C. & P., 320; 24 Penn., 465; 8 Barb., 68; 25 Md., 387, 388; 24 Md.  [**12]  , 121; 29 Md., 259; 29 Md., 435.

The second prayer of the plaintiff was warranted by the evidence adduced, which plainly showed that the injury resulted directly from the leaving of cars stationary upon the track for more than one hour before the injury, with an open space between a line of stationary cars and one which stood apart by itself, with its wheels unsecured as directed by the Ordinance; and this car, so easily moved, being suddenly and without warning, forced into the open space aforesaid, struck the unsuspecting boy and forced him against the extremity of the line of cars, and caused the terrible injuries which he sustained. The injury being palpably the result in part, if not in whole, of the flagrant violation of the Ordinance requiring the wheels of every car, while standing by itself for more than one hour, to be secured and fastened, the plaintiff had a right to treat the defendant as a trespasser on the street, and to require the highest possible care on its part in closing that space. Miller's Case, 29 Md., 261; Brinig's Case, 25 Md., 381.

But the plaintiff forbore to press the law to the extent he might have done against the defendant, and only claimed,  [**13]  by his second prayer, to charge the defendant with a want of ordinary care in the way in which said cars were forced together, and the space closed, if such want of ordinary care and prudence were found by the jury, which was properly referred to them as matter of fact. Miller's Case, 29 Md. 262.

The second prayer of the plaintiff was correct, therefore, in saying that he could recover if the jury found that he was injured by the want of ordinary care on the part of the defendant, which directly caused the injury, provided the plaintiff did not contribute to his injury by any want of ordinary care on his part.

The first prayer of the defendant was correctly refused, because it sought to bar a recovery upon the isolated facts that the injury was sustained while attempting to pass between the cars, while the train was being made up, as testified to, and that the attempt to pass was made at a place which was not a regular crossing; and it peremptorily required the Court to instruct, that these facts, if believed, were in judgment of law a want of ordinary care on the part of the plaintiff.

The prayer sought to withdraw from the jury the decision of what was negligence in [**14]  the plaintiff under all the circumstances, and was therefore properly rejected. Miller's Case, 29 Md., 262; Shipley's Case, 31 Md., 368.

The second prayer of the defendant is liable to the same objections urged against the first--with the additional objection that it assumes to withdraw from the jury the consideration of what is a want of ordinary care, and what is proximate cause.

The fonrth prayer of the defendant only varies its general proposition by instructing the jury that, if openings were left between the cars at the regular crossings of the street, and the cars were being made up as stated, and the plaintiff was injured by attempting to pass between them at a place which was not a regular crossing, then such attempt was a want of ordinary care on his part.

This prayer was vicious,

1st. Because it assumed that no man has a right to pass between cars standing apart from each other on a public street unless at a regular crossing.

2d. Because it ignored all questions of negligence on the part of the defendant.

3d. Because it assumed, as a matter of law, that an incautious or imprudent act of the plaintiff in going on the Company's road between its [**15]  stationary cars, standing apart from each other, was the proximate cause of his injury.

4th. Because it usurped the prerogatives of the jury, and concluded them from deciding who was in fault in the direct injury sustained by the plaintiff.

The defendant's fifth prayer was equally obnoxious to the objections urged to the proceeding prayers. It sought to establish by judgment of law, that if, as testified to by the witness, Righter, the cars were being placed in position between 4 and 9 o'clock P. M., for the purpose of being drawn away, and the plaintiff was caught between two of them, then the cars were in actual service within the meaning of the Ordinance, and were not obliged to be fastened together as provided in the Ordinance at page 571 of Baltimore City Code, 1869, although said cars may have stood without being fastened for more than an hour, neither was the company bound to leave the openings in the train, provided for in the same Ordinance, page 573.

This prayer was vicious in that it assumed that "actual service" meant constructive service, and that cars were in actual service when they had stood idle and motionless and empty for a whole afternoon, because [**16]  they were in a position to be used some hours after--but being while stationary for an hour within the mischief to be remedied, and liable to the dangers to be guarded against, they could not be said to be out of the Ordinance by construction.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*42]  ALVEY, J., delivered the opinion of the Court.
This record presents cross-appeals, but we are only required to pass upon the appeal of the plaintiff below in the event of reversal on the exception of the defendant.
The action was brought to recover of the defendant for injuries sustained by the plaintiff, by being caught between two cars of the former, while the latter was attempting to cross Howard street in Baltimore.
At the trial below prayers were offered for the Court's instruction to the jury, on both sides; but of those prayers only the second and third of the plaintiff, and the third and 

 [*43]  seventh of the defendant, were granted. The first of the plaintiff, and first, second, fourth, fifth and sixth of the defendant, were rejected; and it was to the refusal of the defendant's five prayers, and to the granting of the second [**17]  and third prayers of the plaintiff, that the defendant excepted.
On the question of negligence, the main question in the cause, the second prayer of the plaintiff, and the third prayer of the defendant, taken together, would seem to have fully and quite correctly instructed the jury as to the law by which their verdict should be found. To justify a finding for the plaintiff, under the instruction, the jury were required to find the want of ordinary care and prudence on the part of the defendant, in the use and management of its cars, and that such want of ordinary care and prudence directly caused the injury complained of; but that the plaintiff could not recover, if, by the exercise of ordinary care and caution on his part, he could have avoided the accident. This instruction was clear and distinct, and was in accordance with the well settled principles applicable to cases like the present. The jury found the conditions required to entitle the plaintiff to a verdict; but whether properly or not, on the evidence before them, is not a question for this Court to decide. That was a question which could only be determined by the Court below, on a motion for a new trial.
The third prayer [**18]  of the plaintiff, which instructed the jury as to the proper elements in reference to which the damages should be assessed, in the event of their finding for the plaintiff, was clearly correct. Indeed, we do not understand that it was at all controverted by the defendant. The prayer itself is marked as conceded.
By the first, second, and fourth prayers of the defendant, which were rejected, the question as to what constituted contributory negligence, or want of ordinary care on the part of the plaintiff, was sought to be made one of law for the Court to decide, rather than one of fact for the jury to determine, under all the facts and circumstances of the case. Each of 

 [*44]  these prayers, upon certain enumerated facts, required the Court to instruct the jury, that, as matter of law, there was want of ordinary care by the plaintiff, and therefore he was not entitled to recover. In refusing to grant these prayers, or either of them, the Court committed no error.
This Court has too often decided to be required again to repeat, that the question of negligence or the want of ordinary care, in cases like the present, is one of fact for the consideration of the jury. The most that [**19]  the Court can do, in cases where there is a contrariety of evidence, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution exacted of the parties, and leave to the practical judgment and discretion of the jury, the work of comparing the acts and conduct of the parties concerned with what would be the natural and ordinary course of prudent and discreet men under similar circumstances. To attempt to do more than this, in the great majority of cases that occur, would require of the Court to multiply distinctions, and to indulge refinements, to suit the particular circumstances of each case, to an extent that would tend rather to embarrass than promote the fair and liberal administration of justice.
In this case, as in other cases of the like character, the degree of care required of the plaintiff to entitle him to recover, was simply such as should have been reasonably expected from an ordinarily prudent person in his situation; that is to say, reasonable care. If he exercised such degree of care, though he may have been guilty of some negligence or want of caution, he was still entitled to recover [**20]  for any injury sustained in consequence of the defendant's negligence. If the defendant did not exercise ordinary care, and the plaintiff, by the exercise of such degree of care on his part, could not have avoided the consequence of the defendant's negligence, he was entitled to recover; and the whole question was, whether the danger in crossing the street between the two apparently stationary cars was so obvious that a person of 

 [*45]  common or ordinary prudence would not have made the attempt. This depended upon a consideration of all the facts and circumstances attending the accident, and was essentially a question of fact for the jury. What will amount to ordinary care or the absence of it, in any given case, must always be determined by the standard of common prudence and experience, in view of the special circumstances. What may be ordinary care with reference to one particular state of circumstances, may fall very far short of it with reference to another. Hence a jury, if intelligent, and experienced, forming their conclusions from their knowledge of the usual and ordinary conduct of their fellow-men, are the best judges of such a question. And such questions have, both [**21]  in this country and in England, been generally referred to the jury, as matters of fact; and the decisions of this Court have been uniform upon the subject.
Whether the defendant was using ordinary care at the time of the accident, was equally a question of fact as that involved in the first, second and fourth prayers of the defendant, and hence its fifth prayer, which sought to make the question of the defendant's use of ordinary care one of law exclusively for the Court, was properly rejected. To say, that because the defendant, in making up its train of cars on the street, had left openings at the regular crossings, and as the accident did not occur at a regular crossing, therefore, as a legal conclusion, the defendant was using ordinary care, is a proposition that cannot be for a moment sustained. Apart from the error of attempting to make the question of ordinary care one of law instead of fact, this prayer utterly ignored all the circumstances tending to prove negligence on the part of the defendant, and would have precluded the plaintiff's right of recovery, though the grossest negligence might have occurred in producing the injury, provided it was at another place than a regular [**22]  crossing of the street. This prayer, therefore, was objectionable upon more grounds than one.

 [*46]  From what we have said, however, as to the nature of the questions raised by the rejected prayers of the defendant, we do not desire it to be understood, that, in our opinion, there are no cases where the question of negligence could be properly one of law for the Court. Far from it. Many such could be suggested, though they are not of frequent occurrence; but such cases always present some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ. Where such is the case, and the act in question is not dependent upon surrounding circumstances for its quality, the Court should not hesitate to characterize it according to its true nature, and allow at once the legal consequences to follow. But this cannot be done where the nature and quality of the act can only be correctly determined by considering all the attending circumstances of the transaction, as in this case.
The defendant's sixth prayer, which related to the construction of the City Ordinance, we think was also properly rejected. It was utterly impossible for [**23]  the Court to say, that, though the cars were being placed in procession in the street, between the hours of 5 and 9 o'clock P. M., with the purpose of being drawn away to their regular place of destination, they were therefore in actual service, within the meaning of the Ordinance, and were not required to be fastened as cars are required to be when left standing in the street for a period of more than an hour. Mere constructive service is clearly not within the meaning and object of the Ordinance. The Ordinance had for its object the prevention of danger to persons having occasion to use the street while cars were allowed to stand in it. This object would be in a great measure defeated, if the construction contended for by the defendant were to prevail. The Ordinance requires no artificial construction to arrive at its meaning. Whether the cars were in actual service could only be determined by observation, as matter of fact. It was, therefore, a question for the jury, 

 [*47]  whether the cars were in actual service at the time of the accident.
Discovering no error in any of the rulings of the Court below, embraced by the exception of the defendant, and the plaintiff having [**24]  directed the dismissal of his appeal, we shall affirm the judgment below on the defendant's appeal.
Judgment affirmed. 

142 of 144 DOCUMENTS 

THE ADAMS' EXPRESS COMPANY vs. WILLIAM H. TREGO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 47; 1872 Md. LEXIS 3 

January 12, 1872, Decided 

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

First Exception--At the trial of this cause, the plaintiff proved by his own testimony that he had been employed since 1852 until 30th June 1869, as assistant superintendent by the defendant, through Samuel M. Shoemaker, the superintendent or general agent of the defendant for the division or district, consisting of Maryland, District of Columbia and a part of Virginia; that he was employed by the year, from January to January, and in 1867 his salary was $ 4000, and so continued until the close of his service; that on the 28th of June, 1869 Mr. Shoemaker showed him a letter and informed him that his services would not be required after the 30th instant, but gave no reason therefor; an explanation was asked, but none was given.

The plaintiff then offered in evidence his declaration to said Shoemaker on the 30th of June 1869, after he had been notified of his dismissal from the service of the company, that he intended to hold the company responsible for his year's salary. To the admission of this declaration as evidence, the defendant objected, but the Court (YELLOTT, J.) overruled the objection and allowed the evidence to [**2]  go to the jury; to this ruling of the Court, the defendant excepted.

Second Exception--The plaintiff having given in evidence the testimony set forth in the previous exception, testified on cross examination that at the time of his dismissal, and from November 1868, he had, with S. H. Geegan and P. S. McLaughlin been interested, as the Philadelphia, Wilmington and Baltimore Transfer Company, in conveying freight from the President Street Station to consignees in Baltimore.

The plaintiff then offered to prove by his own testimony that Mr. Shoemaker knew of this transaction, and approved of the same, saying it was better to have a friend in it than a stranger.

To the admission of this testimony, the defendant objected, but the Court overruled the objection and allowed the testimony to go to the jury; to this ruling the defendant excepted.

Third Exception--The plaintiff, after giving in evidence the testimony set forth in the previous bills of exception, proved by his own testimony that about the 1st of October, 1868, he was approached by the agent of the P. W. & B. R. R. Co., to deliver freight in Baltimore to consignees; that he went to Mr. Shoemaker and told him [**3]  of the proposition, and informed him that he would do nothing to injure the Express Company, and asked him whether in his judgment this business would interfere with the company. Mr. Shoemaker took a week to consider, and at its close told me "he could see no objections to it," and if I could make any money in it, I had better do it, as it was better to have a friend than a stranger in it.

To this testimony the defendant objected; but the Court overruled the objection, and allowed the evidence to go to the jury; to this ruling of the Court the defendant excepted.

Fourth Exception--The plaintiff, after offering in evidence the testimony set forth in the previous bills of exception asked leave of the Court to amend his declaration, and leave being granted by the Court, the plaintiff filed an amended declaration, which in addition to the common counts, contained a special count setting forth a special agreement, and his willingness to perform his part thereof, but charging a wrongful dismissal by the defendant, six months before the expiration of his term of employment under the contract.

Whereupon the defendant moved the Court to grant it a continuance to enable it to [**4]  plead to the new and amended declaration, and insisted that under the following rule of the Court, it was entitled to time until the second rule day thereafter:

"13th. When any rule to plead shall be laid on a rule day, the time for complying therewith shall be on or before the first succeeding rule day; and if such rule be entered on some other day than a rule day, the party upon which the same is laid shall comply therewith, on or before the second rule day thereafter."

The defendant further insisted that by the following rule, the first rule day thereafter was the first day of March next, and the second rule day the first day of April following:

"10th. The first day of every month shall henceforward be the rule days; but if the first day of any month shall happen to fall on Sunday, or to be the first day of a term, the Saturday next preceding the same shall be the rule day, instead thereof. But if the party filing any pleading shall serve a written copy of the same upon the opposite party, or his attorney, the party so served shall be required to plead within fifteen days after the service of such copy."

The Court refused to grant the continuance, and laid a [**5]  rule upon the defendant to plead to the amended nar. forthwith; to the refusal to grant the continuance, and to the order requiring the defendant to plead forthwith, the defendant excepted.

Fifth Exception--After the order of the Court directing the defendant to plead to the amended declaration, and after all the evidence had been given to the jury, as set forth in the defendant's previous bills of exception, the defendant filed a petition praying the Court to remove the cause into the United States Circuit Court for the Maryland District, according to the acts of Congress, in such case provided; upon the ground that from prejudice and local influence, the defendant would not be able to obtain justice in the Court where the cause was then pending.

The Court overruled the prayer of the petition and refused to remove the suit; to this action of the Court the defendant excepted.

Sixth Exception--The evidence upon which the theory of the following prayers is based, is sufficiently set out in the first, second and third exceptions and in the opinion of this Court. The plaintiff asked the following instructions:

1. If the jury believe from the evidence in the cause, that [**6]  the defendant employed the plaintiff as assistant superintendent for the year, commencing January 1st, 1869, and ending December 31st, 1869, and that a few days prior to the 1st of July, 1869, the defendant discharged the plaintiff from its employment; and further find, that at the time said contract of employment was made and entered upon, the plaintiff was with the consent and knowledge of the defendant engaged in another business of indefinite duration as a member of the firm of Geegan & Co., agent for the Philadelphia, Wilmington and Baltimore Railroad Company, to deliver freight from President Street Depot, Baltimore, Md., to consignees in Baltimore, and that said business continued in every particular to be the same up to and at the time of the plaintiff's discharge; then the mere continuance of said business as a member of the firm of Geegan & Co., was not a sufficient cause for his dismissal, provided they find that the plaintiff faithfully and efficiently discharged all his duties as assistant superintendent to the defendant.

2. If the jury find that Samuel M. Shoemaker, was the superintendent or general agent of the defendant, for the division, consisting of Maryland,  [**7]  District of Columbia, and a portion of Virginia, with full authority to employ and discharge employes and agents, and direct their conduct, make contracts and exercise a general supervision over the defendant's business; and further find, that the said Shoemaker, as such superintendent or general agent, employed the plaintiff, then the jury may find that in regard to all matters and things pertaining to or affecting said contract of employment the knowledge and consent of said superintendent or general agent was the knowledge and consent of the defendant.

The defendant then offered the following prayers:

1. That if the jury find from the evidence in the cause, that the plaintiff was employed by the defendant as assistant superintendent on or about the first day of June, A. D., 1869, for one year, at a salary of $ 4,000 per year, payable monthly, and that prior to the expiration of the said year, the plaintiff was discharged by the defendant, and his salary paid to the end of the month, during which he was so discharged, yet that the jury cannot find a verdict for the plaintiff unless they shall further find that such discharge was wrongful and without cause.

2. That [**8]  if the jury shall find from the evidence in the cause, that the defendant contracted with the plaintiff to employ him as assistant superintendent of this District, from January 1st, 1869, to January 1st, 1870, at a salary of $ 4,000 a year, payable monthly, and that the plaintiff engaged to serve the defendant efficiently and in good faith as such assistant superintendent in the district, consisting of Maryland, District of Columbia, and part of Virginia and West Virginia, and if the jury shall find from the evidence, that he became a partner with others in the Philadelphia, Wilmington and Baltimore Transfer Company, and undertook to carry freight and packages from the President Street Station, and to deliver the same to consignees in Baltimore in violation of his duties to, and injuriously to the interest of the defendant, then the defendant had a right to determine its contract with him, and if the jury shall find it did so terminate its contract with the plaintiff on the 30th day of June, 1869, and paid the plaintiff the month's salary due him on the 30th of June, 1869, then the plaintiff is not entitled to recover.

[The plaintiff excepted specially to the foregoing second [**9]  prayer, because it assumed as a fact that the business of the plaintiff as a member of the firm of Geegan & Co. was in violation of his duty to the defendant and injuriously affected its interest, instead of submitting the matter to the jury.]

3. That if the jury shall find that during the service of the plaintiff as assistant superintendent of the defendant, as given in evidence, the said plaintiff was engaged in another business in competition with that of the defendant's, and which was calculated seriously to injure the business of the defendant, then such conduct afforded sufficient cause for the discharge of the plaintiff by the defendant.

4. That if the jury should find from the evidence in this cause, that the defendant contracted with the plaintiff to employ him as assistant superintendent of the Maryland district, from January 1st, 1869, to January 1st, 1870, at a salary of $ 4,000 per year, payable monthly, and that the plaintiff engaged to serve the defendant efficiently and in good faith as such assistant superintendent, yet if they shall further find that during the service of the plaintiff prior to June 30th, 1869, as given in evidence, the said plaintiff was [**10]  engaged in another business in competition with that of the defendant, and it was calculated seriously to injure the business of the defendant, and shall find that he was notified by the defendant that he must cease to carry on said business, and that notwithstanding such notice (if they shall find such notice) he continued to carry on such business, and that the defendant then dismissed him, then such dismissal was justifiable, and the plaintiff cannot recover in this action, provided the jury shall find he was paid by the company for his services up to the time of his dismissal.

The Court granted the prayers of the plaintiff and rejected the second, third and fourth prayers of the defendant, its first prayer being conceded. To this action of the Court the defendant excepted, and the verdict and judgment being for the plaintiff, it appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Appeal -- Refusing a Continuance -- Rules of Court -- Removal of Causes from the State Courts into the Federal Courts -- Amendment of the Declaration -- Legal presumption as to a Corporation created by the laws of a State -- Employer and Employe -- Question for the Jury -- Construction of the Powers of an Agent -- Principal and Agent -- Powers of an Agent, how to be exercised -- When the rule, that notice to an Agent, is constructive notice to his Principal, does not apply -- Ratification by the Principal of an unauthorized act of his Agent -- When Ratification may be Disaffirmed -- When Ratification will be presumed -- Evidence -- When an Employe may be lawfully Discharged from service.

During the trial of a cause, leave having been granted by the Court to the plaintiff to amend his declaration, the defendant moved for a continuance to enable it to plead to the new and amended declaration, claiming that under a rule of the Court, it was entitled to time until the second rule day thereafter. The Court refused the continuance and required the defendant to plead forthwith. HELD:

That from this action of the Court no appeal would lie -- the granting or refusing a continuance having been confided by statute to the discretion of the Court; and of this discretion the Court could not be deprived by a mere rule.

Under the Act of Congress of March 2d, 1867, providing for the removal of causes in certain cases from State Courts to the Circuit Courts of the United States, the application for removal must be made before the hearing or trial commences. An application made during the progress of the trial, is too late, and will be disallowed.

A cause in a State Court can be removed to a Federal Court, under the Act of Congress of March 2, 1867, only when it affirmatively appears, either by the pleadings in the cause, or other appropriate allegation, that the party desiring the removal is a citizen of another State than that in which the suit is pending, and that the adverse party is a citizen of the particular State in whose Court the suit was brought.

A pending trial is not terminated by leave to amend the declaration, where the substance of the issue is not materially changed by the amendment, and a continuance is not deemed necessary to the ends of justice; the cause proceeds as if no amendment had been made.

Where a corporation is created by the laws of a State, the legal presumption is, that its members are citizens of the State in which alone the corporate body has a legal existence; and any suit by or against such corporation in its corporate name, must be presumed to be a suit by or against citizens of the State creating the body corporate; and no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of the Courts of the United States.

An employe is bound to serve his employer faithfully, and to refrain from doing any act knowingly and wilfully which may affect injuriously his employer's business; and if he violate his obligation in this respect, he may lawfully be discharged by his employer.

Whether the conduct of the employe be such as to furnish sufficient ground for his discharge, is a question of fact for the jury.

Authority to a general superintendent of an Express Company, to employ and discharge agents and direct their conduct, make contracts and exercise a general supervision over the business of the Company, cannot reasonably be construed as empowering him to license one of his coemployes -- an assistant superintendent, -- to engage in and carry on a business in competition with, and injurious to that of the Express Company.

Authority, whether special or general, conferred upon an agent, is to be construed as including only the usual means appropriate to the end. Even if a general discretion in an agent, it is not deemed to be unlimited; but must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts, which the principal could not be presumed to intend; or which would defeat, and not promote, the apparent end or purpose for which the power was given.

The powers of an agent are to be exercised for the benefit of his principal only. A power to do all acts that the principal could do, or all acts of a certain description, for and in the name of the principal, is limited to the doing of them for the use and benefit of the principal only, as much as if it were so expressed.

The rule, that notice to an agent of facts arising from and growing out of the subject matter of his agency, is constructive notice to the principal, has no application to the case where the question is, whether the act relied on to bind the principal, was done within the limit and scope of the agent's authority or not.

While the act of an agent, though unauthorized at the time, may become binding upon the principal by ratification and adoption, to make such ratification effectual, it must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the act to be ratified; and if the principal assent to the act while ignorant of the facts attending it, he may disaffirm it, when informed of such facts.

Where an act is done in behalf of the principal, though not within the authority of the agent, if the former have full knowledge upon the subject and derives benefit from the act, he must dissent, and give notice thereof within a reasonable time, or his assent and ratification will be presumed.

In an action brought against an Express Company for wrongfully discharging the plaintiff as an assistant superintendent of the Company, and to recover the balance of a year's salary claimed to be due to him, his declaration to the general Superintendent of the Company, after being notified of his dismissal, that he intended to hold the defendant responsible for his year's salary, is not admissible in evidence.

If a person employed by the year, as an assistant superintendent of an Express company, at a stated salary, payable monthly, engage in another business in competition with, and calculated seriously to injure that of the Express company, and being notified by the company that he must discontinue said business, refuses so to do, and is discharged at the expiration of six months, and paid for his services at the stipulated price, up to the time of his discharge, he cannot recover the balance of the year's salary. 

COUNSEL:
J. Dean Smith and Wm. Pinkney Whyte, for the appellant.

The declaration of the plaintiff to a coemploye, and of his intentions to claim a whole year's salary, could not be evidence against the appellant.

There had been no proof at the time of taking the second exception, of any authority,  [**11]  general or special, in Samuel M. Shoemaker, to permit his subordinate to engage in any business hostile to the defendant.

The proof of his agency and its character and extent ought to have been first shewn before any proof of his approval of the act of Trego could be properly given in evidence. Nor indeed was there proof, at that time, that Shoemaker had authority to make a yearly contract with any employe. The declarations of an agent are not admissible to bind his principal until the agency is first established. Marshall vs. Haney, 4 Md., 511; Atwell vs. Miller, 11 Md., 339; Rosenstock vs. Tormey, 32 Md., 182.

The agency to be proved is either to be a general or special one, and its character to be fully established. An agent for one purpose cannot of course bind his principal by acting outside of his particular duty. Merchants' Bank vs. Marine Bank, 3 Gill, 125.

Conduct by a servant calculated seriously to injure his master's business will justify the discharge of the servant. And this rule applies when the master is a corporation. Angell & Ames on Corp., 423; Smith on Master and Servant, 73-77; (75 Law Library, 75;) Lane vs. Phillips, 6 Jones (N. C.) Law, 445; Chitty [**12]  on Contracts, (10 Am. Ed.,) 629; Jones vs. Jones, 2 Swan, (Tenn.,) 605, 608; Singer vs. McCormick, 4 W. & S., 265; Cunningham vs. Fonblanque, 6 C. & P., 44; Reed vs. Dinsmore, 9 C. & P., 588; Lord Bruce's Case, 2 Strange, 819.

Thomas J. McKaig, Jr., and Arthur W. Machen, for the appellee.

The evidence in the first bill of exception, tending to prove that the appellee denied the right of the appellant to discharge him, and that whether permitted to perform the service or not, he should hold the appellant responsible for his year's salary, was clearly admissible for the purpose of satisfying the jury that between the parties there was no recision of the contract.

The testimony in the second and third bills of exception was properly admitted by the Court, in order to establish the fact that at the time the contract of employment was made and entered upon, the appellee was, with the knowledge and consent of the general agent of the appellant, and therefore constructively of the appellant itself, engaged in another business, (which was subsequently set up by the appellant as a justification of its discharge of the appellee,) and therefore the appellee's continuation in said [**13]  business, unless otherwise expressly stipulated, was necessarily a part of his contract with the appellant. Story on Agency, secs. 140, 140, b; Hiern vs. Mill, 13 Ves., 120; Harvey vs. Blanchard, 13 N. H., 145; Sutton vs. Dillage, 3 Barb., 529; Fulton Bank vs. The New York and Sharon Canal Co., et al., 4 Paige Ch. Rep., 127; Mechanics' Bank of Alexandria vs. Seton, 1 Peters, 309; Bank of U. S. vs. Davis, 2 Hill, 461; McEwen vs. Montgomery Mut. Ins. Co., 5 Hill, 101; Toll Bridge Co. vs. Betsworth, 30 Conn., 380; Wing vs. Harvey, 5 De Gex, M. & G., 265.

The powers of a general manager, or superintendent of a company, are not subject to the limited construction applied to inferior agents, and it is not necessary to define or prove the extent of his authority. Walker vs. Great Western Ry. Co., Law Rep., 2 Ex., 228; Goff vs. Great Northern Ry. Co., 30 Law Journ., N. S. Q. B., 151.

And this principle obtains with peculiar force in the case of a foreign corporation transacting business here. In such a case, the corporation has neither functions nor existence in Maryland, except through its general superintendent, who is its representative. Balto. and Ohio R. R. Co. vs. Glenn, 28 [**14]  Md., 319.

The rule "that a principal is bound, not only by such acts of the agent as are within the scope of the agent's actual authority, but by such acts as are within the larger margin of an apparent or ostensible authority derived from the representations, acts, or default of the principal," in its application to a corporation principal, was recognized and applied in Totterdell vs. Fareham Brick Co., Law Rep., 1 C. P., 674. And see Northern Central Ry. Co. vs. Bastian, 15 Md., 494.

The service in question was a yearly service; and the dismissal in the middle of the year was prima facie wrongful. Beeston vs. Collyer, 4 Bing., 309.

To justify a master in dismissing a yearly servant before the expiration of the year, there must be, on the part of the servant, either moral misconduct, wilful disobedience or habitual neglect. Callo vs. Brouncker, 4 Car & P., 518.

The ground relied on ought to be one which the defendant bona fide acted on. Smith vs. Allen, 3 Foster & Finlason, 162.

The appellant's three prayers rejected by the Court, were, in addition to the assumption of fact in the second prayer, fatally defective, because under the hypotheses of all these [**15]  prayers, the jury were authorized to find against the appellee without regard to his engagement in the business of the Philadelphia, Wilmington and Baltimore Rail Road Company, being with the knowledge and consent of the appellant. This fact was an essential element of the appellee's case, and by these instructions it was totally withdrawn from the jury, although the finding of it by them would have defeated the right of discharge claimed by the appellant. The conclusive character of this objection to these prayers is fully and clearly shown in the case of Adams vs. Capron, 21 Md., 205. See also McTavish vs. Carroll, 7 Md., 366; Riggin vs. Patapsco Ins. Co., 7 H. & J., 291, and Thomas vs. Sternheimer, 29 Md., 268.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*58]  ALVEY, J., delivered the opinion of the Court.
This was an action of assumpsit, instituted by the appellee against the appellant, to recover the sum of $ 2,000, the balance of salary for the year 1869. The ground of the action 

 [*59]  is, that the appellant, through its agent, had contracted with the appellee to employ him for the entire year of [**16]  1869, at a salary of $ 4,000, payable monthly, and that he was wrongfully dismissed from the service of the appellant on the first of July, 1869, up to which date his salary was paid.
At the trial in the Court below several bills of exceptions were taken by the appellant; but as the fourth and fifth exceptions involve questions of a preliminary character, we shall dispose of them before considering the questions raised by the other exceptions, which are of a different nature.
And as to the fourth exception, we discover nothing in it to justify a reversal of the judgment appealed from. Whether a continuance should have been ordered, after the amendment of the appellee's declaration, was matter of discretion, which is exclusively confided to the Court in which the amendment takes place; and no appeal lies from its exercise. Code, Art. 75, secs. 23 and 24. If the Court below was not satisfied that the ends of justice required a continuance, it was clearly right in refusing to grant it; and no mere rule of Court could be allowed to operate to divest such discretion, or in any manner to change or modify the statutory provision on the subject. Rules of Court must not be in conflict [**17]  or inconsistent with the Statute law of the State.
The fifth exception was taken to the refusal of the Court to order the removal of the cause into the Circuit Court of the United States for the district of Maryland; and, under the facts disclosed by the record, we think the Court was entirely right in such refusal.
The cause was in progress of trial, and three bills of exceptions had been taken to the rulings as to the admissibility of evidence, when the application for removal was made; and according to what we regard as the true and plain interpretation of the Act of Congress, under which the right of removal is claimed, being that approved March 2d, 1867, entitled "An Act to amend an Act entitled 'An Act for the removal of causes in certain cases from State Courts,' approved July 27, 

 [*60]  1866," the application came too late to stay the further progress of the trial. By this amendatory Act of 1867, it is provided, "That where a suit is now pending, or may hereafter be brought in any State Court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of $ 500, exclusive [**18]  of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file, in such State Court, an affidavit stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State Court, may, at any time before the final hearing or trial of the suit, file a petition in such State Court for the removal of the suit into the next Circuit Court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such Court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in such suit, and doing such other appropriate acts as, by the Act to which this Act is amendatory, are required to be done upon the removal of a suit into the United States Courts." 14 Statutes at Large, 306, 558. This Act, so far as it is applicable to defendants, is but a modification of the 12th section of the Judiciary Act of 1789, and while by the Act of 1789 the application for removal was required to be made at the time of the defendant's appearance entered in the cause, by the words [**19]  of the latter Act of 1867, the right to apply for removal is extended to any time before final hearing or trial; and as, in this case, the trial had actually commenced, and several questions in its progress had been decided before the application was filed, such application cannot be said to have been made before trial. The application should have been made before the hearing or trial commenced; for otherwise it would be impossible to determine at what stage of the trial the application would be proper. Could it be made at the last stage of the trial, after all the legal questions had been 

 [*61]  decided by the Court, and the facts submitted to the jury, but before the verdict found? We can hardly suppose that any one would seriously attempt to maintain such a proposition. And if not in such case, at what prior stage of the trial would the application be admissible? We think it clear, that it is not at any time before the conclusion, but at any time before the commencement of the trial, that the application to remove must be made.
It was contended, however, that because the appellee was allowed to amend his declaration after the commencement of the trial, by inserting a special [**20]  count therein, there was a new issue made, and that, as to that part of the case, the trial did not in fact commence until after pleas filed to the amended declaration, and issues joined thereon; and as the application to remove was made before the amended declaration was pleaded to, it should be regarded as made in due time. But in this view of the subject we do not concur. The pending trial did not terminate by the leave to amend; for as the substance of the issue was not materially changed by the amendment, the jury was not required to be re-sworn; but all the evidence previously given remained before them, as if no amendment had been make. Garrett vs. Dickerson, 19 Md. 418. Amendments that are proper to secure the trial of the real merits of the cause may be made at any time before the jury retire to make up their verdict; and unless the issue is materially changed by the amendment, or a continuance is deemed necessary to the ends of justice, where the amendment is made during the course of the trial, a juror is never withdrawn, as was the practice prior to the Act of 1852; but the cause proceeds as if no amendment had been made. Code, Art. 75, secs.  [**21]   23, 24. The making of the amendment, therefore, afforded no ground for allowing the application for removal.
But the failure to make the application in due time was not the only objection to the right of removal in this case. The appellant is alleged to be a corporation chartered by the 

 [*62]  State of New York, where it has its principal office, and therefore claims to be regarded as a citizen of that State, and thus within the provisions of the Act of Congress referred to, which was passed to regulate the exercise of jurisdiction of the Federal Courts over controversies between citizens of different States, conferred by section 2, Article 3, of the Constitution of the United States. And, according to the decisions of the Supreme Court of the United States, the appellant is certainly entitled to be so regarded and treated, in reference to the question of Federal jurisdiction; for it is now settled, by a series of decisions of that high tribunal, that where a corporation is created by the laws of a State, the legal presumption is, that its members are citizens of the State in which alone the corporate body has a legal existence; and any suit by or against such corporation, in [**22]  its corporate name, must be presumed to be a suit by or against citizens of the State creating the body corporate; and that no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of the Courts of the United States. Louisville, Cin. & Charleston Railroad Co. vs. Letson, 43 U.S. 497, 2 How. 497, 11 L. Ed. 353; Marshall vs. The Balt. & Ohio Railroad Co., 57 U.S. 314, 16 How. 314, 325, 14 L. Ed. 953; Covington Drawbridge Co. vs. Shepherd, 61 U.S. 227, 20 How. 227, 231, 15 L. Ed. 896; Ohio & Miss. Railroad Co. vs. Wheeler, 1 Bl., 286. But while this is the case in reference to the defendant, it no where appears in the record that the plaintiff is a citizen of Maryland; and according to the recent case of The Insurance Co. vs. Francis, 78 U.S. 210, 11 Wall. 210, 20 L. Ed. 77, in order to entitle a party to the right of removal under the Act of Congress, it must affirmatively appear, either by the pleadings in the cause, or other appropriate allegation, that the party desiring the removal is a citizen of another State than that in which the [**23]  suit is pending, and that the adverse party is a citizen of the particular State in whose Court the suit was brought. So that, in any aspect of the case as the record presents it, it would have been erroneous for the Court to have granted the prayer for removal.

 [*63]  Having disposed of the questions raised by the fourth and fifth bills of exceptions, we shall now proceed to consider the other questions in the case, and which relate to the admissibility of evidence, and the propriety of granting and refusing certain instructions to the jury. And before referring particularly to each several exception remaining to be considered, we shall state the leading and undisputed facts of the case, and the general principles of law that would seem to be applicable to them.
The appellee was employed, according to his own testimony, by the appellant, from 1852 to the time of his discharge in July, 1869, as assistant superintendent, and the contract of employment was made with Samuel M. Shoemaker, as the appellant's agent and general superintendent for this district. His employment was yearly, from January to January; and in 1867 his salary was $ 4,000, and continued at that amount to the [**24]  close of his service. He was notified of his discharge on the 28th of June, 1869, to take effect from the 30th of that month, and no reason for the discharge was given at the time. He further proved, by his own evidence, that from November, 1868, up to the time of his dismissal, he had been interested, with certain other parties, as the Philadelphia, Wilmington and Baltimore Transfer Company, in conveying freight from the President street railroad station to consignees in Baltimore; and that the business of the appellant was and is to transport freight from city to city, and that, with exception of freight transported by its own company, it did not deliver freight to consignees in Baltimore. He also proved, on cross-examination, that in April or May, 1869, he was notified by Shoemaker, the general superintendent, that the appellant disapproved of his connection with the Baltimore Transfer Company, and that it demanded that he should cease his connection with that concern; that he tried to sell out his interest, but did not; that he waited, in his own language, "for something to turn up." He also proved, that at the time of his dismissal he had overdrawn 

 [*64]  the salary due to [**25]  that date, some $ 500, which he afterwards paid back. That he had authority over the subordinate officers of the appellant. These facts were all proven by the appellee himself, and therefore, so far as he is concerned, and as against him, may be taken as true.
It was also proved, that the authority of Shoemaker, as general superintendent of the Maryland district, was to supervise the working and general management of the business and affairs of the company in such district, and to appoint and discharge agents and other subordinate employes. It was proved, moreover, that Shoemaker was well aware of the appellee's connection with the Transfer Company, from the time such connection commenced.
There was also proof tending to show, that in fact the operations of the Transfer Company, of which the appellee was a member, did injuriously conflict and compete with the operations and interest of the appellant, in Baltimore.
On this state of case, the main question is, whether there was justification for the dismissal of the appellee; and this involves the further question as to the extent of the authority of Shoemaker, the general superintendent, by whom the appellee was employed and retained [**26]  in service, with knowledge of the fact that the latter was connected with the Baltimore Transfer Co.; the other questions raised, and to be decided, being subordinate to these.
Whether there existed, as matter of fact, sufficient ground for the discharge of the appellee, was, of course, a question for the jury; but, as a principle of law, it may be stated generally, that the appellee, by the nature of his employment, was impliedly bound to serve the appellant faithfully, and to refrain from doing any act knowingly and wilfully which might affect injuriously the business of his employer. It has been expressly decided, that a servant, while engaged in the service of his master, has no right to do any act which may injure his trade, or undermine his business. Nichol vs. Martyn, 2 Esp. 732. And in the case of Lacy vs. Osbaldiston, 8 C. & P. 80, 

 [*65]  brought for wrongfully discharging the plaintiff as an acting manager of a theatre, it was held, that if the plaintiff had so conducted himself as to render it injurious to the interest of the theatre to retain him, the proprietor might lawfully dismiss him; the learned Judge, in summing up,  [**27]  saying to the jury, that, as to the dismissal, it was a question of fact whether the plaintiff was so conducting himself as that it would have been injurious to the interests of the theatre to have kept him; and if so, he should have no difficulty in saying that it would be a good ground of dismissal. And the same principle is distinctly recognized by this Court, in the case of Jaffray vs. King, 34 Md. 217.
But it is insisted by the appellee that, as he became interested in the Baltimore Transfer Company in the fall of 1868, with the knowledge and consent of Shoemaker, the general superintendent of the appellant, and was afterwards retained in service as he had been before, by such superintendent, it became a condition in the contract of employment that he should be allowed to hold such connection with the Transfer Company, and that the appellant is, in effect, estopped from setting up any such cause of dismissal as is relied on by it. And this, of necessity, involves the question of the extent of Shoemaker's authority, and the effect of his knowledge of and acquiescence in the appellee's connection with the Transfer Company.
Now, assuming that the authority [**28]  of Shoemaker was as broad and comprehensive as contended by the appellee, that is, that he was authorized to employ and discharge employes and agents, and direct their conduct, make contracts, and exercise generally supervision over the business of the appellant, in the particular division; still, we think it would be difficult to maintain that such delegation of authority included power in the agent to license or authorize one of the coemployes, who was himself entrusted with large and important control over the business transactions of the appellant, to engage in and carry on a business in competition with that which he 

 [*66]  had been employed to foster and promote. To bind the appellant as principal it is incumbent on the appellee to show that the agent, with whom he dealt, had competent authority. The authority shown is simply that by which the agent was empowered to enter into all such contracts as were usually and properly entered into in the ordinary conduct and management of the business. To this extent and no further can the authority here shown be carried by any fair construction of it; nor would it be rational to presume that it was the intention of the principal to [**29]  clothe the agent with authority to contract in a manner to inflict serious injury on its business. Was then the license or authority given to the appellee by the general superintendent, to maintain the connection with the Transfer Company, if it did in fact compete with and was injurious to the business of the appellant, such an act as was done in the usual and ordinary conduct and management of its affairs? To maintain such a proposition it would require affirmative proof on the part of the appellee; for it certainly does not result by any reasonable construction of the power shown. If powers like the present were construed as contended for by the appellee, there would be no safety for principals. Instead of having their business supervised in their own interests, by agents bound to them by obligations of fidelity and good faith, they might be compelled to retain in their service, at large salaries, agents engaged at the time in undermining and destroying their trade; a state of things that no principal should be presumed to have authorized. The rule of construction in such cases, is well settled. If the authority is special, says Judge STORY, (Sto. on Ag., sec. 83,) "it is construed [**30]  to include only the usual means appropriate to the end. If the authority is general, it is still construed to be limited to the usual means to accomplish the end. Even if a general discretion is vested in the agent, it is not deemed to be unlimited. But it must be exercised in a reasonable manner, and cannot be resorted to in order to justify acts, which the principal could not be 

 [*67]  presumed to intend; or which would defeat, and not promote, the apparent end or purpose, for which the power was given."
This rule, for the construction of powers like the present, is well stated, with many illustrations of its application from decided cases, by the editors in 1 Amer. Lead. Cases 567. It is there said, that "it is a universal principle in the law of agency, that the powers of the agent are to be exercised for the benefit of the principal only, and not of the agent or of third parties. A power to do all acts that the principal could do, or all acts of a certain description, for and in the name of the principal, is limited to the doing of them for the use and benefit of the principal only, as much as if it were so expressed. Stainer vs. Tysen, 3 Hill, (N. Y.,) 279,  [**31]  281; North River Bank vs. Aymar, 3 Hill, (N. Y.,) 263, 266. A power, therefore, in the most general terms, to draw and indorse bills for and in the name of the principal, will not authorize a drawing or indorsing in his name for the accommodation of third persons. Nichols vs. State Bank, 3 Yerger 107; Wallace vs. Branch Bank at Mobile, 1 Judges', Ala., 565; St. John vs. Redmond, 9 Porter 428; The Planters' Bank vs. Cameron, 3 Sm. & Mars. 609, 613; or for the benefit of the agent. Suckley vs. Tunno & Cox, 1 Brevard 257; S. C. 2 Bay 505; and this principle is illustrated in the case of partnership. A power in the most general terms to do all and everything that the agent may think proper in any business the principal may be concerned or interested in, will not authorize the agent to pledge the property of the principal for his own debt. Hewes vs. Dodridge, 1 Robinson's Va. Rep., 143. The most guiding principle in the construction of powers, is to be derived from a consideration of the purpose which the agent, or other depositary of power, is appointed to accomplish.  [**32]  "
Seeing then that the power of the agent is delegated exclusively for the benefit of the principal, and is to be exercised alone for the promotion of what is supposed to be his interest, there is clearly no ground for contending that the agent could 

 [*68]  bind the principal by any such license or authority as that given the appellee in this case, if it be found that such license or authority was or could be used to the prejudice and injury of the appellant; and, if such be the fact, the appellee himself must be taken to have been cognizant of it, and therefore bound to refrain from forming the connection with the Transfer Company.
It is insisted, however, that because the general superintendent of the appellant had notice, at the time of the retention of the appellee in service for the year 1869, of the latter's interest in the Transfer Company, that, notwithstanding the agent may have had no authority to authorize such a connection on the part of the appellee, such notice is in law notice to the principal, and as the appellee was retained in service with such notice, the employment became subject to the appellee's right to retain his interest in the Transfer Company. But [**33]  to this proposition we do not assent. It is true, notice to an agent of facts arising from and growing out of the subject-matter of his agency, is constructive notice to the principal. But this rule has no application to the case where the question is, whether the act relied on to bind the principal, was done within the limits and scope of the agent's authority or not. If knowledge of the agent could fix liability upon the principal in such case, irrespective of the limit of the former's authority, the cases of Grant vs. Norway, 10 C. B., 665; Hubbersty vs. Ward, 8 Exch. 330; Coleman vs. Riches, 29 Eng. L. & Eq. Rep. 323, and many other cases to which reference could be made, would have resulted in very different judgments from what they did. In the first two cases named, it was held, that, though a master of a vessel has a general authority to execute bills of lading for goods shipped, he has no power to charge the owner by signing bills of lading for a greater quantity of goods than those on board, and that a bill of lading so signed would not bind the owner, even in the hands of innocent third parties. And in the last [**34]  named case, where the agent of a wharfinger, whose duty it was to 

 [*69]  give receipts for goods actually received, gave a receipt for goods which had not been received, the principal was held not to be responsible, even to third parties who had been deceived by the receipt, because it was not within the scope of the agent's authority in the course of his employment, to give such a receipt. In this case the appellee was himself an agent of the appellant, and he must be supposed to have known something of the extent of the authority of the superior agent, upon whose knowledge and acquiescence he relies.
It is true, the act of the agent, though unauthorized at the time, may become binding upon the principal, by ratification and adoption. But to make such ratification effectual it must be shown that there was previous knowledge on the part of the principal of all the material facts and circumstances attending the act to be ratified. Bell vs. Cunningham, 3 Pet. 81; Owens vs. Hull, 9 Pet. 607; The Pennsylvania, Delaware and Maryland Steam Nav. Co. vs. Dandridge, 8 Gill & John. 248; Mayor & C. C. of Balto. vs. Reynolds, 20 Md. 1. [**35]  If the principal assents to the act while ignorant of the facts attending it, he may disaffirm it when informed of such facts. 6 Pick. 198. And it is equally true, that where an act is done in behalf of the principal, though not within the authority of the agent, if the former has full knowledge upon the subject, and from which act he derives benefit, he must dissent and give notice of the fact within a reasonable time, or his assent and ratification will be presumed. Brigham vs. Peter, 1 Gray 147. So that, in this case, if the services of the appellee were accepted by the appellant, with full knowledge of the former's connection with the Transfer Company, sanctioned and authorized by its agent, at the time of the last yearly employment, and of the manner in which the operations of that company might affect the business of the appellant in Baltimore, the latter was bound to signify its dissent within a reasonable time from the time it became possessed of the knowledge; or otherwise be concluded by a presumed assent and ratification. But then, it would be incumbent 

 [*70]  upon the appellee to show notice in fact on the part of the appellant,  [**36]  and at what time it was received.
With these principles in view, there can be but little difficulty in disposing of the remaining exceptions.
The first exception was taken to the admissibility in evidence of the declaration of the appellee himself, made to Shoemaker, the superintendent, after notice of the fact of dismissal, to the effect, that he intended to hold the appellant responsible for his year's salary. Upon what principle this declaration was admitted in evidence, we are at a loss to understand. It was in fact wholly immaterial. It served to prove nothing that was essential to the case. If the appellee had been wrongfully dismissed, as he alleges, it required no such notice or declaration to entitle him to maintain his action; and as the order for the dismissal came from the appellant, it is manifest that Shoemaker had no power or authority to revoke it, or in any manner to act upon the notification of the appellee, so as to bind his principal. The mere declaration of the party himself, made to another not authorized to receive or act upon it, is clearly not admissible; and the Court was therefore in error in allowing such a declaration to go to the jury. 29 Md. 194. [**37]  
The second and third exceptions present in effect but one and the same question; and that is, whether Shoemaker's knowledge and sanction of the appellee's connection with the Transfer Company before the commencement of the year's service of 1869, so affected the appellant as to preclude the right to dismiss the appellee because of such connection.
We have already said that the power shown to have been delegated to Shoemaker, as superintendent, did not authorize him to sanction and license the appellee's connection with that company, if in point of fact it was a competing concern with the appellant. The proof stated in these bills of exceptions, it is true, tended to show that, at the time, it was the opinion of the agent that the connection of the appellee with the Transfer Company would not be injurious to the interests of 

 [*71]  the appellant; but we know of no rule by which the principal is bound by the mere opinion of his agent, unless authorized to give it to influence the action of third parties.
This evidence might have been made admissible, if the appellee had proposed to follow it up with other evidence to prove that such knowledge of the agent had been communicated [**38]  to the principal, and that the latter had ratified the sanction given by the agent, either expressly or by presumption. But no such offer was made, and it was therefore error to allow the evidence to be given to the jury.
We come now to the prayers that were offered, some of which were granted and others refused, contained in the appellant's sixth exception.
The first prayer on the part of the appellee, and which was granted, we think correct, and properly instructed the jury as to the law of the case. We do not understand that this instruction was seriously questioned. But the second prayer of the appellee, which was also granted, we regard as essentially erroneous, and should have been refused. It asserts, after stating the extent and limit of the authority supposed to have been delegated to Shoemaker, and the employment by him of the appellee, that the jury were at liberty to find "that in regard to all matters and things pertaining to or affecting said contract of employment, the knowledge and consent of the said superintendent or general agent, was the knowledge and consent of the defendant." This, if it means what we suppose it does, or was intended to mean, is a proposition [**39]  that cannot be sustained. We have already said that the knowledge of the agent in regard to matters with which he was connected beyond the scope of his authority is not the knowledge of his principal, and that the doctrine by which notice to the agent is to be regarded as notice to his principal does not apply to a case like the present. If the agent transcended his authority in giving sanction to or allowing conduct on the part of the appellee that afforded just ground of complaint by the principal, the latter had the undoubted 

 [*72]  right to repudiate the act of its agent. And though it may be said in this case, that the license or sanction given by the superintendent to the appellee to form the connection with the Transfer Company, in some sense inhered in the contract of employment, still, it is an established principle, that if an agent does an act within the scope of his authority, and at the same time does something more which he was not authorized to do, and the two matters are not inseparable, even though both may relate to the same subject, that which was authorized is alone binding, and the other void, so far as the principal is concerned. 2 Greenl. Ev., sec. 59.  [**40]  Here the matters are not only separable, but are quite distinct, the sanction given to hold the relation to the Transfer Company being collateral to the employment of the appellee.
The second prayer of the appellant would be free from objection, if it had been more explicit in submitting to the jury the question whether the appellee's connection with the Transfer Company, was in violation of his duties to the appellant, and injurious to its interest. Objection was taken to the prayer in the Court below on the ground that it assumed that such connection of the appellee was in violation of his duty, and that the interest of the appellant was affected thereby. If such be the proper reading of the prayer it would certainly render it objectionable; and, upon a careful examination, we think it is susceptible of the construction placed upon it by the appellee, whatever may have been the intention of its author; and it was therefore properly rejected. The prayer should have been explicit and free from all ambiguity in submitting that question to the jury, as it was one most material in the case.
The fourth prayer of the appellant, however, is free from the objection taken to the second,  [**41]  and should have been granted. It fairly submitted to the finding of the jury all the facts upon which the right of dismissal depended; and as these two prayers, the second and fourth, embrace the more general proposition announced in the third prayer of 

 [*73]  the appellant, this latter prayer may be regarded as immaterial, and hence it becomes unnecessary to say more in reference to it.
For the errors stated, we shall reverse the judgment of the Court below, and award a new trial.
Judgment reversed and new trial awarded.
STEWART, J., dissented.  

143 of 144 DOCUMENTS 

WILLIAM F. PENTZ and Wife vs. THE CITIZENS' FIRE INSURANCE, SECURITY AND LAND COMPANY OF BALTIMORE CITY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 73; 1872 Md. LEXIS 4 

January 12, 1872, Decided 

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

The appellee, a corporation formed under the Act of 1868, ch. 471, and having for one of its objects the advance and loan of money upon any property, real, personal or mixed, loaned to the appellant William, a member of the corporation, $ 6,000, on his fifteen shares of its stock, to be re-paid in weekly instalments of $ 33.75, each, which included principal, interest and a premium of twenty-five cents on each share. To secure the payment of this instalment at the office of the appellee in Baltimore on every Monday for and during the term of five years, commencing on Monday, the 27th of June, 1870, the appellants executed a mortgage dated the 7th of July, 1870. It was agreed in the mortgage that the appellant William would pay such fines and penalties as might be imposed upon him by the by-laws of the Company; and that a decree might be passed for the sale of the mortgaged property under the provisions of sections 782 to 792 inclusive, of Article 4 of the Code of Public Local Laws, &c., the sale to take place after a default in any of the conditions of the mortgage should have continued for three calendar months. On the 16th of March,  [**2]  1871, the appellee filed a petition alleging that the appellant William had made default in the payment of the weekly instalments provided for in said mortgage, for more than three months, and asking that a decree might be passed for the sale of the mortgaged property. A decree was accordingly passed on the same day, and the property was advertised for sale by the trustee. On the 18th of March, 1871, the appellants filed a petition denying any default in the premises, and praying leave to pay into Court the sum of $ 438.75, the amount admitted by them to be due on account of said mortgage; and also that the sale and further execution of said decree might be suspended. The Court thereupon passed an order granting leave to the appellants to pay into Court the sum of $ 438.75 and staying all further proceedings until the further order of the Court. On the 25th of March in the same year, the appellee filed an answer to the appellants' petition denying the matters therein alleged in defence, and setting forth the amount claimed to be due on account of said mortgage--to wit: $ 519.75, the same being the amount paid into Court, together with one week's dues accrued under the mortgage after [**3]  the filing of the appellants' petition, and also certain fines amounting to $ 47.25, claimed to be due for alleged defaults. On the 14th of April following an agreed statement of facts in the case was filed, together with a copy of the by-laws of the appellee, which are sufficiently set out in the opinion of this Court. On the 16th of June following, the Court (PINKNEY, J.,) passed an order rescinding its former order of the 18th of March, unless the fines, amounting to $ 47.25, and the expenses, were paid on or before a day specified.

From this order the present appeal was taken.  

DISPOSITION:
Order reversed.  

HEADNOTES:

Enforcement by an Insurance and Loan Company of the payment of the Weekly dues of a Member, by Fines and Forfeitures.

The appellee, incorporated under the Act of 1868, ch. 471, loaned to the appellant, a member of the Corporation, $ 6000, on fifteen shares of its stock held by him, re-payable in weekly instalments, including principal, interest and premium of $ 33.75, each, and took from him a mortgage to secure the re-payment thereof. The appellant failed to pay the instalment due on Monday, the 19th of December, 1870, but tendered the amount on the succeeding day; the secretary of the corporation refused to receive it, unless he would pay the fine of $ 3.37 claimed to be due under a by-law of the Corporation, which provided that any person who refused to pay his weekly dues at the time required, should be fined ten cents weekly, for each and every dollar remaining unpaid. The appellant tendered on each succeeding Monday, up to the 16th of March, 1871, the date of the passage of a decree for the sale of the mortgaged premises, the amount of the accrued and accruing instalments as named in the mortgage, but refused to pay the fines claimed to be due by the appellee, and the appellee refused to accept the instalments without the fines. HELD:

That while the appellant, by his failure to pay punctually the weekly instalment due on the 19th of December, 1870, subjected himself to the fine provided by a by-law of the appellee for such default, his tender thereafter of the weekly instalments as the same fell due, exempted him from liability to further fines. His refusal to pay the first fine did not give the appellee the right to impose additional fines. 

COUNSEL:
James Frame, for the appellants.

The appellee, although a corporation formed under the Act of 1868, ch. 471, has not the power to enforce payment of instalments and dues by fines and forfeitures. It is not a Homestead or Building Association as contemplated by sections 84 to 91 inclusive, of that Act. The appellee is a corporation formed "for the purpose of loaning money on real and personal property," under section 92 of the Act of 1868. And the mortgage stipulates for the payment of a definite sum, $ 6,000, with interest, and a certain premium in addition thereto, in a definite [**4]  and fixed time, five years. The appellee stands simply as an ordinary mortgage creditor, and the mortgage must be regarded as an ordinary contract between individuals, unless the language of section 92 of the Act of 1868, be held to confer upon the appellee the same power to enforce payment of dues and instalments by fines and forfeitures, that is given to Homestead and Building Associations by section 85. The provisions of section 85, relating to fines and forfeitures are not applicable to the appellee. The power to enforce payments by fines and forfeitures is contrary to the spirit of equity, and in derogation of the law of mortgages as it stood prior to the recent enactments authorizing the formation of building societies; and therefore should not be extended beyond the limits laid down in the sections from 84 to 91 inclusive, without the clearest declaration of the intention of the Legislature. Dwarris on Stat., 695, quoted and approved in Hooper vs. The Mayor and City Council of Baltimore, 12 Md., 464, and Keech vs. The Baltimore and Washington R. R. Co., 17 Md., 32.

The power to fine is not in any sense applicable to the appellee. It is not necessary to the prosperous management [**5]  of its concerns; nor do the reasons for granting the power exist as in the case of Homestead and Building Associations. The Citizens' Mutual Loan Association vs. Webster, 25 Barb., 271, 272.

If the power to enforce payments by fines and forfeitures be not conferred by section 92--the case stands as though it were between individual creditor and debtor, and the fines and forfeitures are penalties, against which Equity will relieve. The appellants have tendered and paid into Court all that the appellee can demand, and are, therefore, entitled to relief. Seton vs. Slade, and Slade vs. Hunter, 7 Vesey, 273; City Bank vs. Smith, 3 G. & J., 281.

But even if the provisions of section 85, Act of 1868, do apply to the appellee, the mortgage does not sufficiently stipulate for the payment of the fines and forfeitures demanded. Robertson vs. The Am. Homestead, &c., 10 Md., 397.

The mortgage is usurious, and the fines charged for non-payment of dues are charges over and above legal interest, which is all the appellee is entitled to recover, and hence not only the fines claimed, but the premiums mentioned in the mortgage, and also a portion of the interest paid, are unlawful.

If [**6]  the appellee be entitled to recover fines under the mortgage, the amount actually due is not sufficient to bring the case within the jurisdiction of the Court. The fines for default on the 19th of December, 1870, amounted to $ 3.37--an amount below the jurisdiction of the Court. After that date there was no default. The appellant regularly tendered the accrued and accruing dues, premium and interest, and was not chargeable with fines in respect thereof.

Samuel Snowden, for the appellee.

The appellee being a corporation formed under the Act of 1868, ch. 471, for the purpose of loaning money on real or personal property, has the power to enforce the payment of dues by its members, by such fines and forfeitures as it may from time to time provide in its by-laws. 1868, ch. 471, secs. 85, 92.

By section 92, such provisions of the law as relate to Homestead and Building Associations, as may be found applicable to corporations for loaning money, &c., shall be held to apply to them. The power to enforce the punctual payment of the dues to be paid by its members, is as applicable to corporations for loaning money as it is to Building Associations; and the language of the law [**7]  plainly expresses the intent of the law makers to confer upon corporations for loaning money, the same powers as those conferred upon Building Associations; and certainly no power would be more applicable than the power to fine. The fine is imposed for the purpose of compelling the members, whether they are borrowers or not, to pay the instalments upon their shares regularly every week, which is actually necessary to the successful management of a corporation of that kind. The question is not whether the power to fine is an implied power, belonging to the appellee from the nature of its business, &c., but whether it is an express power contained in its Act of incorporation. The language employed in that Act is very plain, and as the appellee is a corporation for loaning money, it has the express power to adopt by-laws fining its members for default in payment of weekly instalments. By-Law, Art. 23, sec. 3.

These by-laws then enter into and form a part of the mortgage contract, if there be a sufficient reference in the mortgage to show that it was the intention of the parties; and the Court will then look to the by-laws to ascertain the amount due under a mortgage. The reference [**8]  in the mortgage to the by-laws and Act of incorporation are full and explicit, shewing that it was intended at the time of the loan that they should form a part of the mortgage itself.

As by the agreement of the parties "all other questions, except those relating to the right to recover the fines charged, were waived," no question in reference to usury can now be raised in this Court. Nor could it be done if there were no agreement, because the appellant has not pleaded or set it out specifically in his petition. McKim vs. The White Hall Co., 2 Md. Ch. Dec., 510; Code, Art. 95, sec. 5.

But the fines are not for the use of the money; they are pecuniary mulcts, which the corporation is permitted by its charter to impose upon its members for non-payment of the instalments as they become due, according to its by-laws; and they are really penalties imposed upon a member for his default. Kelly on Usury, 75 Law Lib., 76, (margin.)

Nor can the premium be considered usurious, because the company is expressly authorized to charge "such premium as may be agreed upon"--(sec. 87.) This section recognizes two classes of building associations, one of which may charge a premium, and [**9]  the other may buy the shares at a discount.

At the time when the petition in this case was filed, there was due to the company the sum of $ 519.75, including instalments and fines--a sum sufficient to sustain the jurisdiction of the Court. After the passing of the decree, under the agreement entered into between the parties, all the instalments were paid, and the Court, therefore, only directed the payment of the amount due for fines. If the appellee be entitled to collect the fines for the first default it is entitled to collect the fines for the failure to pay afterwards, because a valid tender was never made; as the full amount was never tendered, it was not bound to receive a less amount, and therefore there was no valid tender. Fridge vs. The State, 3 G. & J., 103, 114.  

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

OPINIONBY:
STEWART 

OPINION:

 [*79]  STEWART, J., delivered the opinion of the Court.
By the agreement of the parties in this case, it is admitted that the appellee is a corporation, under the Act of 1868, ch. 471, and has, for one of its objects, the advance and loan of money or credits upon any property, real, personal or mixed,  [**10]  and that the copy of the by-laws filed, may be used as evidence in the case; that the appellant received from the corporation the sum of $ 6,000 on his fifteen shares of its stock, re-payable in weekly instalments, including principal, interest and premium of $ 33.75 each; that the appellant failed to pay the instalment, due on Monday, the 19th of December, 1870; that he tendered the amount on the succeeding day, but the secretary refused to receive it, unless he would also pay the fine then claimed to be due, to wit: $ 3.37; that the appellant tendered, on each succeeding Monday, up to the date of the decree in the cause, the amount of the accrued and accruing instalments as named in the mortgage, but refused to pay the fines claimed to be due by the appellee, and the appellee refused to accept the instalments without the fines.
The following by-laws are applicable--By-Law, Art. 13, sec. 6: If any member, having received a loan, shall fail to 

 [*80]  pay his weekly dues, interest, premium or fine, for ninety days, the Company may compel payment by the sale of the mortgaged property.
Art. 23, sec. 3--If any person shall neglect, omit or refuse to pay his weekly dues at the time [**11]  required hereby, he shall be fined ten cents weekly for each and every dollar remaining unpaid.
The agreement waives all other questions except those relating to the right to recover the fines charged. The single fine, for the non-payment of the weekly dues, it seems, was $ 3.37 1/2, and the appellee claims for fourteen fines, amounting to $ 47.25. Under these circumstances, the only question to be determined, is the right of the appellee to recover the fines claimed.
Assuming authority to exist in the corporation to make the loan in question upon the terms stipulated, and the power to provide such by-laws, and that the appellant, by his failure punctually to pay the weekly dues on Monday, the 19th of December, 1870, did subject himself to the penalty provided in the by-law, Art. 23, sec. 3--to wit: the fine of $ 3.37 1/2, we do not perceive any ground for the infliction of the other fines because he did not pay this one.
If the appellant, regularly afterwards, tendered the weekly dues, including that omitted and the others, the refusal to pay the fine incurred did not subject him to the additional fines on that account.
The fine imposed was the penalty provided for the failure [**12]  to pay his weekly dues accruing on the 19th December, 1870, and because that was not paid, gave no right to the appellee to subject the appellant to an additional weekly fine, because of such non-payment. The fine incurred did not become a part of his weekly dues embraced by the by-law, but was a distinct and independent liability, which by-law, Art. 13, sec. 6, provided, if not paid in ninety days, the Company might compel payment thereof by the sale of the mortgaged property, according to the purport of that provision.

 [*81]  The tender of the accrued and accruing weekly instalments, protected the appellant against any additional fines, whilst his neglect or refusal to pay the incurred fine might subject him to the provisions of by-law, Art. 13, sec. 6.
The by-law, Art. 23, sec. 3, expressly provides for the non-payment of weekly dues--that is the proportion of the principal, the interest and the premium, and the forfeiture of ten cents weekly, for each and every dollar remaining unpaid.
If the fine incurred became part of the weekly dues, then ten cents per dollar might as well be claimed on that additional sum. We find no warrant for such construction of [**13]  the by-laws of the Company. In no event, under the facts admitted, can the appellant be held accountable but for the failure to meet the weekly dues on the 19th of December, 1870.
Under the by-laws, he rendered himself liable to pay the fine of ten cents per dollar on his weekly dues, amounting to $ 3.37 1/2.
Tender having been made by the appellant of all the instalments, and nothing remaining due except the fine aforesaid, a Court of Equity can give no relief for a matter below its jurisdiction. Code, Art. 16, sec. 78. A majority of the Court think the order below ought to be reversed.
Order reversed. 

144 of 144 DOCUMENTS 

WILLIAM M. BUSEY, HENRY N. BANKARD AND ISAAC MCCURLEY vs. WILLIAM J. HOOPER, JAS. S. HAGGERTY, A. P. BURT, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 15; 1872 Md. LEXIS 1 

January 10, 1872, Decided 

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

The bill in this case, filed by the appellants on the 24th day of March, 1871, states that certain parties were incorporated by the Act of 1870, ch. 438, by the name of "The Citizens' Railway Company," with power to lay and construct passenger railways in the city of Baltimore--that the capital stock was fixed at $ 300,000, divided into shares of $ 20 each; that the affairs of said corporation were to be managed by a president and seven directors; that the parties named in the Act (eleven in number) should choose from their own number a president, and the remaining incorporators, or a majority of them, should act as a board of directors for the management of the affairs of the company until the first general meeting of the stockholders; that a majority of the parties in said Act named, signified their acceptance, and books of subscription to the capital stock were formally opened as required by section 8, and contained a certain agreement, to be found set out in full in the opinion of this Court. That Busey subscribed for 8,000 shares of the capital stock, Bankard 10 shares, and McCurley 5 shares, more than a majority of the whole [**2]  number of shares; that they have been at all times willing and ready to comply with all their legal undertakings by reason of such subscription, whenever thereunto legally required; that all the parties named in said Act, except four, declined to act, and that the four so remaining acted as a board of directors; that Samuel Snowden, one of those remaining, refused to unite with the others; that said remaining incorporators, being but three in number, did not constitute a majority of the incorporators remaining after the election of president, and were incompetent by reason thereof to perform the duties required of them; that said remaining incorporators being but three in number, assuming to act as directors, did, on the 24th day of February, A. D. 1871, issue a call for the payment of $ 5 per share, and at the same time published a notice for the election of officers to take place on the 28th day of March, 1871; that the complainants did not make any payment on account of their subscriptions, because the person named as treasurer had not been legally and properly elected, and because the parties who issued said call had no right or authority so to do; that afterwards, to wit: on the [**3]  18th day of March, 1871, the defendants, pretending to be stockholders in said corporation, assembled in Raine's Hall, in the city of Baltimore, and then and there despite of the notice already given to meet on another and a different day, and without any previous notice to the complainants, and with the intent of depriving them of their just rights as stockholders in said corporation, pretended to elect the defendants as officers of said corporation; that the defendants have taken possession of the books, seal, &c., of said corporation, and have begun to dig up the streets, and to put down rails in accordance with the privileges granted by said Act to the complainants and others, having a majority of the stock; and that the said defendants have conspired and confederated together for the purpose of defrauding the complainants out of their just rights as stockholders in said company, by privately and secretly meeting together without notice to the complainants, holding as they do, a majority of the stock of said company, and that said pretended election was a part of the contrivance and machinery with which the defendants designed to accomplish and perpetrate the said fraud.

The [**4]  bill then prays for an injunction restraining the defendants from interfering or intermeddling in any way or manner with the concerns, business or affairs of the said Citizens' Railway Company, the appointment of a receiver, &c. An injunction was granted (GAREY J.) upon the filing of the bill. The defendants filed an answer. It admitted the Act of incorporation and its acceptance by a majority of those therein named; the organization of the company, and the opening of books of subscription, and the contract of the subscribers to pay $ 5 per share on the stock when called upon. It admitted the subscription of the 8,015 shares of the stock by complainants, but denied that they were ever able, willing or ready to comply with their obligations, or ever intended to comply when they subscribed; but alleged that their purpose was to speculate upon and embarrass the operations of the company; that Busey, who subscribed for 8,000 shares, was a young man without means, adequate to the fulfilment of his contract, and never designed or contemplated a compliance with his undertaking, unless he could sell out his subscription at a profit, before being required to pay up an instalment on the stock;  [**5]  that at each and every meeting of the company, a majority of those who accepted the charter, were present and took part in the proceedings, and that Samuel Snowden acted as secretary at every such meeting; that notice for the call of $ 5 per share was duly published, and written notice delivered likewise to all the complainants; that the treasurer of the corporation was duly and legally elected, and gave bond in the penalty of $ 100,000. The respondents admitted that they did call a meeting of the incorporators at Raine's Hall, on the 18th of March, 1871, and while in session they received a communication addressed to them, signed by each and all of the subscribers to the stock of said company who had paid up their instalments, and complied with their contract with the company, suggesting that the stockholders be called together at once to effect a permanent organization; they alleged that there was present at that meeting every single stockholder who had subscribed to the stock and paid up his instalment, and it was by the unanimous request of the stockholders in writing, that the time for the permanent organization of the company was changed from the 28th to the 18th of March. They [**6]  stated that at a meeting of the incorporators a committee was appointed for the purpose of looking into the condition of the corporation, and with authority to make any contracts that they might deem judicious, for the commencement of the building of the road in pursuance of the provisions of the charter; that said committee entered into a contract on the 10th of February, 1871, with a certain John E. Eschbach, for the building of one mile of the road; that under said contract the said Eschbach had proceeded with his work, and laid the track and bed of said road in certain streets of the city of Baltimore, all of which it was claimed they had the right to do under their charter. The respondents denied that they had held any secret meetings, or that they had in any way confederated together to injure or defraud the complainants; on the contrary, the said complainants had full knowledge of the time and place of each and every meeting of the company; that in utter disregard of their contract with the company and their responsibility in the premises, the complainants refused to pay the instalments on the stock subscribed by them. It was further alleged that Hagerty, one of the respondents,  [**7]  after the books of subscription had been opened, intending to subscribe for a large amount of the stock, for himself and others, was prevented from so doing by the subscription of the said Busey, which as believed by the respondents, was made and intended simply and only to embarrass the operations of the company; that feeling satisfied that Busey would not comply when called upon for his instalment, the said Hagerty agreed with the corporation to take 8,000 shares of the capital stock, in the event of Busey making default in his undertakings--that accordingly the said Hagerty subscribed for that number of shares with the understanding that he should have the right to claim the same, only upon default by Busey; that having given the complainants ample time, if they intended to comply with their undertakings, and being satisfied that they had no such purpose, (a fact admitted by them in their bill of complaint,) the corporation accepted the instalment of Hagerty on the stock subscribed by him, which he paid to the treasurer of the company by certified checks on the Franklin and the National Bank of Baltimore.

The answer also stated in response to interrogatories propounded in the [**8]  bill of complaint, that the said Hagerty assigned and transferred a number of shares of the capital stock of said company to various persons; that he transferred to the respondent Hooper 500 shares, the said Hooper having previously subscribed for 25 shares of said stock.

Upon the filing of the answer a motion was made to dissolve the injunction, and the complainants asked for a commission to take testimony which was issued, executed and returned. The case was heard on the motion to dissolve, and on the 16th of May, 1871, the Court (PINKNEY, J.) passed an order dissolving the injunction.

From this order the complainants appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Corporation -- Subscribers to the Capital Stock of an Incorporated company -- Refusal to pay an Instalment on shares of Stock subscribed for -- Application for an Injunction -- Presumption in favor of the legal existence of an Incorporation -- Effect of the Withdrawal of a Corporator from the Corporation -- Effect of a mere Subscribing to the Stock of an Incorporated company.

A bill alleged the incorporation of certain persons by the name of "The Citizens' Railway Co.," and that by the eighth section of the Act of incorporation, it was provided that the parties named in the Act should choose from their own number a President; and the remaining incorporators, or a majority of them, should act as a board of directors for the management of the affairs of the company until the first general meeting of the stockholders; it further alleged that a majority of the parties named in the Act accepted the same as required, and books of subscription to the capital stock were formerly opened, which contained an agreement by which it was agreed that the parties subscribing would take the number of shares opposite to their respective names; that the capital stock of the company should not be more than $ 300,000, and it should be divided into shares of $ 20 each; that as soon as two thousand shares should be subscribed, each subscriber would pay $ 5 per share, at the office of the treasurer. The bill further charged that the complainants subscribed collectively for eight thousand and fifteen shares, and had been ready and willing at all times to comply with their legal undertakings when lawfully required; that certain corporators declined to act as such, and only four remained; that one of the four refused to unite with the remaining persons, who, being but three in number, did not constitute a majority of the incorporators after the election of a president, and were therefore incompetent to perform the duties required of them; that notwithstanding such incompetency, they issued a call for the payment of $ 5 per share, and at the same time published a notice for the election of officers on a day named; and that the defendants pretending to be stockholders in the corporation proceeded to elect officers thereof; that said defendants had taken possession of the seal, books, &c., of the corporation and kept them concealed; that by their agents they had begun to dig up the streets, and put down rails in accordance with the privileges granted by the Act of incorporation to the complainants and others, having a majority of the stock. The complainants further charged that they did not make any payment on account of the shares subscribed by them, because the person named as treasurer had not been legally elected, and because the parties who issued the call had no right to do so. The bill charged fraud and conspiracy, and prayed for an injunction, a discovery, and the appointment of a receiver. HELD:

1st. That the complainants, upon their own showing, were mere subscribers who refused to comply with the terms of their own subscription.

2d. That the complainants by subscribing to the shares of stock, promised not only to take the shares, but to pay for them in accordance with the terms and conditions of the subscription.

3d. That the complainants having failed to comply with the conditions and terms of their subscription to the capital stock of the railway company, without any default on the part of the corporation or its officers, had not such rights or interests in the stock as to entitle them to an injunction.

Where a corporation has gone into operation, and rights have been acquired under its charter, every presumption should be made in favor of its legal existence.

Where an Act of incorporation is accepted, and the company organized provisionally thereunder, no subsequent withdrawal of any of the corporators will effect its vitality.

The mere subscribing to the stock of an incorporated company, does not constitute the subscriber a stockholder, but puts it in his power to become such by compelling the corporation to give him the legal evidence of his being a stockholder, upon his complying with the terms of the subscription. 

COUNSEL:
Samuel Snowden and Orville Horwitz, for the appellants.

By virtue of their subscription to the stock of the corporation, the complainants became the owners of the amount of stock subscribed for by them, and entitled to all the rights and privileges of stockholders; and such subscription made them members of the corporation, and entitled to vote at elections. Spear vs. Crawford, 14 Wend., 20; Lathrop vs. Kneeland, 46 Barb., 433; Dayton vs. Borst, 31 N. Y., 435; Smith vs. Grover, 2 Duvall, (Ky.,) 17; Chaffin vs. Cummings,  [**9]  37 Maine, 83; Curry vs. Scott, 54 Penn., 270; Miner, et al. vs. Mechanics' Bank, 1 Peters, 46; N. A. & S. R. R. Co. vs. McCormick, 10 Ind., 499; Lexington, &c., R. R. vs. Staples, 5 Gray, 520; Donning vs. Potts, 3 Zabr., 66; Van Dyke vs. Stout, 4 Halst. Chan., 333.

The subscription books for the shares of the Citizens' Railway Company were opened in May, 1870, and were continued opened for nearly one year, without there being any subscriptions except for a few shares, when on February 17th, 1871, the appellants subscribed for 8,015 shares of stock. They immediately then became entitled to that number of shares of stock, and according to the very terms of the agreement entitled to vote for the officers to be elected upon the permanent organization of the company--and consequently no election for officers could be valid unless the proper notice was given to them of the time and place of such elections. State vs. Fergusson, 31 N. J., 130; Abbott's Digest, 457, section 12; Angell & Ames on Corp., 393; Grant on Corp., 80 Law Lib., 213, (top page.)

The rights thus acquired by the appellants could not be forfeited by the corporation, even if a call had been legally made, because [**10]  the charter does not authorize the forfeiture of stock. Angell & Ames on Corp., sec. 356, ch. 10, sec. 5; R. & B. R. R. vs. Thrall, 35 Vt., 536, (553;) Long Island R. R. Case, 19 Wend., 37; Ex parte Barton, 28 Law Jour. Chan., 637; Nat. Pat. Steam Fuel Co., 5 Jur., N. S., 420.

Nor could they be forfeited by non-compliance with the alleged call, because at the time when the said alleged call was made, a majority of the parties named in said charter were not acting as a board of directors, and said call was therefore illegal. Act of 1870, ch. 438, sec. 8; Angell & Ames on Corp. secs. 501, 502, 508; Blacket vs. Blizard, 17 Eng. C. L. R., 508.

And in an action for such instalments the corporation could not have recovered. Price vs. The Grand Rapids, &c. R. R. Co., 13 Ind., 58; Cowley vs. The Grand Rapids, &c., R. R. Co., 13 Ind., 61; Hamilton vs. The Grand Rapids, &c., R. R. Co., 13 Ind., 347.

The appellants did not ask a Court of Equity to compel a corporation to transfer to them certain shares of its stock, for of these they were already the lawful owners, but they asked it to prevent certain persons who without any right, had usurped the control of the corporation and [**11]  were proceeding to exercise the franchises granted by the charter, without regarding the rights or interests of the stockholders in that corporation. In such a case can a Court of Equity refuse to interfere? Are not the claims of the appellants recommended by the dictates of conscience and the clearest principles of justice? Md. Sav. Inst. vs. Schroeder, 8 G. & J., 93.

Thomas M. Lanahan, for the appellees.

The case disclosed upon the face of the bill is not such as to warrant the intervention of a Court of Equity, as the complainants can have full, adequate and complete remedy at law.

"A subscription for shares in the stock of a joint-stock incorporated company is a contract, and the interest acquired is sufficient consideration to support an action." Angell & Ames on Corp., secs. 517, 564.

"Chancery will not entertain a bill to try the validity of the election of corporate officers, who are de facto exercising corporate functions, especially where nothing appears to prevent seeking redress at law." Abbott's Digest on Corp., p. 310, sec. 63; also p. 816, sec. 285; 27 Penn. State Rep., 261, as to the measure of damages in such cases; Perkins vs. Union Button Hole [**12]  Company, 12 Allen, 273; Arnold vs. The Suffolk Bank, 27 Barb., 424; Abbott's Digest on Corp., 765.

It is not sufficient to entitle a complainant to an injunction simply to assert that he will suffer "irreparable damage"--the "irreparable damage" must be set out in the bill. Herr vs. Bierbower, 3 Md. Ch. Dec., 456; Roman vs. Strauss, 10 Md., 89.

The bill in this case does not set out what injury the complainants are likely to suffer from the allegations set forth--but simply asks that the defendants may be restrained from exercising the rights and privileges acquired under the charter, without claiming those rights and privileges for any one else. The corporation is to be thus tied up, and all action interdicted by the injunction, which is made to accomplish indirectly the province of a "scire facias or quo warranto." Angell & Ames on Corp., sec. 410; Gray vs. Portland Bank, 3 Mass., 364; King vs. Bank of England, 2 Douglas, 526; Shipley vs. Mechanics' Bank, 10 Johnson, 484; Wilkinson vs. Providence Bank, 3 R. I., 22; Bligh vs. Brent, 2 Young & Collier, 268; Hart vs. Froutins and Bolivia Gold Mining Co., 5 Exchq. Rep., 111, L. R.; Thorpe vs. Woodhull, 1 Sandf. Ch., 411.

Who [**13]  constituted the corporation under section 7 of the charter? Only those who accepted the charter in the manner therein provided. State, use of Wash. Co. vs. B. & O. R. R. Co., 12 G. & J., 434; Angell & Ames on Corp., secs. 81, &c. These six persons constituted the corporation, a majority of them had a right to make the call, and the same was in all respects legal. Angell & Ames on Corp., secs. 500, 501, 502, 503; Bank of Maryland vs. Ruff, 7 G. & J., 448; Chase vs. Sycamore & Courtland R. R. Co., 38 Ill., 215.

The complainants having confessedly refused to pay up their instalments on the call made upon them, the corporation had a clear right to treat their subscription as a nullity. Perkins vs. Union Button Hole Co., 12 Allen, 273; Abbott's Digest Law of Corp., pp. 798, 799, secs. 134, 135, 136, 137; Klein vs. The Alton and Sangamon R. R. Co., 13 Ill., 514; Piscataqua Ferry Co. vs. Jones, 39 N. H., 491; Angell & Ames on Corp., sec. 530.

What was the contract with the corporation, and in what did it differ from any other contract, that might be made, in reference to the bargain and sale of property? It bears upon its face the impress of being made by the complainants, not in [**14]  "good faith," as it is conclusively shown by their own testimony that they were not able to take the stock when they subscribed, and never intended to do so, unless they could speculate upon the company. All the reasons set up by them in their bill for not taking it, and not paying their instalments have been abandoned by them in the testimony. Angell & Ames on Corp. sec. 146, and note; Lewey's Island R. R. Co. vs. Bolton, 48 Maine, 455; Penobscott R. R. Co. vs. White, 41 Maine, 512.

Whether the company had the right or not to make a change in the time of effecting a permanent organization, the complainants have no right to object. Angell & Ames on Corp., secs. 491, 495; Abbott's Digest Law of Corp., p. 458, sec. 26, and p. 459, sec. 33; Jones vs. Milton and Rushville Turnp. Co., 7 Ind., 547.

Every material allegation in the bill having been denied by the answer, and the proof in no way contradicting the answer, the injunction must be dissolved. From the character of the testimony taken by the complainants in this case, it is now before the Court as though the hearing was upon the bill and answer, where all the allegations were denied by the answer. The complainants cannot [**15]  go outside of the allegations of their bill. Bouldin, et al. vs. Mayor, &c. of Balt., et al., 15 Md., 20, 22; Barroll's Chan. Prce., 310.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*25]  BOWIE, J., delivered the opinion of the Court.
Two prominent questions are presented by the record in this cause, either of which is decisive, without inquiring into all the minor and collateral issues raised in the briefs, viz:
1st. Had the complainants such adequate and complete remedy at law, as would deprive them of the aid of a Court of Equity?
2d. If the complainants have a right to equitable interposition, have they established their claim to the relief prayed for?
The jurisdiction of the Court depends upon the allegations of the bill. They furnish the facts (sometimes termed jurisdictional,) which determine whether the remedy is at law or in equity. They may show a case, for which there is an adequate and complete remedy at law; or such, as is only cognizable in equity; or cases of concurrent jurisdiction, in which the Courts of Equity interpose to restrain or prevent irremediable injuries, in aid of Courts of law.
The appellees (the [**16]  defendants below,) insist that the bill in this cause belongs to the first class of cases: that the complainants have an adequate and complete remedy at law, by an action for damages, and therefore the injunction should be dissolved. The learned Judge who decided this case below has adopted this view, and referred to a number of cases as sustaining his conclusion.
It may be said of those cases generally that they were actions at law, in which the powers of a Court of Equity were not in question, and the specific remedy alluded to was a mandamus, which though a proceeding at law is sometimes compared to a bill in equity.
We will refer to a few of these cases by way of illustration. Gray vs. The Portland Bank, 3 Mass. 364, was a special action on the case for damages accruing to the plaintiff, from the refusal of the defendants to deliver to him certificates for certain shares of stock.

 [*26]  SEWALL, J. said that in the case of the "King vs. The Bank of England," (2 Douglas 524,) it was decided that the Court will not grant a mandamus, because there is a remedy by an action on the case if they refuse; which Lord MANSFIELD said would lay [**17]  for a complete satisfaction, equivalent to a specific relief. In the principal case then under consideration, a specific relief or restoration of the stock was not demanded by the action, and it was not (said the Court,) within the reach of the Court by any authority they could exercise.
In the matter of Shipley against the Mechanics' Bank, 10 Johns. 484, the application was for a mandamus. The Court said "the applicants have an adequate remedy at law by a special action on the case, to recover the value of the stock, if the bank have unduly refused to transfer it. There is no need of the extraordinary remedy by mandamus in so ordinary a case. It might as well be required in every case where trover would lie. It is not a matter of public concern, as in the case of public records and documents, and there cannot be any necessity, or even desire of possessing the identical shares in question."
In the case of The King vs. The Bank of England, the Court said "they never grant a mandamus except for public purposes, and to compel the performance of public duties."
There is no parallel between a bill for an injunction and receiver as in the present case,  [**18]  and a petition for a mandamus; the reasons for rejecting the one do not apply to the other. The case of The Union Button Hole Co., 12 Allen 273, was an action at law for damages for non-delivery of certain certificates of shares of stock, in which no question could be raised as to the authority of a Court of Equity, to protect by injunction vested rights. The bill in this case is not a bill for specific performance of a contract, or in the nature of an application for a mandamus; but, claiming to be stockholders in a corporation, the complainants charge certain illegal, irregular, and fraudulent proceedings against 

 [*27]  the defendants in violation of the charter, and pray for an injunction, discovery and appointment of a receiver to protect their rights.
The preventive power of a Court of Equity to be exercised by injunction, is recognized in numerous cases, as the appropriate remedy for such injuries.
In Campbell & Voss vs. Ellicott, Poulteney & Co., 6 G. & J. 94, 102, certain stockholders of the Union Bank of Maryland filed their bill in equity against other stockholders, charging that the latter, in violation of the charter, [**19]  had caused a number of shares to be transferred without consideration to unknown persons, and had taken powers of attorney to vote their stock, thereby obtaining an undue and increased vote in the election of directors, and prayed an injunction.
It was objected, the remedy was by mandamus or quo warranto. After full argument, the Court (by BUCHANAN, C. J.) declared the matter of the bill furnished a sufficient ground for the interposition of a Court of Equity. The facts stated (it was said,) are in violation of the charter, and if carried into effect would be a practical fraud upon the appellants, and in derogation of their chartered rights, for the protection of which an injunction was the proper remedy.
To the same effect, Angel and Ames on Corporations, p. 396, (note 2); 6 Allen, (Mass. Rep.,) 52; 40 N.H. 548. Assuming that the bill is not objectionable on the ground that the complainants have an adequate and complete remedy at law, let us inquire whether they have alleged or proved such a title or interest in the stock of the Citizens' Railway Company, as entitles them to be treated as stockholders, and to invoke the aid of a Court of Equity to [**20]  protect their rights by injunction, etc.
Without recapitulating all the allegations of the bill, it is sufficient for this purpose to state that after setting out a copy of the Act of incorporation of "The Citizens' Railway Company," in which as is alleged, it is provided by the eighth section, "that the parties in said Act named should choose 

 [*28]  from their own number a president, and the remaining incorporators, or a majority of them should act as a board of directors for the management of the affairs of the Company, until the first general meeting of the stockholders," it is charged that a majority of the parties in said Act named, accepted the same as required, and books of subscription to the capital stock were formally opened as required by section eight of said Act, and contained the following agreement:
"We, the undersigned, agree to subscribe for, and hereby do take the number of shares opposite to our respective names, in the Citizens' Railway Company; the capital stock of the company shall not be more than three hundred thousand dollars, and it shall be divided into shares of twenty dollars each. As soon as two thousand shares have been subscribed, we severally [**21]  promise to pay five dollars per share for each and every share subscribed by us, at the office of the treasurer, A. P. Burt, No. 30 Second street, when receipts will be given signed by the treasurer and countersigned by the president. The remaining instalments shall be called for as the board of directors may find necessary for building, equipping and running the road. Each shareholder shall be entitled to one vote, either in person or by proxy, for each share of stock held; but every number of shares equal to one-tenth of the whole number subscribed shall be entitled to elect one trustee, and to that end, at the first ballot for trustees, no member shall vote for more than one trustee, and every person receiving the one-tenth of the votes cast shall be a trustee. At the second or other ballots, those receiving the highest number of votes cast shall be trustees to fill the vacancies if any remain after the first ballot; but any shareholder holding more than one-tenth of the shares, may vote at the first ballot for as many trustees as he has tenths of the whole number of shares."
"J. S. HAGERTY, President.
A. P. BURT, Treasurer."

 [*29]  The complainants charge they subscribed [**22]  collectively for 8,015 shares of stock, more than a majority of the whole number of shares, as appears by a copy of the aforesaid agreement, and signatures therewith filed.
On reference to this Exhibit, it appears that W. M. Busey subscribed for 8,000 shares on the 17th February, 1871; the subscriptions of Bankard and McCurley, have no date; but Bankard is immediately before, and McCurley's immediately after Busey's.
They further charge that they have at all times been ready and willing to comply with all their legal undertakings, whenever thereunto legally required.
That certain corporators therein named, declined and refused to act as such corporators, and there only remained Hooper, Richardson, Burt and Snowden, to perform the duties of corporators, and as a board of directors under the provisions of section eighth of said Act: that Snowden refused to act with the remaining persons, who being but three in number, did not constitute a majority of the corporators, after the election of a president, and were incompetent by reason thereof, to perform the duties required of them. That notwithstanding the above, the three remaining corporators did, on the 24th of February, 1871, issue [**23]  a call for the payment of five dollars per share, and at the same time publish a notice for the election of officers on the 28th of March, 1871.
The complainants further charge they did not make any payment, because the person named as treasurer had not been legally elected, and because the parties who issued the call had no right to do so. It thus appears from the bill, the complainants were mere subscribers, who refused to comply with the terms of their own subscription, upon grounds which they allege either suspended or invalidated the contract.
According to their own showing, the corporation had been previously organized under the provisions of section eighth. Books of subscription had been regularly opened; terms of subscription prescribed and signed on the part of the president 

 [*30]  and treasurer, and these terms subscribed by the complainants, thus recognizing the authority of the officers; yet repudiating these terms and disregarding the condition precedent, they claim the benefit of a contract which they have wholly violated.
Where a corporation has gone into operation, and rights have been acquired under its charter, every presumption should be made in favor [**24]  of its legal existence. Hagerstown Turnpike Co. vs. Creeger, 5 H. & J. 122.
If the Act of incorporation was accepted, and the company organized provisionally under the charter, no subsequent withdrawal of any of the corporators would effect its vitality. But the answer denies that there was any such reduction in the number of the corporators, and at this stage of the proceedings we assume the answers to be true when uncontradicted by the evidence. The contract of subscription was between the corporation on the one hand, and the subscribers on the other; it is not competent for one of the contracting parties, under such circumstances, to question the regularity of its organization, or the authority of its officers.
Having refused to pay the instalment, (which became due according to the terms of the subscription,) as soon as two thousand shares were subscribed; an event which occurred simultaneously with the subscription of the eight thousand shares by the complainant Busey, and of which no notice was required, being due by the terms of the contract, it remains to inquire what right, if any, was acquired by their subscription. In the language of the authorities, "the promise [**25]  of the complainants, the subscribers, to take the shares subscribed by them respectively, when taken in connection with what precedes and with the Act of incorporation, is a promise not only to take the shares, but to pay for them; to take them on the terms and conditions set forth in the subscription paper." Angell & Ames on Corp., sec. 519; Spear vs. Crawford, 14 Wend. 20.
The law is now considered as settled, that the obligation of actual payment is created in all cases by a subscription to a 

 [*31]  capital stock, unless the terms of the subscription are such as plainly to exclude it. Palmer vs. Lawrence, 3 Sandford 161; Elysville vs. Okisko Co., 5 Md. 152, and cases cited in Angell & Ames on Corp., 492, note 2d.
None of the cases decide that the mere fact of subscribing to the stock of an incorporated company, constitutes the subscriber a stockholder, but that such subscription puts it in his power to become a stockholder, by compelling the corporation to give him the legal evidence of his being a stockholder, upon his complying with the terms of the subscription. Spear vs. Crawford, 14 Wend. 24. [**26]  
The terms of the subscription in the present case so far from excluding, expressly require the payment of $ 5 per share, as soon as two thousand shares shall have been subscribed, as preliminary to the qualification of stockholders, who were to elect the permanent president and directors of the company. This payment was a condition precedent, without which there could have been no permanent organization. Upon payment of that instalment of $ 5 per share, receipts were to be given signed by the treasurer and countersigned by the president.
"The remaining instalments (says the agreement) shall be called for as the board of directors may find necessary for building, equipping and running the road."
The appellants, (the complainants below,) having failed to comply with the conditions and terms of their subscription to the capital stock of The Citizens' Railway Company, without any default on the part of the corporation or their officers, have not such rights or interests in the stock as to entitle them to the continuance of the injunction.
The order dissolving the injunction is affirmed.
Order affirmed.