UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY faculty library BJEPORT8 CASES * ARGUED AND DETERMINED IN THE COURT OF APPEALS MARYLAND, In 1826 & 1827. BY THOMAS HARRIS, Clerk of the Court of Appeals, i RICHARD^W. GILL> Attorney at Law. VOLUME I. 4MIEN ANNAPOLIS: PRINTED BY JONAS GREEN. 1828, . \ 3PASS. MITE. 7 12 For appeal read appear. 11 20 After property insert a comma, and erase the comma after JMfldS- sity. 39 For defendant read defendants. 26 7 For Aem'ra read therein. 34 20 For November read December. -27 For one? read an. For decision read sense. -1.3 After Gaunt erase the inverted commas. 9 After estates insert te7. - 2 After ;// insert stated to be. -26 Insert the inverted commas after appear, and erase them before This 153 22 For vendee's read vendees. 156 28 For being reaH been. 176 V After 5"c. insert, end should in the meantime renew the said notes at the nd of every 60 days, and pay the regular interest or diS' count upon the same, He. 11 After due erase the words above directed to be inserted. 237 12 After was insert an. . 23 For to reac! of. 308 14 After as insert a. 321 31 For appellee read appellants. 323 8 For Flannagan read Carman. 409 24 After laws erase the inverted commas. 413 7 For evidence read evidenced. 420 9 For prisoners read prisoner. 442 13 After running insert urc/A. 468 13 F,rase and 14 For are read being Erase it. 470 28 For drawer's read drawee's. 488 38 After reported insert m. 492 8 For become read became. 511 tit. ASSVMPSIT, 6, line 4. After anrf insert I NAJVIES OF THE JUDGES, &c. DURING THE PERIOD COMPRISED IN. THIS VOLUME. OF THE COURT OF APPEALS. Hon. JOHN BUCHANAN, Chief Judge. Hon RICHARD TILGHMAN EARLE, Judge. Hon WILLIAM BOND MARTIN, do, Hon. JOHN STEPHEN, do. Hon. STETENSON ARCHER, do. Hon. THOMAS BE ALE DORSET, do. OF THE COURT OF CHANCERY. Hon. THEODORICK BLAND, Chancellor. OF THE COUNTY COURTS. FIRST JUDICIAL DISTRICT St. Mary's, Charles and Prince-George's Counties. Hon. JOHN STEPHEN, Chief Judge. Hon. EDMUND KEY, Associate Judge. Hon. JOHN ROUSBY PLATER, do. SECOND JUDICIAL DISTRICT Cm/, Kent, Queen-Anne's and Talbot Counties. Hon. RICHARD TILGHMAN EARLE, Chief Judge. Hon. LEMUEL PURNELL, Associate. Judge. Hon. ROBERT WRIGHT, do. Hon. PHILEMON B. HOPPER, do. (aj THIRD JUDICIAL DISTRICT Calverf, Jbint-Jlrundd and Montgomery Counties. Hon. THOMAS BEALE DORSEY, Chief Judge. Hon. CHARLES J. KILGOUH, Associate Judge. Hon. THOMAS H. WILKINSON, do. FOURTH JUDICIAL DISTRICT Caroline, Dorchester, Somerset and Worcester Counties. Hon. WILLIAM BOND MARTIN, Chief Judge. Hon. JAMES B ROBINS, Associate Judge. Hon. WILLIAM WHITTINGTON, do. Hon AHA SPENCE, do. (~b_) Hon. WILLIAM TINGLE, do. (~cj FIFTH JUDICIAL DISTRICT Frederick, Washington and Mlegany Counties. Hon. JOHN BUCHANAN, Chief Judge. Hon. ABRAHAM SHRIVEH, Associate Judge. Hon. THOMAS BUCHANAN, do. SIXTH JUDICIAL DISTRICT Baltimore and Tlarford Counties. Hon. STEVENSON ARCHER, Chief Judge. Hon. CHARLES W. HANSON, Associate Judge. Hon. WILLIAM H. WARD, do. OF BALTIMORE CITY COURT. Hon. NICHOLAS BRTCE, Chief Jtulge. Hon. WILLIAM M'MECHBN, Associate Judge. Hon. ALEXANDER NISBET, do. ATTORNEY GENERAL. TJiomas Kell, Esquire. (a) Appointed the 25th of October 1*28, in th<- place of Jmlr"> Wright, deceased. (6) Ap\>oint-d on the 2S.h o October 1826, to ft'l iht vacancy <>tvaiioned by the death of Judp> Rohlns. (c) Av'-omtrd on the 9th of March 1327. to iill the vacancy occasioned by the death of Imdge Whittington, TABLE REPORTED IN THIS VOLU3VIE. ft. B. The letter v follows the name of the appellant or plaintiff in error, and the word and that of the appellee or defendant in error. Bacon's Aclm'r. v Ferryman, 164 Baker & Middleton and Cap- peau's Bail, 154 Baltimore Equitable Society, &c. and Jolly's Adm'rs. 295 Baltzell, J. & C. v Foss, el al. 504 Bank of Columbia and Kaborg, 231 o Fitzhugh, 239 Barron and Murphy, 258 Berry v Griffith, 440 Betts, et ux v Union Bank of Ma- ryland, 275 Bourne v Mackall, 86 Boyd and James, et al. Lessee, 1 Brickley & CaMwell and Morris, 107 Brunner and Sauerwr-in, 477 Buchanan v Deshon, et al. 280 PAGE. Fergusson, et al. and Turner, 161 Fisher and Hurtt, 88 Fitzhugh and Bank of Columbia, 239 Flannagan's Adm'r. and M'Elder- r\ , et al 308 Floyd's Lessee and Fenwick, 172 Forbes and Wall, 441 Foss, et al. and J. & C. Baltzell, 504 Giles, Adm'r. of Bacon v Ferry- man, 164 Goodwin and Cathell, 468 Gover, et al. Lessee v Cooley, 7 Gray and Oliver, 204 Griffith and Berry, 440 ct al. and NcWtOn, et al. Ill Caldwell & Brickley and Morris, 107 Cappeau's Bail v Middleton &, Ba- ker, 154 Cathell v Goodwin, 468 Conner and Drtiry, 220 Cooley and Gover, et al. Lessee, 7 Darnall's Ex'rs. v Magrudcr, 439 DashielPs Adm'r. and M'Cullob, 96 Deshon, et al. and Buchanan, 280 Dillon and Williamson, 444 Drury v Conner, 220 Duvall, et ux. v Harwood's Adm'rs. 474 Harwood's Adm'rs. and Duvall, et ux. 474 Higdon, et ux. v Thomas, 139 Hurtt v Fisher, 88 James, et al. Lessee v Bovd, I Jenkins, et al. andi. &. P. Turner, 161 Jolly's Adm'rs. v Baltimore Equi- table Society, Sec. 295 Leadenham's Ex'r. v Nicholson, etal. 267 P Itt Fenwick v Floyd's Lessee, 172 M'Culloh DashieU's Adm'r, 96 Vlll. CASES REPORTED. PAGE. M'Elderrv, et al. v Flannagan's Adm'r. 308 Mackall and Bourne, 86 M'Neal & Taylor v Phelps, 492 Magriider and Darnall's Ex'rs. 439 Marks and .Sanderson's Ex'rs. 252 Middle-ton & Baker anof Cappeau's Bail, 154 Morris v Brickley & Caldvvell, 107 Murdock Winter's Adm'r. 471 Murphy v Barren, 258 Newton, et al. v Griffith, et al. Ill Nicholson, el al. and Leadenham's Ex'r. 267 Oliver v Gray, 204 Owings's Ex'rs. v O wings, 484 s Sanderson's Ex'rs. Marks, 252 Sauerwein v Brunner, 477 Sevirell v Sewell's Adm'r. 9 State, (The) "e of Polk and Ro- bins, et al. 4>76(~note.J Taylor & M'Neal v Phelps, 492 Thomas and Higdon, et ux. 139 's Lessee v Turvey, 435 Turner, J. & P. v Jenkins, et al. 161 Turvey and Thomas's Lessee, 435 Union Bank of Maryland and Belts, et ux. 175 v Ridgely, 324 Ferryman and Bacon's Adm'r. 164 Phelps and Taylor & M'Neal, 492 Polk and Robins, et al. 476Cnote.J Raborg v Bank of Columbia, 231 Ridgely and Union Bank of Mary- land, 324 Ringgold, S. & T. v M. Ringgold, et al. 11 Robins, et al. v The State, use of Polk, 476fno/e.J> Vandersmith v Washmein's Adm'r. 4 w Wall v Forbes, 441. Washmein's Adm'r. and Vander- smith, 4 Williams, et al. and Leadenham's Ex'r. 267 Williamson v Dillon, 444 Winter's Adm'r. and Murdock, 471 CASES ARGUED AND DETERMINED IN THE OP MARYLAND. JAMES, et al. Lessee, vs. BOYD. June Term, 1820. The lessor of the plaintiff in ejectment died pending the action, and lite heirs at law were made parties in his place, without objection, and the cause continued several terms, and the plots amended Held, that it was not competent for the defendant to defeat the action by giving evidence that one of the heirs was an infant when she was made a party; and that evidence that she was an infant at the time of the trial, would not enti- tle the defendant to a verdict against the other heirs vho were of full age. APPEAL from Ilarford County Court. Ejectment on the demise of Isaac Henry, for a tract of land called Pleasant Plains. Thfi ilnfondant, (the appellee,) took defence, on war- rant, and plots were returned. The death of Isaac Henry, the lessor of the plaintiff, was suggested; and Sedwick James, Junr. and Elizabeth his wife, John Litton Henry, Samuel Henry, Robert Henry and Mary Henry, claiming to be heirs at law and representatives of the said Isaac Henry, the lessor of the plaintiff, upon their prayer, were, by order of the court, admitted in the place and stead of said Isaac Henry, lessor as aforesaid, &c. At the trial the defendant gave in evidence, that Mary Hen- ry, one of the lessors of the plaintiff was, at the time she was made a party in the cause, an infant and under age; and there- upon prayed the court to direct the jury to find a verdict for the defendant. Which direction the Court, [Hanson and Ward, A. J.] thereupon gave. The plaintiff excepledj and VOL. j. 1 CASES IN THE COURT OF APPEALS JAMES v. BOTD. 1826. the verdict and judgment being against him, he appealed to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE. and DORSET, J. C. S. W. Dorsey and Gill, for the Appellant, contended 1. That under the act of assembly of 1785, ch. 80, s. 2, it is the duty of the court, in an action of ejectment, where a new party is made under a suggestion of death, if such new party- be proved to be an infant, to continue such action, unless the defendant require the same to be abated. 2. That the second section of the above act does not apply to this case; and therefore the court below erred in the instruc- tion given to the jury. 3. That the new parties were properly made under the first section of the above act. 4. That if a party, when appearing to an action of ejectment under this act, be an infant; yet if it does not appear that he was an infant when the jury was sworn, the court have no right either to continue or abate the suit under the second sec- tion of that law. On the first point, they cited 1 Bac. M. tit. Abatement, IS. Thurstout vs. Grey, 2 Stra. 1056. Kinney vs. Beverly, 1 Hen. 4* Munf. 531. Howard vs. Moale, et al. Lessee, 2 Harr. 4' Johns. 249, 280, per Nicholson, J. 2 Sellon's Pr. 1 36. On the second point Zouch vs. Parsons, 3 Burr. 1806. Runn. Eject. 188. 3 Com. Dig. 54S, (New Ed.) Anonymous, 1 Wils. 130. Noke vs. Wind ham, 1 Stra. 694. Throgmor- ton vs. Smith, 2 Stra. 932. Anonymous, 1 Cowp. 128. On the third point Shivers vs. Wilson, 5 Harr. 4 Johns. 130. On the fourth point 3 Com. Dig. 551. Foxurstvs. Tre- maine, 3 Saund. 213. Speed, for the Appellee cited Co. Litt. 135, b. (note 1.) Stat. West 1. The act of 1785, ch. 80. Motteux vs. St Au- bin, 2 W. Blk. 1133. Pechey vs. Harrison, 1 Ld. Raym. and the act of 1801, ch. 74, s. 38. OF MARYLAND. JAMES v. BOYD. 1826. The opinion of the Court was delivered by EARLE, J. Isaac Henry, the lessor of the plaintiff in this case, died pending the action, and his heirs at law were made parties in his place, without objection on the part of the de- fendant. The cause was continued for several terms after, and the plots filed therein underwent alterations and amendments. At the trial the defendant, by a witness, proved, that Mary Henry, one of the heirs, at the time she was made a party, was an infant and under age; and by his counsel he then mov- ed the court to direct the jury to find a verdict for him; which direction the court accordingly gave. This direction is now complained of, and there does not rest, on our minds, a particle of doubt, that it was erroneous. To arrive at this conclusion it is not necessary to examine the question so much pressed on the argument, whether at common law an ejectment abates by the death of the lessor of the plaintiff; nor need we enquire whether an infant lessor must prosecute an ejectment by attor- ney, or next friend; it is enough for us to know, that the testi- mony of the defendant had no bearing upon the issue joined between the parties, was calculated to operate a complete sur- prise upon the plaintiff, and did not answer the purpose for which it was introduced; that is to say, did not prove the suit prosecuted by a party who was incompetent, from nonage, to prosecute it. Whatever Mary Henry'' s age might have been when she was made a party to the suit, it is not established by evidence, that she was an infant at the time of the trial. As her age, when she appeared as one of the heirs of her ancestor, is unascertained, it is as fair to conclude, that she arrived at lull age before the trial, as that she remained a minor until that pe- riod. But if it was conceded, that Mary Henry was an in- fant at the time of the trial, ought the court, for that reason, to have directed the jury to find for the defendant, not only against such infant, but against the other new lessors of the plaintiff who were of full age? The court are acquainted with no principle of law to sanction such a decision, and therefore must reverse the judgment. JUDGMENT REVERSED; A5D PROCEDENDO AWABDEP. 41 CASES IN THE COURT OP APPEALS VANDERSMITH v. WASHMEIN'S Adm'r. 1826. VANDERSMITH vs. WASHMEIN'S Adm'r. June, 1826. After verdict in an action of assumpsit, by an administrator, a defective allegation in the declaration, of the promise to the administrator, and the death of the intestate, and an omission to make profert of the letters of administration, cannot be taken advantage of, though they might have furnished good causes of demurrer. >V, being taken sick at the house of V, deposited in his hands an amount of money, and directed V to send for a physician, to furnish him with every thing that was necessary, and to apply the money to the payment of the physician's bill, and of any expenses which might be incurred on his account during his sickness. V did send for a physician, and furnished W with every necessary and attendance during his sickness, \vhich in a few days ended fatally. On his death V paid for all the ex- penses, including the physician's bill. In an action of assumpsit brought against him by W's administrator, to recover the amount of the deposit. Held, that V was to be allowed for the amount paid the physician, if it was such as he was entitled to receive, as well as the other expenses. That the fund placed in his hands by W, was to be considered as a spe- cial fund, and that in relation to it he was to be looked upon as a trustee, or agent, of the physician, for whose remuneration it was in part creat- ed; but that it would have been otherwise if V had received the deposit for safe-keeping only. APPEAL from Baltimore County Court. Action of As- sumpsit foi money paid, laid out and expended; had and re- ceived; lent and advanced; and on an insimul compulassent. Non assumpsit pleaded, and issue joined. At the trial the plaintiff, (no w appellee, ) offered evidence, that the deceased, upon getting to the house of the defendant, (the appellant,) was taken. ill, and there delivered to the defendant the sum $149 50, to he taken care ot for him, the deceased. The defendant then offered evidence, by Peter Fandersmith, Dr. Marsh, and Benjamin Richardson, that the deceased arrived at the house of the de- fendant, and was taken very ill; that in about two or three hours afterwards, he told the defendant that he wished him to send for a physician, and to furnish him with every thing that was necessary, and to apply the cash delivered to him, the de- fendant, in payment of the physician's bill, and to the dis- charge of any expenses that might be incurred. That the de- fendant accordingly sent for a physician, and also went after- wards personally for him. That the physician attended the deceased during his illness, which lasted from Thursday until Saturday, when he died. That during the whole time, he was OF MARYLAND. VANDERSMITH v. WASHMEIN'S Adm'r. 1826. furnished with every necessary and attendance. That the de- fendant immediately after paid the physician's bill, amounting to $50, together with all funeral expenses, and other expenses attending the illness of the deceased, or in consequence of his death, and kept his horses, wagon, and other property, until about eleven days afterwards, when they were delivered to the piesent plaintiff. That the expenses so incurred, and which were reasonable, were paid between the 31st of August, on which day the intestate died, and the 5th of September 1822, and that administration was obtained on the 17th of June 1823. The plaintiff then prayed the court to direct the jury, that upon the evidence so offered he was entitled to recover the amount of his claim. Which opinion the Court, [Hanson and Ward, A. J. (a)] refused to give; but directed the jury, that the plaintiff was entitled to recover the amount of the money so deposited, after deducting therefrom such sum as they should think a reasonable compensation to the defendant for his at- tendance and care, and board ot the deceased, and the feed of the horses, during the time of the illness of the deceased, and his funeral expenses, but not the physician's bill, or any other expenses. The defendant excepted; and the verdict and judg- ment being against him, he appealed to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE, STEPHEN, and DORSET, J. R. B. Magruder, for the Appellant, contended 1 That the physician's bill was not a mere honorarium, but was re- coverable, and therefore ought to have been allowed to be set off by the defendant below. 2. That the money put in the hands of the defendant below, by the appellee's intestate, was a special deposit for the use of the physician. 1 Com. on Cont. 49, 56. 2 Com. on Cont. 7,26. Temple vs. Welds, 10 Mod. 315. Dowson vs. Scriven, 1 H. Elk. 218. 3. That the declaration was defective in not setting out pro- perly the promise to the administrator, nor the death of the in- testate, and in not making profert of the letters of administra- tion. fa} Archer, Ch. J. dissented. . and T. Ringgold, and that he, (Samuel,) always considered himself a trustee for Thomas Ringgold and family. The last summer, the an- swer states, that the ferry-house, a large and valuable building, was destroyed by the British, and since then the trustees have sold the property for $14,000, for which they are accountable. And although in the account rendered by the respondent, Hope- well is estimated at $20,178, yet he alleges it was only worth $16,000, the sum it was put up for at the public sale, and struck off at the trustees' bid. In the negotiation with R. S. Thomas it was estimated at $20,178 by which the trustees made $4,178 for the complainants. That exclusive of the $13,084 due to the respondent, he has made himself answerable for a large sum on account of a judgment obtained by one Maund, use of Ricketts and Newton. Suits were brought on the appeal bonds, executed on the removal of the original judgment to the court of appeals, and judgments obtained, and if compelled to pay, the balance due him will be proportionably increased. The claim, (Maitnd's) was thought unjust, and therefore con- tested. The answer denies that the complainants have been OF MARYLAND. 23 RlNGGOLD V. RlNGGOlD. 1826. entirely maintained by Mr. Gittings, for the respondent paid two thousand dollars. Samuel Ringgold administered on Benjamin Ringgold's estate, and the negroes, and some other property, were divided between the representatives before the deed of trust, not leaving enough to pay the debts. The part of the real estate in Washington county of Benjamin's, that Thomas was entitled to, he sold to Tench. Tench in his answer states in substance, so far as relates to Hopewell, and the ferries, the same facts as in Samuel's answer. In the original answer of Tench no vouchers were filed; exceptions were taken, which were sustained; and on the 15th of July 1816, an amended answer was filed, accompanied with certain vouchers. Thomas Ringgold having died on the 6th of Oc- tober 1818, a supplemental bill appears, setting forth, that on the 28th of March 1816, Thomas Ringgold transferred to his two sons Thomas and James, all his interest in the trust pro- perty, in trust, out of the interest and dividends, to provide for the father's comfortable maintenance, for the support and education of his two sons and their brothers and sisters, during their minority, and to divide the principal and interest equally between them, their brothers and sisters, as they respectively arrived at age, and authorised the grantees to compel a settle- ment with the defendants. Thomas Ringgold, on the 6th of July 1811, made a will, and after certain bequests devised the residue of his estate equally amongst his children the execu- tors renounced, when letters of administration were obtained by Mary his widow. Since the original bill, the supplemen- tal bill charges, that the trustees have sold more of the trust property, and received more money, and in the answers to the original bill they did not account for all they had received, particularly nine negroes taken by Samuel at $2000, and that they have not accounted for rents received. In the supple- mental bill it is alleged, that the deed of trust to the sons being subsequent to the will, revoked it. Samuel, in his answer to the last bill, denies that any of the trust funds were sold, ex- cept some lands in Kent, for which suits were depending to recover the purchase money; and except another small piece, the purchase money for which was received by James G. Ringgold, one of the complainants. Admits the delivery of 24 CASES IN THE COURT OF APPEALS RlNGGOLD V. RlNGGOLD. 1826. the negroes to him at $2000. On the 13th of July 1820, with the consent of the parties, an interlocutory decree was made, directing the auditor "to state an account upon the evidence already taken, and upon such other evidence as shall be pro- duced before him by either of the parties. That the auditor shall state accounts according to the instructions of each of the parties, and that all equity, as to the rights of the parties, be reserved until final hearing." After taking, in virtue of the decree, a variety of evidence, and with the mutual admissions of the correctness of various items against the defendants, and of sundry disbursements in their favour, on the 6th July 1822, his report was made, containing several accounts in pursuance of the complainants' instructions One of the defendant's, and a third in conformity with the auditor's own judgment. From the voluminous papers and documents, the variety of evidence, and the extensiveness of the transaction, much labour and attention are indispensable for a correct decision of this cause; but the well arranged view of the subject taken by the auditor in his report and accounts, greatly contributes to relieve the court. In making his report he has distinguished those disbursements which are admitted, from those not admitted, or disputed, or reserved for his further consideration. Those statements he has distinguished by Nos. 1 and 2. From the evidence and vouchers admitted, the defendants' receipts are stated before and to the time of the second deed of trust of the 18th of Decem- ber 1807, distinguishing them by their respective sources, and classing them accordingly in separate statements marked A, B, C, and D. From those materials an account current between each of the trustees is stated to the date of the second deed, charg- ing and crediting each with his own receipts, and admitted dis- bursements, and with interest, showing the balance then due to or from either The interest is charged from the end of six months alter the date of the receipt. These accounts are num- bered 1 and 2, From the evidence referred to, statement E is made to show the several sums which the trustees were chargeable for on account of sales of the trust estate, by them made about the close of the year 1807, and afterwards. This statement, as the auditor most correctly observes, makes an important part of every subsequent account; and in regard to OP MARYLAND." 25 KlNGGOLI) V. RlNOOOLII. 1826. the sale of Hopewell, and the ferries, taken in exchange, is controverted by both parties. In the statement E, the defendants are charged with the sum of $16,320, on account of the sale of Hopewell, when ac- cording to exhibit B, (the list of sales furnished by the trustees,) that tract is charged as having been sold for $20,178. The sale of this tract of land presents one of the important sub- jects of controversy. To present the subject matter of con- troversy in a clear light, the auditor has returned with his re- port several accounts predicated on different principles the account No. 4 leaves a balance against the defendants of 346,963 92; this is the account formed according to the au- ditor's judgment. Account No. 5, grounded on the complain- ants' instructions, makes a balance in their favour of $74,463 23; and account No. 6, founded on the defendants' instruc- tions, makes the balance only $21,900 39. Exceptions have been taken by the complainants and defendants, each except- ing to all the accounts that are inconsistent with the accounts they claim as correct; in other words, the complainants insist on account No. 5, and the defendants on account No. 6. The case has been fully and elaborately argued, since then that at- tention has been bestowed on the cause which its magnitude and importance demanded. The first subject of inquiry is to what extent are the defend- ants responsible on account of the sale or exchange of the tract of land called Hopewell? Trustees, who faithfully and diligently discharge the duties they take on themselves to perform, can never sustain loss; they are only liable for what they duly receive in the performance of the trust; and acting bona fide within trust limits, should an injudicious sale of the trust funds be made, yet no responsibi- lity attaches to them, they can only be called on to account for the amount actually received. But when the trustee transcends his limits, when the funds confided to his limited superinten- dance are applied to objects foreign from the trusts, then he be- comes responsible for the utmost value of the funds thus mis- applied. Lupton vs. White, 15 Ves. 432. The Attorney General vs. Fullerton, 2 Ves. 8f Beam. 265. Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 108, 116. VOL. i. 4 CASES IN THE COURT OF APPEALS RlNGGOU) V- RlNGGOLD. - 1826. The deeds, under which the trustees acted, cannot be consi- dered as authorising them to exchange the land for other land. The object of the deeds was to raise money to meet pressing demands to discharge the debts Thomas Ringgold was re- sponsible for, to indemnify his sureties, and to invest the sur- plus as prescribed for the benefit of the respective persons men- tioned in the deed, and to the extent as herein provided. Oi the limited powers conferred by the deeds, the trustees were perfectly aware, and therefore, in the account of sales rendered by S. Ringgold, he remarked, "The ferries at Susquehanna we have taken from Mr. Thomas at $18,000. The deed is given to S. and T. Ringgold, as they had no right, under the deeds of trust, to invest the monies in lands, and S. and T. Ringgold are answerable for that amount." If trustees, mis- applying the trust funds, are responsible for the utmost value, and as the tract of land called Hopewe.ll has been parted with by them to an object foreign from the trust, it would appear, that the only subject of inquiry, in regard to the extent of tht trustee's responsibility on that account, is the value of the land.. When the tract was exposed to- public sale, it appears by the evidence it was struck off at $16 per acre, the price it was set up at. That afterwards they agreed to sell it to R. S.' Thomaa -for that price, which ultimately he refused, when the exchange was accomplished, in which Hopewell was estimated at $20,178. If a trustee diverts the funds, by applying them to objects fo- reign from the trust, the cestui que trust has a right, either to receive that which the trustees obtained, or to make the trustee answerable for the full value of that which he parted with. The cestui que trusts in the present cause, if competent to act, could have elected to take the ferries in lieu of Hopewell^ but they were not bound to do so; and as they claim the real value of Hopewell in 1807, when it was exchanged, they are entitled to receive it. On the part of the defendants no evidence is produced, except, that when exposed at public sale, it was struck off at $16 an acre, and that R. S. Thomas, after agree- ing to give that price, refused to comply. Three witnesses are produced on the complainants' side, viz. G. W. Thomas, Wil- liam Barroll and Thomas Worrell, all of whom concur, that the land exchanged was worth $25,000; they do not designate OF MARYLAND. RlXOGOLD V. RlNGGOLD. 1826. the value of each part, but in the aggregate fix the value to be that which the trustees had placed on it in making the exchange. Wm. Pearce makes Hopewcll to be worth $20 an acre, which is $222 more than it was valued at. I am not apprised of any case being determined on which the value of funds, misapplied by trustees, have'been come at by fixing on the amount they offered them at; the establishing such a principle might be productive of the most serious con- sequences, and prove highly detrimental to the interest of the cestui que trusts; but if in any instance it might be resorted to, surely not where the trustees had fixed subsequently on an enhanced value, and when that was, by disinterested witnesses, confirmed as the real value. The defendants are therefore to be charged with Hopewell, at the price attached to it at the time of the exchange. The trust in this cause was undertaken from the best of motives, attended with great expense, and considera- ble inconvenience to the trustees; they must sustain a loss; the unfortunate result of the exchange; the consequent destruction of the property on the ferry establishments, oil fall on them, although the trusts reposed did not justify the ruinous transac- tions, all flowing from that exchange. Yet I feel fully assured 1 he trustees acted from, and were governed by, the purest of motives, to wit, to extricate their brother, and provide for his family. And although principles, too powerful to be resisted, call on the court to cast those losses on them, yet so far a the just power of the court extends, they should be protected. In the statement of the accounts by the auditor, he has al- lowed to the trustees a commission. It is truq the British au thonties refused to trustees commissions eo nomine, and yef they allow a compensation for the time employed in the per- formance of the trust, under the appellation of a per diem. But in this state i\\e per diem has, if it ever existed, long since been abandoned, and the compensation is made by way of com- mission. To the cestui que trust the name of the compensa- tion is of no moment; and to permit a per diem to be the governing rule, would be for the trustees to fix on the amount of the compensation, or the court must reject that part of the report stating the time they were engaged, and resort to some other standard, difficult to be fixed on. The defendants are CASES IN THE COURT OF APPEALS RlNQOOLI) V. RlNGCOLD. 1826. therefore to be allowed the commissions according to the prin- ciples of the report. The auditor has given credit to the defendants for several sums alleged to be paid by them, in the performance of the trust, to support which no other voucher exists except the ac- counts rendered by the defendants in their answers to the origi- nal and supplemental bills. In the case of Haft vs. Ten Eyck, 2 Johns. Ch. Rep. 87, the law on this subject came under the consideration of Chancellor Kent. There are all the items in the account of Van Rensselaer (one of the defendants,) unsup- ported by evidence, and resting alone on the answer, were not correctly rejected. The bill was against him, and others, for an account as administrators, and charging them with various acts of fraud. Van Rensselaer in his answer, sets up certain claims against the testator himself, and those were attempted to be supported by his answer alone. After examining the claims specified in the account, and remarking on each, the chancellor reviews the law generally, and comes to the conclusion "That those charges in the account, which are without proof, are in- admissible, and cannot be upheld by the answer, is a proposi- tion which I consider to be as settled in law as it is in reason.' 5 In the course of the discussion, a distinction is taken be- tween reading an answer either at law or in chancery, when it is introduced as evidence, and the effect of the answer, in the very case under consideration, and before the court for its de- cision, when that answer was put in issue. In the first it seems conceded, if part of the answer is read, the other party has a right to read the whole as evidence not so when the answer is put in issue. It seems to me, that the law is most clearly established, that when the defendant in chancery admits a charge against him, and desires to remove it by the statement of a distinct fact, by way of avoidance, and the answer is put in issue, the proof of the matter of avoidance is on him. But the nature, or the precise meaning, of the word avoidance, does not so clearly appear. And all the cases which have pre- sented themselves to my view, are of the representatives of deceased persons, as executors or administrators, when called on to account, setting up claims against the deceased, not for expenses incurred in the performance of their trusts. OF MARYLAND, 29 TClNGOOLD V. RlNGOOLI). 1826. The case before Lord Chancellor Cowper, as reported in Gilbert's Law of Evidence, 45, was a bill by creditors against an executor for an account of the personal estate. The execu- tor stated in his answer, that the testator left 1,100 in his hands. Afterwards, on a settlement with the testator, he the executor gave his bond for 1,000; and the other hundred pounds was given by the testator for his care and trouble. It was urged, in behalf of the executor, that having charged him- self, and no testimony appearing, he ought to find credit where he swore in his own discharge. But it was resolved by the court, that when an answer was put in issue, what was con- fessed and admitted by it need not be proved, but that the de- fendant must make out, by proof, what was insisted on by way of avoidance. There is an obscurity in the report of this case. As no one can be heir to a living person, so no man alive can have an executor, (unless in old times, when he might be civiliter mortuus;) and therefore, a testator could never give to his executor 100 out of $1100 he had left with him, and take his bond for the balance. If the defendant in his answer admits. the receipt of money, but in the same sentence says he paid it away, the disbursement claimed needs no other proof; but if in one sentence the receipt Is admitted, and in another the payment alleged, it must be proved otherwise than by the answer. Kirkpatrick vs. Love, J)mb. 589. Blount vs. Burrow, 4 Bro. Ch. Rep. 74. Hart vs. Ten Eyck, 2 Jo/ins. Ch. Rep. 87, &c. And these rules are said to be similar to those which govern in a court of law. But I am not aware that such principles prevail at law. It is very true, that when proof is obtained at law, that the defendant at one time admitted he received money from or of the plaintiff, he shall not free himself from the effect of that admission, by declar- ing at a different time he restored it to him, or applied it for his use. A court takes the whole conversations or declarations made at the same time, and does not limit its effect to this or that sentence. If at law the plaintiff uses as evidence the de- fendant's account to charge him, he is entitled to read the resi- due to discharge him, and is not confined to such as may be connected with the same sentence. The same, if the letters oi the defendant are read in part by the plaintiff to charge, the 30 CASES IN THE COURT OF APPEALS RlNGGOLD V. RlXGGOLD. 1826. residue may be resorted to, to exonerate from the claim; and notwithstanding the high names maintaining the justice of the rule, that what is admitted in the answer, cannot be defeated by the answer when put in issue, I must confess the justice of the rule is not so clear to my mind. But the rule is not only said to be just, but a contrary doctrine would be pernicious, and render it absolutely dangerous to employ the jurisdiction of this court, inasmuch as it would enable a defendant to de- feat the plaintiffs just demands by the testimony of his own oath, setting up a discharge or matter in avoidance. Hart vs. Ten EycJe, 2 Johns. Ch. Hep. 90. It appears to me more just, that if the complainant relies on the defendant's answer to maintain his claim, that he should take that answer entire; that the whole, as it would at law, should be before the court, with the powers ot believing such parts, and no more than was believed to be true. The rule is too technical for a court of equity, which excludes the defendant from the beneficial parts of his answer, while his adversary is suffered to avail himself of those parts in his favour. A court of equity forces a de- fendant to disclose the 1 whole transactions, and in the instances of executors and trustees, forces them to render an account, not only of their receipts, but disbursements; and it would seem but just, that at least the attention of the court should be called to those statements made in compliance with its mandate, and not to have its eyes closed, and its understanding arrested, by being told the answer is at issue, and therefore the complai- nant may seize on admissions in his favour, and exclude the defendant from simultaneous statements; for let it be remem- bered, the whole answer is presented to the court at the same time. The case now before me is not perfectly similar to those re- ferred to in the opinion of Chancellor Kent. Here, the defen- dants for many years acting as trustees in the settlement of a complicated estate, were authorised to pay debts, provide for the support of the cestui que trusts, and having entered on the trusts, after a considerable time are called on for a settlement. No imputation or charge of fraud is made against them; they are called to render a particular account of their transactions by the original bill, and by the supplemental bill; that they fully OF MARYLAND. KlMGGOLD V. RlNCGOtU. 1826. and particularly account for all their acts and doings. The ac- counts and the correctness of them to a very great extent, at least, by the admissions of the complainants, are just. If it would be absolutely dangerous to employ the jurisdiction of the court, inasmuch as it would enable a defendant to defeat the plaintiff's just demands by the testimony of his own oath, setting up a discharge or matter of avoidance, may not the same be said on the other side, that it is absolutely dangerous to a defendant to call upon him for an account of his transactions as trustee, then to sift from his answer every thing to charge him, and turn him over to seek for proof of his own disburse- ments, great part of which cannot be obtained, owing to the confidence between him and the cestui que trusts. But the dangers on the part of the plaintiff and of the defendant are re- moved, by permitting the whole answer, if any part is relied on, to go before the court, with liberty to reject such parts as are not believed to be true. And believing, from the whole of the transactions, that all the disbursements allowed by the auditor, except that relating to Hopewell^ are true, they are al- lowed, and the exceptions of the complainants on that subject overruled. On the subject of interest I shall not attempt to review the numerous authorities produced at the argument, but content myself by observing the interest has been charged in conformi- ty with the usual practice in this state. When trustees are di- rected to invest money, and fail to do it, they are liable to be charged with compound interest, unless some sufficient reason exists to free them. But that applies to cases of plain trusts, where the duty is obvious, and the means of performance clear- ly within their reach. In this case, from the whole of the evidence, it is difficult to fix on any period that the trustees had money in hand to be invested. The receipts by them, and the expenditures, are so blended together that the rule usually adopted in the interchange of dealings between merchants of interest accounts, appears the most judicious, and the allow- ance of the six months to pay away or invest before the trus- tees should be charged with interest, appears not unjust. The interest, therefore, allowed by the auditor to them, as well as that with which they are charged, is allowed. CASES IN THE COURT 0? APPEALS RINGGOLD v. RINGGOI.D. 1826. It is difficult in this cause to divide the mutual responsibility of the defendants to the complainants; the funds confided to them have in part been so blended with their own affair; and the defendant, Samuel, having permitted Tench to receive so large a part of the money, when the former was in advance. By the cestui que trust the confidence was reposed in both of the trustees, one had no right to suffer the funds to remain un- employed in the hands of the other, especially when he had left the state, and was beyond the jurisdiction of the court. The acceptance of the trust, to use the language of Chancellor Hardwicke, obliged them to execute it with fidelity and rea- sonable diligence. 2 Jltk. 406. And although I am perfectly satisfied it never was the intention of either of the trustees to conduct themselves so as to produce loss to the cestui que trusts, yet by dividing the responsibility, and making each only liable for what he received, I apprehend would cast a heavy loss on them. My opinion is, that each is liable to the complainants for the whole sum due them. In respect to Thomas Ringgold's sanctioning accounts, and to his approval of the exchange of Hopewell, it can have no effect; after the deeds of trust were executed, he alone could not control or direct their objects. In regard to the accounts, I am perfectly assured he did not know whether they were just or not;, but when his condition is taken into view, united with the cautious manner the court views the transactions be- tween the trustee and the cestui que trusts, it appears to me that no tribunal ought to say that his confirmation of those ac- counts should free the defendant, Samuel Ringgold, from ac- counting in this court. In order, therefore, that the opinion expressed should be carried into effect, the auditor is directed! to state an account pursuant thereto. The accounts, when. stated, not to be subject to exception. The auditor, in conformity to the above decretal order, stated an additional account, making a balance due from the defend- ants to the complainants, of $53,857 79, with interest on $39,480 46, part thereof, from the 1st of July 1822, until paid. BLAND, Chancellor, (December term 1824.) The chancel- lor having considered the decretal order pronounced in this OP MARYLAND. RlNGGOLD V RlNGGOLD. 1826. cause on the twenty-sixth day of July, in the year eighteen hundred and twenty-four, as well as the report of the auditor of this court of the account between the parties, which has been stated conformably to said order, and exhibited in this court on the twenty-seventh day of September in the year aforesaid Decreed, That the report of the auditor be confirm- ed, and that the defendants, Samuel Rinsgold and Tench Ringgold shall, on or before the first day of December next, pay to the complainants, or bring into this court to be paid to them, the sum of fifty-three thousand eight hundred and fifty- seven dollars and seventy-nine cents, together with interest on thirty-nine thousand four hundred and eighty dollars and forty- six cents, part of the first mentioned sum, from the first day of July, in the year eighteen hundred and twenty-two, and the costs incurred by the said complainants in this court. From which decree both parties appealed to this court. The cross appeals were argued separately, before BUCHANAN, Ch J. and EARLE, ARCHER and DORSEY, J. but as the court in their decree consolidated the cases, one report only will bfc made, embracing the points argued in both. In the argument of the two appeals the four first points were raised by the appellants' counsel, on the first appeal, as to the law arising thereon, and the remaining points by the appel- lants' counsel on the second. We number them in succession i'or the purposes of this re.port. 1. The appellants (S. and T R.) ought not to be charged on account of the Hopewell estate with more than they receiv- ed for the same; or if so charged, they are entitled to the full benefit of the bond of indemnity. 2. Samuel Ringgold is not responsible for the trust fund which came to the hands of Tench Ringgold, his co-trustee. 3. The charges of interest against 8. and T. Ringgold are objected to. 4. The trustees were entitled to more commission than was allowed to them by the decree of the Chancellor. 5. The answers of the defendants are not per se, any evi- dence for them; but they are bound to sustain all their dis- bursements (except those which come under the head dc mini- i 5 34 CASES IN THE COURT OF APPEALS KlNfiGOI/D V. RlNGGOiD. - 1826. mis,) by proof, as much so as the complainants are bound to offer proof of the amount of trust property which came into their hands; 6. Interest is to be charged on all receipts from their dates, as the trustees never invested, and never intended to invest. If a rest of six months be allowed, they are then chargeable \vith compound interest, or interest on the annual balance of principal and interest. 7. No provision having been made for allowing to the trus- tees any compensation or reward for their trouble, this court is not competent to make any such allowance. 8. Tench Ringgold is not a competent witness on behalf of Samuel, his co-trustee, as he swears directly to relieve himself from responsibility in regard to the M'Mechen transaction, &c. ty (Attorney General of U. S.) Jones, Taney and Ma- gruder, for the appellants in the first appeal, on the first) second, third and fourth points. 1. On the first point As to the charge on account of the ffopewell estate. The sale of it as expressly proved, was made before the deed of November 1807. It was authorised by the deed of 1798, which gave to the trustees the only au- thority they possessed at the time of the sale to R. S- Thomas. The deed of 1798, it must be admitted, did not authorise the trustees to take other land in part payment of the purchase money. On the other hand, it cannot be denied that the con- tract, if it had been authorised by the deed of trust, would have been a judicious one, and beneficial to T. Ringgold's estate. In examining this question we must inquire what was the value of each tract at the time of the contract, and before the ferry property was destroyed by the British. The latter was then of great value and every day becoming more valua- ble, owing to the increase of travelling between the east and south. At the time of the sale it rented for $2,000 per an- num. What was the value of the Hopewell estate? It never rented for more than $1,000 with all the negroes and stock and utensils upon it. With these facts, some estimate may be formed of the Hopewell landed estate; and when, moreover, it appeared that the tenants who gave that rent did not find it a good bargain. The deed of trust authorised a sale of the OP MARYLAND. Rijjt;ooLj> v. RINCOOID. 1826. Hopewell farm, and one of the purposes for which that deed was executed (the payment of judgments to a large amount against T. Ringgold} imperiously required that funds be raised though by a forced sale. The land was advertised to- be sold at public sale general notice was given a numerous assemblage of people drawn to it, and among them all, those in the county, who, according to the proof, were likely to be disposed or able to buy. The sale failed nobody offered even $16 per acre. Afterwards, ho wever,- R. S. Thomas agreed to give for it that price, and the contract was made with the entire consent of T. Ringgold) who was present, and without opposition from any quarter. The land being now, as was rightfully supposed, disposed of, it became necessary to make disposition of the negroes, stock, &c. on the farm, as their master T. Ringgold could no longer employ them. With his consent (without it they could not have been dispos- ed of, as the deed of 1798 did not convey personal property, and the deed of 1807 was not yet executed, if thought of) all the slaves, &c. were disposed of. It must be borne in mind that according to the proof, in order to rent the farm well, it was necessary for the owner to supply the slaves and stock which it required. After all the personal property had been disposed of, R. S. Thomas refused to take the land. What then was the situation of the trust property? Judgments to a vast amount, and each of them a lien upon the property. The judgments of Maund, which are of so much importance in this cause, bound the land; and although an injunction had been obtained, yet that injunction might at any time have been dis- solved, and the trustees, being securities in the appeal bond, would be bound to pay the money. It is in this, most embar- rassing state of things, that the trustees are called upon to listen to the second proposition of R. S. Thomas. And what is that proposition made by a man who had been importuned to take, and refused to take this land at $16 per acre? To agree to take the land valued at $25,000, provided only that the trustees would take in part payment the ferry property, to be valued at $18,000, and he to secure the payment of $7,000, the balance of the purchase money, and the interest of which is almost equal to the rent of the Hopewell farm, after de- 36 CASES IN THE COURT OF APPEALS KlNOGOLD V. RINGGOLD. 18'J6. ducting from the highest sum for which it ever did rent, only legal interest upon the proceeds of the sale of the personal estate, which the tenant took with the land. The trustees are called upon to accept of, or refuse the offer. They do not act hastily. T. Ringgold, the only person, except the creditors, who had a right to object, approves of it, and has again and again sanctioned it. One of the defendants in his answer states, that T. Hinggold's wife, whose consent was not at all necessary, also approved of it. The sale, and the terms of sale, were sanctioned by the man who had a right to object; and never objected to by any human being, until the filing of what is called the supplemental bill in this cause; and not disaffirmed in that, even if the com- plainants had any right to object to it. Reliance may be had on the partial account exhibited by the complainants, and which they say was rendered to them by S. Ringgold. This partial account is a particular account of all the property which came to the hands of the defendants, in which any part of the family of T. Ringgold had any interest. It includes not merely the property which was conveyed to them by the deed ot 1807, and in which the complainants, at the time of the filing their bill, had any interest, but also the property disposed of by them under the deed of 1798, in which the complainants, in the character in which they originally sued, had no interest. It contains also the legacy of Mrs. Mary Ringgold, of a debt due to her from S. Ringgold, a debt due from Tench Ringgold, and also the personal property on the Huntingfield estate, which she left to the defendants, in trust for such of the chil- dren of T. Ringgold as they might select, and with the ex- press condition that no part of it should be answerable for his debts. And yet it is contended, that this very property, thus bequeathed by Mrs. Ringgold, ought to be considered a part of the trust property held under the deeds; and ought to be con- sidered a part of the funds for the payment of T. Ringgold's debts that these trustees ought to violate the trust created by Mrs. Ringgold for the benefit of the complainants. But *S". Ringgold offered to take the ferry property at its valuation, if the family of T. Ringgold objected to the arrangement. In the first place S. Ringgold could make no offer by which the co-trustee could be bound. But if he could, when did T. Ring- OF MARYLAND. 37 RiNGGOLD V. RlNGGOLD. 1826. gold, or any member of his family, object to the contract with R. S. Thomas, or allow them to treat the ferry property as their own? Subsequent events, not to be foreseen in 1807 the war with Great Britain, the famous exploit of Admiral Cockburn, and destruction of the houses at the ferry, greatly lessened the value of this property, and might have furnished a cestui que trust, with a reason for disaffirming this contract. But it would then have been too late, even if then, which is not the fact, any person had immediately objected to the con- tract. We need not, however, rest upon the circumstance, that the offer of S. Ringgold was conditional. What if there was uncontradicted proof, that both of the defendants intended, at the time the contract was made with R. S. Thomas, to take the deed for this property to themselves, and to hold it as their own? By the terms of the contract it was to be paid for with trust funds. The consideration of it was a part of the pro- ceeds of sale of the Hopewell farm; and although the defendants had determined to make this a part of their own private estate, and to charge themselves with the whole sum for which Hope- well sold, yet equity says, that even in that case it shall rest with the cestui que trust, whether it shall be the private pro- perty of the trustees, or a part of the trust estate. And T. Ringgold, the cestui que trust, has always claimed it to be a part of the trust fund, arid insisted that the trustees should not charge themselves with the price at which Hopewell sold, and take to themselves this property. This, it is in proof, he hart decided to do, before the deed of 1807. No matter then what was the intention of the trustees; it depended not upon their intention, but upon the sovereign will of the cestui que trust^ if declared within a leasonable time, whether this should be the private property of the trustees, or a part of the trust fund; and it being in proof, that T. Ringgold immediately (before the complainants had any interest in the estate,) at the very time the contract was made, claimed it, and said it should be con- sidered as part of the trust estate, the trustees could not claim it, but held it in trust; and so holding it, it passed by the deed of 1807, which was but a new declaration of trusts, and which alone could give the complainants originally, a standing in the court of chancery. Assuming then that the deed of 179* KlKUGOLD V. RiNGGOLD. 1826. did not authorise the contract with 7?. S. Thomas, it is con- tended, that it is now too late to impeach it. It is no breach ot trust, if the trustee acts with the cestui que trusty or he acquiesces. 2 Com. Dig Ait. Chancery, (4 W. 32,) 722. Lang- ford vs. Gascoyne, 11 Ves. 333, 335. ParJeesvs. White, Ib. 225. Newl on Cont. 467. Traffordvs. Boehm, 3 Mk. 444. Brice vs. Stokes, 1 1 Ves. 324. Fellows vs. Mitchell Sf Owen, 1 P. Wms. 81. It cannot be impeached in this suit, because 7?. S. Thomas is no party. He had notice of the trust, and the deed to him referred to the deeds which gave the trustees the right to sell. If a purchaser has knowledge of the trust deed under which he purchases, he becomes himself a trustee. Murray vs. Ballon, 1 Johns. Ch. Rep. 575. Selby vs. Alston, 3 Ves. 341. 2 Fonbl. 153, 154, 155. 2 Madd. Chan. 103. 1 Madd. Chan. 364, 365. The complainants, if they choose, have a right to disaffirm the contract with R. S. Thomas, and claim the property sold to him. They may perhaps, ask that the sale be set aside; but they cannot claim a right to sell to the trustees, who never agreed to buy, and to make them pay an extravagant price for the land. Again If these points be in favour of the complainants, yet T. Ringgold gave to the defendants a bond oi indemnity. He, the cestui que trust, claimed the ferry property, purchased, as must be admitted, with trust funds, and that the trustees might not be prejudiced, gave them a bond to save them harmless against all loss. If they are to be charged, then, with any loss sustained by them in consequence of this contract with R. S. Thomas, they have a right to resort to a part of the fund in the court of chancery for their indemnity. To understand this case it is only necessary to observe, that from the record it appears that in the year 1798 T. Ringgold was entitled to a large real and personal estate, and at the same time was indebted to a considerable amount. He is induced to execute a deed of trust, and thereby subjected to the trusts therein mentioned, not all of his property, but his real proper- ty, reserving still to himself, absolutely and exclusively, the jus disponendi of the whole of his personal estate negroes, debts, money, stock, and every thing but his land. The trusts declared in the deed are simply to pay all debts, of whatever OF MARYLAND. 39 RlXOOOLD V. RlIfOCOLD. 1826. description, then due; and secondly, the residue to be at his absolute disposal. His wife is mentioned in it, but she is men- tioned in order to secure to her, in the event of her surviving her husband, precisely what the law gives to her, without the consent of her husband. It is under this deed the sale of Hopewell was made, and of course no person, who could not claim to be a cestui que trust, had a right to impeach that sale. In 1807 a second deed was executed; and in this deed, for the first time, provision is made for the wife and children. This deed too conveyed, in addition to the land not already disposed of, all "his negroes, stock, horses, and plantation utensils," still reserving to himself the privilege of disposing, when and to whom he pleased, of all his money, bank and road stock, and all debts then due to him. The personal property at Hopewell had been previously sold, and the amount of sales constituted a portion of the debts due to him. The $7,000 due from R. S. Thomas did not pass by the deed of 1807, and has not been claimed by the creditors under that deed. Over all this fund, and especially the proceeds of sale of the personal estate at Hopewell, T. Ringgold had an absolute control, and this alone is an ample fund for the indemnity of the trustees. It' then the trustees are to sustain any loss in the settlement of the account for the sale of the Hopewell estate, upon what princi- ple of law or equity are they to be deprived of the indemnity thus secured to them? Not because there is no fund, to which they can resort, because _here is a fund, of which the owner re- tained an entire disposal, and quite sufficient for their reim- bursement. Not, surely, because this fund ought to be applied to the payment of the debts, as such a doctrine is a glaring out- rage upon every principle of right. It would be to strip a man ot his property against his will. He provides by deed for the payment of his debts, and for the support of his family. He is to judge what property shall be conveyed by that deed; and for any such purposes he does not choose to transfer money, bank stock, or debts due to him. Could the court of chancery alter his deed, and subject to any of the trusts property which it was not his pleasure to subject to any of them? For the be- nefit of his creditors, and of his family, he places his lands, bis negroes, &c. beyond his control. They arc made by the 40 CASES IN THE COURT OF APPEALS RlNGGOLlI V. KlNGGOLD. 1826. man, who alone has authority to dispose of them, to be the sole fund 1st. For the payment of debts; and 2d. To provide for the support of himself and family. Of all the rest of his property, (if that conveyed by the deed of trust be sufficient to pay debts, even although the residue afforded a miserable support for his family,) he has a right, so courts of law and equity must say, to dispose as he pleases. To appropriate this property not included in the deeds of trusts, (and the disposi- tion of which the grantor reserved exclusively to himself,) to any of the purposes of the trust deed, would be a downright violation of the right of property the exercise of a power by the court of chancery which no department of government can possess in a free country. He had a right to give away this property, and so far as he yet retained the ability, he had a right, not only to sanction the sale made by his trustees, but to oblige himself to indemnify them from any damage which they sustained by reason of a disaffirmance of their sales, by credi- tors, or others, if others there were to impeach their conduct. To deprive the defendants of the indemnity on which they rely, it cannot be said that T. Ringgold is to be treated as a person non compos, or from circumstances incapable of acting freely. It would be a violation, not merely of established law, but of common justice, that such charges should be lis- tened to in argument, when all mention ot them is studiously avoided in pleading. No one act of T. Ringgold is complain- ed of no settlement is impeached no contract, into which he ever entered, is attempted to be set aside. So far from this, the complainants claim under his deeds as valid. They insist that he could dispose of his property. They insist moreover on the deed of 1812, which gave to them their standing in the court of chancery. If any such charge had been properly made, the record affords the most ample refuta- tion of it. As to the acquiescence &c. of T. Ringgold, they cited Bricevs. Stokes, 11 Ves. 319. Lang ford vs. Gascoync, Ib. 336. Trafford vs. Boehm, 3 Jltk. 444. As to his com- petency, &c. they cited White vs. Wilson, 13 Ves. 88, 89. Attorney General vs. Parnther, 3 Bro. Ch. Rep. 442. They insisted that it must be either fraud or supine, and very supine negligence, that induces a court of equity to deal OV MARYLAND. 4l RlSGGOLi) V. HlSGGOLI). 1826. rigorously with a trustee. Cajfrey vs. Darby, 6 Ves. 495. Bovey vs. Smith, 1 Vern. 144. Where a trustee conducts himself to the best of his judgment, the court will deal with lenity towards him. Belchier vs. Parsons, Jlmbl. 219. Pow- ell v.-}. Evans, 5 Ves. 843. Trajford vs. JBoehm, 3 Atk. 444. If the trustees had the right to take the ferries in exchange for Hopewell, then the admission of S. Ringgold was a mistake on his part and is not binding on him. Lansdown vs. Lans- doion, Mos. 364. Lammot vs. Bowly, 6 Harr. fy Jo/ins. 500. 2. On the second point. In 2 Fonbl. 184, the general rule IB hid down as to the liability of one trustee for the receipts of the other. He who wishes to get rid of a general rule must show the exceptions to it. The chancellor in his decree says that Samuel is to be charged, because he suffered Tench to misapply the trust fund. This was not the business of Sa- muel. He had no right to call upon Tench, nor Tench upon, him. Trustees have all equal power and authority. 2 Fonbl. 134. The deed of 1798 was to secure a debt due to Tench, and to indemnify him for becoming one of the sureties of Tho- mas. How then could Samuel call upon Tench? An equal trust was reposed in both; and neither could control the other. If Tench abused the trust the cestui que trust might have applied to the court of chancery for his dismissal. The deed of trust executed by Tench to Samuel is to secure the latter against loss. If the complainants have any claim against Tench, they may resort to that deed; but they have no right because of that deed to call on Samuel in this suit. On this point they re- ferred also to Brice vs. Stokes, 11 Ves. 319. Hovey vs. Blukeman, 4 Ves. 606. JSaconvs. Bacon,5 Ves. 331. Cham- bers vs. Minchin, 7 Ves. 199. 3. On the third point. The case relied upon by the auditor, of Dunscomb vs. Dunscomb, 1 Johns. Rep. 508, to justify the charge of interest on all monies received after six months, is not in point. There nothing was to be done but to invest. In this case, before the trustees were authorised to invest one cent, they were bound to ascertain and pay all just debts, and con- test those which were deemed unjust. It is in proof that there were debts of this description. Maund had recovered two judgments in the general court, one at May terra 1798, and the VOL. i. G 42 CASES IN THE COURT OF APPEALS V* I I lM*MNMV>M in i - ' lllNGROLI) V. RlNCHOLD. 1826. other at May term 1799, each for 1250, with interest from the 26th of July 1796, and costs. This claim was to be re- sisted, and was resisted in equity by T. Ringgold. It related to a sale made by Maund to T. Ringgold, of a parcel of land in a distant part of Virginia. The proof of the alleged fraud was to be obtained therein. Persons were to be discovered who would consent to act as commissioners to take testimony. Surveys were necessary, and to be made when it suited the con- venience of surveyors to undertake them. Pending the suit in the court of chancery, the war with England broke out. Maund died, and new parties were to be made; and owing to these and other difficulties in the way of a decision, a final de- cree was not passed until March term 1818. We may well suppose that the defendant in that case was urgent for a deci- sion, and would admit of no unreasonable delay. If it be charged that the complainant procrastinated it, or the trustees, it is apprehended that the record would show to the contrary, if it were necessary. It is not necessary, because no such charge is made in the bill; and the trustees are not chargeable with any breach of trust not charged in the bill. Smith vs. Smith, 4 Johns. Ch. Rep. 281. After the decree of the court of chancery the defendant appealed, and the decree of this court, affirming the decree, was passed at June term 1821. We think that while this case was pending the trustees were not au- thorised to invest any of the monies in their hands. We do not mean by this to say, that a disputed claim of a few hun- dred dollars would have justified the trustees in refusing to invest many thousands, or that this suit gave them a right io retain in their hands more than was sufficient to pay the debt, interest, costs, and all reasonable expenses. It can- not be contended that the trustees were bound to know what would be the fate of the suit against Maund. They were utter strangers to the contract, and the subject matter of it. They could not tell what would appear in proof. They could only know with certainty that judgments for large sums of money had been obtained at law against T. Ringgold', that these judgments were a lien upon the whole of the real estate which had been conveyed to them in trust, which they had sold, and for which they had received the purchase money. OF MARYLAND, 43 UlNGGOLII V. KlNOGOLI). 1826. That while Ihe case was pending in chancery, the injunction might at any time be dissolved; and unless the money be inT- mediately paid, the creditor could issue out his executions, and levy them upon the property sold, as well as the property of the securities in the appeal bonds. The issue of the suit in chancery being doubtful, the period of its decision equally so y whence the right of these trustees to make any investment of the funds, which by the express terms of the deed of trust were to be applied in the first place, and before any invest- ment, to the payment of the debts then due, and of course Maund's, unless chancery would grant a perpetual injunction? Will it be said that the court of chancery could have autho- rised it? Can any man, by executing a deed of trust, though for the benefit of creditors, destroy a lien which an individual creditor had upon his property, and oblige him to acquiesce in the sale of that property, and wait for his money until the trustee can sell out stock, which he has purchased? Suppose in this individual case that the money had been invested, wb.etb.2r by or without the authority of the chancellor, and that the injunction being dissolved, the creditor had proceeded to levy upon the land; would the chancellor have granted another injunction to stay the sale until the money invested could be converted into money? If the trustees were bound or at liberty to invest, then they were to invest according to the deed, which authorised an investment in road stock, stock of the City Bank of Baltimore, or other bank stock f and what might have been the value of such investment we ran easily ascertain. It was their duty, so it is argued, to in- vest; and if so, as they were authorised, they possibly might have invested in some of these funds which have so much de- preciated in value. And if they had so invested, even by the mere express authority of the chancellor, and a decree had af- terwards been pronounced in favour of Maund, will any man say they could have excused themselves for fche loss of the funds, by alleging that they had invested the funds in stock now worth little or nothing, and therefore must be excused from the payment of the claims? Would they not have been charged with a breach of trust in investing without any autho- rity to be found in the deed, funds which belonged to a credi- 44 CASES IN THE COURT OF APPEALS RlNGGOLD V RlNGGOLD. 1826. tor? Who will affirm that the court of chancery, even after expressly authorising the investment, could have shown any mercy to the trustees? A trustee may be compelled to pay interest in some cases compound interest. But in what cases? Where the trustee makes profits, and will not render an ac- count of them. Evertsonvs. Tappen, 5 Johns. Ch. Rep. 517. Where the deed creating the trust directs investments of the interest, and this is not done, compound interest is charged. Baphaelvs. Boehm, 11 Ves. 92. S C. 13 Ves. 407,411. And this because such is the law created with the trust. Darne fy Gassaway vs. Catleft, G Harr. $ Johns. 475. The judg- ments obtained by Maund might be considered, until the year this court decided the case, a claim existing against T. Ring- gold, and possibly to be paid out of the trust fund. In sup- port of the position that interest is not to be charged pending that suit, it is only necessary to refer to the case of Newton vs. Bennett, 1 Bro. Ch. Rep. 359. There the true principle, by which courts are to be governed, is laid down. In that case it will be found that Bennett did not take necessary steps to settle the estate. He retained money in his hands for se- veral years. In 1760, the claim against the estate was com- promised. "Till then, (says the chancellor,) it does not ap- pear that Bennett kept the money in his hands without a cause, there being an outstanding demand." While there was a cause for keeping the money in his hands, while there was an outstanding claim, the chancellor at once decides that he is not to pay interest. "From 1760 the question is, whether he shall pay interest, having applied the money in the course of his trade." And from 1760 he was ordered to pay interest. According to this decision, while the demand of Maund was Outstanding, the trustees did not retain the money in their hands without cause, and they are not to be charged with in- terest. It may be cited to prove that the complainants are en- titled to interest from the decision of this court in Maund's case, as the trustees did not then invest; but the answer to this is, that before that decision, T. Ringgold was dead the new bill had been filed, and the administratrix, and all per- sons having any claim to the estate, filed another bill, claiming the estate as it was, and insisting, not that it should be invest- OF MARYLAND. 45 . KlNGGOLI). 1826. ed, but that it should be delivered up to them. From that time the trustees did not resist the claim, but consented that an account should be taken, and the trust settled up. On this point they referred also to Littlehales vs. Gascoyne, 3 Bro. Ch. Rep. 73. Franklin vs. Frith, Ib. 433. Tew vs. Earl of Win /erf on, 1 Fes. jr. 450, 451. Pybus vs. Smith, Ib. 193. Jlrnere zw. Pemberton, 12 Ves. 385. Lang ford vs. Gascoyne, 11 Ves. 333. Rocke vs. Hart, Ib. 59, 60. The mere act of co-operation docs not charge a co-trustee with interest. Bacon ..?. Bacon, 5 Ves. 331. Chambers vs. Minchin. 7 Ves. 192. Longford vs. Gascoyne, 11 Ves. 334. Shipbrook vs. Hin- ehinbrook, 16 Ves. 478. Brice. vs. Stokes, 11 Ves. 324. 4. On the fourth point. In England a per diem is al- lowed to trustees for their trouble, &c. but that is not the rule here. The practice in our court of chancery is to allow a cer- tain sum of money by way of commission. In the execution of this trust, the trHstees have had a great deal of trouble, and the compensation to be allowed to them does not come within the rule as now established in chancery. Berrien, Hoffman, and Mayer, for the Appellees, in the first appeal, on the first , second , third And fourth points. 1. On the first point. The alleged exchange of Hopewell for the ferry property, was dehors the powers of the trust, and wholly illegal. 1. This was no technical exchange, even had the trustees possessed the power to exchange. Shep. T. 295. Co. Litt. 31, s. 319. If this transaction rested only on the deed of 1798, Mrs. Ringgold would have dower in the ferry property, as well as in Hopewell. Cass vs. Thompson, 1 New Hamp. Rep. 65. 2. The sale or exchange was too hasty. Ex parte Bennett, 10 Ves. 393. Hart vs. Ten Eyck t 2 Johns. Ch. Rep. 110. 3. The ferries were not trust estate. Tafford vs. Boehm, 3 J2tk. 440. A trustee cannot, even without mala fides, invest in a fund not sanctioned by a court of equity. If the court does not adopt the fund, the trustee must bear the loss. Hancon vs. Jlllen, 2 Dick. 498. A trus- tee, guardian, &c. cannot, without special power, change the nature of the estate from money into land, or e converse; or a lease for years into a freehold. Witter vs. Witter, 3 P. 46 CASES IN THE COURT OF APPEALS RlNGGOLI) V. RlNGCOLH. 1826. 100, (and notes.) Terry vs. Terry, Pre. in Chan. 273. Ma- son vs. Day, Ibid 319. Pierson vs. Shore, 1 Ath. 4SO. Rook vs. Warth, 1 Ves. 461. Dudley vs. Dudley, 1 Dick- 16,45. 1 Ves. jr. 35. 6 Ves. 487. 4. The value of Hopewell must be fixed at $20 per acre. When a trustee displaces, destroys, or unduly converts trust property, chancery will give to the cestui que trust the extreme value of it, analogous to the rule of law of giving, in trover, the highest value, unless the arti- cle be shown to be certainly of less value. *ftmory vs. Dela- miere, 1 Stra. 505. As the trustees declined to ascertain its value by several offers, and have thereby rendered it extremely difficult to say what it was really worth; as it might have brought at some subsequent period, even $30 per acre, the complainants are entitled to the highest value, even on the principle of confusion, mixture, &c. of trust, with private es- tate, as settled in Lupton vs. White, 15 Ves. 439, 440. At- torney General vs. Fullerton, 2 Ves. fy JBea. 263. Earl Pow- let vs. Herbert, 1 Ves. 296. Forrest vs. Elwes, 4 Ves. 491, 497. Pocock vs. Reddington, 5 Ves. 794. Harrison vs. Har- rison, 2 Jltlc. 121. Hart vs. Ten Eyck,2 Johns. Ch. Rep. 62, 116, 117. 5. None of the expenditures on the ferries can charge the trust estate. Bostock vs. Blakeney, 2 Bro. Ch. Rep. 653, 656. Green vs. Winter, 1 Johns. Ch. Rep. 27, 39. 6. Wherever the trust is violated, the cestui que trust is enti- tled to all the gain, if there be any, and an exemption from loss, if there be any. Jldye vs. Fenilletean, 1 Cox, 60, 63, and the authorities before cited. The trustees are not entitled to any benefit from Thomas Ringgold's sanction or approbation of the conduct and ac- counts of the trustees; that independently of various known principles, flowing from the relation of trustee and cestui que trust, he was, in fact, incompetent so to do, from the infirmity of his mind, which rendered him non sui juris, and which was the very causa et origo of the trust. Neither to the whole amount, nor any part thereof, can Thomas Ringgold's sanc- tion protect the defendants from legal scrutiny, and liability to make full redress. 1 Pothier on Oblig. 29, 30. Newl. on Cont. 362, 433, 445, 451, 459. Portington vs. Eglington. 2 Vern. 189. Sugd.401. Gibson vs. Geyes, 6 Ves. 226. Hu- OF MARYLAND. 47 HlXOGOLI) V. RlNGGOLD. 1826. g-uenin vs. Baseley, 14 Ves. 273. Villars vs. Beaumont, 1 Vern. 100. Smith vs. French, 2 Atk. 243. Newman vs. Payne, 2 Ves. 199. Duke of Hamilton vs. Lord Mohun, 1 P. Wms. 118. 3 Wood. Lect. 453. Wells vs. Middleton, 1 Cox, 112. Morse vs. Roy all, 12 Pes. 374. 4 Desauss. 704. Stanhope vs. Topp, 2 Bro. Ch. Rep. 183. Murray vs. Pal- mer, 2 Scho. fy Lef. 474. Matthews vs. Dragaud, 3 Desauss. 35, 26, 27. Grem w. Winter, 1 70Ans. CA. j?e/;. 35, 36. Wendell vs. Van Renssellaer, Ibid 344. They then argued, that the liability of the trustees as to Hopewell, was to be deter- mined under the terms of the deed of trust of December 1807; but that, if that deed was not to be the rule of their responsi- bility, then that even under the deed of 1798, Thomas Ring- gold had no power left of disposing of Hopewell, or sanction- ing the exchange of it for the Ferries; and to maintain this po- sition, they discussed the limitations of the deed of 1798, in re- ference to the quantity of estate under it in Thomas Ring- gold, and the principles of the rule in Shelly's case. They argued, that there was no fund whatsoever in the hands of the trustees, of which Thomas Ringgold had any control, and to which his sanctions were applicable; that the bonds and securities derived from Benjamin Ringgold's trust adminis- tration, were comprehended under the term of equitable estate in the deed of 1798 but that at all events those securities were realized long before the sanctions of Thomas were given, and the avails applied or applicable to payment of Thomas's debts, so that there was no control in Thomas, over these funds, at the time of his sanctioning the accounts of the trustees; and even to the extent of those avails., the sanctions could not have any effect. That in this view, it did not matter, whether the securities for the sales of Thomas's land, that came into the hands of the trustees from Benjamin, passed them under the deed of trust of 1798. They also argued, that the personal estate on Hopewell, and Hunting field, was to be deemed as sold under the deed of De- cember 1807, as to the liability of the trustees; and even if that were not so, the trustees were to be held liable for it in consequence of their admissions respecting it, and blending it with their accounts of assets and payments, as trustees. 48 CASES IX THE COURT OF APPEALS RlSfOGOLD V. KlNGOOLJ). 1826. 2. On the second point. The trustees are jointly, as well as severally responsible for all monies, property, fyc. received by them, or either of them. And if not so a priori, yet they .have become so from the circumstances attending their admi- nistration of the trust. The distinction between executors and trustees, in regard to their responsibility in solido, is fully ad- mitted; but the law has too firmly settled and denned the principle of the joint liability of trustees, to admit of its being at all affected, by the well known distinction between executors and trustees. But admitting its fullest force, it has no application whatever to trustees, except where the conduct of the trustee, claiming an exemption, has been strictly within the bounds of his trust duty, and where the delinquent trustee was in no way facilitated by the acts or omissions of his com- panion. This principle will be found to pervade all the autho- rities, and to afford the true key which ascertains the liability in solido of trustees, and is a principle wholly independent of the one which ordinarily implicates executors, and exempts trustees. The received law on the subject is, that trustees and executors, prima facie, are equally responsible, virtute officii, for all monies, &c. received on account of the trustee ship or administration. But where, in point of fact, only one has received money, &c. there is generally a difference between executors and trustees as to the evidence which impli- cates them in solido. For executors need not join in any re- ceipt, or conveyance; they are competent to act separatim. Trustees, on the contrary, are expected to unite in receipts, and must join in conveyances. Hence, if executors unite, they are both liable at law, though one only may have receiv- ed the money. At law, there is a presumptio juris et de jure, that they both received it, and therefore both liable; but in equity, the facts may be inquired into, and they be charged jointly or severally, according to circumstances. A joint re- ceipt or conveyance, however, even in equity, raises a strong presumption against both, be they executors or trustees; but even in the case of executors, it is not conclusive in equity. Trustees, on the other hand, do not at law, or in equity, ma- terially increase the presumption of joint responsibility by uniting in receipts, because they are expected so to do, even OF MARYLAND. 49 v. Hi NO WOLD. 1826. when, in fact, they do not jointly receive the money. As the doctrine has been modelled, and fully established, there appears to be little or no distinction in equity between trustees and executors. The distinction between executors and trus- tees, in this respect, never did extend further than as it was a mere question of evidence, arising from their jointly receipt- ing. The inquiry, now, in either case, is not so much in re- lation to joint receipts, &c. as it is into the various acts of co-operation, omission, undue confidence, and untrustworthy conduct on the part of that trustee, or executor, who claims au exemption. If, therefore, a trustee or executor, by any act, omission, supine negligence, or undue confidence, abandons any portion of the fiduciary estate to his companion, so as to tend to its jeopardy or final loss, this per se is a breach of trust, and subjects such trustee or executor to all losses conse- quent on such crassa negligentia, without any regard to acts of direct co-operation, such as receipts, conveyances, &.c. &.C.; and all the modern authorities have uniformly charged trus- tees, in solido, under the auspices of this principle. But we fully admit, that if one trustee, ex mero motu, and without the concurrence or neglect of his companion, secures and wastes a portion of the trust fund, the innocent trustee is not respon- sible for his defalcations, and this too, even though there has been joint receipts and joint conveyances. This case may be safely reposed on this liberal view of the doctrine of joint and several liability. No case can be found which exempts a trus- tee, merely because he received no portion of the wasted estate. Both law and equity requires a further scrutiny, and the received doctrine is, that the only important inquiry is, whether the companion who wasted the estate was in an// degree facilitated therein by Ike acts or omissions of the other; if so, they are both equally liable. All the authori- ties now concur xhat the inquiry is not as to the evidence of the existence, or non-existence of joint receipts or convey- ances this being a mere prima facie evidence of responsi- bility in solido; but the fact to be ascertained is, whether one trustee has suffered another to obtain such an exclusive control, as enabled that trustee to violate the trust. In such case, they are both liable, one as the receiver and destroyer of the trust VOL. 1 7 50 CASES IN THE COURT OF APPEALS RlNGGOLD V RlNGGOLD. 1826. estate, the other as the passive means of the mischief which has been done. Hence, if a trustee joins in receipts, &c. he may still be exempted; and if he does not join, he may still be charged. The nature of the trust also is very material to be inquired into. Whenever the trust is directory, and not discretionary, they are bound to see to each other's acts. The counsel for respondents were ever willing to lose sight of this important principle. The trustees were expressly bound to invest, and in specific funds; they jointly invested in dif- ferent funds, and also jointly omitted to invest the balance in any fund. Negligence, and a non- performance of prescribed duties, is the controlling circumstance which ascertains the liability in solido. Trustees are always liable, in solido, for the acts of agents, if they are not expressly authorised to ap- point agents. If, therefore, Samuel constituted Thomas his agent, as he says he did in the M'Mechen transaction, or if he permitted Tench to assume an exclusive control of any por- tion of the estate, he thereby constituted him an agent, and both are responsible in these cases, for any losses that may arise. Samuel never was in advance, except by reason of his own gross negligence in permitting Tench to violate every principle of the trust; and after the mischief was done, Samuel, conscious of his neglects, omissions, and untrustworthy acts, and that he must respond for Tench, received from him an ample indemnity. But if the facts of the case be inquired into, the question of joint and several responsibility, even if decided in favour of the respondents, would cover but a small part of the case because there are but very few transactions in which they did not unite, and positively participate, which would render them responsible even on the most fa- vourable application to the respondents, of the doctrine in controversy so that quacunque via data, they are liable in, solido. But the law is now fully settled. In all of the cases, when cautiously examined, from the case of Townley vs, Chalenor, Cro. Car. 3l2,downtoMonellvs. Monell,5Johns, Ch. Rep. 283, it will be found that the courts have been gra- dually advancing to the positions we have laid down; and the many moot points of distinction between joining and not join- ing in receipts, &c. between the liability at law, or in equity; OF MARYLAND. 51 RlNOGOLI) V. RlNGCOLD. 1826. between the responsibility in solido of executors, and not of trustees; between the claims of creditors on executors, or lega- tees on executors, &c. &c. have allj in succession, been nearly abandoned, and the plain, elementary doctrine of all courts now is, that they will look to the conduct both of trustees and executors, and if the. loss be the fault entirely of one, he alone shall respond; but if it be the result of the acts, omissions, gross negligence of the other, they shall both equally respond. It never was decided, that if one only reaps the fruits, or receives the money, after a joint breach of trust, both shall not respond; but the true distinction is as just stated, viz: that wherever any one, acting in a fiduciary rela- tion, permits his companion to exercise any control over the trust fund, inconsistent with the obligations of both, (and whether there be an agreement to that effect, or a mere supine negligence, is immaterial,) they both are liable in solido*. Hence, the fact of receipting jointly is a mere item of evi- dence, even in the case of executors, and the main inquiry is not even who received the money, but whether there has been any acquiescence in one, after he knew, or ought to have known, that the trust money, &c. had got into a course of abuse." Nor is it at all requisite, in order to charge both for the defalcations of one, that there should be any fraud, sinister motive, or profit in the trustee who claims exemption. Admitting then the fullest force of the general distinction between co-executors, and co-trustees, the whole current of au- thorities sustain the positions advanced. They then cited Churchill vs. Hobson, 1 Salk. 318. S. C. 1 P. Wins. 241, (and note.) Townley vs. Calenor, Cro. Car. 312. S. C. Bridg. Rep. 35. Felloives vs. Mitchell ,- Owen, 1 P. Wms. 81. S. C. 2 Fern. 504, 515. 21 Vin. rfb. 583, pi. 2, 8, Mur- rill vs. Cox 4* Pitt, 2 Vern. 570. Westley vs. Clarke, 1 Eden's Rep. 356; and 1 P. Wms. 83, (note.} S. C. I Dick. 329. Townsend vs. Barber, 1 Dick. 356. Leigh vs. Barry, 3 Atk. 583. Gill vs. Attorney General, Hrtrdres,3l4. Charita- ble Corporation vs. Sutton, 2 */2tk. 404, 405, 406. Boardman vs. Mosman, 1 Bro. Ch. Rep. 68. Sadler vs. Ilobbs, 2 Bro. Ch. Rep. 116. Scurfield vs. Howes, 3 Bro. Ch. Rep. 90. Kee- blevs. Thompson, Ib. 112. Baldren vs. Scott, 2 Ves. 678. 52 CASES IX THE COURT OF APPEALS KlNGGOLD V. KlNGGOLJt. 1826. Hovey vs. Blakeman, 4 Ves. 506, 603, 608. Caffray vs. Dar- by, 6 res. 487. Chambers vs. Minchin, 1 Ves. 186, 196, 1^9. French vs. Hobson, 9 Ves. 103. Lord Shipbrook vs. Lord Hinchinbrook, 11 Ves. 252. S. C. 16 Ves. 476. Price vs. Stokes, 11 Fes. 318, 319. Longford vs. Gascoignc, Ib. 333. *ftftzz> tw. Sfltftt;, 1 tfc/i. # Z.e/. 340. Doyle vs. Blake, 2 Sc/i. & Lef. 229, 237, 242. Townshend vs. Baber, 1 Dick. 156, 356. S. C. Bridg. Rep. 38. Underwood vs. Stevens, 1 Meriv. 712. Westley vs. Clarke, 1 JEJrfen, 357. Anonymous, 12 7I/o-OGOLD. 1826. that on a settlement between him, who afterwards was a tes- tator, with him who afterwards was an executor, 100, part of the 1100, was given to the defendant in satisfaction of the services he should subsequently render as executor. This case is commented on, and entirely approved of by Chancellor Kent, 2 Johns. Ch. Rep. 88. That 1100 was the entire sum deposited, was proved by the answer, but the gift of 100 re- quired proof aliunde. 2 Sail and Beatty, 382; Ham. Dig. 425, (a). 1 Bro. Ch. Rep. 502; 2 Com. Dig. 332; 2 Fonb. chap. 7, s. 4. An answer per se, perhaps, should never be evi- dence against an infant cestui que trust. Trustees ought to be compelled to keep books, take, and preserve vouchers: but here are thousands of dollars claimed by the trustees on no voucher whatever.* Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, 66,86 to 94, 96, 107, 119. This case assembles nearly all the English and American cases, and the entire bearing on the subject. Green vs. Hart, 1 Johns. Rep. 589, 590. Monell vs, Monellj 5 Johns. Ch. Rep. 283,294, Sf-c. Parker vs. Kennedy, 2 Desauss. 37. The State vs. Penman, 2 Desauss. 1. Beck- with vs. Sutler, 1 Wash. Rep. 225. Sallinger vs. Worley, 1 Bibb, 195. Paynes vs. Coles, 1 Munf. 373. Scur field vs. Howes, 3 Bro. Ch. Rep. 90, 95. Here the answer of a co-trus- tee, charging himself exclusively, was not, per se, considered as evidence of the separate receipt, and liability. Miller vs. Beverleys, 4 Hen. f? Munf. 422. Pollard vs. Lyman, 1 Day, 165. The Auditor vs. Johnson, 1 Hen. 4* Munf. 536. Heff- ner vs. Miller, 2 Munf. 43. Seatty vs. Thompson, 2 Hen. 9f Munf. 395. The object of the trust was investment, and all that inter- fered with that, or. retarded it, should be affirmatively and unquestionably shown. The trust fund was to be diminished as little as possible; and therefore the necessity of the pay- ments should be shown. Payments here are in the nature of counter-claims, on the part of the trustees, against their cestui que trusts, and, therefore, should be proved ; and on that head the answer could not, in the nature of things, be deemed re- sponsive to the bill, unless the bill had charged specific breaches in particular undue payments by the trustees. They argued this was in effect only a general bill for an account; and 56 CASES IN THE COURT OF APPEALS RlNGGOLD V. HlSCGOLD. 1826. that it was a petitio principii to say that the answer was evi- dence of the payments it stated, because the bill required "a. particular account of the trustees' transactions under the deeds of trust." The answers of both of the trustees being reluctant, un- candid, unsatisfactory, and rendered only after all the proofs were obtained by the complainants, are to be received with great caution, and to be construed by the court dubiously, and with scrutiny; allowing to them much less respect and weight than might have been accorded to them, had they been in time, willing, full, and candid. Freeman vs. Fair lie, 3 Meriv. 29,41. IVhite vs. Williams, S Fes. 193. Haim. Dig. 421, s. 5; 422, (k,) 425, (a.) Greenvs. White, 1 Johns. Ch. Rep. 33, 40. Hart vs. Ten Eyck, 2 Johns, Ch. Rep. 62, 107, 108. Faulder vs. Stewart, 11 Fes. 303. Smith vs. Scarle, 14 Fes. 415. 2 Madd. Ch. 343. Hepburn vs. Du- rand, 1 Bro. Ch. Rep. 503. 3 Merio. Rep. 29, 41. 6. On the sixth point. Interest is to be charged on all re- ceipts from their dates, as the trustees never invested, and never intended to invest. That if a rest of six months be allowed, they are then chargeable with compound interest, or interest on the annual balance of principal and interest. The authorities clearly establish the following positions: 1. Trustees, executors, &c. are chargeable with simple interest wherever there were disposable funds of the estate in their hands, which the exigencies of the estate did not necessarily prevent being placed at interest 2. If they be empowered to put money to interest, and merely let it remain idle by them, they are responsible. 3. If they have traded with the trust funds, they are not only liable to interest, but to the pro- Jits, if any, beyond the interest 4. It they retain monies by them, hesitating what to do, they shall pay interest, as it was their duty to apply to the court of chancery for instruc- tions. 5. Whenever the least in fault, they are chargeable in England with the highest interest, viz. 5 per cent, if not in fault, then with 4 per cent. money being usually worth no more in that country. 6. Wherever their duty is prescribed, as for example, to invest, and they have neglected it, but which, if performed, would have given the cestui yw trust OF MARYLAND. RIXCSOI.U v HiNoeoi.il. 1826. jnterest upon interest, the trustees shall be liable to compound interest, or interest on the annual balances of principal and in- terest. 7. Formerly, interest was allowed only from the time of audit, if respondent answered freely and fully, and from the Time of the bill filed, if reluctantly; now, no such distinc- tion but trustee is liable from the time he might have in- vested. Upon the subject of simple interest, they cited 10 Mod. 21. 2 Eq. Ca.rfbr. 740. Parrot vs. Treby, Pre. in Ch. 254. Newton vs. Bennet, 1 Bro. Ch. Rep. 35, (and note a. ) Perkins vs. Baynton, 1 Bro. C. R. 375. Treves vs. Towns/tend, Ib. 334. Dawson vs. Mussey, 1 Ball &? Bcatty, 219. Tebbsvs. Carpenter, 1 Madd. C. R. 290. Forbes vs. Ross, 2 Bro. C. R. 430 Littlehales vs. Gascoyne, 3 Bro. C. R. 73. Franklin vs. Frith, 3 Bro. C. R. 433. Hi/lard's case, 1 Fes. 90. Young vs. Combs, 4 Fes. 103. Forrest vs. Elwes, 492. Piet vs. Stacc, 4 Fes. 620, 622. Pocock vs. Red- dington, 5 Fes. 794. Rock us. Hart, 11 Fes. 57, &.c. Bruyere vs. Pemberton, Ib. 386. Ratclif vs. Graves, 1 Fern. 196. 2 Ver. 744. 1 P. IV ms. 396. High, on Lunacy, 77. "The first duty of a trustee, executor, agent, receiver, &c. is to be constantly ready with his accounts, and neglect in this, charges them with interest." Heathest vs. Hulme, 1 Jac. S? Walk. 122, 135. Massey vs. Banner, Ib. 250. Turner vs. Turner, 1 Jac. < Walk. 43. Treves vs. Townsend, 1 Cox, 50, (note 2.) Forbes vs. Ross, 2 Cox, 112, 113, Sac. 2 Madd. Chun. 134. 2 Fonb. 184 to 188, notes (o) (p.) Mosely vs. fVard, 1 Vts. 581. Dor n ford vs. Dornford, 12 Vts. 127. Stock vs. Stuck, 1 Dcsa. C. R. 193, (note.} Fox vs. Wilcox, 1 Binney, 195. Hall vs. Callaghan, 1 Scrg. 4' Rawle, 241 % Lenoirvs Winn^ 4 Z)e.ya. C. J?. 71, 454. M7/er V5. Beverly, 4 Hen. fy Munf. 415 to 418. Quarks vs. Quarles, 2 Munf. 321, 325. Car- ter's Ex. vs. Cutting and Wife, 5 Munf. 223, 233. The existence of outstanding debts has never been considered as justifying trustees' omission to invest, or at all affecting their responsibility for interest. If the monies had been invested in stock, instead of the ferries, this item alone would have produced, at this day, 353,000. Mound's debt was nominal, and to the amount claimed, they might have invested as well as retained; for the judgment was enjoined, and Maund never VOL. i. 8 58 CASEb IX THE COURT OF APPEALS KINGGOLD v. KIHGGOI.D. 1826. made any motion to dissolve, nor the respondents to perpe- tuate; but twenty years after the injunction, the complainants themselves, (the trustees having abandoned the trust,) ob- tained its dissolution. Gray vs. Thompson, 1 Johns. C. R. 32. Dunscomb vs. Dunscomb, 1 Johns. C. R. 508, 535. Shiffelln vs. Stewart, 1 Johns. C. R. 620. Brown vs. Rick- ets, 4 Jo/ins. C. R. 303. Mimise vs. Cox, 5 Johns. C R. 441, 44S. Murray vs. Munford, 6 Johns. C. R. 17, 452. 7 Johns. 265. 4 Des. 369, 556. On the subject of compound interest they contended, 1, That compound interest is as moral and legal a claim as simple interest, wherever interest upon interest has been made, or might, and ought to have been made. The interest, upon the dividends or interest, must be somewhere, and if made, is the property of the owner of the principal: if not made, and there is no gross negligence, the courts, so far favour a debtor, executor, guardian, or trustee, as not to charge them with it: but whenever the duty is plain, and it has been clearly vio- lated, compound interest is uniformly allowed by the decisions, not only of England and the United States, but of most, other countries. 2. Where the trust directs investment, and none is ever made, but, on the contrary, the trustee never in- tended to make any, the courts uniformly allow compound in- terest, or, what amounts to the same, the interest is added on the yearly balances of principal and interest. 3. Merely as between debtor and creditor, interest upon interest is rarely allowed but still compound interest is as recognised a right in certain cases, as simple interest is. They cited Waring vs. Cunlijfe, 1 Ves. Jr. 99, (and note \.) Schijfelin vs. Stewart, I Johns. Ch. Rep. 624 to 629. Newton vs. Bennet, 1 Bro. C. R. 359. Earl of Lincoln vs. Alien, 6 Bro. P. Ca. 319. Robinson vs. Gumming, 3 Jitk. 410. Raphael vs. Boehm, II Vcs. 92, 108, 109 Hammond's Dig. 332, s. 5. Jlshhurn- hamvs. Thompson, 13 Vts. 403. Raphael vs. Boehm, 13 Ves. 407, 590. Peirce vs. Rowe, 1 New Hamp. Rep. 183, Dornford vs. Dornford, 12 Ves. 127. Kennon vs. Dickins, Cam. <$ Norw. 361. Nightingale vs. Lawson, 1 Bro. C. R. 440, 443. The case now before the court, is one demanding the allowance of compound interest much more strongly than OF MARYLAND, 59 UllTGOOI.il 7'. RlJJGGOLD. 1826. in the case of Catlett vs. flames, 6 Harris < Johns. Rep. 475, 482. In this case, it is proved that the trustees have spo culated on 18,000, at least, of the trust estate. They not. only never invested one cent as directed, but they invested SlS,000 in a wild speculation of their own. They completely amalgamated the entire trust estate with their own. They not only let monies remain idle, but being directed to invest, they used the trust money, paid no debts until compelled, and in- volved the estate into costs, and fees of all kinds. Even the allowance of compound interest might not fully indemnify the complainants; and though trustees are not to be severely dealt with in cases of mere negligence, yet when their duty is plain, and they have never manifested the least intention to make the estate productive, and to surrender their talent with its proper increase, equity not only allows compound interest, but will scrutinise every account. Giving therefore, the fullest extent ol the odium justly attached to compound interest, when it is used as a means of unseemly gain, the courts adopt it with alacrity, as the only means of attaining justice, wherever persons in fiduciary relations, have forgotten the widow's and the orphan's portion, and heedlessly disregard plain direc- tions, and simple duties. They argued that the pendency of Maund's claim did not exempt the trustees from the charge of even compound inte- rest; and examined the authorities cited on the other side, in the previous argument, as to the effect of outstanding claims, to relieve trustees from the charge of interest; and contended, that it was incumbent on the trustees, in order to exempt them- selves from the charge, to show that they had deposited the money in chancery, or secured it under the sanction of chan- cery, so as always to be ready for the cestui oue trusts, or to meet the judgment of Maund; and that it was the duty of the trustees, to save themselves from interest, to apply to the chan- cellor to have the funds, adequate to Maund's judgment, in- vested, while the suit, in regard to the judgment, was pending; and as the time of its termination was, of course, uncertain. 7. On the seventh point, they contended, 1. That the settled and unvarying doctrine of the common law is, that private trus- tees, who have not stipulated for a compensation, act gratui- 60 CASES IN THE COURT OF APPEALS UIXGGOLD v. KINGCOLD. 1826. fously, and that no compensation or reward can be decreed to them. That, under the head of "just allowances,"' their ne- cessary charges, and a small indemnity for days or time actu- ally spent in executing trust duties, will be granted, when the fime is clearly made out. 2. That no statute, act of assembly, or rule of court, having altered this established law, this court, if it allows commissions in this case, must judicially legislate. And though the validity of even a rule of court, in such case, might be questioned, yet as there is no such rule, a decision in 1his case, contrary to the common law, and in the absence of any statutory provision, or rule of court, would be a decree es- tablishing a rule retrospectively. 3. That even if commissi- ons be allowable, it is still not a fixed commission of 5 per cent, but is under the discretion of the court; and as no ser- vice has been rendered, and all expenses have been liberally al- lowed, this court will not go beyond a per diem, which the trustees have failed to prove: or if a commission, in lieu of a per diem, then a commission of one or two per cent, for the sake of approximation to a per diem. 4. That if compound interest be refused to complainants, that then the entire com- missions ought to be refused to the respondents, as the former claim rests on moral and legal reasons; the latter, on moral grounds only, and this too, only in the case of zealous and me- ritorious services, and a willing, full, and satisfactory settle- ment. And the court's discretion will be applied both to the fact of the allowance, and the rate of commission. The Ro- man law was decided, that nothing beyond reasonable and just expenses should be allowed to a trustee. Lucrum faccre ex pv.pilli tutela tutor non debet. Dig. 26, 7, 33. Domat, book 2, v. 2, pi. 3; s. 3, pi. 35. The common law was always so as to bailiffs, guardians, &c. Co. Lift. 89. Lift. s. 123. So of a mortgagee in possession, 1 Ver. 316. 2 Ath. 120. 1 Smith's Rep. 252. 8 Jltk. 518. 1 Pow. on Mart. 296. 2 Pow. on l^Aortg. 1072. As to trustees, the common law from the ear- liest times, down to the present day, has persisted in this prin- ciple. How vs. Godfrey, Finch, 361. Bonithon vs. Hock- more, 1 Vern. 316. Scatterwood vs. Harrison, Moseley's Rep. 128. Robinson vs. Pett, 3 P. Wms. 248. Char. Corp. vs, Sutton, 2 .fttk. 406. JlyUff vs. Murray, 2 tftk. 52. OF MARYLAND. 61 KlNGGOLD V. RrWGGOI.Il. 1826. Gould vs. fleetwood, 3 P. Wms. 351. tfmb. 78. 4 Ves. 72 10 Ves. 184, In re. Ormsby, 1 Ball & Beatty, 189. /few. Dz-. 641, 5. 2, 3. Highm. on Lun. 70, 71. 1 Crw. Ztf#. 357, s. 42, 43, 44. 4 Desau. C. R. 368. Green vs. Winter, 1 Johns. C. R. 27, 37, 38, 43. Planning vs. Manning, 1 Johns. C. JR. 527. Mfiwon tw. Roosevelt, 5 Johns. C. /?. 534, 540. Mtm- ybrrf r.9. Murray, 6 Johns. C. JR. 1, 17. 8. On the eighth point. The complainants claim to charge Tench in all cases equally with his co-trustee, and if he ex- empts Samuel, he at the same time exempts himself. He is responsible for costs, as well as liable for all that may be de- creed; so that he could not be examined even de bene essc. But as his interest in the event of the suit is now manifest, his deposition, if taken de bene esse, cannot be read; and if read is entitled to but little credit; as it is vague and unsatisfactory. They cited Dixon vs. Parker, 2 Ves. 219. Bridgmanvs. Green, Ib. 629. Downey vs. Townsend, Jlmbl. 592. 2 Eq. Ca. Jib. 397, pi. 12. Skin. 673. Murray vs. Shadwell, 2 Ves. 4* Bea. 401, (and note a.) Whipple vs Lansing, 3 Johns. Ch. Rep. 612. Lee vs. Atkinson, 2 Cox, 412. Plod- ding vs. Winter, 19 Ves. 196. Wirt, (Attorney General of U. S.) Jones, Taney, and Magruder, for the Appellees in the second appeal, on the fifth, sixth, seventh and eighth points. 5. On the fifth point, as to the effect of the answers. Se- veral of the credits claimed by the defendants are objected to, because there is no evidence (except their answer,) in support of them. It becomes of importance, therefore, to ascertain whether so much of the answers as the defendants rely on, be evidence for them. The bill of complaint calls upon the de- fendants expressly to "render a particular account of their transactions under said deeds of trusts." "Whether they have paid any of the debts due from the said Thomas Ringgold, and state the same." So much of the answers as the defen- dants would call to their aid, is strictly responsive to the bill. It is not necessary then to maintain the correctness of the ground taken by Chancellor Johnson. His opinion was, that if the complainants chose to make the defendants disclose on 62 CASES IN THE COUftT OF APPEALS HlWGOOLI) V. RlNCGOLD. 1826. oath any part of the transaction, they were bound to let the defendants disclose the whole. That the matter in avoidance of, as well as the matter responsive to the bill, was evidence for the defendants, if the matter in avoidance was matter strictly connected with the matter responsive. In this he evi- dently differed with Chancellor Kent, in Hart vs. Ten Eyck, 2 Johns. Ch. Pep. 62, who on the authority of a case in Gil- bert's Law of Evidence, 45, decided, (not that matter strictly responsive to, but) that no matter in avoidance of the bill, could be evidence for the defendant. In the latter case it was- simpty decided, "that the detendant must make out by proof," (not what is responsive to the bill, but) "what was insisted on by way of avoidance." The matter stated in the defendants' answers is not in avoidance, but purely responsive to the bill. Nothing which the complainant's bill demands of the defen- dant to set forth in his answer, can be called matter in avoid- ance. The defendants have no interest, therefore, in disput- ing the correctness of Chancellor KenVs decision. If they had, it might be said for them, that it appears by the index to 7 Johns. Ch. Rep. 75, pi. 11. that his decree was reversed; and it is a thing unheard of that the supreme court of one state should borrow its law from the inferior court of another state, whose decision had been reversed by its own superior court. Many of the cases cited only go to show that the Chancellors were disposed to agree with Chancellor Johnson, as to what ought to be the law; that the decision in Gilbert is so often productive of mischief, that it is desirable often- times, for the purposes of justice, to escape from its operation. The doctrine of that case, however has been so long esta- blished, that it would be judicial legislation to overrule it. Yet it has not been longer settled, nor is it better known, or en- titled to as much respect, as the rule for which we contend. "The general rule," (says Chief Justice Marshall in Clark's Ex*rs. vs. Van Riemsdyk, 9 Cranch. 160,) "that either iwo witnesses, or one witness with probable circumstances, will be required to outweigh an answer, asserting a fact responsively to the bill, is admitted." Yet the dodrine we have to com- bat, is that no witness is necessary to outweigh it; for that it is not evidence at all, unless perhaps the complainant is obliged OF MARYLAND. 63 v. RiHeeOLD. 1826. to rely upon it in order to make out his case. Widely dif- ferent was the opinion of Chief Justice Marshall. He un- derstood the rule, and reason of the rule. "The reason, (he adds,) on which the rule stands is this. The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence." If therefore there be but one witness in opposition to the answer, we have the oath of one man, and opposed to the oath of another, and the complainants' solitary, though disinterested, and it may be unexceptionable witness, will not outweigh the oath of the in- terested defendant. Such is the general rule of equity, found- ed when understood, in the strictest propriety. It is to be found in all the writers uniformly recognized and acted upon by learned chancellors, and yet to be questioned by any court of equity. "There is no principle," (says Chancellor Han- son, in Hopkins vs. Stump, 2 Harr. fy Johns. 304,) "better established than this, that if a defendant be compelled to answer, whatever he says on oath shall prevail, unless re- futed by the testimony of two witnesses, or of one witness with equitable circumstances." Such is the strong and con- clusive language upon this point, of men whose opinions no judicial tribunal is at liberty to treat with disrespect Such has been repeatedly declared to be the rule of equity by the former and present court of appeals of this state. Without alluding to others, in the case of Jones vs. Sluby, 5 Harr. $ Johns. 373, it was explicitly admitted by this court that the answer, so far as it was responsive to the bill, was evidence, but declared to be only parol evidence. Surely the decisions of this court ought to be some evidence to itself of the law. But it is said that the defendants ought to have produced vouchers, and not to have relied on their own oaths. The answer to this is that it was not for the defendants to judge by which description of evidence they should esta- blish their title to the credits which they claimed. The com- plainants were to make the choice for them, and they chose not to require the vouchers, which might deceive, but insist that they should be set forth in the defendants' answers, which were to be verified by their own oaths. Now suppose the defend- ants, in answering this bill, had omitted to state what debts had 64 CASES IN THE COtTRT OF APPEALS - ... ; , -~L RiNOGOLD V. RlNGOOI/D. 1826. been paid by them, but in answer to that part of the bill had offered to produce vouchers in support of the credits to be claimed by them, what might the complainants have done? Precisely what they did do, with the first answer of Tench Ringgold excepted to it for insufficiency, and claim the state- ment which was to be verified, not by vouchers, but by their own oaths. The complainants have a right to insist, that they be furnished with proof of the several credits which the de- fendants claim. They do demand it, and it is furnished to them. They now complain of the absence of other proof proof for which they did not call, and which of course they did not au- thorise the defendants to produce. Will it be pretended that the defendants had a right to burthen this case with voluminous records, judgments, decrees, bonds, with receipts in them, &c. &c. when the complainants, who were to be the exclusive judges of the necessity and propriety of calling for them, in- stead of asking ior vouchers demanded only of the defendants to state in their answer " whether they have paid any of the debts due from the said Thomas Ringgold, and state the same." With respect to the disputed items, the charge against the defendants for the negroes taken from Prospect Hill) is conclusively refuted by several witnesses. The credit claimed by *9. Ringgold for the money paid to M'Mechen, is establish- ed by the testimony of Tench Ringgold. Other proof could have been obtained in support of the credits now disputed, if it could have been surmised thatthey needed other vouchers. With respect to most, if not all of them, though disputed in this court, they were admitted in the court of chancery. The ac- count, on which the complainants insist as the correct ac- count, allows to the defendants the principal part of these credits; and though their exceptions are not to be regarded as exceptions here, yet they must be considered as assertions or admissions by the complainants. They then stated the exception, which insists upon a particular account, and excepts to all other accounts, so far as they are inconsistent with the above account. They then turned to that account, and took from the credit side such of the credits there allowed as disputed, viz. M'Me- chen's and Wtlmer's claims. The above exception, if, as it is supposed, may be used as evidence against the complainants. OP MARYLAND. 65 KiNoooi.n v. KINOOOLH. 1826. is a distinct admission that the defendants are entitled to those credits, and therefore need not offer proof of them. In addi- tion to this there has been produced repeated settlements of the defendants' accounts with T. Ringgold, and admissions by him that they were correct, and that they are entitled to the credits which they now claim. Surely he who created the. trusts, declared the purposes for which they were created, and was himself a cestui que trust, had a right to examine the ac- counts of the trustees, and to approve of them. And his ad- missions ought to be some evidence of the correctness of the payments made by the trustees. If rejected, as claims on the trust fund, because others were interested with him in that fund, they are to be allowed in the settlement of that part of the estate the chose in action, &c. which never constituted any part of the trust estate, but still remained his own, yet to be disposed of as he pleased, and answerable for any debt of whatever description he might admit. On this point they also referred to Blount vs. Burrows, 4 Bro. Ch. Rep. 75. S. C. 1 Ves. jr. 546. Kirkpatrick vs. Love, Jlmbl. 589. Snell- grove vs. Baily, 3 Jltk. 214. Doyle vs. Blake, 2 Sc/i. <$ Lef. 243, Lady Ormond vs. Hutchinson, 13 Ves. 54. Green vs. Hart, 1 Johns. Rep. 580. Hart us. Ten Eyck, 2 Johns. Ch. Rep. 93, (note.) 1 Fonbl. 179. ti. On the sixth point. Whether the decree should be en- hanced from simple to compound interest? This question has been fully argued on the third point. It is settled law that these trustees are not chargeable with any breaches of trust, not charged in the bill. Smith vs. Smith, 4 Johns. Ch. Rep. 2S1. It is not charged in either of the bills that there was any delay in paying debts, or in bringing Maund's affair to a final deci- sion. James vs. M'Kernon, 6 Johns. Rc'p. 543. Where a trustee makes profit, and will not give an account, he is charge- able with compound interest. Evertson vs. Tappen, 5 Johns. Ch. Rep. 498, 517. Where the deed creating the trust directs an investment of the interest, which is not done, then com- pound interest is charged. Raphael vs. Boehm, 11 Ves. 92. S. C. 13 Ves. 407, 411. Darne <$* Gassaway vs. Cat let t, 6 Harr. < Johns. 475. In Rocke vs. Hart, 1 1 Ves. 58, the mo- ney was used by the executor in the course of his trade; and VOL. 1 66 CASES IN THE COURT OF APPEALS KlNfJOOLD V. RlNGGOLD. 1826. yet only equitable rate of interest of 4 per cent, was allowed. In Young vs. Combe, 4 Ves. 101, there was an express viola- tion of the trust. The executor had the money in hand, and it was his duty to invest. Only 4 per cent, was allowed* In Newton vs. Bennett, 1 Bro. Ch. Rep. 362, the executor kept the money without accounting, but employed it in his trade. Simple interest only was allowed. The note in that case shows that the only question was as to 4 or 5 per cent, not compound interest. Where gain is made the trustee is to account for the gain, or pay 5 per cent, interest. Mosley vs. Ward, 11 Ves. 581. The case of Forbes vs. Ross, 2 Bro. Ch. Rep. 430, was a case of fraud. They also referred to and commented on, Perkins vs. Baynton, 1 Bro. Ch. Rep. 375. Treves vs. Towns- fiend, Ibid 384. Piety vs. Stace, 4 Ves. 620. *ftshburnham vs. Thompson, 13 Ves. 402. Crackel vs. Bethune, 1 Jacob 4' Walker, 566. A contract to account for compound interest is void. Where it is allowed, is a relaxation of the general rule. 1 Ball Sf Beatty, 430. Waring vs. Cunliffe, 1 Ves. jr. 99, (and note.) Ex parte Bevan, 9 Ves. 223. Connecticut vs. Jackson, 1 Johns. Ch. Rep. 13. Barrow vs. Rhenelander, Ib. 550. Van Benschooten vs. Lawson, 6 Johns. Ch. Rep. 313. Darne Sf Gassaway vs. Catlett, 6 Plarr. $? Johns. 475. Com- pound interest is allowed in certain specified cases of mort gages, &c. Perkynsvs. Baynton, 1 Bro. Ch. Rep. 574. Creuze vs. Lowth, 4 Bro. Ch. Rep. 157, 316. Raphael vs. Boehm, 13 Ves. 5^0. This last case was an innovation upon the gene- ral doctrine. The direction there was to invest the interest to accumulate for the benefit of the trust. Treves vs. Townshend, 1 Cox's Cas. 50, (note 2.) S. C. 1 Bro. Ch. Rep. 384. Tebbs vs. Carpenter, 1 Madd. Rep. 290. Dornford vs. Dornford, 12 Ves. 127. In the most aggravated cases no compound in- terest was allowed. Hall vs. Hallett, 1 Cox, 134. Crackel vs. Bethune, 1 Jac. $ Walk. 566. The detainer of one trustee does riot make his co-trustee an- swerable for interest, unless the money is placed in the hands of his co-trustee out of the line of the trust, or with knowledge that his co-trustee is not trust-worthy, and who applies the funds, not for the purposes of the trust. Is the case open in this point? Or indeed is compound interest before the court? OF MARYLAND. IllNOKOLI) V. RlSGCOLD. 1826. The instructions by complainants to the auditor. The auditor's statement was to be made, subject to exceptions. No excep- tion by complainants to the auditor's statement. They are now precluded from excepting. They affirmed the auditor's state- ment, and now they wish to except. Wilkes vs. Rogers, C Johns. Rep. 566, 591. [BUCHAXAX, Ch. J. Very soon after the constitution of the present court, it was decided that the auditor's report, to which there had been general exceptions, or where there had been special exceptions, or where there had been no exceptions taken to it in the court below, might be excepted to in this court, and the whole accounts gone into.] 7. On the seventh point. Although a commission is not allowed, yet a substitution, by way of compensation, is al- lowed to trustees. Ellison vs. Jlirey, 1 Ves. 115. Brown vs. Litton, 1 P. Wins. 140. Chetham vs. Dudley, 4 Ves. 72, (and note.) 8. On the eighth point. Although in general a co-plaintiff cannot be examined, yet a co-defendant may be examined in a matter in which he is not concerned. Brid. Ind. G59, pi. 2, 5; 660, pi. 12, 13, 14. Here Tench Ringgold cannot be in- terested; for he is defaulter, and the attempt is to charge Samuel, who is a creditor to the trust. So that whether Sa- muel is to be prevented from the credit in paying the debt to M'Mechen, is of no sort of consequence to Tench, as it will neither make him pay more, nor less, if the decree is against him. Murray vs. Shadwell, 2 Ves. Sf Beames, 404, 405. ARCHER, J. delivered the opinion of the Court. This cause is one of great magnitude and interest; of magnitude, in rela- tion to the amount involved in its determination, and of interest, not only on account of the principles connected with its deci- sion, but of the peculiar relations in which the parties concern- ed stand to each other. On the one side, the complainants are the widow and children of one, whose infirmities and dissipated habits were, early in life, involving in ruin and entanglement a large patrimonial estate, and who gave sure indications that, in a short time, he would reduce to poverty his wife and family. On the other hand, the respondents are the uncles of the com- 68 CASES IN THE COURT Or APPEALS KINGGOLD v. KmrccoLn. 1826. plainants, who, observing the unfortunate habits of their brother, generously stepped in between him and his tottering fortune, and took upon themselves the onerous duties of trustees of his estate. After a period of twenty-four years, they are present- ing to this tribunal an account of their stewardship, which has been demanded by the widow and children of their brother. After a laborious discussion of the very eminent counsel con- cerned for the parties, we have approached the examination of the multifarious and perplexed transactions which have grown out of a trust of such duration, with an anxious solicitude to arrive at truth, and by applying the law to ascertained facts, to reach the justice of the case. Courts have very frequently painful duties to perform; and although they cannot be blind to the consequences which may flow to individuals from their decrees, yet insensibility to them is a stern mandate of judicial duty. We do not deem it necessary for the purpose of this decree, to recapitulate the proceedings and numerous facts in the re- cord; they will, perhaps, be found to be sufficiently stated in the auditor's report and in the chancellor's decree. The cross nppeals will, for the purpose of this opinion, be considered as consolidated; and we shall proceed to present our views of the various questions which have been raised in the discussion by the counsel on either side. The court conceive that the trustees are accountable for the value of Hopeivell. In the view which we take of this sub- ject, so far at least as concerns Ibis question, it is immaterial to inquire, whether the transfer of this estate was made under the deed of 1798, or of 1807; for, in either view, they were not authorised to transfer that estate except by a sale. If it were considered as coming under the provisions of the deed of De- cember 1807, its terms are too explicit to need illustration. As it regards the deed of 1798, they were authorised to sell the whole or a part of the real estate on credit, or for cash, and the surplus, whether consisting of real estate, bonds or money, was to be applied as is therein directed. It has been contend- ed, that the trustees under this deed had authority to make the exchange of Hopewell for the Ferry properly on the Susque- banna, because the deed contemplates a surplus of land re- OF MARYLAND. 69 KlNGGOLP V. RlNOGOLD. 1826. maining on hand after the objects of the deed are gratified. The trustees might, in their discretion, only sell a part of the real estate, and the part in that event remaining in their hands, would have been a surplus over and above what was necessary to effectuate the objects of the trust The argument would have been entitled to more weight, had the direction been to sell the whole estate. The sale of Hopewell, was not only a violation of the express stipulations of the trust, but was known and acknowledged to be so by the respondents. The deed for the ferries, from flichard S. Thomas, was given to them in their individual characters, and not as trustees, and the reason for this procedure, as is deducible from the complainants' ex- hibit B, is, that they had no right, by the terms of the trust, to take the ferries in exchange. In this transaction they both co-operated, and although they may have acted with the best intentions, and with the most honourable views towards their cestui que trusts, this court must hold them jointly responsi- ble, unless by the various acts of sanction which have been given by Thomas Ringgold, they shall appear to have been justified. Apprehending, indeed, responsibility growing out of this transaction, the trustees, if they did not seek indemnity for this contract, accepted a bond from Thomas Ringgold re- citing his original assent to the exchange, and binding himself to save them harmless; and on the same day on which the bond was executed, as if the more surely to guard them from antici- pated responsibility, he made his last will and testament, in which, as far as he could, he attempted a ratification of this transaction. This instrument, although its expressions are general, has an undoubted allusion to this contract alone, for no other sales of real estate are alleged to have been made, which needed ratification. These instruments were executed nearly four years after the execution of the deed of December 1807, by which he transferred all his land, negroes, stock and farm- ing utensils to the trustees. His habits of inebriety are repre- sented by the testimony before us to have been confirmed, and to have greatly debased and debilitated his mind. He was either placed, or believed himself to be placed, in a condition of the most abject dependence on his brothers, for even the most com- mon necessaries of life. He had clear and unquestionable rights, 70 CASES IN THE COURT OF APPEALS HINGGOLD v. RINGGOID. 1826. a$ one of the cestui que trusts under the different deeds of trust, which secured to him in all probability, an ample inde- pendence. Yet, instead of manifesting any desire to enforce those rights, as his necessities might require, his letters rather represent him in the condition of a pennyless dependant on their charity and bounty. The relation existing between a trustee and cestui que trust, the policy of the law requires, should be guarded with vigilance by a court of equity contracts between them should be scrutinised, that no injustice should be done the cestui que trusts. It is true, these various acts of attempted indemnity do not, in relation to the transactions to which they have reference, or from their character as manifested on the face of them, bear any striking evidence of legal inefficiency. It might not have been inconsistent with those great principles of moral duty, or just liberality, which one brother might owe to another, to grant indemnity for acts, which, though injurious in their consequences, he might have believed proceeded from the purest motives. But a court of equity ought to be perfect- ly satisfied, that he was free to act as a rational intelligent man, that he was not governed by considerations growing out of a dependant condition; and in this case there is too much reason to believe, not only from his letters, but from his general charac- ter and conduct, as detailed by the testimony, that the conside- rations above alluded to, entered largely into the motives for executing these instruments. The responsibility of the respondents growing out of this contract, having been determined, it is necessary to ascertain the price with which they should be charged. The cestui que trusts are entitled, upon every principle of equity, to the full value of the lands at the time of the sale. The trust has been violated, the title to the lands disposed of contrary to the ex- press injunction of the instrument under which they act, and there is no possible means by which this court can reinstate the complainants in their interest, but by charging the trustees with the utmost value of the property. This is the principle adopted in the case of a mixture or confusion of property, and the ground of it is, that although the trustee may be injured by its application, yet the cestui que trusts are certain of indemnity; and it would be but just, that if, in the impossibility growing OF MARYLAND. RIXGOOLD v RiHGGOtn. 1826. out of the conductof the trustee of ascertaining the actual value, injury should probably result, it should rather fall on him whose conduct had been delinquent, than on the innocent cestui que trusts. Yet, where the value of the property can be clearly ascertained, that must be the measure of indemnity. But for the circumstances which preceded and followed this sale, we should have been compelled to fix the value of these lands, from the opinions and recollections of witnesses, of the state and con- dition of the property, and what it would have sold for in 1807, and for this purpose, the depositions of Mr. Thomas, Mr. Wor- rell and Mr. Barroll, would have been sufficient; but the re- cord furnishes us with the evidence that these lands were ad- vertised for sale; that the sale was attended by many persons of property; that the lands were examined by several who were considered as desirous of purchasing, and who were able to have become the purchasers: yet, that when it was set up, a greater price could not be obtained than $16 per acre, aud that the trustees bought it in for the estate, at that sum, and after- wards actually agreed to sell it to R. S. Thomas for that price, and even he refused to execute his contract. These facts fur- nish the best evidence, that the lands did not exceed the value of $1G, and greatly outweigh the opinions of witnesses, as to- its value, given many years after it was thus publicly offered. If the land had been more valuable, it would surely have been bid for at a greater sum, when it was thus offered under such favourable circumstances. Nothing can be deduced of the value of Hopewell, from the price which was fixed on it in the deed from the trustees to R. Thomas this was done in conside- ration of the exchange Thomas, whose experience made him better acquainted with the ferries, was anxious to dispose of them, and probably anticipated some of the losses and incon- veniencies which subsequently attended them; although he was unwilling to give $16 an acre for Hopewell in cash, yet, if the ferries were taken in part, he was willing to give a much greater sum. This only shows his anxiety to rid himself of the ferries, and not that Hopewell was, even in his estimation, worth more. The court, therefore, think the chancellor erred in charging the value of Hopewell and Chester- Town property at $25,000. The amount due from Tench Ringgold for the sale of the CASES IN THE COURT OF APPEALS RINGGOID v. RurseoLD. 1826. 332$ acres of the Washington lands, has been also one of the subjects of controversy. It has been contended by the re- spondents, that these lands were sold by Thomas Ringgold before the execution of the deed of trust of October 22d, 1798, and that having been so sold, they were not conveyed, or in- tended to be transferred by that instrument, and were not a part of the trust property; and this is emphatically stated in the answers of the respondents; and in the letters of General Ringgold to Mr. Brice, exhibited by the complainants, he re- grets it as a misfortune, that the lands were sold by Thomas before the deed of trust was thought of; and it is said that one of the complainants, James G. Ringgold, acting for himself, and as agent and solicitor for the other complainants, has ad- mitted the fact. But whatever may be the strength of this testimony, it is not warranted by the exhibits and evidence in the cause. By exhibit S. R. No. 1, Samuel Ringgold charges himself as trustee with the receipt of part of the pur- chase money of these lands; this account constitutes a part of the answer, as much so as any express averment in it; and in Tench Ringgold' s exhibit, which also constitutes a part of his answer, it is said, that on the 21st of November, 1798, a settlement took place between Tench and Thomas, and as- sented to by Samuel, by which it appears that Thomas Ring- gold is charged with the legacy due Tench, with interest up to the 6th of March, 1799, which shows, that until that period the legacy was unsatisfied, as it could not have been if a sale had taken place before the deed of trust. These inferences and facts are strongly supported loo by the evidence furnished by the deed of October, 1798, itself; that declares on its face the indebtedness of Thomas to Tench, and one of the first objects of the trust there created, is the satisfaction of the lega- cies due from Thomas under his father's will, (the legacy to Tench being one) by the sale of the lands. This instrument does, therefore, entirely negative the idea that a sale of these lands was made before the execution of that deed. But if Thomas had agreed to sell the lands to Tench, the legal estate in the Washington lands, with the amount due thereon, passed to the trustees, and it was unquestionably the duty of Samuel to collect the purchase money and convey the property, The OF MARYLAND. KINGGOLII v. RINOOOLD. 1826. deed of the 27th of May, 1799, from Thomas and Mary Ringgoldto Samuel and Tench Ringgold, instead of im- pugning the idea of a sale by the trustees, is calculated to con- firm it. If the Washington lands were not trust property, and did not pass by the deed of 1798, why was this deed exe- cuted to Tench and Samuel? Would he not have been more likely to have himself coerced the payment from Tench, and conveyed it to him, had he personally sold it to Tench, and retained the title? Instead of this, he joins his wife in a con- veyance to Samuel and Tench, which is in entire inconsisten- cy with the idea of a previous sale by him. The object of this deed was undoubtedly to pass to the trustees the dower of Mrs. Ringgold, that Samuel might be enabled to give an un- incumbered title to Tench, when the purchase money should have been paid by him to Samuel. In any light in which this transaction can be viewed, a joint responsibility grows out of it. If the estate passed by the deed of 179S, there was a breach of trust in Samuel in selling to his co-trustee, which would make him responsible; and if contracted for by Thomas with Tench, before the execution of that instrument, it still passed the legal estate to the trustees, and it was Samuel"s duty to have collected it; and having not only failed to do so, but having made no effort for this purpose at any period of the existence of the trust, but suffered it to lie in his hands when he knew the trust was abused, in consequence of a failure on Tench's part to apply the amount of this purchase money to the payment of the debts of Thomas Ringgold, he has clearly made himself responsible equally with his co-trustee. The joint responsibility of the respondents for the sale of the personal property in November, 1807, on the eastern shore, is a question which has also been submitted to the consideration of the court. The bill charges the trusts under the deeds of 1798 and 1807,and the answers of the defendants admit the trusts con- fided to them; and in their various exhibits, which are made parts of their answers, they return accounts of their sales of the personal property as made under these deeds. It seems to have been considered by the trustees, as far as the evidence in the cause will enable this court to judge, that the trustees con- ceived they had power, under the deed of 1807, to sell the per VOL. i. 10 CASES IN THE COURT OF APPEALS RlNGGOLI) V. RlSGCOLD. 1826. sonal property which was disposed of by them, from Hunting- field and HopewelL But it is very clear, that a deed made on the 18th of December, 1807, could transfer no right to proper- ty which they had sold on the 27th of the November preced- ing. Thomas Ringgold, at that period, had no interest to con- vey. Samuel and Tench had sold it all previously to various purchasers, in his presence, or with his express approbation, a^ a time, too, when he had, for aught that appears in the cause, a complete right to it; for by the deed of 1798, no personal pro perty was conveyed, and we cannot notice the deed of January 1807, as it is not evidence in any manner in this cause. It is very probable that these sales were all made in anticipation of the deed of December, 1807, which was to follow, and did fol low a few days after the sales. That Samuel and Tench were trustees of this property, must be inferred from all the evi- dence. They exercised dominion over it; they sold it with the assent of Thomas; they took bonds from the purchasers in their own names; they collected a part of the purchase mone) r , and they have proffered themselves ready to account for these sales, and have made a return thereof as having been made by them as trustees. These sales not being then within either deed of trust, must have been made under some conventional arrangement, either verbal or written, which is not before the court, and which is only to be inferred from the transactions of the parties. That such a trust may be asserted and enforced in a court of equity, cannot be questioned. But the difficulty on the part of the complainants, arises from the circumstance, that there is no allegation in the bill which covers or affects any other trusts than those of October, 1798, and of December, 1807. A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party bound by any construction which he may have put upon the instrument. The answer, therefore, which pre- sents a list of the negroes and specific articles of personal pro- perty sold on the eastern shore, also discloses the fact that the sales were made anterior to its execution, and the evidence con- firms the answer in this respect Had these sales been actually made in anticipation of the deed of 1807, and resting on the agreement of the parties that they should be confirmed by that OF MARYLAND* 75 RlKGGOLD V. RlHOOOLD. 1826. instrument, and that their responsibility for the proceeds of these sales should be governed by its stipulations, which we have no doubt from the evidence was the fact; had some ver- bal or other trust existed under which they were made, or had Samuel exercised dominion over the property after the execu- tion of the deed of January, 1807, and proceeded to sell the property as trustee in virtue of its stipulations, as if it had been a valid and operative transfer, and had under these circumstan- ces joined Tench with him as agent, or associated him as a co- trustee with the assent of the parties, in anticipation of a deed of trust subsequently to be executed, it was surely important that each or all of these facts, a the truth might warrant, should have formed substantive allegations in the bill; or if either fraud or mistake had given the deed of December, 1807, the shape which it now assumes, contrary to the understanding and agreement of the parties, that should also have been averred. A court of equity must always decree upon the allegations of the, complainants. It is never justified in going beyond them. Such a course would violate the fundamental principles of pleading, and would work a surprize on the respondents. Had the respondents admitted a sale under these deeds, without disclosing the fact of the anterior sales, it might be well questioned whether what had been thus in pleading explicitly admitted, could be contradicted by the adduction of evidence on their part, showing that the sales were anterior to the deed. But having averred the sales previous to the deed, although they state that the sales have been made by them as trustees, they are not estopped and precluded from demanding whether a legal responsibility grows out of the deeds of trust for sales previously made by any just construction thereof. We are therefore of opinion, that in this cause, whatever under other circumstances might be the right of the complainants' demands against the respondents as trustees for sales of the personal property on the eastern shore, this court, in the state of these proceedings, cannot decree against them for the amount of those sales. In this respect, the rights of the parties are re- served for the future consideration of a court of equity, should the complainants deem that their interest demands an investi- gation. 76 CASES IN THE COURT OF APPEALS RlXGBOLD V. RlNOGOI.!). 1826. But although the sales ot the personal property cannot be co- vered by any allegations in the bill, this .jourt, in this proceed- ing, will do equity between the parties as far as is consistent with the established principles of chancery proceedings. It appears from the evidence in the cause as furnished by the an- swers of the defendants, (see their various accounts filed as ex- hibits to their answers,) that Samuel Ringgold has received the sum of $1,117 83, part of these sales, and that Tench Ringgold has received the residue from the different purchas- ers. Samuel Ringgold has applied the sum thus received to debts of the estate, and Tench Ringgold has paid debts and made disbursements to a considerable amount after the sales of the personal property. We shall therefore consider, so far as Tench has, after the sales of the personal property, paid debts and made disbursements for the estate of Thomas, that they were made from such receipts. For all the residue of Tench's receipts, which will be unexhausted by such an appli- cation, and for the amount of his own purchases at the sales of 1807, all of which remains uneollected, accountability must be sought by the complainants in a new proceeding. We con- ceive from the evidence in the cause, that although these sales were not within and the family suffering for want of the means of subsistence, depending on the charity of their relatives? It never could have been the intention of the parties, that the investment in stocks should await the determination oft/". .7. Maund's judg- ment; or that the family should for a moment be left without support, for the interest on the sales arc directed to be paid them until the funds are invested; thus, looking to a constantly accruing interest, and negativing every idea of any intended permission, that they should lie idle for such a purpose. Had the money then remained in their hands, they would have been, grossly negligent in not investing it. In such a case the rule is settled, that trustees are chargeable with interest. Trevcs vs. Townshend, 1 Brown's Ch. Rep. 384. Rock vs. Hart, 11 Ves. 58; and the rule, Chancellor Kent declares to be found- ed in justice and good policy, as tending both to prevent abuse and indemnify against negligence. Dunscomb vs. Dunscomb, 1 Johns. Cha. Rep. 504. 508. Where the trustee is directed to invest funds and to reinvest SO CASES IN THE COURT OF APPEALS RlNGGOLI) V. RlNCGOLD. 1826. the dividends, or interest, or in other words, where the trust directs an accumulation, and the trustee has used the funds, com- pound interest will be allowed, as was done in the case of Ra- phael vs. Boehm, 11 Ves. 92, 108, 109; and S. C. 13 Ves. 407, 590; or where he has used the trust money, or employed it in his trade or business, he shall also be charged in the same man- ner as was decreed in Schieffelin vs. Stewart, and others, I Johns. Cha. Rep. 620. The grounds of this allowance,as is appa- rent from these cases, is founded on the gain or presumed gain ot the trustees, and that the cestui que trust, may be indemnified by the efforts of the court in this way, to reach their profits or presumed profits. But, in this case, although the cestui que. trusts could not, perhaps, be indemnified by a less allowance than compound interest, yet the circumstances forbid the pre- sumption of a gain on the part of the trustees; although the in- vestment was in violation of the trust, it was done doubtlessly with the best intentions; with no views whatever, of reaping from the transaction, any benefit to themselves, but declaring that the profits, whatever they might be, if any, should be for the benefit of the trust estate. Believing such to have been their motives and views, public policy forbids that courts of justice should pursue a course which would have a tendency to deter persons from accepting offices frequently so necessary for mankind. The trustees have been allowed on the authority of the case of Dunscomb vs. Dunscomb, 1 Johns. Cha. Rep. 510, a rest of six months without interest on their receipts. This is al- lowed as a reasonable time within which to pay or invest the funds. There would be great reason in the rule, had they ac- tually invested or made efforts to invest; but in this case no dispositions were ever manifested to make such an application of the money as the trust contemplated. Debts due from the estate, were in many instances accumulating interest with the addition of costs, while funds were suffered to lie idle in the hands of one of the trustees, or were diverted to objects of ex- penditure foreign to the trust. To allow this rest, would in our opinion be doing injustice to the cestui que trusts. Part of the account of Simon Wilmer, together with many other charges against the estate, were allowed by the auditor in OF MARYLAND. 81 UlNGOOLn V. RtSGOOLD. 1826. his accounts, and sanctioned by the Chancellor's decree, for which no vouchers were produced, and these allowances have been made the respondents from the statement in their answers alone, by which they represent these disbursements to have been made. The general rule that an answer responsive to a bill, is evidence for a respondent, is a well established and set- tled principle. But, the answer of a defendant, where it as- serts a right affirmatively in opposition to the plaintiff's de- mand, is not evidence. Beckwith vs. Butler, 1 Wash. 224. Payne vs. Coles, 1 Munford, 373. An answer will not sup- port a matter set up in avoidance or discharge where the matter of avoidance is a distinct fact. In such case, the defence must be proved. Mr. Evans in his appendix to Pothier on Obliga- tions^ 157, lays down the following principle: That where the answer is replied to, the whole is put in issue, and the defen- dant must support by proof, all the facts upon which he means to insist, while the complainant may rely upon every fact ad- mitted, which he conceives to be material, without being bound to the admission of others; and this rule he deduces from a case cited in Gilbert, 51, which, as it is a leading case, it will be necessary to notice. There, the defendant, by his answer, which was put in issue by the complainant's replication, admit- ted as executor, that the testator had left 1100, and said, that af- terwards, the testator gave a bond for 1000, and the testator gave him the other 100; as there was no evidence but the de- fendant's admission for the receipt, it was contended that he ought to find credit when he swears to his own discharge; but it was resolved by the court, that when an answer was put in issue, what was confessed and admitted need not be proved, but that it behoved the defendant to make out, by proof, what was insisted upon by way of avoidance. Chancellor Kent de- clares that this rule is well settled in chancery proceedings, and recognizes and adopts it in the case of Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, where all the learning on this subject is ably collected and reviewed, and where it was determined that on a bill to account, the answer is no evidence of disburse- ments. The cases above cited from Washington and Man- ford's Reports, were also bills in chancery against executors to account, and where discharges alleged in the answers were held VOL. 1 11 82 CASES IN THE COURT OP APPEALS RlNGGOlD V. RlNGOOLD. 1826. to be of no avail unless supported by proof. The doctrine may then be considered as settled, that on a general bill to ac- count, the answer is no evidence of disbursements, notwith- standing it is said that the Court of Errors of the State of New- York, overruled on appeal the judgment of Chancellor Kent on this question. 7 Johns. Ch. Rep. General Index, tit. Evidence, 75, pi. 11. That tribunal, from its peculiar structure, does not appear to be calculated for legal investiga- tion, and its judgments cannot outweigh the opinion of Chan- cellor Kent, fortified as it is, by numerous cases of established authority. Butj it is said, there being a call here for the amount of disbursements, and debts paid, that this case is varied front those which have been cited. It is true, there is, from aught that appears, a variance in form, but there is none in substance. For, a prayer that the defendant shall account, is in effect a call on the defendant, to state in his answer, not only his receipts, but his disbursements, so that the complainants may have an opportunity of putting them in issue; and without which, in- deed, the defendant himself could give no evidence of them. Nothing more is demanded in the interrogatories in this bill, than, under a general call to account, the defendant would have been obliged to answer. It is nothing more in either case, than a demand on the defendant to show his receipts and the legal evidences of his expenditures, in conformity with the trust. Nor is there any hardship in the rule. Men of ordinary care preserve the evidences of their payments, and to say that the respondents should have done it, is demanding from them no- thing extraordinary or out of the usual course of human trans- actions. The establishment of a contrary doctrine would lead to dan- gerous consequences, and would be calculated to render trusts valueless, by giving to trustees, executors and guardians, the power on their own oaths, to exempt themselves from all re- sponsibility. The rule then may be stated, (and it is the good sense of all the cases cited in the argument,) that in all cases where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if, in his answer, the liability is once admitted, there can be no escape from it but by proof. It is true, every thing which he says, with regard to the creation of that liability, must be taken OF MARYLAND. RlNGGOLI) V RINGGOLD. 1826. together; detached sentences cannot be used against him, but every thing which he says, relative to his original liability, is properly in evidence. This doctrine will be found to be sup- ported in Lady Ormond vs. Hutchinson, 13 Ves. 53, 54, and by the cases above referred to. The complainants, by their supplemental bill, seek to make the respondents accountable for nine negroes, taken by Samuel Ringgold, at the stipulated price of $2000. The answer of Samuel admits that they were so taken, but denies accounta- bility, as they were taken at a valuation, in part payment of large sums of money, paid and advanced by the respondent, to Thomas Ringgold, and that a balance is still due him, of up- wards of $3500. Samuel Ringgold, in Exhibit No. 1, filed with his answer to the original bill, has charged Thomas Ring- gold with the payment to D. and W. M'Mechen of the sum 33574. The court are of opinion, that the respondents cannot be charged with the valuation of these negroes. It is in evidence, that Thomas Ringgold admitted, that they were taken in part satisfaction of a debt, due from him to Samuel, in the year 1806; at a time, when from aught that appears in evidence, he was exercising dominion over his personal estate, and when no deed of trust, which the court in this cause can notice, covered it. As it regards the sum of $3574, which Samuel Ringgold claims credit for, the court deem it unnecessary, in pronouncing their judgment, to recapitulate the testimony of the various witnesses, who have been examined on the subject. Nor do they deem it necessary to determine the question, as to the competency of Tench Ringgold's testimony, for it is consi- dered, that there is enough in the record without it, to justify the allowance. It is contended, that this court is not competent to allow commissions, as a compensation to the trustees for their trouble. In England, a liberal indemnity is allowed to trustees for their expenses, but nothing as a compensation, unless founded in po- sitive agreement between the parties. This rule appears to be applicable, not only to trustees of every description, but to ex-* ecutors. They are considered as confidential offices, gratui- tously undertaken from motives of friendship or humanity, and CASES IN THE COURT O* APPEALS RlNGGOLD V. RlNGGOLD. 1826 without views of personal benefit or profit. Yet, the English courts grant per diem allowances, not in the nature of a com- pensation, but under the name of an indemnity. The differ- ence then, in truth, is only in the mode of allowance, not in the principle. It is in fact, a mere difference in name. Com- missions in a case like this, might very fairly be considered as only extending a just and reasonable indemnity for time be- stowed in the management of the concerns of others. But if, indeed, there was a difference in principle, this court would feel themselves justified in granting reasonable commissions. Our statutes allow commissions to executors, administrators, guardians and trustees, under judicial sales, and by analogy to these statutes, or by an equitable construction of them, the al- lowance may, and ought to be made in this case. But, al- though the general claim to commissions is admissible, we con- ceive that none should be allowed for the sale of Prospect Hill. The trustees have paid N. Brice, their agent, the only commis- sions to which they were entitled on this sale. By the will of Mary Ringgold, bearing date in October 1803, certain legacies were bequeathed to Samuel and Tench Ring- gold, in trust for Thomas Ringgold; with these legacies the respondents have charged themselves in their account accom- panying their answers, but have, at the same time, referred to the source from which they emanate. There is no allegation, in the bill of complainant or supplemental bill, which reaches this trust, and they cannot in this proceeding, be charged with them, either jointly or severally, but the equity of the com- plainants, in respect thereof, is reserved. The court have appointed an auditor for the purpose of stat- ing an account between the parties, upon the principles contain- ed in this opinion, and will direct, that his costs shall be taxed in this proceeding. From the account thus audited, it ap- pears that the sum of $39,318 54, with interest on the sum of $28,576 87, part thereof, from the 1st of July 1822, is due from the respondents to the complainants, which will be de- creed to be paid into the court of chancery, to be distributed or invested under the authority thereof, according to the rights of the respective complainants. We concur with the chancellor in awarding costs to the com- OF MARYLAND. 85 KlXGOOLD V. KlNGGOLD. 1826. plainants, and are of opinion, as the decree of that court will be entirely reformed, that each party pay their own costs in this court. BUCHANAN, Ch. J. dissented. Decreed, That the decree of the court of chancery given and rendered in these causes, be reversed, except as to the amount and sum of money, hereby decreed to be payable to the appel- lees in the first and the appellants in the second of these causes. And this court proceeding to pronounce such decree in the premises, as the court of chancery ought to have pronounced, Decreed also, that there is due from the appellants in the first and appellees in the second of these causes, and that they do pay to the appellees in the first and appellants in the second of these causes, in the manner hereinafter mentioned, the sum of 39,318 54, with interest on the sum of 28,576 87, part thereof, from the 1st day of July 1822, the said sum, with in- terest, having been ascertained by and agreeably to the accounts hereto annexed. Decreed also, that the parties in the said causes, pay their re- spective costs incurred by them in this court on their appeals, but that the appellants in the first and appellees in the second of these causes, pay to the appellees in the first and the appel- lants in the second thereof, the costs incurred by the said ap- pellees in the first and appellants in the second of said causes, in the court of chancery. Decreed also, that the chancellor make and pass all necessary orders for carrying this decree into full and complete effect, by ordering and directing, that the said sum of money, with in- terest as aforesaid, and the costs as aforesaid, incurred in the court of chancery, be brought into the said court of chancery, by the appellants in the first and appellees in the second of these causes, to be distributed and paid, under the directions of the chancellor, to the said appellees in the first and appellants in the second of said causes, according to their respective rights and interests; and also, that the chancellor order and direct, that the said appellees in the first and appellants in the second of said causes, pay to the auditor of the court of chancery the sum of $23 33, allowed by this court to the auditor, for his fees in. 86 CASES IN THE COURT OF APPEALS BOURNE VS. MACKAL1. 1826. auditing and stating the accounts directed by this court to be made between the parties. Decreed also, that all the equity and equitable rights and claim of the said appellees in the first and appellants in the se- cond of said causes, be, and the same is hereby reserved and maintained to them, against the said Samuel Ringgold and Tench Ringgold, or either of them, as to all or any personal estate, of the late Thomas Ringgold, or the proceeds of sales or dispositions thereof, of any kind, and interest on such pro- ceeds, except as to so much of such personal estate and pro- ceeds, as has by the accounts hereto annexed, and by this de- cree, been applied to or in reference to the payments and dis- bursements, by the said Samuel and Tench, or either ot them; and also, that the like equity be reserved and maintained to the said appellees in the first and appellants in the second of said causes, against the said Samuel Ringgold and Tench Ring' gold, or each or either of them, as to any legacies bequeathed, to or for the benefit of the said Thomas Ringgold, by the last will and testament of his mother, Mary Ringgold. DECREE REVERSED, &C. BOURNE vs. MACK ALL. June, 1826. "Where a record had not been transmitted to the appellate court under u writ of error, that court will lay a rule on the plaintiff in error, and clerk of the court to \vhich the writ was directed, to show cause, &c. On the record being filed, the court will, if it be the reguhr term for judgment, and no counsel appearing for the plaintiff in error, dismiss the writ. BOYLE for the defendant in error, had moved the court, on a former day during this term, to docket this action, and dismiss the writ of error sued out by the plaintiff in error no record of the proceedings intended to be removed having been trans- mitted to this court. He filed in court the certificates of the register of the court of chancery, and clerk of Culvert county court, showing that a writ of error had been issued on the 20th of December 1 824, commanding that a record of the proceed- ings on a judgment rendered in Calvert county court, at Octo- ber term 1824, in favour of the defendant in error against the OF MARYLAND. 87 BOURNE VS. MACKAI.L. 1826. plaintiff in error, be transmitted to this court; and that the said writ of error had been produced to the said county court. He observed that the condition of the writ of error bond, prescribed by the act of 1713, ch. 4, is that the plaintiff in error shall pro- secute his writ of error to the next court of appeals, and these words impose upon him the obligation of producing to the court of error, a proper transcript of the record, and if he fail to do so in due time, the condition of the bond is broken, and the defendant ought to be permitted to docket the case, and have the judgment affirmed, or a dismissal of the writ of error. The defendant in error cannot proceed upon his judgment in the court below, because it is stayed by writ of error as a super- sedeas, and to commence a new action upon the writ of error bond would create unnecessary and vexatious delay. This is a new case in this court, and it is not of much importance what the practice is, so that it be settled and known. In the supreme court of the United States the practice is, in all cases where a writ of error, or an appeal, shall be to that court, from any judgment or decree rendered thirty days before the term to which such writ of error or appeal shall be returnable, it is made the duty of the plaintiff in error, or appellant, to docket the cause, and file the record thereof with the clerk of that court within the first six days of the term, and on failure to do which the defendant in error, or appellee, may docket the cause, and file a copy of the record with the clerk, and the cause shall stand for trial in like manner as if the record had been duly filed within the first six days of the term; or at his option, he may have the cause docketted and dismissed upon producing a certificate from the clerk of the court, wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal had been duly sued out and allow- ed. Randolph vs. Harbour, 6 Wheat. 128. 19th Rule of the Supreme Court of the United States, 1 Wheat. XVI, and the 32d rule of the same court, 6 Wheat. VI. THE COURT then ruled, that the plaintiff in error, and the clerk of Calvert county court, show cause, on or before, &c. (a day during the term,) why a transcript of the record of pro- ceedings in this case had not been returned to a'id~ filed in this court, according to the command contained in the writ of error. CASES IN THE COURT OF APPEALS HURTT vs. FISHER. 1827. A copy of this rule was served on the plaintiff in error, and on the clerk of Calvert county court, and a transcript of the record of proceedings was filed in this court (a). Boyle now moved the court to affirm the judgment, or dismiss the writ of error. He stated that it appeared by the transcript of the record filed, that the writ of error was made returnable to the last June term of this court, and that this was the regu- lar term for affirming the judgment, it not being a case for ar- gument; and no counsel appearing for the plaintiff in error, WRIT OP ERROR DISMISSED. (aj The clerk had, as he stated, in due time forwarded a transcript of the record by the mail. HURTT vs. FISHER. June, 1827. An executor empowered to sell lands by last will, having sold them in 1814, and put the purchaser in possession, it was his duty, if the sale was for cask, payment being refused, to have sued; if on credit, he ought, within a reasonable time, to have obtained bond and security for the purchase money; and at all events should have retained possession of the land un- til the necessary security was given. Omitting to sue at law until 1819, he was prima facie guilty of gross negligence, and responsible, as a a trustee would be, for the proceeds of the land from the time of the sale, deducting his reasonable expenses and commission. A trustee, with power to sell, and having sold lands, being informed that a deed was required by a purchaser, to whom he had sold and given pos- session, and that the purchase money would be paid when the deed was executed, doubting his right to execute a deed, yet not obtaining a decree, ratifying his sale for 4 years, is bound to show the circumstances beyond his control, to justify this delay. A trustee is responsible for money lost by his gross negligence. Lands devised to be sold are thereby turned into money, and considered in equity as personal estate. A wife being entitled to the proceeds of such land, dying after a sale of it, her husband surviving, is entitled to the proceeds thereof. APPEAL from Kent County Court, sitting as a Court of Equity. The bill filed by the appellee on the 13th of March 1823, stated that in the year 1814 James Hurtt died seized and possessed of a considerable real and personal estate, leaving nine children, viz. Mary* Henry, Samuel, Elizabeth, *ftdah t Martha, James, Sarah and Ruelma, the three last minors, under the age of 21 years. That the said Hurtt by his last OF MARYLAND. HTJRTT vs. FISHER. 1827. will, dated the 26th of January 1813, directed that all his lands in Queen-Anne's and Kent counties should be sold under the direction of his executor therein named, and upon such terms as might be most to the benefit of his estate, and the sales there- of to be accounted for by his executor as part oi his estate; and also that certain parts of his personal estate should be sold and accounted for by his executor as part of his estate; and that all his children should be equally entitled to his estate, both from the sales of his land, and his personal property of every kind. And by his said will he constituted and appoint- ed his son Henry Hurtt, (the appellant,) executor thereof, who took upon himself the execution of the said will. That on or about the 26th of August 1814, Henry Hurtt sold to James Salisbury the land situate in Kent county, of which the testa- tor died seized, for the sum of $14 50 per acre, amounting in the whole to $2,784. That Henry Hurtt permitted Salisbu- ry to take possession of the land without ever obtaining from Salisbury any security for payment of the purchase money, except Salisbury's own responsibility. That on the 29th of August 1819 the complainant intermarried with Jldah Hurtt 9 one of the children of the testator, and that she died on or about the 18th of February 1821, without leaving any child. That Henry Hurtt brought a suit in Kent county court in September 1819 against Salisbury, for recovery of the pur- chase money due for the land sold as aforesaid, and obtained judgment against him at March term 1821, for $3,223 63, and costs of suit. Li the rendition of which judgment Salisbury obtained an allowance for one-ninth of the original purchase money, he having intermarried with one of the daughters of the testator. That Henry Hurtt permitted Salisbury to hold, possess, use and occupy, and to receive the issues and profits of the said land from the year 1814 until September 1819, with- out using any legal process or means to obtain security for pay- ment of the purchase money, or to recover the purchase mo- ney, or to regain possession of the land. That Henry Hurtt had never paid to the complainant, or to his wife Adah, any money either on account of any rents, issues or profits, or on account of the purchase money of the said land. The bill then states, that since the rendition of the judgment vox,, i. 13 90 CASES IN THE COURT OF APPEALS - i t HUETT vs. FISHER. 1827. above mentioned, H. Hurtt had become possessed of the land which he had sold to Salisbury, and now holds the same. Prayer, that H. Hurtt may be compelled to pay to the complainant the one-ninth part of $2,784, with interest on such ninth part, &e. and for general relief. The answer of H. Hurtt, the defendant, (now appellant,) admits the death of his father James Hurtt, and that he died seized and possessed of a considerable real and personal estate, leaving the children named in the bill ; and by his will devised and dis- posed of his property as stated in the bill, and that the defen- dant took upon himself the execution of said will, &c. That he advertised for sale the land mentioned in the will, and at the sale of the land in Kent county, in August 1814, Samuel Boyer became the purchaser thereof for the sum of $14 50, per acre, amounting in the whole to $2,784. That Boyer, at the time of the sale, declared that he had purchased the land for James Salisbury, to whom the said land was charged by the defen* dant, the said Salisbury being at that time confined by indis- position, and not able to attend the sale. That Salisbury was then in good credit, and considered and reputed to be in good circumstances, and the defendant felt perfectly secure. That by the conditions of the said sale, possession of the land was to be given on the 1st of January 1815, on which day posses- sion was accordingly delivered to Salisbury, who had seeded wheat on the said farm in the preceding fall. That some time after the 1st of January 1815, the defendant called on Salis~ bury, and requested him to give his bond for the purchase money with such security as the defendant should approve, when he was informed by Salisbury that so soon as the defen- dant would give him a deed for the land purchased by him, he? would pay the defendant therefor, as he was in constant ex- pectation of receiving a large sum of money from the sales of John Black's real estate; and that the defendant was not au- thorised by the said will to give such deed. The defendant having been instructed that he was not authorised by the said will to give a deed for the land sold by him, had a bill filed in the court of chancery, and obtained a decree in 1818, authoris- ing and empowering him to make a deed for the said land. Af- ter which the defendant again called on Salisbury for paymeqt OF MARYLAND. 91 HURTT vs. FISHER. 1827. of the land, who promised to pay for the same, but neglected, and ultimately refused to do so; whereupon the defendant in 1819 brought suit against him in Kent county court for the pur- chase money the land having been very materially injured and lessened in value since the sale of it in 1814; and the de- fendant then, and still believing, that if again sold it would not have brought, by a large sum, the price at which it had been sold to Salisbury. That at September term 1820, the said suit was referred to Ephraim Vansant, &c. by rule of the court, and the said arbitrators returned their award to court, and judg- ment was thereupon entered; which award included the original purchase money of the land, with interest thereon, also an ac- count due from Salisbury to J. Hurtt, the testator, and sundry other transactions between the defendant and Salisbury, and for which the defendant had also sued Salisbury. From all which it will be seen, that after deducting from the claims al- lowed to Salisbury against the defendant as executor and trus- tee of J. Hurtt, deceased, the sum of $140 75, for the debt due from Salisbury to J. Hurtt, deceased, and which debt the defendant, in the settlement of the personal estate, had acknow- ledged and became answerable for as a sperate debt, there re- mained the sum of $802 40, to be credited as a payment by Salisbury for the purchase money of the land. The answer further stated, that at the time of the rendition of the judgment against Salisbury, he had become utterly unable to pay the same; and the defendant, believing that Salisbury was insol- vent, and being unwilling to enter into a suit in chancery to obtain a second sale of the said land, and to eject Salisbury, had at sundry times applied to him, and did not obtain the pos- session until shortly after harvest in July 1822. That a day or two after the defendant had taken possession, Salisbury threaten- ed to proceed against the defendant for a forcible entry and de- tainer; and the defendant believing it to be as unprofitable as it was unpleasant to enter into a law suit with Salisbury, agreed to execute, and did execute, a paper purporting to release Salis- bury from the judgment, in consideration of his giving up the full possession of the land to the defendant, and Salisbury thereupon executed a paper, purporting to be a release, &c. The defendant thereupon advertised the said land to be sold o 92 CASES IN THE COURT OF APPEALS HPRTT vs. FISHER. 1827. the 7th of September 1822, but there being no purchaser, the land was again advertised to be sold on the 15th of March 1823j when the same was sold to Edward Hurtt at and for the sum of $7 25, amounting in the whole to $1,435 50. That the defendant, finding that there was very little prospect of selling the land for a large price, had authorised Edward Hurtt to bid for the same for and on the behalf of him the defendant; and JE. Hurtt, having been the highest bidder and purchaser, the defendant has since kept possession of the land, considering it his own property, and holds himself liable to the devisees of his father, or to their proper representatives, for their several and respective proportions of the price at which the same was sold. The defendant denies that he at any time received any other sum for or on account of the purchase money of said estate from Salisbury, other than the credit in the said award by the referrees, or for or on account of the profits of said land, except what money he considered a fair price for a crop of wheat which was seeded on the land in 1822 by the defendant, and which was reserved by the defendant at the sale in 1823. That in giving a release to Salisbury the defendant relinquish- ed his claim to the sum of $161 98, with interest thereon, of his own money, due from Salisbury to him for goods sold, it being in part of the amount for which the award and judgment had been rendered, and that he was induced to do so from a well grounded belief that Salisbury never would pay the claim, and that in the meantime the land purchased by him would regularly become less valuable. The defendant admitted that the complainant did intermarry with Jldah Hurtt, and that she is since dead, without ever having had issue by the complainant. He submits to the court whether the complainant can claim or recover any part of the money due for the sale of the said land, or whether the right and interest of the said idah in and to the same, does not survive to the other children and heirs at law of J. Hurtt, deceased. He admits he never paid to the complainant, or to his wife Adah, any part of the purchase money, or any thing for or on account of rents or profits of the said land. The County Court, [ Earle, Ch. J. and Purnell, and Wright, A. J.] passed the following decree, viz. The court are of opinion that the land in Kent county, devised by James OP MARYLAND. 93 HUHTT vs. FISHER. 1827. Hurtt to be sold, is to be considered as money, and that his daughter Adah's part of it has devolved on the complainant by his marriage with her. The court therefore adjudge that James Fisher, the complainant, in right of his wife is entitled to, and that he recover of the said Henry Hurtt, the trustee, one ninth part of the proceeds of the sale of the said land, sold by him to James Salisbury in the. month of August 1814, deducting therefrom all reasonable expenses of the said trustee, as well as a reasonable sum for his commissions the said trustees having, in the judgment of the court, been guilty of the grossest ne- glect in his negotiations with Salisbury, and in the manage- ment of the trust fund. Decreed, that the defendant pay to the complainant the sum of $295 22, with interest from the 1st of January 1815 till paid, according to the statement an- nexed, and costs. From which decree the defendant appealed to this court. The cause was argued at last June term before BUCHANAN, Ch. J. and MARTIN, STEPHEN, ARCHER and DORSEY, J. Chambers, for the Appellant, contended, 1. That the bill of complaint does not sufficiently charge gross neglect in the defendant below to justify the decree. 2. That it was not competent in the court to pass the decree without a previous reference to the auditor, before whom the defendant could have claimed and proved his expenses and disbursements necessarily incurred in the execution of his trust. Eccleston, for the Appellee, insisted, I. That after the sale of the land on the 27th day of August 1814, made to James Salis- bury by the appellant, as trustee under the will of his father, the right and interest of the appellee, and his wife Adah, in and to the amount of the sale thereof, must be considered quasi personal property; and that notwithstanding the death of the said Adah since the said sale, without ever having had issue Born alive, the appellee, in right of his wife, is entitled to the same interest in and to the amount of the sale thereof as the appellee, and his wife Adah, would be entitled to were she living. 2. That there has been such neglect and misconduct on the 94 CASES IN THE COURT OP APPEALS HURTT vs. FISHER. 1827. part of the appellant as trustee under the will of his father, in relation to the sale of the said land, as renders him liable to pay unto the appellee the one-ninth part of the net amount of the sale of said land, as made on the 27th day of August 1814, together with legal interest thereon from the 1st day of January 1815, until paid. 3. That if the appellee is not entitled to the one-ninth part of the amount of the sale, as made on the 27th day of August 1814, he is entitled to such other relief in the case as a court ol equity would think proper to grant unto the appellee, and his wife Jldah, were she still living Curia adv. vult. MARTIN, J. at this term, delivered the opinion of the Court. That a trustee is answerable for money lost by his gross negli- gence, is a principle of law well established; and whether Hurtt has been guilty of such negligence as to make him an- swerable for the amount of the purchase money on the first sale, must depend upon the facts admitted in the answer. It appears the will was proved in 1814, and that in August of the same year the lands in Kent county were sold by Hurtt to Salisbury. The terms of this sale, whether for cash, or on credit, are no where stated in the record. If it was for cash, it was the duty of the trustee, upon payment being refused, to have instituted legal process to enforce it; and if on credit, he ought, in a reasonable time after the sale, to have obtained from the purchaser, bond and security for the purchase money; and at all events, the possession of the land ought to have been re- tained by him until the necessary security was given. But we find in this case, that no security was ever obtained for the pur- chase money; and although the land was sold in 1814, no at- tempt was made to enforce the payment of it by legal process, until some time in the year 1819, and yet the possession of the land was given up to Salisbury in January 1815. This affords at least strong prima facie evidence of very gross ne- glect, and unless satisfactorily accounted for by the trustee, would make him liable for the money on the first sale. How does he attempt to avoid it? That Salisbury refused to pay the money until the trustee gave him a deed, and that he could not do, without an application to the court of chancery. OF MARYLAND. 95 HUHTT vs. FISHER. 1H27. If a deed was necessary in this case, did the trustee use rea- sonable diligence to obtain authority to give it? He was in- formed in 1814 a deed was required by the purchaser, and that the money would be paid when a deed was executed ; yet he never obtained a decree in chancery for this purpose, until the year 1818, about four years after the original purchase. If there were circumstances beyond his control to justify this de- lay, it was incumbent on him to have stated them in his de- fence; but in the absence of such allegations, which if they had existed, must have been in the knowledge of the trustee, the court have no right to presume them. If in a reasonable and proper time, the trustee had filed a bill in chancery to autho- rise him to give a deed, there can be no doubt that the chan- cellor, having all the proper parties before him, and there being no legal objection to the contrary, would have passed a decree to confirm the first sale; to authorise the trustee, upon the pay- ment of the purchase money, to give a deed, and to order the money to be brought into court, to be applied, under the di- rection of the chancellor, according to the provisions of the will. But this was not the conduct of the trustee. Without any authority, (so far as this record speaks,) he again sold this land in 1823, and became himself, through his agent, the pur- chaser for seven dollars and twenty-five cents the acre, just one half of the original purchase money, and now holds and pos- sesses the land, under that purchase. With this view of the case, the court must charge the trustee with grossly improper conduct, more especially as from the facts disclosed in the an- swer, there is strong ground to believe, if he had faithfully per- formed his trust, the original purchase money might have been, saved. It is stated that Salisbury, at the time of the sale, was in good credit and circumstances, and if a deed had been ten- dered to him in a reasonable time, it is fairly to be presumed the purchase money would have been paid or secured to the trustee. The next question presented to the court, in this case is, whether the purchase money arising Irom the sale of this land in 1814 is to be considered as money, and would devolve upon James fisher, whose wife died after the sale? We feel no difficulty upon this part of the case. We con- 96 M'CCLI.OH vs. DASHIELI.. 1827. cur in opinion with the court below, that the land in Kent county devised by James Hurtt to be sold, and sold in 1814, is to be considered as money, and that James Fisher is enti- tled to the same portion of it, upon the death of his wife, as he would have been authorised to receive, had she been alive. The general rule of law, that lands devised to be sold are thereby turned into money, and construed in equity as personal estate, is fully sustained, not only by the authorities cited by the counsel for the appellee, but by many others, were it nie~ cessary to resort to them. See Doughty vs. Bull, 2 P. Wms. 320. Lechmere vs. Earl of Carlisle, 3 P. Wms. 215. Best vs. Stamford, 1 Salk. 154. Maberly vs. Strode, 3 Ves. 450, 456. Trelawney vs. Booth, 2 Atk. 307. Craig vs. Leslie^ et al. 3 Wheat. 563. Fisher's wife dying after the sale, leaves no doubt of his right to recover. DECREE AFFIRMED^ MCuLLOH vs. DASHIELL'S Adm'r. 'June, 1827. C & T drew a bill in favour of M, on D & B, partners in trade, which they accepted. M sued D & B at law on their acceptance, and pending the suit D died. Judgment being had against B, he being insolvent obtain- ed a discharge under the act relating to insolvent debtors. The defen- dant administered on D's estate, and received assets from his separate property to a large amount, though insufficient to pay D's individual debts, and also received some of the partnership funds. The judgment not being paid, and the partnership funds being insufficient to pay ite debts, M filed a bill in equity against D's administrator, claiming to be paid out of the separate assets, and equal proportion with D's separate creditors. Held, that he was not entitled to recover. Joint creditors in equity can only look to the surplus of the separate estate, after the payment of the separate debts. Separate creditors, in equity, can only seek indemnity from the surplus of the joint fund, after the satisfaction of the joint creditors. Where the claims of joint creditors do not come into conflict with those of the separate creditors, but only with the interests of the representa- tives of the deceased partner, equity will decree to joint creditors a satisfaction of their claims, by considering them, as they are considered at law, both joint and several. At law the joint creditors may pursue both the joint and separate estate, to the extent of each, for the satisfaction of their joint demands ,without restriction from a court of equity; yet when by the death of one of the OF MARYLAND* M'Cci.LOH v. DASHIELL. 1827. parties, the legal right survives against the surviving partner, and is ex- tinguished against the deceased partner, that court will give to the sepa- rate creditors all the advantages, thus by accident thrown upon them. The assets of insolvents are distributable according to equity. APPEAL from Somerset County Court, sitting as a court of equity. In this case the bill of the complainant* (now appel- lant,) stated, and the pirties admitted, that in 1817 Peter Da- shiell and Richard Bennett were partners in trade, dealing in merchandise, under the firm of Dashiell and Bennett. That Chase and Tilyard, being indebted to the complainant, drew a bill of exchange on Dashiell and Bennett, directing them to pay to the order of the complainant $700, which was ac- cepted by Dashiell and Bennett. That the complainant in the year 1818 instituted a suit at law against Dashielland Bennett for the recovery of the money due on the said acceptance, and pending the suit Dashiell died intestate. That judgment was afterwards recovered against Bennett, the surviving partner, and upon the return of the execution issued on the judgment, Bennett petitioned and obtained the benefit of the act for the relief of insolvent debtors. That at the time of his petition and discharge he had no property; and no part of the said judgment had been paid. That the defendant (the appellee,) obtained let- ters of administration on the estate of Dashiell, and had assets in his hands to the amount of $1 3,061 43. That the personal estate of Dashiell is insufficient to pay his separate and private debts. That the defendant, as his administrator, had received of the partnership funds $35 93. The complainant claimed to be paid out of the assets in the defendant's hands, an equal proportion of their claim with the other creditors of Dashiell. But the Coun- ty Court, [Martin, Ch. J. and Robins, A. J.] refused to allow the complainant's claim, and decreed that no part of his claim should be paid, except from the partnership funds, until the separate and individual debts of Dashiell should be first paid; and that the surplus, if any, should be applied to the payment of the partnership debts, and not otherwise. From this decree the complainant appealed to this court. The cause was argued at last June term before BtrcHANAflr, Ch. J. and EARLE, STEPHEN, ABCIIER, and DORSEY, J. VOL. I 13 CASES IN THE COURT OF APPEALS M'Cuii.OH ts. UASIIIELL. 1827. J. Bayly, for the Appellant, stated the question to be, Whe- ther the complainant in the court below, and now appellant, was entitled to be paid an equal proportion of his claim, with the other creditors, out of the assets in the defendant's hands? Or whether his claim shall be postponed until all the separate and individual creditors shall have been first paid, and only ad- mitted to a proportion of the surplus, if any? To show that the complainant was entitled to be paid an equal proportion of his claim with the separate creditors of JDashiell, out of the assets in the hands of the defendant, he referred to the acts of 1798, ch. \Q\,subch. 8, s, 17, and 1805, ch. 110, s. 7. Murray fy Sansom vs. Ridley 1 s Jidni'x. 3 ffarr. $r M'Hen. 175. ffamersley vs. Lambert, 2 Johns. Ch. Hep. 508. Tucker vs. Oxley, 5 Crunch, 34, 39. Ex parte Elton, 3 Ves. 238. Stephenson vs. Chiswell, Ib. 566. JR. N. Martin and Tingle, for the Appellee. Where there is a separate estate, and individual and co-partnership creditors, the first have the first claim out of the estate. The interest which co-partnership creditors have, is after the payment of in- dividual debts. 2 Madd. Ch. 463. Partnership effects shall in the first place be applied to pay partnership debts. The se- parate creditors can only resort to the surplus. 1 Madd. Ch. 463. 2 Madd. Ch. 466. Ex parte Crowder, 2 Vern. 706. Ex parte Hunter, 1 Atk. 227. Ex parte Cook, 2 P. Wms. 500. Ex parte Elton, 3 Fes. 238. Ex parte Clarke, 4 Ves. 677. Ex parte rfbell, Ib. 837, 839. Thomas vs. Frazer, 3 Ves. 39t>, (note.) Ex parte Clay, 6 Ves. 813. Ex parte Reeve, 9 Ves. 590. Gray vs. Chiswell, Ib. 124. Gow on Part. 270, 271, 272, 317, 367, 461. 1 Bac. M. tit. Bankruptcy, 460. Lane vs. Williams, 2 Vern. 277, 292. Simpson vs. Vaughan, 2 Jltk. 31. J. Bayly, in reply, cited Murray vs. Murray, 5 Johns. Rep. *JO. Act of 1798, ch, 101, sub ch. 8, s. 5, 7, 10, 16. Ex parte Hodgson, 2 Bra. Ch, Rep. 5. Harrison vs. Sterry, 5 Cranch, 302. Curia adv. vult. OF MARYLAND. M'CcLLon vs. UASHIELL. 1827. ARCHER, J. at the present term, delivered the opinion of thft court. The bill filed in this cause states that a bill of exchange was on the 18th of August 1817, drawn by the firm of Chase and Tilyard upon Dashiell and Bennett, co-partners in trade, for the sum of $700, in favour of the complainant, and that it was by the drawees duly accepted; that a suit was instituted against Dashiell and Bennett upon the said acceptance by the complainant; that pending the action in Somerset county court, the intestate of the defendant, and one of the firm of Dashiell and Bennett died, and judgment was obtained against Bennett the surviving partner. That Bennett applied for and obtained the benefit of the insolvent laws of this state, having been fi- nally discharged at November term 1820, no part of the claim having been paid; that the said surviving partner had no pro- perty either joint or separate, wherewith satisfaction could be made of the said debt. That Parsons, the respondent, took out letters of administration on the estate of Dashiell; and prays that a decree may pass directing the administrator to pay the amount of the acceptance from the assets of the deceased, or such part thereof as, upon a just distribution of the assets, he may as one of his creditors be entitled to. The bill of ex- change above referred to, the judgment, and certificate of the final discharge of Bennett, are filed as exhibits in the cause; and the following admission of counsel is contained in the re- cord: "That the trustee of Richard Bennett, an insolvent debtor, has not received any property belonging to Bennett; that no part of thp debt due to the complainant has been paid either by the trustee, or by Bennett; that the personal estate of Dashidl is insufficient to pay his private and individual cre^ ditors; that the defendant has received of the partnership debts due to the firm of Bennett and Dashiell, $35 93. The par- ties moreover admit the exhibits above stated as testimony, and waive the formality of making either the trustee, or Bennett the surviving partner, a pcrty to these proceedings." The question presented for the decision of this court upon this record, is whether the complainant is entitled to be paid an equal proportion of his claim, with the separate creditors of Dashiell, out of the assets in the defendant's hands; or whe- 100 CASES IN THE COURT OF APPEALS M'CuLLOH vs. DASHIELL. 1827. ther the claim, being a joint claim, shall be postponed until all the separate creditors shall be first fully paid? The question thus stated is one of considerable importance; and although, undoubtedly, of very frequent occurrence in the subordinate testamentary tribunals, has never, we believe, re- ceived an adjudication in the appellate court, or in any of the higher courts of original jurisdiction. There are very few cases in the English books bearing di- rectly upon the distribution of assets, in a case situated as this is. It has been contended in argument, that it must be govern- ed by the principles adopted in England in the marshalling of assets in bankruptcy. And as they are distributed according' to equity, if the rule can be definitively ascertained, it ought to govern here. But an examination of the authorities, will show, that it has been very unsteady and fluctuating; varying frequently in form, often in substance, according to the ideas entertained by each succeeding chancellor, of the rights of the joint and separate creditors; and moulded more upon their no- tions of convenience to all the parties concerned, than as stand- ing upon legal reasoning. Duttonvs. Morrison, 17 Ves. 205. Amid the multitude of decisions which have taken place upon this subject, it is no easy task to trace the history of the rule of distribution in bankruptcy. But this examination will satisfy us, that amidst all the fluctua- tions of the rule, the principles established in the first cases oc- curing more than a century since, have but for a short period, been materially encroached upon; and that now the leading principles of distribution, with some modifications, are what they were originally established to be. In Ex parts Crowder, 2 Vern. 706, decided in 1715, which was an application on the part of the separate creditors, to be let in under a joint commission, the separate estate being of small value, it was decided that they might be permitted to prove their claims under the joint commission, but that the joint funds were applicable, in the first instance, to the pay- jnent of joint debts, and then the separate debts; and that the separate effects should be applied to the payment of the separate tebts, and that the surplus should go to the liquidation of the joint debts. In Exparte Cook, 2 P. Wms. 500, (in 1728,) OF MARYLAND. 101 M'CrLi.OH v. DASHIELI. 1827. Lord Chancellor King followed the determination in Ex partt Crowder, and d eclared it to be settled, and that it was a resolu- tion of convenience, that the joint creditors shall be first paid out of the partnership estate, and the separate creditors out of the separate estate of each partner, and if there be a surplus of the joint estate, besides what will pay the joint creditors, the same shall be applied to pay the separate creditors; and if there be on the other hand a surplus of the separate estate, be- yond what will pay the separate creditors, it shall go to supply any deficiency that may remain as to the joint creditors. In Ex parte Hunter, 1 *fltkyns,22S, (in 1742,) Lord Hardwicke says, as between joint and separate creditors the joint estate shall be applied to the joint creditors, and the separate estate to the separate creditors. The rule that prevailed during the administrations of Lords King and Hardwicke, from 1715 down to the time of Lord Thurlow, was that joint creditors could not prove under a separate commission, for the purpose of re- ceiving dividends with the separate creditors, (Watson on Part. 244, Ex parte Taitt, 16 l r es. 195 ;) but only for the purpose of going for the surplus after the satisfaction of the separate creditors. But Lord Thurlow broke in upon the es- tablished practice of the court, which had prevailed for sixty years; and in 1785, in Ex parte Hodgson, 2 Bro. Cha. Rep. 5, resolved that there was no distinction between joint and separate creditors; that they ought to be paid out of the bank- rupt's estate, and his moiety of the joint estate; and that the joint creditors oi'ght to come in pari passu, with the separate credi- tors. This resolution laid down, as it is, in broad and gene- ral terms, would appear to have broken down all the bounda- ries previously established, between the rights and priorities of the joint and separate creditors; yet if taken with the limita- tions with which it is said, by Watson on Partnership to have been qualified, it will appear to have made this innovation only that they should all, joint as well as separate creditors, be permitted to prove their claims against the separate estate upon a separate commission; but that it was competent for the as- signees to confine the joint creditors, where there was a joint estate, to that fund exclusively, by filing a bill in equity against the other partners, and obtaining an injunction upon the order 102 CASES IN THE COURT OF APPEALS M'CuiLOH v. DASHIELI.. 1827. in bankruptcy. And that this was the consequence of Lord Thurlow's adjudication is apparent from Lord Rosslyn's judg- ment in Ex parte Elton, 3 Ves. 238. Thus the rights of the joint and separate creditors, on their respective funds where there was a joint estate, was maintained, notwithstanding the alteration thus made in the order in bankruptcy. In the case of Ex parte Elton, decided in 1796, the rule established in 1785, was deemed by the then chancellor to be an inconvenient one, because every order which he passed in bankruptcy, that the joint creditor should receive a dividend out of the separate estate, might give rise to a bill in equity, on the part of the separate creditors to restrain this order and to secure the appro- priation of the separate estate to the satisiaction of the separate debts; and it was adjudged, that a joint creditor might prove his claim under a separate commission, not for the purpose of receiving a dividend, until an account should be taken of what he had or might have received from the partnership effects, Thus the chancellor, in the modification which he gave to the order in bankruptcy, exercised his equity jurisdiction, and gave to each order the operation of an injunction, without the ex- pense of a bill, whereby the joint creditor was restrained from coming on the separate fund until, in the final adjustment of the co-partnership and individual accounts, equity should de- termine what portion of the separate funds should be allotted to the joint creditor. And he says, that the joint creditors are in the situation of a person having two funds. The court will not allow him to attach himself to one fund, to the preju- dice of those who have no other, and to neglect the other fund. He has the law open to him, but if he comes to claim a dis- tribution, the first consideration is, what is that fund from which he seeks it? It is the separate estate which is particu- larly attached to the separate creditors. Upon the supposi- tion there is a joint estate, the answer is, apply yourself to that, you have a right to come upon it. The separate creditors have not. Therefore do not affect the fund attached to them, till you have obtained what you can get from the joint fund. Thus it would appear that the ancient order of distribution was restored with this modification, that the joint creditors might prove, but could not, as before, receire dividends without the OP MARYLAND. M'CCLLOH v. DASUIELL. 1827. further order of the chancellor, which should be made after the settlement of accounts, which were directed to be kept, as be- fore, separate. This important principle also seems distinctly to be set up by this decision, that where there are no joint ef- fects, and no solvent partner, that the joint creditors might be permitted to come in with the separate creditors, a doctrine which appears to have been first recognized by Lord Tlmrlow, in Ex parte Hayden, 1 Bro. Ck. Rep. 453, for before that period it has been seen that they could only come upon the sur- plus. This doctrine Lord Eldon has uniformly adhered to, although it will be iound that he repeatedly complains of it, as a rule producing some inconveniencies, and liable to several objections, as will be seen by a reference to Ex parte Pinker- ton, 6 Ves. 813, (note.) Ex parte Kensington, 14 Ves. 447, Ex parte Kendo. I, 17 Ves. 521. Ex parte Mell, 4 Ves. 837. In the case of Ex parte Kensington, the joint creditors were forbid receiving dividends with the separate creditors, on the ground that there was one solvent partner, although there was no joint estate. That the petitioner would have been allowed had the partner been bankrupt, is the necessary inference from the case; and in the former case the joint creditors were per- mitted to come in where there were no joint effects, upon the ground that the solvent partner was abroad, and that therefore the difficulty was increased in resorting to him. Such is a succinct history of the law upon this subject, and the modern doctrine has been summarily stated by Eden, in his notes to Ex parte Hodgson, 2 Bro. Ch. Rep. 5, by Vesey in Ex parte Taitt t \n his 16th vol.194, (n,) and also by Maddock, in the 2d volume of his treatise on the principles and practice of the Court of Chancery, 463. They all unite in saying, (and they are fully supported by the authorities cited by them respectively,) "that the joint creditor may prove un- der a separate commission, for the purpose of assenting to, or dissenting from, the commission, or of going against the sur- plus after the satisfaction of the separate debts, not to vote on the choice of assignees, or receive dividends with the separate creditors, (except a joint creditor who is a petitioning creditor under the commission,) or where there are no joint effects t or no solvent partner, or no separate debts, or the joint creditori 104 CASES IN THE COURT OF APPEALS M'CULLOH vs. DASHIELT,. 1827. will pay twenty shillings in the pound to the separate credi- tors." The case of Gray vs. Chiswell, 9 Ves. 124, as it is strongly illustrative of the above doctrines, and was a case, not in bank- ruptcy but in equity, will be particularly adverted to. A bill was filed by the creditors of Cook against the heir and execu- trix of Chiswell, claiming to come upon the real estate of Chis- well, for the amount of their debts, as the personal estate had been absorbed by specialty creditors. Chiswell had been a partner of Nantes; Nantes had survived him, and had become bankrupt. The joint creditors of Nantes and Chiswell proved their claims before the master. The joint estate was insolvent, being only able to pay an inconsiderable dividend, and the sum proposed to be raised by a sale or mortgage of ChiswelVa real estate, was not more than sufficient to pay the separate cre- ditors. A contest arose between the joint and separate credi- tors, the former insisting on their right to come in pari passu with the separate creditors, upon this fund, thus proposed to be raised out of his separate estate. But the Chancellor (Lord, Eldon,) refused to permit them, upon the ground that in bank- ruptcy it could not be done, and that the accidental death of Chiswell ought not to put the joint creditors in a better situa- tion than they would have been, had he lived and become bank- rupt. If there be any estate for distribution among the joint creditors, although the surviving partner is bankrupt, they are not, in bankruptcy, permitted to come in with the separate cre- ditors. The chancellor, therefore here, as in bankruptcy, would not permit the joint creditors, who had effectuated their claims under the commission against Nantes, although they had received but an inconsiderable dividend, to come in pari passu with the separate creditors. There was here some joint es- tate, and then the general rule applied, that each species of cre- ditor must be satisfied out of the fund to which his debt parti- cularly attaches itself; and the rule has been carried to this ex- tent, that if there be a joint fund of any, even the smallest description which is capable of being realized, the rule is in- flexible, and the joint creditors will not be permitted to re- ceive dividends from the separate estate. Ex parte Peake, Goto, on Pari. 408. Thus we perceive from the case of Gray vs DASHIELI. 1827. vs. Chisivelly that the rule, which is applied in bankruptcy, is xtended to cases in equity. It is difficult to say upon what the rule in equity and in bankruptcy, with the modification above stated, is founded. The joint estate is benefited to the extent of every credit which is given to the firm, and so is the separate estate in the same manner enlarged by the debts it may create with any indivi- dual, and there would be unquestionably a clear equity in con- fining the creditors to each estate respectively, which has thus been benefited by their transactions. So far the, rule is sensi- ble and intelligible; and although at law the joint creditors may pursue both the joint and separate estate, to the extent of each, for the satisfaction of their joint demands, which are at law considered both joint and several, without the possibility of the interposition of any restraining power of a court of equity; yet when, by the death of one of the parties, the legal right survives against the surviving partner, and is extinguished against the deceased partner, a court of equity will give to the separate creditors all the advantages thus by accident thrown upon them, and will not, by adopting the rigorous rule of the Jaxv merchant, thereby injure and prejudice the separate credi- tor, upon whom, viewed in connexion with the separate fund, it always looks upon as meritorious and entitled in the distribu- tion of assets to the preference. But although a court of equi- ty, as against the separate creditors, will not adopt the law mer- chant, which considers the contract both joint and several; yet whatever doubts have heretofore been entertained on the sub- ject, where the claims of these joint creditors do not come into conflict with the separate creditors, but only with the interests of the representatives of the deceased partner, it is now unde- niably settled, that equity will, as against such representatives, decree to joint creditors a satisfaction of their claims, by con- sidering them, as they are considered at law, both joint and se- veral. But although these distinctions are built on the solid founda- tions of reason and justice, it is not altogether so easy to per- ceive, why, when there is no joint fund, and no solvent part- ner, (by no solvent partner is meant bankrupt partner,) the joint creditor should thereby acquire the equitable right of coming VOL. i. 14 106 vs. DASHIBU. 1827. in with the separate creditors part passu, upon a fund in no manner benefited by the creation of his debt. Such, however, is the settled and established rule, as we are enabled to collect it both in bankruptcy and in equity; and according to this rule the complainant could not, in this case, be permitted to seek in- demnity for his claim, from the separate estate part passu with separate creditors, as it is a conceded fact in the cause, that there are joint funds, although very inconsiderable, and greatly insufficient to pay the debt of the complainant. But were not this the fact, this court would have no difficulty in saying, that the complainant should be postponed to the se- parate creditors; and that whether there was any joint estate or not, he should not be permitted to divide with the separate creditors a fund insufficient to pay them. We are, therefore., disposed to adopt the ancient rule as more consonant to equity and justice, that the joint creditors can only look to the sur- plus, after the payment of the separate debts; and on the other hand, that the separate creditors can only seek indemnity from the surplus of the joint fund after the satisfaction of the joint creditors. It is believed that the case of Tucker vs. Oxley, 5 Crunch, 34, somewhat militates against the views which we have taken of the English law upon this subject, and it has been pressed upon the court, by the appellant's counsel, as containing prin- ciples decisive of this case. It was there determined, that un- der the bankrupt law of the United States, (and the bank- rupt law of England and that of the United States, so far as connected with the matter there decided, are nearly iden- tical,) that a joint debt may be set off against the separate claim of the assignee of one of the partners, but that such set-off could not be made at law, independent of the bank- rupt system. The particular decision in this case, it is not ma- terial perhaps 1 to examine, because it was a case at law, and the relations of the parties were materially different. It would perhaps be sufficient to say, that the Supreme Court, although they conceive a legal right exists in the joint creditors to prove and receive dividends out of the separate estate, explicitly ad- mit, that such right it is competent for a court of equity to re- strain, and. to compel the exercise of such right in such manner OF MARYLAND. 107 MORRIS vs. BRICKLET & CALDWELL. 1827. as not to prejudice or to do injustice to others. We might, in any view of the cause before us, dismiss, without further ob- servation, the case of Tucker vs. Oxley; but we cannot for- bear remarking, that the case upon which the court there build their opinion, that a legal right universally exists in the joint creditors upon a separate commission to come on the separate estate pari passu with the separate creditors, is the case where a joint creditor is the petitioning creditor, and is an excepted case from the general rule. ( Vide argument of Sir Samuel Homily in Ex parte *flckerman, 14 Ves. 604, and the autho- rities referred to by Vesey.) Maddox in his 1st vol. 463, considers this a singular exception to the general rule; and the reason assigned for the adoption of the exception is, that the joint creditor, having petitioned for the commission of bank- ruptcy, it might be considered in the nature of a modified ex- ecution, taken out by him, as well for his own benefit as fop that of the separate creditors; and that it would be against all equity to permit the separate creditors to prevent the joint cre- ditor from reaping the fruits of an execution taken out for hi* and their mutual benefit. Thus, without encroaching upon any decided case, and act- ing in strict conformity to the settled doctrines, it must be de- termined, that although Bennett is a certificated insolvent, yet as the separate estate of Dashiell is insufficient to pay his in- dividual debts, the complainant, a joint creditor of Bennett and Dashiell, cannot be permitted to come in pari passu with the separate creditors of Dashiell, DECREE AFFIRMED. MORRIS vs. BRICKLEY & CALDWELL. June, 1827. "Where a plaintiff offers no testimony, or such, as is so slight and inconclu- sive, that a rational mind cannot draw the conclusions sought to be de- duced from it, it is the right of the court, and their duty, when applied to for that purpose, to instruct the jury, that he is not entitled to recover. A positive and absolute direction to the jury will not be granted, if it obliges the court to discredit a witness; to do that the intervention of a jury is peculiarly necessary. APPEAL from Cecil County Court. Jlssumpsit for money laid out, lent, advanced and expended. The plaintiff, (now ap- 108 CASES IN THE COURT OP APPEALS MOTIRIS v, BEICKLET & CAI.DWELL 1827. pellant,) at the time of filing his declaration, filed therewith an account of his claim against the defendants (the appellees,) with an account of sales of 100 barrels of herrings received by the plaintiff from the defendants, and by him sold to sundry persons, among others, 51 barrels sold in September and October 1817 to JosephS. Eves, at $4 50, per barrel, amounting to $229 50. After deducting freight, commission, &c. the balance of the whole amount of the sales of the 100 barrels was $305 76. The account raised by the plaintiff against the defendants, charged them with cash at sundry times, with interest, &c. amounting to $185 56, and credited them with the amount of the sales of the 100 barrels of herrings $305 76, deducting therefrom 51 barrels sold to Joseph B. Eves, at 60 days, and unpaid, at $4 50, per barrel, $229 50. Thus reducing that credit to $76 26, and allowed interest thereon, $6 76, making a balance due to the plaintiff of $102 54. From this sum the plaintiff's commission of 2| per cent, on the sale of the 51 barrels to Eves, amounting to $5 75, was deducted, leaving due the plaintiff $96 81. The defendants pleaded the general issue. At the trial the plaintiff produced and offered in evidence the account referred to in the declaration, (which account had been sworn to by the plaintiff, and by N. C. Neilson, his clerk, be- fore a notary public for the state of Pennsylvania,} and also the depositions taken under a commission regularly issued and returned in this cause, viz. that of Samuel Jlrcher, who af- firmed that in July, August, September, and November 1817, he sold to Joseph Bennett Eves on an average credit of not short of four months, goods to the amount of more than $4,000; and at the time of the failure of said Eves, the affirmant was a creditor to the amount of more than $10,000; that at the time of said Eves' failure, he was indebted to the amount of not less than $70,000 many of the most intelligent and respecta- ble merchants of Philadelphia being amongst his creditors. That there are grades of credit in Philadelphia, as in other places, and the affirmant does not consider that the said Eves was in the highest grade of credit, yet he believes he might have extended his purchases to a still greater amount than he did. Charles F. Hozey deposed that he knows the plaintiff, but he did not know the defendants; that the dealings of the OF MARYLAND. 109 MORRIS r. BRICKLET & CALDWELL. 1827. parties as referred to in the plaintiff's statement, did take place; that he knows that about the months of September and October 1817, the plaintiff sold to Joseph Bennett Eves a quantity of herrings, for the amount of which he took the said Eves's notes, which he endorsed and deposited in bank for collection, as is customary; but the same never were discounted, nor the money obtained from Eves for the same. The deponent knows the facts he has above testified, from his having been a clerk of the plaintiff, at the time the transaction took place, and to the present period. The defendants then prayed the court to direct the jury, that the evidence produced was not sufficient to sup- port the action. Which direction the Court, [Earle, Ch. J. and Worrell, A. J.] gave to Vhe jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court. The cause was argued before BUCHANAN, Ch. J. and MAR- TIN, ARCHER, and DORSEY, J. by Gale, for the Appellant, and by Carmichael, for the Appellees. DORSEY, J. delivered the opinion of the court. This court have, on more occasions than one determined, that where there is no testimony, or where the testimony offered is so slight, and inconclusive, that a rational mind could not draw the con- clusions sought to be deduced from it, that it is the unquestion- able right of the court, and their imperious duty, when applied to for that purpose, to instruct the jury, that the plaintiff is not entitled to recover. Whether the case at bar comes within the operation of this decision, is the question now to be considered, and its determination depends upon the proof offered to the jury, and all the circumstances admissible in argument before them, connected with this controversy, as they appear upon the face of the record. The appellant having filed his declaration, also filed in court an account showing the transactions between the parties, and the nature of the claim on which the action was founded. Which account showed the consignment by the appellees of one hundred barrels of herrings to the appellant at Philadelphia, the expenses incident thereto, the price at which 110 CASES IN THE COURT OF APPEALS MORRIS v. BHICKXEY & CALDWELL. 1827. the herrings were sold, the amount thereof received, and the money advanced by the appellant to the appellees. A com- mission afterwards issued to Philadelphia to take testimony. The appellant filed the necessary interrogatories to obtain proof of the items in his account. The appellees in their cross in- terrogatories, not even insinuating an objection to, or denial of, the receipt of any of the sums of money wherewith they were charged in the account, put their defence solely on the ground, that they were entitled to a credit for the price of the herrings sold to Joseph Bennett Eves, (who had become insolvent,) either because the contents of the note he had given therefor had been received by the appellant, or that he had rendered himself personally answerable therefor, as an agent violating his duty to his principal, in selling to a vendee, without credit, or in doubtful circumstances; both of which facts were clearly disproved by the testimony taken under the commission. The appellees, disappointed in the defence to which their cross interrogatories pointed, at the trial of the cause sought to protect themselves from the claim, by the weakness of the ap- pellant's proof, and to that end prayed the court to instruct the jury, that the evidence produced was not sufficient to support the action. Which instruction the court gave; and from that deci- sion the appellant hath sought relief at the hands of this court, and we conceive it our duty not to withhold it. ffozey, the clerk of the appellant, deposed that the dealings of the parties, as referred to in the appellant's statement, (mean-r ing his account,) did take place; and although he also swears that he did not know the appellees, and that he knew the tacts he had testified, from his having been a clerk of the appellant at the time the transaction took place, we by no means think that the weight ot his testimony is wholly destroyed thereby, or that in candor or charity this court can impute to him a crime (which scarcely deserves a milder name than perjury,) of having sworn positively to facts of which he had no knowledge. His testimony will bear a different interpretation, and in that light we are disposed to view it. When we look, therefore, to the na- ture and circumstances of the claim, the proceedings in the cause, and th testimony of the witness Hozey, the intervention of a jury, we think peculiarly necessary to settle the rights of the OF MARYLAND. Ill NEWTON v. GRIFFITH. 1827. parties. We consequently dissent from the opinion delivered by the county court, and reverse their judgment. JUDGMENT REVERSED, AND PROCEDENDO AWARDED. NEWTON, et al. vs. GRIFFITH, el al. June, 1827. Before the act of 1786, ch. 45, (to direct descents,) a devise of land by A o his son J, and his heirs, and other land to his son G, and his heirs; and in case either of them "should decease, having no lawful issue or heirs of his body" then the surviving 1 son "to have his deceased brother's part of the land," to him and his heirs; and in case both sons "should decease, leaving no lawful heirs of their bodies," then all the aforesaid lands unto the testator's three daughters, S, S, & N, to be equally divided between them, would have vested in J and G each, estates tail general, in the lands respectively devised to them, with cross remainders in tail general, re- mainder to S, S, & N for life. But by operation of that act, the devise being made in 1792, J and G took virtually estates in fee in the lands devised to them respectively; and on the death of G, without issue and intestate, J, and S, S, and N, surviving him, J took by descent from him, one-fourth of his estate; and J also dying without issue and intestate, that, with the whole of the estate devised to him by his father, descend- ed to his three sisters S, S, and N, as his heirs at law. On a bill filed against S, S, and N, as heirs at law of J Held, that the land which thus descended from J, was subject to be sold for the payment of his debts. The words "without issue" in a will, when applied to dispositions of real estate, ex vi termini, mean an indefinite failure of issue, if there be no- thing in the will restricting it to a failure at the time of the death of the first devisee, or to some other time or event. To have no issue to die having no issue, and to die without issue, are tech- nically and judicially convertible terms. The word leaving, as well as the words having and without, in devises "and if he shall die without leaving any issue" "without having issue," or "without issue," has acquired a technical judicial decision, and when applied to real estate, means an indefinite failure of issue In dispositions of personal property, the courts generally incline to the con-' struing a limitation after a dying without issue, to mean a dying without issue at the death of the first legatee, in order to support, if they can, the limitation over; yet in relation to real estate, the construction is generally otherwise. The circumstance of a limitation over, being to a survivor, and his heirs, or only of a life estate to a person in esse, has not the effect, in dispositions of real estate, in either case, to restrict the established Icgul meaning of the words, "leaving no lawful heirs of their bodies," to a failure at the death of the first taker, or survivor. IF there be a devise to one generally of freehold and personal estates, with- 112 CASES IN THE COURT OF APPEALS NEWTON v. GRIFFITH. 1827. out any words of limitation, he will take an estate for life only, in the freehold, but the personal property absolutely. By the act of 1782, ch. 23, the ancient mode of docking estates tail, by common recovery, is abolished; and any person seized of any estate tail, in possession, remainder or reversion, may convey the same in the same manner and form that a tenant in fee may. Before the passage of the act of 1786, ch, 45, estates tail were not liable for debts contracted by tenants in tail; but by that act estates tail general, created since its passage, were virtually abolished, and converted into estates in fee simple, and have now all the incidents of lands held in fee* they are descendible, transferable and devisable, and subject to be sold for the payment of debts, as estates in fee. Estates tail general, divided among heirs, taken by election or sold by com- missioners, are held in fee simple. By the act of 1786, ch. 45, lands held in fee simple and fee tail general, created since its commencement, descend first to the child or children, and their descendants, if any, equally; and if no children 01 descendants, to collaterals indefinitely. The legislature having a right to prohibit the creation of estates tail, must have a right to direct in what manner, lands so held by subsequent crea- tion, should descend. A dying intestate, means a eying without making a valid aad operative dis- position by will. Estates tail general, created before the act of 1786, and estates tail special, are excepted from the operation of that act. APPEAL from Dorchester County Court, sitting as a court of equity. The facts in this cause are fully set forth in the opinion of this court, delivered by the chief judge. It was argued at June term 1825, before BUCHANAN, Ch. J. and EARLE, STEPHEN, and ARCHER, J. by J. Bayly* for the Appellants, and by Bullitt and Kerr, for the Appellees. Curia adv. vult. BUCHANAN, Ch. J. at this term, delivered the opinion of the* court The controversy in this case, turns upon the construc- tion of the will of Joseph Griffith, the elder, dated the 6th of February 1792, and of the act of 1786, ch 45, s. 1, the act to direct descents. The language of the will, (so far as concerns this case,) is, "I give and devise unto my son Joseph, Griffith, my present dwelling plantation whereon I now live, to him, my said son Joseph, his heirs and assigns forever. Item. I give and de- OF MARYLAND. 113 US. -i ' NEWTOX v. GRIFFITH. 1827. vise unto my son George Griffith, the plantation whereon Levi Oram now lives, lying on Transquakin river, or a branch rhereof, to him, my said son George, his heirs and assigns for- ever; and my will is, that all the land which I am now pos- sessed of, either by deed, bond or patent, be equally divided between my said two s"ons Joseph and George, according to quantity and quality, share and share alike, to them, their heirs and assigns forever; and in case either of my said sons should decease, having no lawful issue or heirs of his body, that then the surviving son to have his deceased brother's part or moiety of the land aforesaid, to him, his heirs and assigns for- ever, as aforesaid ; and in case both my said sons Joseph and George should decease, leaving no lawful heirs of their bo- dies, that then and in such case, I give and devise all my afore- said lands, devised as aforesaid, unto my three daughters, 0- phia, Sarah, and Nancy Griffith, to be equally divided be- tween my aforesaid three daughters." George Griffith, one of the sons and devisees, died intestate and without issue in May 1814 after the death of the testator, who died seized of the devised premises; and Joseph Griffith* the other son and devisee, died also intestate and without issue, in November 1S14, without leaving personal property sufficient for the pay- ment of his debts. His three sisters, Sophia, Sarah and Nancy, who survived him, and are still living, are his only heirs at law. The bill in this case was filed against them as such, (and their husbands,) and seeks to subject to sale, for the payment of his debts, all the real estate of which he died seiz- ed. The defendants in their answer, admit that he died seized in fee of certain lands derived to him by inheritance from his mother, which descended to them, his sisters, as his heirs at law, subject to his debts; but they claim to hold, under the will of Joseph Griffith the elder, all the land devised to Jo- seph Griffith, the younger, and his brother George, by virtue of the limitation over to them, Sophia, Sarah and Nancy, on the contingency of both their brothers, Joseph and George, dying without "leaving lawful heirs of their bodies;" and deny that any part of the lands so devised, descended to them from Joseph Griffith the younger, as his heirs at law, and insist that VOL. i 15 114 CASES IN THE COURT OF APPEALS NEWTON v. GRIFFITH. 1827. they are not liable for his debts; and a decree pro forma passed accordingly. The case is brought before this court on an appeal from that decree; and the question to be decided is, what estates in the lands devised, passed to Joseph Griffith, the younger, and George Griffith, respectively, under the will of their father, whether "estates tail general," or "estates in fee simple," with cross limitations over by way of executory devise, as the law stood before the passage of the act to direct descents? When this case was argued, it was understood that a cause was then depending in this court on the western shore, in which the same question was virtually involved; it was there- fore thought expedient to hold this case under advisement un- til that should also be heard. That cause has since been de- cided. It was the case of Dallam vs. Dallam, 7 Harris 8? Johnson, 220, and depended upon the construction of a devise in the will of Frances Middleware made in August 1755, which is in these words: "I give and devise unto the afore- said Richard Dallam and Josias Dallam, and to their heirs and assigns forever, as tenants in common, equally to be divid- ed between them, all that tract of land called Palmer's Fo- rest, lying on the west side of Swan Creek; but if either of them dies before the age of twenty-one years, and without is- sue, then I will that one equal half part of the said land be held and enjoyed by Goldsmith Garrettson, (son of George and Martha Garrettson,} his heirs and assigns forever, to whom I give and devise the same accordingly. And in case the said Richard Dallam and Josias Dallam should both die before the age of twenty-one years as aforesaid, and without issue, then I give and devise the whole of Palmer's Forest to the aforesaid Goldsmith Garrettson, his heirs and assigns forever." It was there contended, that the words "without issue" meant an indefinite failure of issue; that is, a failure of issue when- ever it might occur, which was a contingency too remote to sustain a limitation over by way of executory devise; and that, therefore the devisees, Richard and Josias Dallam re- spectively, took estates tail. But it was held, on full conside- ration and an examination of all the principal authorities relat- ing to the subject, that Richard and Josias Dallam each took OF MARYLAND. 115 NEWTON v. GRIFFITH. 1827. an estate in fee, in the premises respectively devised to them, defeasible by the event of his dying before he attained the age of twenty-one years and without issue; not on the ground that the words "without issue" alone mean a failure of issue at the time of the death of the devisee, or that a limitation over of real estate, on an indefinite failure of issue, is good by way of executory devise; on the contrary the court there explicitly lay down, as settled and established rules not now to be ques- tioned, 1st. That no limitation can be good as an executory de- vise, unless it be on a contingency that must happen, if at all, within a life or lives in being, and twenty-one years and a frac- tion of a year afterwards, allowing for the time of gestation; and that if it be on an event, which may or may not happen within the prescribed limits, it is void from the beginning, no matter how the fact turns out afterwards. 2dly. That wherever there is a devise of real estate to- one and his heirs, with a li- mitation over, if he should die without issue, the general words "without issue" mean an indefinite failure of issue; that is, not a failure of issue at the time of the death of the devisee, but a failure whenever they shall become extinct, without reference to any particular time or event, if there be nothing in the will clearly showing a different intention on the part of the testator, and restricting the failure to the time of the devisee's death, or to some other time or event; and that in every such case the contingency is too remote to support an executory devise, as it may not happen within the time prescribed; but the first devi- see takes an estate tail, and the limitation over operates as a contingent remainder, expectant upon the precedent particular estate tail. But 3dly. That wherever there are expressions in the will clearly restricting the "dying without issue," to a fail- ure of issue, at the time of the death of the first taker, or to some other time or event which must occur, if at all, within the time allowed for the happening of a contingency, on which an executory devise may be limited^ there the first devisee takes an estate in fee simple, and the limitation over is void as a con- tingent remainder, but good by way of executory devise. And on the peculiar structure of the devise in the will of Frances Middlemore, on which the question in that case arose, the dy- ing "without issue" was held to be clearly restricted to a fail- 116 CASES IN THE COURT OF APPEALS NEWTOKT v. GRIFFITH. 1827. ure of issue at the time of the death of the first devisees re- spectively, the words being, "but it either of them dies be- for the age of twenty-one years, and without issue, then," &c. which construction, it is believed, is sustained by all the deci- sions on like expressions, that are worthy of consideration, and, they are very numerous. Relying then confidently upon the authority of the case of Dallam vs. Dallam, which was decid- ed on much deliberation, for the correctness of the principles it asserts, and taking it as our principal guide, without again wading through the whole multitude of other authorities relat- ing to the subject, but invoking to our aid such only as are thought to apply most directly to the devise in question, and ex- amining such as are most relied upon by the counsel for the ap- pellees, it remains only to be seen, whether the expressions used are such as import, in legal understanding, an "indefinite failure of issue," or a failure of issue "at the time of the death of the first devisees respectively." If the former, we have seen, that ac- cording to the settled rules of construction, it is a contingency too remote to support an executory devise, and that the words "without issue," when applied to dispositions of real estate, ex vi termini, mean an indefinite failure of issue, if there be nothing in the will restricting it to a failure at the time of the death of the first devisee, or to some other time or event. In this case the limitation over to the surviving son, is, in case cither of them should die, "having no lawful issue or heirs of his body," and this word "having" is supposed to convey a different meaning from the word "without," and to distinguish it from the case of a limitation over on a dying "without issue." The force of that distinction is not clearly perceived; to have no issue, is to be without issue, and to die "having no issue," and to die "without issue," seem to be convertible terms, for to die without issue, is to die without having any issue. But without pushing this discussion, it will be found, by re- ftrence to the authorities, that the question has long since been judicially settled, and that they are held to mean the same thing. In Monday's case, 9 Coke 127, there was a devise by a lather to his son Thomas of a house, and "if he have no ia- sue male," then to his son Richard; and the question was, "what estate did Thomas take?" And it was resolved that he OF MARYLAND. 117 NEWTON . GRIFFITH. 1827. took an estate tail. Because, (in the language of the court) he (the father) saith, "if he hath no issue male, his son Richard to have it, which is as much as to say, if Thomas dies without issue male, which words are sufficient to create an estate tail in him. In Forth vs. Chapman, 1 P. Wms. 663, the master of the rolls cited, and relied much upon Lee's case, 1 Leo. 285, where a father devised lands to his son, "and if he should de- part this life not having issue," then over; which was resolved to be an indefinite failure of issue. And in Cooke vs. De Vandes, 9 Ves. 197, it was held, that even in a bequest to one and the heirs of his body of a leasehold estate, with a limita- tion over "if he has no such heirs,'' the words "if he has no such heirs," point to an indefinite failure of issue, and the limi- tation over is void. And in the same case a distinction was taken between those words, and the words "and if he leaves no such heirs;" which latter words "and if he leaves no such heirs," were on the authority of Forth vs. Chapman, held to mean a failure at the time of his death, when applied to a disposition of personal property; and in Sir Samuel Romilly vs. James, 6 Taunt on j 263, "having; no issue of either of their bodies," &c. was held to mean an indefinite failure of issue. It was ingeniously urged in argument, that the limitation over to the "surviving" son, shows what the testator intended by the words "having no lawful issue," &c. and explains and restricts them to mean a dying by the other, without issue living at the time of his death; and in support of that position the counsel relied upon Hughes vs. Sayer, 1 P. Wms. 534. Fosdick vs. Cornell, 1 Johns Rep. 440. Jackson vs. Blan- show, 3 Johns, Rep. 292. Moffett vs. Strong, 10 Johns. Rep. 12. Jackson vs. Stoats, 11 Johns. Rep. 337, and Anderson vs. Jackson, 16 Johns. Rep. 382. Hughes vs. Sayer, is a case of a bequest of personal property. And here it may be proper to remark, that though in respect to dispositions of personal property, courts generally incline to the construing a limitation after a dying without issue, to mean a dying without issue at the death of the first legatee, in order to support, if they can, the limitation over, and for that purpose lay hold on any word or circumstance in the will, however slight, that may seem to afford a ground for such a construction; yet that in relation 118 CASES IN THE COURT OF APPEALS . - - .NEWTON v. GRIFFITH. 1827.. to real estate the construction is generally otherwise; and in or- der to tie up and confine the generality of the words "dying without issue," to a dying without issue living at the time of the death of the party, there must be something in the will clearly showing that to have been the intention of the testator, and restricting it to that time. And so far have courts gone in support of limitations of personal property, as sometimes to draw almost imperceptible shades of distinc- tion. In forth vs. Chapman) 1 P. Wins. 663, where the same words, "and leave no issue," &c. in the same clause of a will making a dispbsition of real and personal estate, were held in relation to the real estate, to mean an in*- definite failure of issue, and as to the personal estate, a failure at the death of the first taker, the Lord Chancellor said, "the reason why a devise of a freehold to one for life, and if he die without issue, then to another, is determined to be an estate tail, is in favour of the issue, that such may have it, and the intent take place; but there is the plainest dif- ference betwixt a devise of a freehold and a term for years; for in the devise of the latter to one, and if he die without issue, then to another, the words, if he, die without issue cannot be Supposed to have been inserted in favour of such issue, since they cannot by any construction have it;" and the same is said in Target vs. Gaunt, 1 P. Wins. 432. Upon the ground of the distinctions, which courts have felt themselves authorised to take, between cases of real and per- sonal estate, the case of Hughes vs. Sayer was determined, and is not, therefore, deemed applicable to this case. There the limitation over was of personal property to the survivor of two legatees, on the contingency of either of them dying with- out "children," and it was determined, that if the word "chil- dren" should in that case be understood as synonymous with "issue," the limitation over would be void. But that it could not be taken in that sense, (which would mean whenever there should be a failure of issue;) because the immediate limitation over, was to the survivor, and it was not probable, that if either of the legatees should die leaving issue, the survivor would live to see a failure of issue, and, therefore, the word "children," was construed not to mean "issue," but "children living" at OF MARYLAND. 119 NEWTON v. GRIFFITH. 1827. the time of the death of the parent. In Hope vs. Taylor, 1 Burr. 268, where there was a disposition of the whole of the testa- tor's real and personal estate to several, with a limitation over to the survivors, if either should die without issue lawfully be- gotten, it was adjudged to be an estate tail in the real property, a/id that the limitation over of the personal estate was void be- ing after "a dying without issue." Here we have a clear evi- dence of the lengths to which courts will go, and of the wire drawn distinctions that are taken in support of limitations of personal property. In both these cases, a limitation over of personal property after a failure of "issue" generally, was held to be bad; but in Hughes vs. Sayer, because the word "chil- dren" was used instead of "issue," it was construed to mean a dying without children at the time of the party's death. But has that case any resemblance to this? Most clearly it has not,. There the limitation was of personal property, and, being also entirely personal to the survivor, (the legatee over,) unless it vested in the compass of the life of such survivor, it never could by any possibility take effect at all, there being no person beyond him, in whom it could vest. But is that this case? Here the devise is of real estate, and the limitation over, to the survivor and his heirs. It is not necessary, therefore, to give effect to the limitation over, that the survivor should be alive at the happening of the event on which it is made to de- pend the failure of issue. The whole property by the devise, is to go over, on the happening of that event, to the survivor in his own person, if living, and if dead, to his heirs who would be capable of taking at whatever period of time the failure of issue might happen. Fosdick vs. Cornell was a case of real estate, where the devise was by a father, of different por- tions of his estate, to different children, in fee, with a limitation of the lands over to the survivors, to be equally divided between them, "if any of them should happen to die, without heirs male of their own bodies." Thompson, J. in delivering the opinion of the court, cited Keily vs. Fowler, Fearne's Ex. Dev. 236. Pells vs. Brown, Cro. Jac. 590. Porter vs. Brad- ly, 3 T. R. 145. Hughes vs. Sayer, 1 P. Wms. 534, and JRoe vs. Jeffery, 7 T JK. 589. Keily vs. Fowler was referred to for the benefit of the observation of Lord Chief Justice Wil- 120 CASES IN THE COURT OF APPEALS NEWTOIC v. GRIFFITH. 1827. mot, "thai he would lay hold of the most trifling circumstance to give effect to the apparent intention of the testator." But let it be observed that the question in that case arose on a be- quest of personal property, in relation to which we have seen on what slight grounds courts have construed a dying, &c, without issue, to mean, without issue living at the death of the first taker. But not so in relation to real estate, where the in- troduction of the word "issue," &c. is supposed to be intended by the testator for the benefit of such issue, who, if there should chance to be any, might take after the father's death. But in, relation to personal property, the same intention is not ascribed to the testator, for the reason assigned in Forth vs. Chapman, and Target vs. Gaunt.," that in such case, the father takes the whole, which on his death, will not go to his issue, but to his executors. Pells vs. Brown, was decided on the force of the peculiar expressions used in the devise, "if he died without is- sue living William his brother," then to William, &c. which do not belong to the limitation now under consideration. fJughes vs. Sayer, seems to have been much relied upon. Judge Thompson says, in his argument, "if the reason assign- ed for the decision in that case be solid, it applies with full force to the one before the court; the only difference between the two cases is, that the one relates to personal, and the other to real estate." And that, with very great deference, is con- ceived to be a material difference, seeing the settled distinctions which have been taken between dispositions of those different descriptions of property. There is however another difference between the two cases, I mean a difference between the particular expressions used. In Fosdick vs. Cornell, the words are, " without heirs male;" in Hughes vs. Sayer, "without children;" and it is worthy of re- mark, that in that very case of Hughes vs. Sayer, a distinction was taken between the words, "children" and "issue," in or- der to sustain the limitation over, on the ground, that if the word "children" was to be understood in that case, in the same sense as "issue," which meant, whenever there should be a failure of issue, the bequest over would be void, the contingen- cy being too remote; and there too, the limitation over was to the surviving legatee. So that proceeding upon that dislinc- OP MARYLAND. NEWTON v. GHIFFITU. 1827. tion, Hughes vs. Sayer would rather seem to be an authority against the construction given to the devise in Fosdickvs. Cor- nell. It has also been seen, that in Hope vs. Taylor, a limitation over of personal property to the "survivor" on a dying "with- out issue," was held to be void, as on too remote a contingen- cy. In Porter vs. Bradley the words are "leaving no issue behind him;" and if it be admitted that that case was properly decided on the peculiar expressions used, yet it is a very dif- ferent case from this, the words here being, "having no lawful issue," &c. It is true, that Lord Kenyan in his observations, went farther than the case required, and said, that if only the words "leaving no issue" had been used, and the words "behind him" omitted, they would be restrained to leaving issue at the time of the death. And denied the distinction taken in Forth vs. Chapman, between the effect of the same words "and leave no issue," as applied to real and personal property, in which he certainly is not sustained. Indeed afterwards in Daintry vs. Daintry, 6 T. R. 307, where the disposition was of all his real and personal estate, by a father to his son, with a limita- tion over to his brother, "if his son should happen to die with- out leaving issue of his body," the same judge determined, that the son took an estate tail in the real estate; but that the limitation over of the personal property was good, the contin- gency not being too remote; and said it was precisely like the case of Forth vs. Chapman. Which case of Forth vs. Chap- man has never been shaken. In Roe vs. Jeffery, the devise was to T. F. of real estate, and his heirs, "but in case he should depart this life and leave no issue," then the house, &c. to go to E, Af and S, or the survivor or survivors of them, to be equally divided between them, share and share alike. And the limitation over was held to be good by way of executory de- vise. "The principal reason" (says Judge Thompson,} "as- signed for this conclusion was, that the devise over was to per- sons then in existence." It would seem, however, as if the point of that case, had not been attended to, for simply the de- vise being to persons in existence, w s not the principal reason of the decision; but the limitation over being for life, to per- sons in esse, was the circumstance most relied upon. VOL. i. 16 122 CASES IN THE COURT OP APPEALS NEWTOIT t 1 . GRIFFITH. 1827. No such circumstance exists here; on the contrary, the limi- tation over to the surviving son, is in fee. Looking to the grounds then, on which Fosdick vs. Cornell was decided, (and in Anderson vs. Jackson, we are told by Chancellor .Kent, who was the presiding judge at the time, that Porter vs. Bradley and Roe vs. Jeffery were the guides to that decision,) we can- not yield to the authority of that case, in giving a construction to the limitation over in this will, to the surviving devisee. Jackson vs. Blanshaw, Jackson vs. Stoats, and Anderson vs. Jackson, are made to rest on the authority of Fosdick vs. Cor- nell; and in Mojfett vs. Strong-, the question relates to person- al property. But the authorities are more than abundant tc show that the circumstance of a limitation over being to a sur- viving devisee, has not the controling force contended for. In Shadoch vs. Cowley, Cro.Jac. 695, the devise was to Ji, and his heirs, of land in B, and to C, and his heirs, of land in D, and that the survivor should be heir to the other, if either diet! without issue. The 'question raised was, whether they took immediate estates tail, or contingent estates? And it was held, that they respectively took immediate estates tail, with cross remainders in fee. And the court took a distinction betweeh such a devise, and a devise to one, and if he die without issue "in the life of another," or "before such an age." No two cases can be found bearing a closer resemblance to each other than that, and this. In Hope vs. Taylor, before adverted to, the limitation is in these words, "if either of the persons be- fore named, die without issue lawfully begotten, then, &c. shall be divided equally between them that are left alive;" and Roe vs. Scott 4* Smart, 27 Geo. Ill, to be found in a note in Fearne's Ex. Dev. 473, is of the same character and exaetly in point. It cannot be necessary to prosecute this part of the inquiry any farther. The limitation over to the daughters, is on the contingency of both the sons dying, "leaving no lawful heirs of their bodies;" and it has been supposed, on the authority of Porter vs. Bradley, that the word "leaving," restricts it to issue living "at the death of the party," consequently that the contingency- is not too remote, and that the limitation over to the daughters is good by way of executory devise. But that word "leaving," OF MARYLAND. 123 NEWTON v. GRIFFITH. 1827. as well as "having," and "without," has acquired a technical judicial sense, and like them, when applied to real estate, means an indefinite failure of issue. It was so held in Forth vs. Chap- man; but otherwise in relation to personal property, though both embraced in the same devise. In Dennvs. Shenton, Cowp. 410, where the limitation over was of real estate, after a dying without "leaving" issue, &c. it was held to pass an estate tail to the first taker; and the distinction, when applied to personal property, was expressly stated by Lord Mansfield. In Porter vs. Bradley it is true, Lord Kenyan denied that such a distinction existed, though that case was decided on its pecu- liar expressions. But afterwards in Daintry vs. Daintry, he himself adopted, and acted upon, the same distinction. And in Tenry vs. rfgar, 12 East, 253, where, after a devise in fee to a son and daughter, there was a limitation over in fee, in case the first devisees "should happen to die without leaving any child or issue," it was held, that the first devisees took an estate in tail, Lord Ellenborough took occasion to speak rather uncourteously of Porter vs. Bradley. It was further urged by the defendants' counsel, that the limi- tation over to the daughters, being only of a life esiate, the words "leaving no lawful heirs of their bodies," must be con- strued to mean, issue living at the death of the surviving son. And that is a point not without difficulty; the question being, whether the circumstance of a limitation over, being only of a life-estate, to a person in esse, shall have the effect to narrow and restrict the established legal meaning of the words, "an indefinite failure of issue," to a failure at the death of the first taker? If it arose on a bequest of personal property, there would, perhaps, at this day, be little room tor doubt; the word "leaving," alone, being held sufficient to restrict the limitation to a definite failure of issue, on the settled judicial distinction between cases of real and personal estate. And perhaps in. such a case, that word "leaving," would derive additional force from the circumstance of the limitation over being only for life. But Roe vs. Jeffery, which was a case of real estate, has been cited and much relied on in support of the restricted con- struction contended for of this devise; and the decision in that 1 T. JR. 598, and Trafford vs. Boehm, 3 Atk. 449, which are both cases of personal estate. The distinction, as has often been observed, is between real and personal estate; and narrow as that distinction may seem to be, it is sanctioned by the different rules of law, applicable to these respective species of property. If there be a devise to one generally, of freehold and personal estates, without any words of limitation, it is very clear that he will take an estate for life only in the freehold, but the personal property abso- lutely; though it is most probable that in such a case the testa- tor means to give the same absolute interest in both. The rule is, not that the "limitation" over must take effect within a life in being, or not at all, but that the "contingency" on which it is made to depend, must happen, (if at all,) within the compass of a life or lives in being, and 21 years and a few months after wards j and the distinction is a very clear one. As 126 CASES IN THE COURT OP APPEALS NEWTON t>. GRIFFITH. 1827. if there be a limitation over, "for life, to one in esse, on the failure of issue of the first devisee, whenever that may hap- pen." There the event on which the limitation is made to de- pend, may happen within a life in being; or it may not hap- pen within that period, but many generations after; and yet the limitation being for life to one in esse, must take effect, if at all, within a life in being. But if the limitation over, be on a "dying without issue living at the death of the first taker,' 1 the event in which the limitation depends, (the dying without issue,) must happen, if at all, within the prescribed limits. The former is what is meant by an "indefinite," and the latter by "a definite" failure of issue. And the several general ex- pressions, "having no issue," "leaving no issue," and "with- out issue," when used in relation to real estate, meaning, ac- cording to the settled legal construction, an indefinite failure of issue, they must, whenever they are found in a will, be taken in their technical legal sense, unless there be something clearly demonstrating a different intention on the part of the testator, and restricting them to a failure of issue at the death of the first taker. And the circumstance in this case, of the devise over to the three daughters, being general, without words of limita- tion, and consequently giving only an estate for life in the pre- mises, is not deemed sufficient to narrow down the legal im- port of the words "leaving no lawful heirs of their bodies," and to restrict them to mean a failure of issue at the death of the surviving brother; for non constat, that the testator so in- tended. Under that restricted construction, if Joseph,i\\z sur- viving brother, had died leaving issue, and that issue had be- come extinct in one hour after his death, the daughters could never have taken the contingency on which the limitation to them was made to depend, that is, "the death of the brother without issue living at the time of his death," not having hap- pened. And the testator could have had no conceivable mo- tive for fixing the precise time of his son's death, as the epoch, at which the limitation to his daughters should take effect. On the contrary it would seem to have been the more probable intention, that the sons, and their posterity, if they should have any, should enjoy the property; but if they should have none, or having them, they should become extinct, then that it OF MARYLAND. NEWTON v. GRIFFITH. 1827. should go to his daughters, (who were the next objects of his affection and benevolence,) if they should chance to be alive; and that it was the "failure of issue," and not "the mere time of his sons death," to which the testator looked in making the provision for his daughters. That failure ll might" happen during their lives; and in the language of the Master of the Rolls, in Barlow vs. Softer, 17 Vesey 479, that chance is what was given them. Suppose this question had been put to the testator, "if your sons should die leaving issue, and that is- sae should die in one month afterwards, how, in that event, do you intend your estate shall go under your will?" Would not the probable answer have been, why to my daughters surely. And yet that intention would have been defeated by the con- struction contended for, and the daughters never could have, taken, if Joseph had died leaving i?sue, although that issue had died in one hour after his death. Whereas, according to the legal construction, that intention would be gratified, by the daughters outliving such issue. Yielding then to the weight of authority, and construing this will according to Ihe settled rules of construction, Joseph and George Griffith, as the law stood before the passage of the act to direct descents, took estates tail general, in the lands re- spectively devised to them, with cross remainders in tail gene- ral, remainder to Sophia, Sarah and Nancy Griffith for life. The next question is, whether any, and what part of the lands so devised is liable for the debts of Joseph Griffith, the young- er? which depends on the construction of the act to direct de- scents, (1786, ch. 45.) It is a matter of some surprise, that such a question should at this late day be open to discussion, and it is time that that act had received a judicial construction. Before the passage of that act, it is very certain that estates tail were not liable for debts contracted by tenants in tail; but whether any change in that respect was effected by the opera- tion of the act, is the question. The act provides, that if after its commencement, "any person seized of an estate in any lands, tenements or hereditaments, in fee simple, or fee simple condi- tional, or of an estate in fee tail to the heirs of the body gene- ralty, (created and acquired after the commencement of the act) shall die intestate thereof, such lands, tenements or heredi 128 CASES IN THE COURT OF APPEALS NEWTON v. GRIFFITH. 1827. laments, shall descend to the kindred male and female of such person," in the manner therein directed. First To the child or children, and their descendants, if any, equally, and if no child or descendant, then to the kindred ad infinitum, on the part of the father, in equal degree equally, and if none such, then to the kindred on the part of the mother in equal degree equally, without end; and on failure of kindred on the part both of father and mother, then it is directed to go to the husband or wife, as the case may be, and to his or her kindred, in the same manner. Thus the course of descents of estates tail gene- ral, acquired after the commencement of the act, is entirely broken, the interest of the reversioner or remainder-man de- stroyed, and the land made to pass by descent from the tenant in tail, precisely and in the very same course as if he was a tenant in fee simple. By the act of 17S2, ch. 23, the ancient mode of docking estates tail by common recoveries, is abolish- ed, and power is given to any person or persons, seized of any estate tail, in possession, reversion or remainder, to grant, bar- gain, sell, and convey the same, in the same manner, and by the same form of conveyance, that a tenant in fee simple may. Lands then which are held in fee tail general, created and ac~ quired since the commencement of the act to direct descents, may not only descend, but also be sold and conveyed in the same manner as if they were held in fee simple. The idea has indeed been entertained, and in a quarter entitled to the great- est deference, (Smith vs. Smith, 2 Harr. Bf Johns. 314,^ that the course of descents of estates tail general, is altered by the act to direct descents, only in this, that they are made to de- scend to all the children of the tenants in tail, and their respec- tive issue, instead of going, in the first instance, as before, to the eldest son, on the supposition that it could not have been the intention of the legislature to change the nature of such estates in violation of the intention of those by whom they might be created, and the rights of the remainder-men; and that the provisions of the act relative to the collateral relations, are applicable only to estates in fee simple, and not to estates tail general. But it will not surely be contended, that it was not a legitimate subject of legislation, and that the legislature had no right to prohibit thereafter the creation of estates tail OF MARYLAND. 129 NEWTON v. GRIFFITH. 1827. altogether. And if that right be conceded, and conceded it must be, it follows, that they had a right to direct, in what manner lands, so held by subsequent creation, should descend. They have provided a course of descent, for lands held in fee tail general, created since the commencement of the act; and the inquiry is, How have they directed that such lands shall descend? With respect to the intention of the legislature, we can only judge of their intention, by what they have done. The provision of the act is, that if any person seized of an estate in any lands, &c. in fee simple, or fee tail to the heirs of the body generally, (created and acquired after the commence- ment of the act,) shall die intestate thereof, such lands, &c. shall descend, &c. What lands? Why lands of which any person shall die seized in fee simple, or fee tail to the heirs of his body generally; and precisely the same course of descent is directed in relation to each. It is admitted, because it cannot be denied, that lands held in tail general are made to descend immediate' ly to all the children of the tenant in tail, and their respective issue, and not to the eldest son alone in the first instance. And what is there to be found in the act by which the descent is confined to the issue of the tenant in tail, to the exclusion of collaterals? Nothing surely in the letter of it, which is not equally applicable to lands held in tail general, as in fee simple. To bring in with the eldest son all the children of the tenant in tail, equally, is as contrary to the nature of an estate tail, and as much a violation of the intention of the maker, and the rights of the eldest son, as the letting in collaterals is a viola- tion of the rights of the remainder-man. And if the legisla- ture intended to do the former, what is there to show that it was not ther intention to do the latter? Nothing in the law it- self. And if we travel out of it in search of evidence that such was not their intention, there will be found quite as much difficulty in discovering it. The truth is, that restrictions upon the descent and alienation of lands in this state were contrary to general policy, and the provisions of the act to direct de- scents grew out of a disposition to remove them. In that spirir the act to direct descents was passed; and by it all lands held in fee simple and fee tail general, are directed to descend in one general uniform manner, (without any distinction bein^ VOL. 1 17 130 CASES IN THE COURT OF APPEALS NEWTON v. GRIFFITH. 1827. between the two kinds of estates,) first to the child or children, and their descendants, if any, equally, and if no child or de- scendants, &c. then to collaterals indefinitely. And if the pro- vision for the descent to the child or children, and their descen- dants, applies to both, then the provision for the descent to col- laterals necessarily applies also to both. The sixth section, excepting from the operation of the act all estates tail created before its commencement, and all estates tail special, created subsequent to its commencement, and leaving estates general, executed subsequent to its commencement, out of the exception, proves that to be the correct construction. A different con- struction would be repugnant to the general spirit and other provisions of the act. When lands come to be divided accord- ing to the provisions of the act, between the children of a de- ceased tenant in tail general, what but an estate in fee can the children respectively take? Or if found to be not capable of division, and one elects to take the whole, paying to the others their respective proportions of the valuation, what but an estate in fee can the child so electing take? Or if they cannot be di- vided, and neither of the persons entitled will elect to take, and they are sold under the direction of the commissioners, what but an estate in fee can the purchaser in such case take? It is also worthy of notice, that the act of descents does not direct that the estates tail shall descend, but that the lands, &c. shall descend in the manner prescribed. Upon the whole, it is clear that all lands held in this state in tail general, created since the commencement of that act, have all the descendible properties of lands held in fee simple; and having both the transferable and descendible properties of fee simple estates, being liable to disposition by a common deed of bargain and sale, it would seem to follow that they are de- viseable also. The general rule is, that what is transferable is consequently deviseable, which holds more strongly when de- scendible likewise. The legislature, when giving to lands held in tail general the descendible quality of estates in fee, treats them as lands capable of being devised. The language of the act is, if any person seized of an estate in any lands, &c. in fee simple, or fee tail, to the heirs of the body generally, shall die intestate thereof, &c. Now as a man cannot be said to OP MARYLAND. 131 NEWTOW v. GRIFFITH. 1827. die intestate of that which is not deviseable, the legislature must be understood as meaning, that the estates tail there treated of, should by the operation of that act be deviseable; in other words, that such estates should become estates in fee simple, otherwise they could not be deviseable. If that is not what is meant, they were guilty of the absurdity of saying, that if a tenant in tail did not do, what by law he was incapable of doing, the land should descend, &c to his heirs generally. If he did not devise away an estate, which, if an estate tail he could not devise, it should, therefore, on his death, cease to be an estate tail, and become a fee simple, and as such descend to his heirs generally. The obvious understanding and intention of the legislature, in using the words "shall die intestate thereof," &c. was, that any person seized of an estate in tail general, created after the commencement of the act, might make a disposition by will of land so held, as it is not to be imagined that they were wholly ignorant of the import of the terms used, and supposed, that a dying by a tenant in tail, without leaving a will containing a provision for the disposition of the land held in tail, would be an intestacy as to such land, when by law, he was incompetent to dispose of it by will. As well may he be said to die intestate of the estate of another, who leaves no will respecting it. But if such was the understanding of the legis- lature, then it would follow, that they intended, that lands held in tail general, should descend in the manner directed by the first section of the act, in the event only of the tenant in tail omitting to do a perfectly nugatory act the making a will, which if made would be altogether inoperative to pass the estate, and could in no manner affect the interest of the heir in tail, the remainder-man or the reversioner, more than if no will was made. Which would amount to this, that if a tenant in tail general, should make no effort by will to dispose of the estate, the land should descend immediately on his death to all his children equally; but that if he should make an unavailable effort to dispose of it, by leaving a perfectly inoperative will, then it should not so descend, but should go as formerly to the heir in tail. And what imaginable reason could there have been for that? What sense would there be in it? Why should such an effect be given to a paper purporting to be a will, but 132 CASES IN THE COURT OF APPEALS NEWTOK v. GRIFFITH. 1827. having in law no operation at all, and amounting at most to no more than a mere ineffectual manifestation of a wish on the part of the tenant in tail to dispose of the land by will; but making in fact no disposition of it, and leaving it in the same condition as if he had died without executing such an instru- ment. But that is not what was meant; and the clear under- standing of the legislature was, not a dying, without going through the mere form of executing an ineffectual instrument, but a dying without making a valid and operative disposition of the land by will. Thus considering and treating it as liable to be disposed of in that manner, and making no distinction between lands so held, and lands originally held in fee simple. But inde- pendent of that circumstance all estates are known by their pro- perties, as the tree by its fruit; and that which has the properties of a fee simple, is a fee simple, and subject to all the incidents to such an estate; and lands held in tail general, created since the commencement of the act to direct descents, being made by that act to descend precisely in the same manner as lands held in fee simple, all such estates are thereby virtually abolished, and converted into estates in fee simple, drawing to such lands all the incidents to lands held in fee, among which is that of being liable for the debts of those who before that act would have been tenants in tail. Can it be doubted, that if a man so seized, should make a contract for the sale of the land, and receive the purchase money, that chancery would enforce that contract a- gainst his heirs to whom the lands would descend? And if so, on what principle can they be considered not liable for his debts? There can be no conceivable reason why a remainder- man, more than a reversioner, should be respected and protect- ed, the interest is the same, and neither in fact is protected; and it would be strange if he who creates an estate in the form of an estate tail, and cannot protect his reversionary interest in himself, could be able to protect it, by giving it in the shape of a remainder to another. And the legislature cannot be sup- posed to have intended to make such estates descendible as fee simples, only for the purpose of defeating the interest of the heirs in tail, the reversioners and remainder-men, in favour of collaterals ad infinitum, and in the event of there being none, of husbands and wives, and their heirs, indefinitely, and yet OF MARYLAND. 133 NEWTOW v. GBIFFITH. 1827. to give to such lands none of the other incidents of estates in fee, but leave the creditors without remedy or protection. That was not the intention of the legislature, but making them to descend as lands held in fee they meant that they should so de- scend, subject to all the incidents of estates in iee simple; and that the heirs, who should take them, whether lineal or colla- teral, should take them cum onere. In this view of the subject, Joseph Griffith, the younger, and George Griffith, by operation of the act of descents, took virtually estates in fee, in the lands devised to them respective- ly; and on the death of George, Joseph and his three sisters surviving him, Joseph took by descent from him one-fourth of his estate, which, with the whole of the lands devised to him by his father, descended on his death to his three sisters as his heirs at law, subject to be sold for the payment ol his debts. As to so much, therefore, of the lands devised by Joseph Grif- fith, the elder, to his sons Joseph and George, respectively, the decree of the court below is reversed. STEPHEN, J. dissenting, delivered the following opinion. The question to be decided in this case arises from sundry de- vises contained in the will of Joseph Griffith, who in his life- time being seized in fee of sundry lands and tenements lying in Dorchester county, on or about the 6th of February 1792, made and published his last will and testament according to law, and therein, among other dispositions of his estate, devised his said lands to his two only sons, Joseph and George Grif- fith, and his three only daughters, Sophia, Sarah and Nancy Griffith, as follows, to wit: "I give and devise unto my SOB Joseph Griffith my present dwelling plantation whereon I now live, to him my said son Joseph, his heirs and assigns forever. Item. I give and devise unto my son George Griffith the plan- tation whereon Levi Oram now lives, lying on Transquakin river, or a branch thereof, to him, my said son George, his heirs and assigns, forever; and my will is, that all the land which I am now possessed of, either by deed, bond or patent, he equally divided between my said two sons Joseph and George, according to quantity and quality, share and share alike, to them their heirs and assigns forever; and in case ei- 134 CASES IN THE COURT OF APPEALS NEWTON v. GRIFFITH. 1827. ther of my said sons should decease, having no lawful issue, or heirs of his body, that then the surviving son to have his de- ceased brother's part or moiety of the land aforesaid, to him, his heirs and assigns forever, as aforesaid; and in case both my said sons Joseph and George, should decease, leaving no lawful heirs of their bodies, that then and in such case, I give and de- vise all my aforesaid lands, devised as aforesaid, unto my three daughters, Sophia, Sarah and Nancy Griffith, to be equally divided between my aforesaid three daughters." George Grif- fith, after the death of his father, departed this life intestate, and without issue, never having had any issue, leaving his bro- ther and sisters surviving him. Joseph Griffith also departed this life intestate, and without issue, never having had any issue, leaving his sisters surviving him, all of whom are married and in possession of the premises. Joseph Griffith, the son, died indebted to sundry persons, and did not leave personal estate sufficient to pay his debts. His creditors filed a bill on the equity side of Dorchester county court against the daughters, and their husbands, for the purpose of obtaining a decree for the sale of the said lands, to pay their debts. A decree passed pro forma in favour of the respondents, from which the com- plainants appealed to this court. The questions to be decided by this couvt are first, What estates the sons took under the will of their father? And secondly, Did they derive under that will such an interest in the lands devised to them, as will sub- ject those lands, under the circumstances of this case, to the payment of Joseph's debts? It is a well settled rule in the ex- position of wills, that the intention of the testator, to be col- lected from the whole will, shall prevail unless it conflicts with some established principle of law; and as Lord Kenyon said in the case of Wilkinson vs. South, 7 T. R. 553, the only question is, whether on the fair construction of the words of this will, the testator meant that the limitation over to the sur-* viving son should only take effect after an indefinite failure of issue of the first taker, or on a failure of issue living at the time of his death? For, he observes, as soon as that intention is discovered, there is an end of the case. So in the case of Roe vs. Jejfery, Ibid 591, his Lordship says, speaking on the subject of executory devises, "We had occasion a few days ago OF MARYLAND. NEWTON v. GRIFFITH. 1827. to advert to this doctrine, when we said that this is a question of construction, depending on the intention of the party; and nothing can be clearer in point of law, than that if an estate be given to A in fee, and by way of executory devise an estate be given over which may take place, within a life or lives in being, and twenty-one years and the fraction of & year after- wards, the latter is good by way of an executory devise. The question therefore in this and similar cases is, whether from the whole context of the will we can collect, that when an estate is given to A and his heirs forever, but if he die without issue then over, the testator meant dying without issue living at the death of the first taker?" If the latter was intended in the case now before this court, the limitation over is within the legal limits, and good and available as an executory devise according to the law as settled in the above case. And it is further to be remarked that where it is the apparent intention of the testator to give a fee in the first instance, and there is then a limitation over on a failure of issue, to carry the intention of the testator into effect, the court will lay hold of the smallest circumstance to confine the failure of issue to the death of the first taker, so as to make the limitation over good as an executory devise. In the case last referred to, the devise was to T. F. and his heirs forever, and in case he should depart this life, and leave no is- sue, then to E, M and S, or the survivor or survivors of them, share and share alike; it was held that the devise to E, M and S, was a good executory devise. The reason upon which this decision was grounded, is strongly nay irresistibly decisive ot the case now pending before this court. It was, that the per- sons to whom the property was limited over, were then in ex- istence, and life-estates only were given to them. So here the daughters of the testator, Joseph Griffith, were in existence at the time he made his will, and life-estates only were given to them; and this fact strongly indicates the intention of the testa- tor to confine the failure of issue to the death of his two sons; because the limitation over to the daughters was only to take effect on the death of both without leaving issue. The case of Fosdick vs. Cornell, 1 Johns. Rep. 440, is in principle strongly analagous to the present. The first devises were in fee, and the will provided that if any of the devisees should happen to 136 CASES IN THE COURT OF APPEALS NEWTOW v. GRIFFITH. 1827. die without heirs male of their own bodies, that then the lands should return to the survivors, to be equally divided between them. Judge Thompson, in delivering the opinion of thu court, remarks, ''This is a question of construction, depending on the intention of the testator; and from the whole will taken together, I cannot entertain a doubt that he meant to provide, that in case any of the devisees, named in the clause, should die without leaving male issue at the time of his death, his por- tion should be divided among the survivors." The limitatiou over being to the survivors, seems to have had considerable weight in bringing him to the conclusion, that it was good by way of executory devise, it restraining the failure of issue to the time of the death of the first taker. The case of Jackson vs. Blanshaw, 3 Johns. Hep. 292, is strongly analagous to the case now before this court, or more, properly speaking, is a case in point, and decides the question which now awaits the determination of this tribunal. After giving some legacies, the testator devised to his six children their heirs and assigns forever, all the remainder of his real and personal estate, to be equally divided among them; but if any one of his children should die before full age, or without lawful issue, then his or her part to devolve upon, and be equally divided among the rest of his surviving children, to their heirs and assigns for- ever. In that case Spencer, Justice, in delivering his opinion, says, "The grandchildren cannot be considered as the surviv- ing children within the intention of the testator." So in this case, the surviving son cannot be considered as the surviving grandson within Ihe intention of the testator; and if not, then the limitation over to the surviving son,though in fee, is clearly good as an executory devise, and within the legal limits which the law indulges to a man's last will and testament in such cases. If then the devise over to the surviving son was good as an executory devise, Joseph, the son, did not take an estate tail, but took a defeasible fee, in the part devised to him by the will, and on the death of George without issue took the same estate in the part devised to George; and on Joseph's death without issue, the whole estate went over to the surviving daughters by way of executory devise for life. IVooddisson, in his lectures on executory devises, 225, says, there are t\vo OF MARYLAND. 137 NKWTON v. GRIFFITH. 1827. sorts of executory devises, one where the fee-simple passes, another where the fee does not pass, but in the interim descends to the heirs. The example of the first sort which he gives is, where a testator devised to A, and his heirs forever, and if he died without issue living B, then B to have those lands, to him and his heirs forever; and, he says, it was adjudged that A took a vested fee simple. In this case, then, on the death of George^ without issue, the whole fee simple in the lands de- vised vested in Joseph: and it was only on his death without issue that his right to the whole lee ceased; on that event the testator devised the lands to his daughters for life, leaving the fee undisposed of; but the daughters being then his heirs at law, the fee descended to them, and the life estates became merged in it. For it was only on the death of Joseph, with- out issue, that there was any interest or estate to vest in the heirs of the testator, the whole fee simple being in him during his life. According to this view of the subject the decree of Dor- chester county court ought to be affirmed. No estate tail being given to Joseph Griffith by the will of his father; it is unne- cessary to decide whether, if he had taken such an estate, it would have been liable, on his death, to the payment of his debts, under our act of assembly regulating the law of descents. The question is a highly important and novel one. In Davis vs. Jacquin fy Pomerait, 5 Harr. 4* Johns. 109, this court in construing the law giving to females a right to possess their property at the age of sixteen, express themselves in the fol- lowing manner: "That this act (1798, ch. 101,) has not in terms declared, that the infancy of females shall cease at the age of sixteen, will be admitted; and it is difficult to conceive why the legislature, if they intended to destroy this important feature of the common law, did not pointedly declare their in- tention, instead of leaving it to be inferred by reasoning." So here no part of the act of descents declares in terms, that an estate tail shall on the death of tenant in tail be liable for the payment of his debts, but only declares that it shall be descen- dible as a fee simple. If it had been the intention of the le- gislature to make so important a change in the law relative to estates tail, it is to be presumed they would have declared such intention in express terms, and not leave it to be collected VOL. i. 15 138 CASES IN THE COURT OF APPEALS NEWTOW v. GRIFFITH. 1827. from argumentative inference or deduction. It has moreover teen, it is believed, the universal understanding, that estates tail were not liable for the debts of tenant in tail; and the practice has been to dock such estates in the manner prescribed by the act of 1782, ch. 23, as well since and before the act of descents. This last mentioned act speaks of the tenant dying seized of an estate tail, intestate thereof; recognising the con- tinuance of the entail to the time of the tenant's death, and giving it only the properties of an estate in fee, as to the course and manner of its descent after his death. In 1 Bacon's Jlbridgment, 703, the law is stated to be, that the estates of copyholders shall descend to their heirs, and such descent shall be governed by the rules of the common law, but not to have all the collateral qualities of estates in fee simple; for it is not assets in the heirs hands; so that the circumstance of the lands being made descendible to the heirs general, in the same man- ner as fee simple estates, is not, it seems, sufficient per se to make them liable in the hands of the heirs for the debts of the ancestor. But that lands held in fee tail general, have not all the qualities and attributes of estates in fee simple, it is only necessary to refer to the act of 1798, ch. 101. That act de- clares that all lands which might pass by deed, or which would in case of intestacy, descend to or devolve on "his or her heirs, or other representatives," except estates tail, may be disposed of by last will and testament. The Supreme Court of the United States, in Stuart vs. Laird, I Cranch, 309, in speak- ing of the effect of a practice under a law, say, that practice and acquiescence under it for a period of several years, fixes the construction. It is a contemporary interpretation of the most forcible nature. Such a practical exposition is too strong and obstinate to be shaken or controled. That such a con- struction puts the question at rest, and that it ought not to be disturbed. So here the lon$ understanding and practice under the act of descents, put* the question at rest, and it ought not DOW to be disturbed. I am of opinion that the decree ought to be affirmed. DECREE- REVERSED, (a.) (a} The doctrine that "if there be a devise to one generally of free- bold, without any words of Ikaitatlon, be will take an estate for life only OF MARYLAND, HIGIJOS v. THOMAS. 1827. in the freehold,'' is changed in this state by the act of 1825, ch. 119, by which it is enacted, that after the 1st of April 1825, devises of land or real property, without words of perpetuity or limitation, shall pass the entire estate of the testator in such property, unless it shall appear by devise over, or by words of limitation, or otherwise, that the testator intended to de- vise a less estate. HIGDON et u%. vs. THOMAS. June, 1827. A liberal construction is to be given to the Statute of Frauds. 29 Car. II, eh. 3. In relation to the fourth section thereof, it is settled, that if the name of a party appears in the memorandum of a contract, and isapplica- ble to the whole substance of the writing, and is put there by him or his authority, it is immaterial in what part of the instrument the name ap- pears, whether at the top, in the middle, or at the bottom. Forms are not regarded, and the Statute is satisfied, if the terms of the contract are in writing, and the names of the contracting parties appear. So a bond, which recited the names of the parties to, and the terms of a contract for the sale of land, and contained a condition to secure a per- formance of such contract, prepared and written by the vendee, who was also the obligee of the bond, executed by an agent of the vendor, and delivered by him to the vendee, is a sufficient signing within the fourth section of the Statute of Frauds. A technical authentication by signature is not necessary. The phraseology of ihe fourth and fifth sections of that statute, as respects signing, is equally imperative, and substantially the same. A receipt for the purchase money, in a deed for the conveyance of land, is only prima facie evidence of its payment. Where an agreement does not designate the person to whom its considera- tion is to be paid, the law will raise an assumpsit, and this is always im- plied in favour of those who are the meritorious cause of action, or from whom the consideration moves. The consideration being the sale of the wife's inheritance, in the absence of an express promise the law will raise one to the husband and wife, on which the husband may sue either in his own name, or in the names of himself and wife, and in such case, even if there was an express promise to the husband, the wife might be joined as plaintiff. But a feme covert cannot be joined in an action to recover the price of pro- perty sold by her, and which belonged to her before coverture, or the value of services by her personally rendered, unless there be an express promise of payment to her. This distinction arises from rights which pass to the husband absolutely, and those which survive to the wife, and. over which he has no power of transfer but by the consent and co-opera- tion of the wife. APPEAL from Frederick County Court. This was an actioa of assumpsit brought in the names of the appellants, (the plain- tiffs in the court below,) against the, appellee, (the, deiemlaat ift 140 CASES IN THE COURT OF APPEALS HIGDON v THOMAS. 1827. that court.) The declaration counted upon the contract recited in the bond, a copy of which will be found in the bill of ex- ceptions; and also averred that the defendant was put into the possession of the land sold to him on the day of making such contract, and afterwards accepted from the plaintiffs a sufficient deed conveying the fee simple of the said land to him. It then assigned as a breach, the nonpayment of the four last instal- ments mentioned in the contract, and concluded to the damage of the plaintiffs, &c. The defendant pleaded non assumpsit, and issue was joined. At the trial the plaintiffs gave in evidence the following in- strument of writing, to wit: "Know all men by these presents, that I, John S. Frazier, of Frederick county, and state of Ma- ryland, farmer, am held and firmly bound unto Samuel Thomas, of the same place, in the just and full sum of eight thousand dollars current money of Maryland, to be paid to him the said Samuel S. Thomas, his executors, administrators or assigns; to the which payment, well and truly to be made, I bind myself, my heirs, executors, administrators and assigns, in and for the whole, firmly by these presents. Sealed with my seal, and dated this tenth day of February eighteen hundred and thirteen. Whereas the said John S. Frazier hath been authorised by Thomas Higdon, of Nelson county, in the state of Kentucky, to contract with persons for the sale of his lands lying in Frederick county aforesaid, which he the said Higdon holds by virtue of his intermarriage with Jlrtemesia, daughter and devisee of Sarah Briscoe. And whereas the said John S. Frazier, in pursuance of his said authority, contracted with the said Samuel S. Thomas for the sale of all the said Thomas Higdon and tftrtemesia, his wife's right, title, property, claim and interest whatsoever, legal and equitable, to all the land situate, lying and being, in Frederick county aforesaid, which they hold under the last will and testament of Sarah Briscoe t deceased, except so much thereof as lies in and near Liberty- Town, for which the said Samuel S. Thomas is to pay the sum of four thousand dollars current money, in the following manner; that is to say, one thousand dollars on the execution of this instrument of writing, one thousand in July next, and five hundred dollars annually thereafter, until the said four thousand OF MARYLAND. 141 HIGDOX v. THOMAS 1827- dollars be fully paid. The said John S Frazier is to procure from the said Thomas Higdon, and h.s wife, deed for the a- bove described lands, except as before excepted, investing him the said Samuel S. Thomas, his heirs, executors or assigns, with a good title in fee simple for the same, and is to have pos- session now; all suits that are now or may be hereafter brought, which may affect the title or possession of said land, and the necessary costs thence accruing, is to be paid out ot the latter payments. Now, the condition of the above obligation is such, that if the above mentioned Thomas Higdon and Jlrtemesia his wife, do and shall well and truly, by a good and sufficient deed, agreeable to the terms and agreement aforementioned, convey to the said Samuel S. Thomas, his heirs, executors and administrators, all the lands above described, except as be- fore excepted, on or before the twentieth day of September next, then the above obligation to be void, otherwise of full force and virtue. John S. Frazier, Att'y (Seal.) Signed, sealed and delivered, in presence of Wesly Philips, Ignatius M Jit tee. Received this 10th day of February, 1S13, of Samuel S. Thomas, the sum of one thousand dollars, current money, in part payment of the above contract. Pr. me John S. Frazier, Att." The plaintiffs also gave in evidence, that the said instrument was prepared and written by the defendant, and by him brought to John S. Frazier, for the purpose of procuring his John S. Frazier's signature to the same; that John S. Frazier Aid, in the presence of the defendant, sign, seal and deliver, the said instrument of writing, to the defendant. The plaintiffs also gave in evidence, that the defendant, on the 10th ot February 1813, immediately after the execution of the said instrument of writing, and in pursuance thereof, was put into the possession of the lands mentioned in the said writing, by the said Frazier t and is still in possession of the same, and that the defendant oa that said day, to wit, the 10th of February 1813, paid to the said Frazier, one thousand dollars. The plaintiffs also gave in evidence a deed dated the 9th of August 1813, executed by them to the defendant for the lands so contracted by the plain- tiffs to be conveyed to the defendant, Which deed was made 142 CASES IN THE COURT OF APPEALS HIGDON v THOMAS -1827. in consideration of the sum of $4,000 to the said Fligdon and wife, paid before the sealing and delivery thereof, the receipt whereof they thereby acknowledged, and was prepared at the in- stance of the defendant; and that the said deed after its execution, was delivered to, and accepted by the defendant, as a good and sufficient deed, and that the defendant, at the time of his accept- ance thereof, said he wanted no other deed. The plaintiffs also gave in evidence anotherdeed for the same lands, bearing date the 12th of April 1814, executed by the plaintiffs to the defendant. After the above evidence was read and given to the jury, the plaintiffs closed their case. The defendant then prayed the opinion and direction of the court to the jury, that upon the evidence offered by the plaintiffs, they are not entitled to re- cover; which opinion the Court, [Shriver, A. J.] gave, and so directed the jury. The plaintiffs excepted; and the verdict be- ing for the defendant, they appealed to this court. The cause was argued at the last June term before EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J. Boss, for the Appellants, contended, that the bond of John S. Frazier, the agent of the plaintiffs below, dated the 10th of February 1813, was sufficient evidence, 1. Of an agreement in writing, and signature by the party, or his agent, to gratify the Statute of Frauds. To prove this position, he cited 1 Pow. on Cont. 286, 287. Ogilvievs. Fol- jambe, 3 Meriv. 61. Kennedy vs. Lee,Ib. 447, 448,449,450. Coles vs. Trecothick, 9 Ves. 250. Clark vs. Wright, 1 Jltk. 13, (note \.) Welford vs. Beazely, 3 tftk. 504. Ballard vs. Walker, 3 Johns. Cas. 65. Clason vs. Bailey, 14 Johns. Pep. 484, 486. M< Comb vs. Wright, 4 Johns. Ch. Bep.663. Batturs vs. Sellers 4* Patterson, 5 Harr. $f Johns. 119. It is not necessary that the agreement should be in writing; but the evidence of it must be in writing. Randall vs. Morgan, 12 Ves. 71. The bill of parcels is not to be considered as the contract itself; but it is a sufficient memorandum in writing of the contract within the meaning of the Statute of Frauds. Bat- turs vs. Sellers 4* Patterson, 5 Harr. fy Johns. 120. If a let- ter contains the terms of an agreement, or acknowledges or refers to a former written one, then it takes it out of the Statute OF MARYLAND. 143 HIGDON v. THOMAS. 1827. of Frauds. Clerk vs. Wright, \*&tk. 13, (note \.) Where there is a complete agreement in writing, and a person who is a party, knows the contents, subscribes it as a witness only, he is bound by it; for it is a signing within the statute. Welford vs. Beazely, 3 Atk. 504. Where A drew up a note of the a- greement in writing, which B signed, but A did not sign, it was decreed the agreement of both; for A's drawing up the a~ greement in his own hand, and procuring B to sign it on his part, made the signing of B, not only a signing for himself, but also a signing as authorised by A to close the agreement. And if B had come into a court of equity against A, the court would hare decreed the agreement against him. 1 Pow. on Cont. 287. This case was decided soon after the passage of the Statute of Frauds The construction of the Statute of Frauds is the same inequity as at law; indeed the court of equity professes to follow the law. Morrison vs. Tumour, IS Ves. 183. Sudg. G. M'Comb vs. Wright, 4 Johns. Ch. Rep. 666. Forms are not regarded; and the statute is satisfied if the terms of the contract, and the names of the contracting par- ties, appear in the memorandum. Coles vs. -Trecothick, 9 Ves. 252. Morrison vs. Tumour, 18 Ves. 180, (note I.) Clason vs. Bailey, 14 Johns. Pep. 486. Kennedy vs. Lee, 3 Meriv. 447. Batturs vs. Sellers 4' Patterson, 5 Harr. 8f Johns. 119. As to the effect of the insertion of the name in the body of an agreement, as a signature within the Statute of Frauds, see Bat- turs vs. Sellers $ Patterson, 5 Harr. fy Johns. 119. Clason, vs. Bailey, 14 Johns. Rep. 487, and the cases there cited. In, the construction of all contracts, the situation of the parties, and the subject matter of the contract, are to be considered, in order to determine the meaning of any particular provision. Wilson vs. Troup, 2 Cowen's Rep. 196. By this rule let the question be decided, whether Mrs. Higdon was not a party to the contract. 2. That tfrtemesia, the wife, was not improperly joined in the action as one of the plaintiffs, he cited 1 Chitty's Plead. 19, 20. Bashfordvs. Buckingham, Cro. Jac. 77, 205. Guy vs. Livesey, Ib. 501. Jlleberry vs. Walby, 1 Stra. 229. Bid- good vs. Way Sf Wife, 2 W. Blk. 1239. Ord vs. Fenwick, 3 East, 106. Philliskirk Sf Wife vs. Pluckwell, 2 Mauk 144 CASES IN THE COURT OF APPEALS HIGDON v. THOMAS. 1827. Selw. 393. Arnold vs. Revoult, 5 Serg. <$ Low. 141. The State vs. Krebs, 6 Harr. 8? Johns. 37. Reeves Dom. Rel. 60, 61, 131, 132, 133. Palmer, for the Appellee. 1. The evidence does not sup- port the issue. 2. The receipt in the deed is prima facie evidence of payment. 2. There is a misjoinder of husband and wife in the action. It should have been in the name of the husband alone. 1. The action is brought on a contract recited in a bond giv- en to the defendant below. There is a distinction between re- ferring to a contract in a bond, and the contract itself. Some of the counts in the declaration set out a contract different from that recited in the bond. Higdon and wife were not bound to make the deed under the agreement made by Fra- zier. The wife was not bound by the contract either at law or in equity. Bingh. on Infancy, 300. Emery vs. Wase, 5 Ves. 848. Sedgwick vs. Hargrave, 2 Ves. 57. The contract cannot remain partly by writing, and partly by parol. Stat. Frauds, 29 Car. II, ch. 3,s. 4, 17. Parkhurst vs. Van Cort- landt, 1 Johns. Ch. Rep. 273, 282. The recital of the con- tract in the bond is not the best evidence which the nature ol the case admitted of. The contract itself should be produced. Phill. Evid. 356. Johnson vs. Mason, 1 Esp Rep. 89. Shel- ley vs. Wright, Willes, 1 1 Stroughton vs. Lynch, 2 Johns. Ch. Rep. 222. The writing the name in the bond reciting a contract, is not a signing within the Statute of Frauds. Rob. on Frauds, 121. Glynn vs. Bank of England, 6 Ves. 39. Jack' son vs. Pierce, 2 Johns- Rep. 221. 2. The receipt in the deed is prima facie evidence that the money has been paid. Dixon vs. Swiggett, 1 Harr. 8? Johns. 252. The receipt in the deed operated as an estoppel. 3. As to the misjoinder of the wife in the action, he cited t Chitty's Plead. 18, 22, 314. Bingham on Infancy, 300. Sedgwick vs. Hargrave, 2 Ves. 57. Emery vs. Wase, 5 Ves. 848. Hall vs. Hardy, 3 P. Wms. 189, Lines vs. Jackson, 16 Ves. 367. 1 Madd. Ch. 6. Campbell vs. Jones, 6 T. R. 570. Pordage vs. Cole, 1 Saund. 320, (note 4.) Buckley vs. Collier, \ Salk. 114. Bashford vs. Buckingham, Cro. Jac. MARYLAND. 145 Hieixm v THOMAS. 1827. 77. Bidgood vs. Way Sc Wife, 2 W. Blk. 1236. Yard vs. Ellard, Garth. 462. 3 Thomas's Co. Lift. 312, (note.) The State use of Rogers vs. Krebs, 6 Harr. 8? Johns. 37. Ross, in reply, as to the point that the receipt in the deed was conclusive evidence of the payment of the consideration therein expressed, cited Shephard vs. Little, 14 Johns. Rep. 210. Bowen vs. Bell, 20 Johns. Rep. 338. Hamilton vs. M'Guire, 3 Serg. 4- Rawle, 355. Weigley's Jldmr. vs. Wier, 7 Serg. # Rawle, 309. Wilkinson vs. Scott, 17 Mass. Rep. 257. O'Neale vs. Lodge, 3 Harr. fy M'Hen. 433. Curia adv. vult. DORSEY, J. at this term delivered the opinion of the Court. It being conceded in argument, (as is unquestionably settled by authority,) that the receipt in a deed, for the conveyance of land, is only prima facie, and not conclusive evidence of the payment of the purchase money; in determining this cause, two questions only are necessary to be considered; and these, it must be admitted, are neither free from difficulty nor doubt. Has the defendant signed a note or memorandum in writing of the agreement, as required by the statute of 29 Car. II, ch. 3? is the question which first presents itself. The nature of the requisite signature, in cases analogous to that now before us, although again and again examined and discussed in England, and elsewhere, does not appear heretofore to have been the sub- ject of judicial scrutiny in this state. In Lemayne vs. Stanly, 3 Lev. 1, among the first cases upon the subject which arose after the statute, and which occurred only four years from its passage, after several arguments it was adjudged, that a will of lands in fee, in the handwriting of the testator, beginning "In the name of God, Amen. I John Stanley make this my last will and testament," &c. not subscribed by the testator, but subscribed by three witnesses in his presence, was a good will. "For (in the language of the court,) being written by himself, and his name in the will, 'tis a sufficient signing within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and therefore a signing in any part is sufficient. " This case turned on the construction of the fifth VOL. i. 19 146 CASES IN THE COURT OP APPEALS HIGDON v. THOMAS. 1827. section of the Statute of Frauds. The case before us depends on the intrepretation of the fourth section, but the phraseology of both sections, as respects signing, is equally imperative, and substantially the same. In Knight vs. Crockford, 1 Esp. Rep. 190, the doctrine of Lemayne vs. Stanley is established in a case arising under the fourth section. At the trial the plain- tiff produced a memorandum of the agreement, beginning "I James Crockford, agree to sell," &c. but signed only by the plaintiff, and witnessed by one Mills. On the objection that the agreement was void within the Statute of Frauds, as not be- ing signed by the defendant, it only beginning "I James Crock- ford agree, "&c. and not having his name subscribed to it, Eyre, Chief Justice, held "that the agreement contained a sufficient signing within the Statute of Frauds, by beginning in the de- fendant's own handwriting, "I James Crockford agree," &c. In JBawdesvs.^mherst, 1 Eq. Ca. Jib. 21, Lord Chancellor Cow- per said, "he knew of no case where an agreement, though Wrote by the party himself, should bind, if not signed, or in part executed by him;" adding, that the agreement was suscep- tible of alterations or additions, and might have been entirely broken off. Alterations made by the defendant in his own handwriting in the draught of an agreement, and a delivery thereof to an attorney to be engrossed, were held not to be a signing within the statute, in Hawkins vs. Holmes, 1 P. Wms. 770. In re- ply to the argument ot the plaintiff's counsel on the plea of the Statute of Frauds and Perjuries, Mr. Williams answers, "that the statute requires that the party, or some person by him law- fully authorised, should sign the writing; and though the defen- dant had altered the draught with his own hand, yet this could not be called a signing; that the statute requires signing as a material circumstance, which is not to be dispensed with in equity any more than at law; that if the defendant had himself wrote over the whole deed with his own hand, without sign- ing it, this had not been sufficient; for the statute has made signing absolutely necessary for the completion of the contract: for which purpose I cited the case of Ithelvs. Potter." Referring to the case of Hawkins vs. Holmes, 1 P. Wms, 770, and Ithelvs. Potter, as there cited, Sugden, in his valua- OP MARYLAND^ 147 HIGDOW v. THOMAS. 1827. ble treatise upon the Law of Vendors, 55, (73,) states, that "the mere altering the draft of the conveyance will not take a case out of the statute; neither will the writing over of the whole draft by the defendant with his own hand, be sufficient, as there must be a signature. To this rule (he adds,) we may perhaps refer the case of Stokes vs. Moore, 1 Cox, 219, where the de- fendant wrote instructions for a lease to the plaintiff, in these words, viz. "The lease renewed; Mr. Stokes to pay the King's tax; also to pay Moore 24 a year, half yearly; Mr. Stokes to keep the house in good tenantable repair, &c. Stokes, the les- see, filed a bill for a specific performance, and the court of ex- chequer held it not to be a sufficient signing, to take the agree- ment out of the statute;" although it was not necessary to de- cide the point. In Stokes vs. Moore, the Lord Chief Baron, in delivering his opinion says, "this is no formal signature of the defendant's name, and the question is, whether so inserted and written by the defendant, is a sufficient signing? The pur- port of the statute is manifest, to avoid all parol agreements, and that none should have effect but those signed in the manner therein specified^ It is argued that the name being inserted in any part of the writing is a sufficient signature. The meaning of the statute is, that it should amount to an acknowledgment by the party, that it is his agreement, and if the name does not give such authenticity to the instrument, it does not amount to what, the statute requires. " In the same case and to the same effect is Baron Eyre equally explicit. "The signature, (says he,) is to have the effect of giving authenticity to the whole instru- ment; and if the name is inserted so as to have that effect, I do not think it signifies much in what part of the instrument it is to be found ; it is perhaps difficult, except in the case of a letter with a postscript, to find an instance where the name inserted in the middle of a writing, can well have that effect; and there the name being generally found in a particular place by the common usage of mankind, it may very probably have the ef- fect of a legal signature, and extend to the whole; but I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute." The case, how- ever, was decided, on the ground, that the memorandum was 148 CASES IN THE COURT OP APPEALS HIGDON v. THOMAS. 1827. not the whole or final agreement between the parties. Roberts, in his treatise on the Statute of Frauds, 121, in commenting on the signing required by the statute, tells us "the place of the signature seems not to have been regarded as of much im- portance. If the name is inserted in any part of the instru- ment, it may operate as a signing under the Statute of Frauds; but then it must have been inserted for the clear and only pur- pose of giving authenticity to the instrument." The same prin- ciple is sanctioned by Sugden, in his Law of Vendors 56, (74;) and is recognized in Ogilvie vs. Foljambe, 3 Merivale, 52, in which the Master of the Rolls states, "it is admitted, that pro- vided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of the act is complied with, and it does not much signify in what part of the instrument the name is to be found." If the correctness of this general rule be admitted, for the establishment of which it must be confessed that the authorities, herein before referred to, are of the most imposing character, it cannot be contended, that the writing, upon which this action is founded, takes the case without the statute, as in no part of it is the name of the defendant written for the purpose of giv- ing it authenticity, or acknowledging it to be genuine. But if these authorities be minutely and separately examined, they are not of that conclusive nature, which might be ascribed to them on a more superficial examination. The cases of Lemayne vs. Stanley, and Knight vs. Crockford, simply show, that a technical or formal signature is not requisite, and that a will or agreement without the subscription of the party making it, com- mencing, "I, AB," &c. if in his own handwriting, is sufficient- ly signed. Nothing is said ot any general rule by which cases ot this nature are to be tested. The doctrine of Lord Chancellor Cowper, in Bawdes vs. OF MARYLAND. 171 GILES v. PERHTMAN. 1827. and it will be answered by a recurrence to the authorities. We have been referred to Duvall vs. Craig, 2 Wheat. 45, where the Supreme Court of the United States say, that a va- riance between the writ and declaration cannot be taken advan- tage of on general demurrer, but must be pleaded in the early stages of the case, in abatement. But Serjeant Williams, in his excellent notes on Sounders, (1 vol. 318, note 3,) holds a different doctrine. He .has brought together all the adjudica- tions on the subject, and has reasoned himself into the belief, that no advantage whatever can, at this day, be had, either of a defective original, or of a variance between it and the declara- tion. Be this as it may, and it is a point we do not now mean to decide, we are clearly of opinion, that the appellant has lost the opportunity, if he had one, of availing himself of this de- fect in the proceedings. There is a verdict rendered in this case for the appellee; and by the statutes of amendment and Jeofails, and an act of assembly passed in 1809, ch. 153, the'de- fect mentioned is cured. The statutes of 21 Jac. I, ch. 13, and 5 of Geo. I, ch. 13, particularly point to a variance between the writ and declaration, and by their provisions, after verdict, the judgment shall not be reversed in any court of record for such variance. The act of 1809, ch. 153, is also explicit on this sub- ject. The further point in this case is readily answered. It is suf- ficiently averred in the declaration, that the defendant adminis- tered on Bacon's estate. No form of words is necessary to be used in an averment of this kind. If enough is said to amount to an allegation, that the defendant administered on the estate of the deceased, it will suffice. It is here expressly said that he did so administer; and if the defendant had been so disposed, he might have pleaded ne unques administrator, and concluded to the country, which only can be done where the subject matter of the plea is a denial ot an affirmative al- legation in the declaration. If, however, the declaration could be thought vicious on account of making this averment ob- scurely, surely it is not such a fatal objection to it as will re- verse the judgment. No case, authorising such a conclusion, has been hinted at, and certainly the court have no knowledge of such an authority^ JUDGMENT AFFIRMED. 172 CASES IN THE COURT OF APPEALS FENWICK v. FIOYD. 1827. FENWICK vs. FLOYD'S Lessee. June, 1827. There must be such a description of the land claimed in an action of eject- ment, as will enable the sheriff to deliver possession after judgment. A declaration claiming 251 acres, part of a tract of land called, &c. without any description of the part claimed, and a writ of possession in conformi- ty, are both defective. The return of a sheriff to a writ of fi. fa. showing a levy on part of a tract of land, without any description of such part, is defective, and a sale under it passes no title. In an ejectment by a purchaser under a sheriff's sale, against the debtor, who refuses to give up the possession of the land, it is incumbent on the plain- tiff to produce the judgment, and the fieri facias, and to prove the sale of the land, which may be done, either by a deed from the sheriff, or a return of the fi. fa. They are sufficient to entitle him to recover. In the absence of a deed from the sheriff, and his return to the execution, a memorandum in writing of the sale must be produced, to take the case out of the Statute of Frauds APPEAL from Saint-Mary's County Court. Ejectment "for all that tract or parcel of plantable land, being part of a tract of land called Resurrection Manor, lying and being in the county aforesaid, containing 251 acres." The defendant, (now appellant,) pleaded not guilty, and issue was joined. At the trial the plaintiff read in evidence a certificate of sur- vey of Resurrection Manor, made on the 24th of March 1650, for Thomas Cornwallis, containing 4000 acres; also the re- cord of a judgment rendered in Saint-Mary's county court in March 1821, in an action brought by Floyd, the lessor of the plaintiff below, against the appellant; and also of a fieri facias issued on that judgment, and the sheriff's return there- on, viz. "Laid as per schedule, and sold to William Floyd for $616 30, the 16th of January 1821." The schedule re- ferred to stated, that the land seized under the fieri facias, was "Part of Resurrection Manor, containing 251 acres, more or less," and appraised to $1000. The defendant then prayed the court to instruct the jury, that the plaintiff was not entitled to a verdict. But the Court, \Key, A. J.] was of opinion that the plaintiff was entitled to recover, and instructed the jury to find a verdict for the plaintiff. The defendant excepted; and the verdict and judgment being against him, he appealed to this court. The cause was argued at the last June term, before BUCHAN* AN, Ch. J. and EARLE, MARTIN, ABCHEB, and DORSE?, J. OF MARYLAND. 173 FENWICK v. FLOTD. 1827. C. Dorsey, for the Appellant, contended, 1. That the cer- tificate of survey, offered in evidence, was not sufficient evi- dence that the p- oprietary had parted with his title, without producing a grant of the land. 2. That the return of the sheriff to the writ of fieri facias, was void for uncertainty in the de- scription of the land sold. On the first point, he cited Plum* mer vs. Lane, 4 Harr. Sc M'Hen. 72. Hall vs. Gittings, 1 Harr. 8? Johns. 120. . On the second point, he cited Shep. Touch. 249. 3 Eac.db.389, 392. 4 Com. Dig. 131. 1 Phill. Evid. 203. Williamson vs. Perkins, 1 Harr. 4' Johns. 449. Fitzhugh vs. Hellen, 3 Harr. fy Johns. 206. Barney vs. Pat- terson, 6 Harr. fy Johns. 204. Cousin, for the Appellee. 1. Where the plaintiff and de- fendant claim under the same title, it was unnecessary to offer a grant of the land in evidence. He cited 2 Phill. Evid. 203. Ramsbottom vs. Buckhurst, 2 Maule fy Selw. 565. 2 Starkie's Evid. 521. 2. As to the return of the sheriff to the fieri facias, and his sale, &c. he cited Boreing vs. Lemmon, 5 Harr 8? Johns. 225. Barney vs. Patterson, 6 Harr. <* Johns. 204. Curia adv. vult. MARTIN, J. at the present term, delivered the opinion of the Court. It is not necessary to go into a particular examination of the several alleged errors in this case, for the proceedings are erroneous almost from the commencement to the termina- tion of them. An action of ejectment is a remedy given to the party to ob- tain the possession of lands which are wrongfully detained from him, and as the sheriff, after judgment, is to deliver the pos- session of the lands recovered, there must be such a description of them, as will enable him to effect that purpose. This ejectment was instituted to recover 251 acres, part of a large tract of land called Resurrection Maitor. By the certi- ficate of survey it appears, that tract contains 4000 acres, and by the judgment in this case, it would seem, the plaintiff is en- titled to 251 acres, part of that tract; but whether that part ie to be located on the north, south, east or west side of the whole tract, is left in perfect uncertainty. 174 CASES IX THE COURT OF APPEALS FESWICK v. FLOTD. 1827. The declaration claims 251 acres, part of a large tract of land, without any description of the part claimed; the return to the Jieri facias, relied on as evidence of title, is equally defective; it is for 251 acres, Part of Resurrection Manor, valued at $1000, without any metes or bounds, or other description, by which its location could be established. It has been contended, ihat this ejectment was brought to recover, not a part of the tract called Resurrection Manor, but lor a whole tract that was called Part of Resurrection Manor; this is evidently a mistake. If we are to judge of the plaintiff's intention by his declaration, it is clear he claimed not a whole tract, but only a part. He describes it, not as a tract called "part of a tract," but as a tract of plantable land, being part of a tract called Re- surrection Manor. This is apparent from the testimony of- fered at the trial the certificate of survey, not of a tract cal- led part of a tract, containing 251 acres, but of Resurrection Manor, containing 4000 acres; and it must be conceded, the certificate of one tract of land cannot be competent evidence to support an action for a different tract. The return to the Jieri facias, under which he claims title, is^also conclusive up- on this subject. The sheriff sold, not a whole tract, but as he expressly states, Part of Resurrection Manor, and this return. (if the lands had been properly described in it,) could be only offered as evidence of title to such lands as were sold by him. If a writ of possession had been issued on this judgment, what part of the original tract could the sheriff deliver to the plain- tiff under it? He must deliver 251 acres, but neither the writ of possession, the judgment, the return to the fieri facias, nor any other part of the proceedings, would enable him to make a location of them. It would be a vain and nugatory command that could not be executed. The court do not mean to intimate that it was necessary in this case for the plaintiff to deduce a regular title from the pa- tentee. In an ejectment, by a purchaser under a sheriff's sal, against the debtor, who refuses to give up the possession of the land, it is incumbent on the plaintiff to produce the judgment, the fieri facias, and to prove the sale of the land, which may be done either by a deed from the sheriff, or a return to the fieri facias; and if these proceedings are correct, they are suffi> OF MARYLAND. 175 BETTS v. USION BANK OF MARYLAND. 1827. cient to entitle him to recover. In the absence of a deed from the sheriff, and his return to the execution) a memorandum, in writing, of the sale, must be produced to take the case out of the Statute of Frauds. JUDGMENT REVERSED. BETTS, et ux. vs. THE- UNION BANK OP MARYLAND. June, 1827. Marriage cannot be given in evidence as the consideration of a deed of bargain and sale expressed to be made for a money consideration only. The greatest extent to which the authorities have gone, has been to allow an additional consideration to be proved, which is not repugnant to the one mentioned in the deed: but where a deed is impeached for fraud, the party to whom the fraud is imputed, will not be permitted to prove any other consideration in support of the instrument. Ante-nuptial settlements, made in consideration of marriage, are good, even though the party be then indebted. As a general principle of the law, delivery is essential to the legal existence and validity of a deed; but our legislative enactment declares a deed, re- corded within the time prescribed by law, to be efficient and operative from the time of its date. APPEAL from the Court of Chancery. The complainants in that court, (now appellees,) filed their bill on the 25th of Sep- tember 1820, against the appellants, and Edward Priestly, in which it is stated that on the 24th of March 1819, Setts, (one of the defendants and appellants,) being indebted to the complain- ants in the sum of $1700, upon two promissory notes, one for $700, dated the 22d of February, and the other for $1000, dated the 25th of February then last passed, payable 60 days after their respective dates, both of which notes were drawn by Priestly, one other of the defendants, in favour of Setts, and by him endorsed, and discounted by the complainant lor the sole use and accommodation of Betts, at their banking-house, in consideration that the complainants had agreed to extend the accommodation of the said notes for the term of three years from the 24th of March 1819; and to accept of a security oa the property of Betts in lieu of Priestly's name and respon- sibility; and for the purpose of more effectually securing the payment of the said sum of money, and interest thereon, -Betts made and executed a deed of mortgage or trust, dated 176 CASES IN THE COUAT OF APPEALS BETTS v. UNIOST BANK or MARYLAND. 1827. the 24th of March 1819, and thereby conveyed to the com- plainants, and their assigns, all that lot of ground in the city of Baltimore, No. Ill, being part of a tract of land called TodcPs Range, &c. with a proviso that the said conveyance should be void in case Betts, his heirs, &c. should, before the expirali- on of the term of three years from the date thereof, pay to the complainants the said sum of money, &c. But if default should be made by Betts, then the conveyance was declared to have been made in trust; arid the complainants might after no- tice, sell the said lot of ground^ &c. to satisfy and pay the said debt of $1700, or so much as should remain due, and should in the meantime rerietv the said notes at the end of every 60 days, and pay the regular interest or discount upon the same, &c. The bill further states, that a short time previous to the execution of the said mortgage to the complainants, Betts call- ed on Beale Spurrier, a conveyancer, and requested him to draw a deed of a lot of ground which belonged to him, Betts, and on which his dwelling-house stood, (being the same lot of ground herein before referred to,) and to leave blanks for the name of the grantee, and the amount of consideration. That on the 17th of March 18l9, Betts called again on Spurrier f and requested the blanks to be filled up, and the name of Eli- zabeth Ball inserted as grantee, which having been done, he executed the conveyance, and requested Spurrier to let the transaction remain private, stating that he was about to be mar- ried to the said Ball; that she was young, and he had thought proper to make this provision for her without her knowledge. That some days afterwards Spurrier was requested by Priest- ly and Betts, (but at different times,) to prepare some securi- ties on the property of Betts, to the complainants, for a debt due to them; but upon discovering that a part of the property offered to be mortgaged was the same that had been a few days before conveyed to E. Ball, Spurrier observed to Betts that before he could consent to be privy to the execution of the mortgage, he must be satisfied that the previous conveyance to E. Ball had been cancelled, or else he must communicate its existence to the parties interested. Betts replied that it should be cancelled, that he had it in his possession, and that E. Ball had no knowledge of it. He then brought the deed to Spur- OF MARYLAND. 177 BETTS v. UNION BA.NK OF MARYLAND. 1827. Tier and left it with him. That Spurrier, in pursuance of di- rections given to him by Priestly and Betts, prepared two several deeds of mortgage or trust one on a parcel of ground belonging to Betts, on the south side of Queen-street, for the sum of 4000; and a second on the lot herein before mention- ed, on the N. side of said street, being the same conveyed to E. Ball for $1700. Bet is then requested Spurrier to prepare a deed from him to E, Ball for his reversionary interest or equity of redemption in the lot to be mortgaged for $1700. Which deeds having been prepared, were executed by Betts on the 24th of March 1819. It was then mentioned by Spurrier, that the first deed to Miss Ball should be destroyed. Betts repeated that she had no knowledge of it; that he wished to re- tain possession of it, in order that he might have it recorded in. preference to the second one, in the event of his being able in the course of six months (upon which he confidently calculated,) to discharge the bank's lien, as in that case he wished his in- tended wife to have the benefit of the first conveyance; and pledged his honour that it should not be used unless his expec- tations to pay should be realized; and that he would request the bank to withhold the mortgage from record until six months should be nearly expired. In consequence of which said de- clarations and pledges made by Betts, Spurrier permitted him, to take and retain the first deed to Miss Ball, and so far con- fided in his veracity and honour as to keep the complainants in ignorance of its existence, and of the circumstances herein re- lated. The bill then charges, that Betts not regarding his said several promises and undertakings to Spurrier, but fraudulent- ly intending to injure and deceive the complainants, lodged in the office of record the first deed to Miss Ball, with whom, either immediately before or shortly afterwards he intermarried. That the said notes have both become due and remain unpaid, Betts having totally neglected and refused to pay or to renew the same, and pay the regular and usual interest, &c. although ofteu demanded by the complainants, still refuses to renew the said notes, and pay the said discount, &c. as is provided by the deed of mortgage. Prayer, that the deed to Miss Ball, (now Mrs. Betts,) may be utterly rescinded, annulled and set aside; and that the mortgaged premises may be sold for the payment VOL. 1 23 1TB CASES IN THE COURT OP APPEALS BETTS v. UNION BANK OF MARYLAND. 1827. of the sum of money in the said mortgage deed mentioned, Sac. and for further relief, &c. The answers of Betts, and Elizabeth his wife, admit the debt due to the complainants, and the deed of mortgage to them as stated in the bill, but they insist that the term of cre- dit given and allowed by the said deed had not expired, and that the complainants were not entitled to ask for a foreclosure of the same. The answer admits that Spurrier was request- ed by Betts, a short time before the deed of mortgage to the complainants, to prepare a deed for the purpose of conveying the lot of ground which is mentioned in the said mortgage deed, and to leave the name of the grantee, and the considera tion in blank, and that afterwards Betts called on Spurrier, and desired him to insert the name of E. Ball, now the defendant E. T&etts, as the grantee in the said deed. But l&etts utterly denies that he requested Spurrier to keep the said transaction a secret, or told him that as E. Ball was young he had thought proper to make such a provision for her without her know- ledge, or that any conversation of that nature ever occurred be- tween ~Betts and Spurrier. The defendants aver, that the said deed, executed and delivered by Betts to E. Ba//, (his now wife,) was executed and delivered to her with her full know- ledge, approbation and consent, and in consequence of an agree- ment previously entered into by her and Betts upon the eve of their marriage, for a marriage settlement for her, which agree- ment wa made in February or the beginning of March 1819, and in consequence of which agreement the said deed to E. JBall was executed by Betts. He denies that Spurrier told him it would be necessary he Spurrier, should be satisfied that the previous deed made to E. Ball had been cancelled, or else he would communicate the same to the parties; and he also denies that he promised the said deed should be cancelled, or that he had the deed in his possession, and that E. Ball had no knowledge of it, or that any conversation of such a nature oc- curred. The defendants aver that the said deed was executed and delivered anterior to the execution of the deed for the same property to the complainants. They deny that Betts left the said deed with Spurrier with the knowledge or consent of E. Ball They admit that Betts executed the two mortgages OF MARYLAND. BBTTS v. UNION BANK OF MAHTLAKD. 1827. referred to in the bill, to the complainants. Setts denies that he ever pledged his honour, or promised Spurrier not to make use of the deed to E. Ball; and Elizabeth avers, that she does not believe he did, &c. and ii he did, it cannot bind her, or af- fect her rights, where the same was done without her know- ledge or consent. They aver that Elizabeth refused to marry Setts until the said deed from him to her was regularly execut- ed. The answer of Priestly admitted, and confessed all the mat- ters and facts stated in the bill of complaint to be true as there stated, and that he believed the conveyance to E. Betts, the wife of Belts and co-defendant in this cause, was made for the fraudulent purposes alleged in the said bill. Exhibit By the complainants a deed of mortgage from E. Betts to complainants, dated the 24th of March 1819, for the lot of ground, to secure the payment of the money in the man- ner mentioned in the bill of complaint, which mortgage was recorded on the 27th of April 1819. The exhibit by the de- fendants a deed from Enoch Betts to Elizabeth Ball, dated the 17th of March 1819, whereby the former "for and in con- sideration oi the sum of four thousand dollars lawful money of the United States, to the said Enoch Betts in hand well and truly paid by the said Elizabeth Ball) at and before the seal- ing and delivery of these presents, the receipt whereof the said Enoch Betts doth hereby acknowledge," &c. the said Betts granted and conveyed to the said E. Ball a lot of ground in the city of Baltimore, No. Ill, &c. This deed was recorded on the 9th of August 1819. A commission issued, and testimony was taken thereunder. That of Beale Spurrier was very similar to that stated in the bill, with other additional evidence of what took place between him and Betts at a subsequent period, on having called oa Betts at the instance of Priestly. The testimony of Walter Ball is, that Elizabeth Betts is his sister. That previous to her marriage, he called on Betts to know whether he had con- veyed to the deponent's sister a sufficiency of property to make her independent of his children, as he had promised to do. He told the deponent he had got the deed, and gave it to the deponent, and said here is what I have given your sister, an<| 180 CASES IN THE COURT 01 J APPEALS BETTB v. UNION BANK OF MARYLAND. 1827. requested the deponent to take it and read it, and said at the - same time, he thought it was sufficient to make her comforta- ble. After deponent had read the deed he replied, he thought it was. The deed was at that time executed and acknowledged by 'Betts. He informed his sister of the contents of the deed before her marriage, which appeared to be satisfactory to her. J$etts was an elderly man, with a family of four children. E. "Ball was a young woman. It was at the request of E. the deponent went to examine the deed given to her by The testimony of William B all is, that Elizabeth T&etts is his daughter; that E. "Betts addressed her, and he consented to the marriage, provided "Betts would make her independent of IBett's children; and that a few days before the marriage he met l&etts, and had a conversation with him, and 'Betts men- tioned to the deponent that he was clear with Mr. Priestly, and that he was then prepared to place the deponent's daughter in the situation which he had promised. ~Betts had given de~ ponent to understand that he was an independent man, though not a rich one, and that he was in a situation to make the de- ponent's daughter independent of his children. Sarah ~Ball deposed, that Elizabeth Setts is her daughter. That Enoch T&etts did make the deed to her daughter; that the deed was ehown to, and read by, the deponent, it having been executed and acknowledged by l&etts; this was previous to the marriage* That at the time of showing the deed, "Betts observed, that it would be sufficient to keep her daughter from want, to which the deponent replied yes. That it was with the approbation of her daughter that the deed was examined and read by the de-- ponent. The deponent was determined in her mind that JSetts should not have her daughter without he gave her a sufficiency to keep her from want in case of his death. When he asked the deponent for her daughter, she observed to him that he was a great deal older than her daughter was; that he might die first, and leave her with a rising generation; and then asked him what was to become of her and her children to be de- pending on his children for her support? The deponent intimat- ed to him that he ought to give her something independent of his children. He then replied he would. She then left him, and told her daughter that Mr. "Belts intended to make her in^ OP MARYLAND. 181 BETTS . UNION BANK OF MARYLAND. 1827. dependent of his children if she was willing to have him. Six or seven days before the marriage, the deponent went and ask- ed him whether he had done that business? He said he had; with that he got the deed and showed it to her, and she read it, and then he said he thought it was sufficient. The depo- nent replied yes. She went home and informed her daughter of it. That the marriage took place on the 25th of March 1819. Other similar testimony was taken and returned under the commission, but which is unnecessary to be stated, JOHNSON, Chancellor, (July term 1822.) The object of the bill is to vacate a deed, on the ground of fraud, executed by Enoch Belts to Elizabeth Bally with whom he afterwards in- termarried, and to obtain a decree for the sale of the property under a mortgage obtained from Belts to the Union BanA;, to secure the payment of a sum of money due from him to the bank, and for which Edward Priestly, the other defendant, was responsible to the bank. On the 24th of March 1819, the mortgage was executed to secure the pa} r ment of the sum of $1700. The debt arose on two notes amounting to that sum, which had been discounted at the bank; and three years were to be allowed for the pay- ment of the principal debt, provided Betts regularly renewed the notes during that period, and paid the discounts. The bill, (which was filed on the 25th of September 1820, before the three years had elapsed,) alleges that Betts had not renewed the notes when due. The mortgage was recorded on the 27th <>f April following the date. The bill states, that a short time previous to the execution of the mortgage, Be//* called on a conveyancer, and requested him to draw a deed, (for the same property included in the mortgage,) and leave the name of the grantee, and the conside- ration, blank. On the 17th of March 1819, he, Betts, waited on the conveyancer, and requested the blank to be filled up with the name of Elizabeth Ball, as the grantee, which was done, and the deed on that day executed. The same conveyancer was afterwards, at different times, re* quested by Priestly and "Betts to prepare some securities on the property of Betts to secure the debt to the Union Bank} 182 CASES IN THE COURT OF APPEALS BETTS v. UNION BANK OF MARYLAND. 1827. that on discovering that part of the property, designed to be mortgaged, was the same comprehended in the deed to Eliza- beth Bally the conveyancer, (Beetle Spurrier,) informed Betts that the first deed, (the execution whereof Spurrier had by Betts been requested to keep secret,) must be cancelled, or he (Spurrier,) must inform those interested with the circum- stances. Betts, who then had the deed in his possession, said it should be cancelled, declaring that E. Ball had no know- ledge of it; and the deed was left with Spurrier. The mort- gages were prepared, and a deed written at the instance of Setts, to convey his equity of redemption in the same proper- ty before conveyed to E. Ball, as a substitution for the first deed, observing, he thought it would be in his power to re- deem the mortgages. The mortgages and the last deed were then executed. Betts was again informed by Spurrier that the deed of the 17th of March (the first deed to E Ball,} must be destroyed, when Betts replied he wished to keep it, as he expected to pay the debt in the course of six months; that he would request the bank not to have the mortgages recorded until the time for recording had nearly expired; and that he preferred recording the first to the second deed to E. "Ball, and pledged his honour to Spurrier not to use the first deed except the mortgage was discharged ; on which Spurrier per- mitted him to take and retain the first deed. Not regarding his promises, but as the bill charges, fraudulently intending to injure and deceive, the first deed was lodged for record imme- diately .before or shortly after Betts married Elizabeth Ball. The answer of Betts admits the request to have the deed prepared with the blanks, and when drawn, at his request, the name of Elizabeth Ball was inserted as the grantee; but he denies all the allegations in respect to keeping the transaction a secret, or that he had thought proper to make a provision for E. Ball, whom he was about to marry, or that any conversation passed between him and Spurrier of the nature that is set forth in the bill. And his wife, by her answer, believes what her husband states is true. Both of them aver that the deed was executed in consequence of an agreement previously entered into between them on tr e eve of marriage, for a marriage set- tlement; that the agreement was made ia the month of Februa- OF MARYLAND. 183 BETTS v. Ujnosr BAXK UP MARYLAND. 1827. ry, or the beginning of March 1819. Enoch Belts denies every thing that is alleged about the promise to cancel; and denies that the deed, with the knowledge of Elizabeth, was left with Spurrier; and avers that the deed of the 17th of March was executed and delivered anterior to the mortgage. The only consideration of the deed of the 17th of March, is the payment of the sum of $4000, the receipt of which is ac- knowledged. This deed was recorded on the 9th of August following its date. This cause has been argued partly in writing and in part ver- bally, and every attention has been given to the grounds occu- pied by each in maintenance of the side each espoused; and all the evidence and circumstances of the case, as well as all the authorities relied on, maturely considered. Several questions arise in the cause. First. Was the deed to Elizabeth Ball, in point of fact, first duly executed? Second. If first executed, is it available against the com- plainants? and as the consideration contained in the deed was not paid, can any other be set up in its support? Third. Supposing it competent to give, in support of the deed, evidence of a consideration other than the one contained therein, is there evidence of such a consideration for its execu- tion as can prevail against the complainants? 1. On the first question. It will be perceived, on an atten- tive examination of the bill, and the answer of Enoch Betts, that the allegations, that at the time the mortgage was executed, the first deed was in the possession of Spurrier, is not denied by the answer. The answer denies that he, "Enoch, left the said deed with the said Spurrier with the knowledge or con- sent of the said Elizabeth." All of which is consistent with the bill; for so far from alleging that E. Ball ever consented to the deed being carried to and left with Spurrier, she is de- clared to be ignorant of its existence. What is contained in the bill on this subject is not denied; but the denial applies to what is not charged, and is therefore foreign from the matter in contest. The evidence of Spurrier is explicit on this subject. He swears that Betts brought to and left with him, the deed, which 184 CASES IN THE COURT OP APPEALS BETTS v. UNION BANK OF MARYLAND. 1827. after the three other deeds were executed, on the solemn pro- mise of Betts not to use it but on the event of the discharge of the mortgage, he (Spurrier) permitted Betis to retain the- possession of the deed. That is, he returned the deed to him, and permitted him to keep it, only to be used on the event taking place that had been mentioned. If the evidence of Spurrier is true, of which I entertain not the most slight doubt, then in point of fact, the deed of the 17th. of March (if it may be denominated a deed) was not delivered to E. Ball, or to any other person for her use, when the mort- gage of the 24th of March was executed. The delivery, and not the date, is the essential part. The instrument of writing may be a deed without date, but no deed can exist without delivery; until then the act is as incomplete as a paper purporting to be a last will and testament before the death of the maker. But it has correctly been remarked by the counsel for Mrs. Hefts, that no act of her husband can invalidate her deed; that nee executed, it is free from his control. This position, true in itself, before it can be brought to bear on the cause, requires that the instrument in question must first be established to be a deed. Surely, if from the time it was executed, to the 24th of March, it had been in the exclusive possession of Betts, and was then delivered up, in order to give effect to other deeds then executed, it never could be brought, by relation to its date, to control and defeat them. Is there any evidence of the de- livery either to E. Ball, or to any other person for her? Her mother, S. Ball, proves that "the deed was shown to and read by her." By whom was it shown? Not by E. Ball r or any person to whom it was delivered, but by Betts himself, then in possession of it, as manifestly appears by the whole of her evidence taken together. Walter Ball, her brother, proves that previous to the mar- riage he called on Betts, who said he had "got the deed, and gave it to the deponent, and said here is what I have given your sister, and requested deponent to take it and read it, and said at the same time, he thought it was sufficient to make her com- fortable. After deponent had read the deed, he replied, he thought it was." The deed, as is evident from the whole of fcis evidence, was then returned to Betts; for in his answer to OF MARYLAND. 185 BETTS v. UNIOST BANK os MAHTLANB. 1827. the fourth interrogatory on the part of the defendants, he says "he informed his sister, Elizabeth Ball, of the contents of the deed before her marriage." She would not have been inform- ed of the contents of the deed, if her brother then held it; she would either have read it herself, or had it read to her. These are the only witnesses in the cause on whom any re- liance can be placed to establish a delivery of the deed of the 1 7th of March, to have been made prior to the mortgage. All the witnesses, it is true, in speaking of the instrument of writing of the 17th of March, call it a deed, as is also done in this de- cree; but if it was not accompanied with all the solemnities ne- cessary to constitute it such, the appellation of deed will not make it one. It may fairly be inferred, it never was the intention of Beits to give it the binding efficacy of a deed, before the solemniza- tion of marriage; for as the consideration was money, and as he denies all that is stated by Spurrier in respect to the mar- riage, had he parted with the paper, the title to his property, certainly as between him and E. Ball, would have been trans- ferred to her, and would have vested in her, although she af- terwards refused to marry him; and whether it ever could have been recovered back is problematical. To constitute a deed, delivery of some kind must be proved. To a third person for the grantee is sufficient; but the casuai placing it in the hands of a third person, with the view to let him read it, and then return it, will no more amount to a de- livery, than if the grantor had retained in his own hands the paper, and there permitted it to be read. No case has been produced, nor have I been able to find one, by which, on the evidence as here disclosed, the paper of the 17th of March can be established a deed to overreach the mortgage of the 24th of the same month to the complainants. The execution of the deed, it has been contended, is not called in question by the bill, and therefore need not be proved. The bill, it is true, calls the instrument a deed; but it shows that when the mortgage was executed, it was not in the posses- sion of the grantee, directly or indirectly; and if a delivery iff necessary for its validity as a deed, and there was none, its ex- ecution cannot correctly be said to be admitted. But ijf th* YOt. i. 24 186 CASES ifr THE' COURT OF APPEALS BETTS v. UNIOW BANK OF MARYLAND. 1827. opinion given on the first question is not tenable, the second arises. 2. Can evidence of a consideration, other than that contain- ed in the deed be received to support it? This entirely de- pends on law, and might properly be referred to a court of law, but having expressed an opinion on the first point, which, if correct, ends the cause, I shall, without the assistance of a court of law, determine the other point. It is well established as a general rule, "that parol evidence cannot be admitted to contradict, add to or vary, the terms of a will, deed, or other instrument of writing." For, to use the language of Lord Coke, "it would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of parties to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers, and all others, in such cases, if nude -averments against matter in writing should be admitted.'* Countess of Rutland's case, 5 Coke, 26. But although the rule, as a general one, is not controverted, and its applicability to prevent different uses and trusts from being raised, than are contained in the instrument, or to vary ihe condition of a bond; yet a difference in respect to the ad- mission of parol evidence is alleged in regard to the considera- tion of the instrument itself. Parol evidence cannot vary the uses, &c. but parol evidence may be received to establish a deed by the proof of another consideration, consistent with the nature of the consideration contained in the deed or instru- ment. And, as is argued on behalf of the deed, marriage, as well as money, is in contemplation of law, and in reality a valua- ble consideration. Therefore, if it appears that the deed was executed in consequence of a previous marriage agreement, it must be supported. It will be found, on an examination of the authorities, that in some instances you may give evidence of a consideration in addition to that stated in the deed, if the additional considera- tion is of the same nature. But such evidence is not ad- missible in every instance. Nor has any case presented itself in my researches, which, on this occasion, have not been slight* OF MARYLAND. 1ST BETTS v. UNION BANK OP MARYLAND. 1827. where a deed has ever heen supported by the proof of a con- sideration consistent with the nature of that in the deed, ex- cept where the consideration in the deed, as well as the one proved in addition, was also true. With what propriety, it may be asked, can it be said, when the deed purports to convey property in consideration of $4000 paid, that you can be permitted to prove that a marriage con- tract, and not the money, was the inducement or consideration for the conveyance, and at the same time contend that such proof is consistent with the deed? They are as variant as north from south. If the $4000 had been paid for property worth $20,000, the inadequacy of price might of itself induce the belief that the deed was improperly obtained. But to support the deed, the real consideration, as set forth in the deed being true, parol proof of an additional consideration consistent with its nature such as marriage, might be let in. For as the $4000 were in part the real consideration, the superadding another consistent consideration, the books say, is no variance. But it is believed no book has gone so far as to establish a deed by another consideration alone, than the one expressed in the deed. "Where a deed is impeached for fraud, the party charged will not be allowed to prove any other consideration in support of the instrument." 1 Phillip's Rvid. 426. Clarkson vs. Han- way, 2 P. Wms. 203. But "the party which complains of the fraud may prove any consideration, however contrary to the averment of the deed, to show the fraudulent nature of the transaction." For there is no danger, say the books, that the introduction of such proof would introduce uncertainty or fraud, "but, that fraud would be assisted by its exclusion, the whole object of the evidence being to expose and defeat a se- cret fraud." 1 Phill. Evid. 424 to 428, and the cases there referred to. 1 Fonbl. 202. As, in this case, there is not the least foundation to suppose the $4000, the alleged consideration of the deed, ever were paid, the evidence going to establish another consideration is clearly inadmissible* The decision of the court of appeals in Jones vs. Slubey, 5 Karr. Sf Johns. 372, bears strongly on this cause. 3. If the evidence of the consideration set up in support of 18S CASES IN THft COURT OF APPEALS- BETTS v. USION BANK OF MARYLAND. 1827. the deed was admissible, could such a consideration support the deed? Enoch Betts, being largely indebted, wishes to marry. He is an old man, with a number of children; forms an attachment for a young lady, who it would seem would not marry him. \vithout obtaining something to make her independent of his children. This he promises to do; and this appears to me td be the substance of what is now termed a marriage contract, Now let us suppose this promise was made, which I do not question was the case, and she had been informed by Setts he had secured to her what would make her independent of his children, and relying on this information she married him, and then discovered n6 such establishment had been made, could a bill be supported in chancery? Where is that certainty which all contracts demand? What, it might be asked, was he to con- vey? What and how much would make her so independent? If a bill could not be supported, supposing no paper to have been signed, how coqld a claim be maintained on such a pro- mise, supposing the paper to have been signed, so as to obtain it from him as a completion of these engagements? It seems to me a dangerous principle to permit a man, involved in debt, by making a promise to settle his property on the woman he intended to marry, to do so, to the ruin of his creditors. On these subjects I express no opinion, except I do not think the public good would be promoted by the encouragement of mar* riages on such conditions. That the complainants may obtain the relief they appear just- ly entitled to Decreed, that unless the defendants shall, on or before, &c. pay, or cause to be paid> to the complainants, the sum of $700, with legal interest on the same from the 25th ot April 1819, and the further sum of $ 1000, with interest as aforesaid, from the 28th of April 1819, until paid, together with the costs of this suit, the property in the deed of mortgage filed iU this cause be sold, or such part as will be sufficient to discharge the said sums. And in order to make the said sale, on failure to pay Decreed, that R. J. be and he is hereby ap- pointed trustee, &c. From this decree Betts and Wife ap- pealed to this court OF MARYLAND. 189 BETTS v. UNION BANK OF MARYLAND. 1827. The cause was argued at June term 1824, before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and ARCHER, J. J. Glenn, for the. Appellants, contended, 1. Under the circumstances of this case the appellees had no right to come into a court of equity to ask relief. 2. The deed to the appellant, Elizabeth, was duly executed for a valuable consideration previous to the deed to the appel- lees. 3. Parol evidence is admissible to support the deed. The appellants have the superior legal title, and the superior equity. The act of 1766, ch. 14,5. 5, fixes the time when the deed enured to the benefit of Mrs. Belts. It took effect from its date, and gave the legal title to her before the mortgage to the appellees. The deed was delivered before the mortgagej. and it was made in consideration of marriage. Any act amount- ing to a delivery is sufficient to constitute a delivery of a deed. The consideration was marriage, and that is a valuable con- sideration. 2 Blk. Com. 297. Sugd. 465, and the cases there cited. Verplankvs. S terry, 12 Johns. Rep. 546. A subse- quent marriage validates a voluntary deed as against creditors. There was a good delivery of the deed. Shclton's case, Cro. Eliz. 7. 13 Vin. M. (K.) 23, pi. 12. Souverbye vs. rfrden, 1 Johns. Ch. Rep. 255. 2 Rollers rfb. 24, 1. 28, 45. 4 Com. Dig. tit. Fait, (A. 3,) 158. There must be fraud to defeat the prior deed. Evans vs. Bicknell, 6 Vea. 189, 191. Berry vs. Mutual Insurance Company, 2 Johns. Ch. Rep. 609. The consideration was $4000, as expressed in the deed, and it is in proof that the consideration was marriage, arid not a money consideration. Where there is a valuable consideration ex- pressed, another valuable consideration may be averred where there has been no fraud. Villers vs. Beamont, 2 Dyer, 146. JMildmaye's case, 1 Coke, 176. Lord Cromwel's case, 2 Coke* 76. Vernorfs case, 4 Coke, 3. Peacock vs. Monk, 1 Ves. 128. The King vs. Inhabitants of Scammonden, 3 T. R. 474. The King vs. Inhabitants of Laindon, 8 T. JR. 373. Sugd. 87. Funds' 8 Max. No. 2. 1 Fonbl. 13$. The ap- pellees had notice of the deed, and they must take subject to that deed. The conveyancer was the agent of the appellees. 190 CASES IN THE COURT OP APPEALS BETTS v. Vsios BANK OF MARTIANIJ. 1827. Le Neve vs. Le Neve., 3 Jltk. 646, If there is a defect in the deed to Mrs. Betts, equity will make it good. 1 Madd. 41. R. Johnson, for the Appellees. 1. There was no notice to the agent. The conveyancer was as much the agent of Mrs. Betts as of the appellees. He knew that Betts was indebted to the appellees. If Mrs. Betts. through the agent, knew that fact, was the deed to her an effectual conveyance under such circum- stances? It would have been a fraud on her in taking the deed. Was there a delivery of the deed? It is the delivery that makes it the deed of the party. 2 Blk. Com. 307. A deed takes effect from its delivery. When was this deed delivered? There is no pretence that it was delivered to Mrs. Betts, or that she ever saw it. It was to be the deed of Betts when the marriage took effect. The deed was not left as in Shel ton's case, Cro. Eliz. 1, but Betts put the deed in his pocket, and took it away with him after he had executed it. There is no evi- dence to show that there was any delivery. The grantor took the deed to the clerk's office to be recorded, and it was then, and not before, legally delivered. The act of 1766, ch. 14, s. 5, in speaking of the date of the deed, means from the time of the delivery. The day of the date is the day of the delivery, Jackson vs. Bard, 4 Johns. Rep. 230. 2. Can parol evidence be received to prove a different con- sideration than that stated in the deed? The chancellor in his decree has correctly laid down the rule. The consideration of marriage, is not of the same nature as that in the deed. If the parol evidence is to admit that the consideration was marriage, and not money, it would be to change the consideration wholly from that stated in the deed. 2 Blk. Com. 338. What the deed is, and what it will be if the evidence is admitted Where it is a money consideration, then it is a bargain and sale If marriage, then the nature of the deed will be- changed into a covenant to stand seized to us%s. Can such a doctrine as this fee admitted? A deed of bargain and sale has certain requisites peculiar to itself, which the evidence would have the effect to change and wholly defeat. Independent of the Statute of Frauds, the evidence could not be admissible. The cases cited by the appellants' counsel, are where, there is a pecuniary con OF MARYLAND, 191 BETTS . UMION BANK OP MARYLAND. 1827- sideration, and other pecuniary consideration is proved; but none of them go to say you can change the consideration, and substitute another in its place, although they both be valuable considerations. 1 Phill. Evid. 426, (483.) Belts executed the deed with a fraudulent design, and the consideration stated ia the deed was not paid. If the evidence is admitted, then the fraud will be consummated. Clarkson vs. flanway, 2 P. TVms.2Q3. Watt vs. Grove, 2 Sch. # Lef. 501. Jones vs. Slubey, 5 Harr. Sf Johns. 372. 2 Com. Dig. tit. Bargain Sale, (B 10,) 64. Taney, in reply. The deed, under which the appellants claim, purports, on the face of it, to be made for a money con- sideration only. It appears by the answer and evidence, that no money was in fact paid, and that the deed was in truth made in consideration of marriage only, and that the marriage took effect. If the deed was made without consideration, or was merely voluntary, it is fraudulent and void against the appel- lees, who were creditors at the time. The consideration men- tioned in the deed is admitted not to have been paid. It is, therefore, fraudulent and void, unless some other valuable con- sideration can be proved. And the question is, can the appel- lants be permitted to prove the consideration of marriage, upon which, in truth, the deed was made? If by the rules of equity they are permitted to offer such evidence, then the deed is not fraudulent, but is a good deed for a valuable consideration that is, in consideration of marriage. It is insisted that the evidence is admissible. 1. The general rule is, "that although a particular conside- ration is mentioned in the deed, yet an averment may be made of another consideration which stands with the consideration expressed, and is not repugnant to it." The rule is stated in the words of Ld. Coke, as repeatedly recognized in his reports. Mildmaye's case, 1 Coke, 176. Lord Cromwell's case, 2 Coke, 76. demon's case, 4 Coke, 3. Bedel's case, 7 Coke* 40. In all of these cases, Villars vs. Beamont, 2 Dyer, 146, is relied on as the leading case, and is recognized as authority. The same rule is recognized in Sitg. Vend. 97, 98, (ed. 1820,) 'and in Phil Evid. 425, &c. The rule in Sugden is, "that 192 CASES IN THE COURT OP APPEALS BETTS v. UNIOM BANK OF MAHYIAND, 1827. parol evidence may be given of collateral and independent facts, which tend to support the deed," provided it is not of- fered to vary the agreement, and is consistent with the deed. 2. The case at bar is in all respects within the words and spirit of the rule, as above established. The evidence offered is to prove "a collateral and iadependent fact, tending to sup- port the deed, and consistent with the deed, and does not vary or control it." It is another consideration consistent with the one expressed in the deed, which, in the language in demon's case, 4 Coke, "stands with, the consideration expressed." 3. As the general rule embraces the case, it is incumbent on the appellees, who object to the evidence, to show the princi- ple which excepts it out of the general rule. He who alleges an exception, must prove the exception. It is said, that there is no case in which the additional consideration has been prov- ed, but where the consideration expressed was proved also; and hence it is inferred, that the consideration expressed in the deed must be first proved, in order to let in the proof of the additional consideration. It is perhaps a sufficient answer to this argument to say, that there is no case in which the addi- tional proof was rejected, because the consideration expressed was not proved. The want of a case, therefore, on the sub- ject, cannot be supposed to establish a principle. The argument above stated on the part of the appellees, would prove that the testimony ought to be admitted, quite as well as it proves that,, it ought to be rejected. The argument of the appellees is brief- ly this "There is no case in which the additional considera- tion was admitted where the consideration expressed was not proved; therefore, the additional consideration cannot be ad- mitted where the consideration expressed is not proved." Now, try the argument on the other side. There is no case in which the additional consideration was rejected, where the consideration expressed was not proved; therefore, the addi- tional consideration cannot be rejected where the consideration expressed is not proved. But in truth, the argument on both sides is illogical and unsound. The mere want of a case proves no principle. If the want of a case cannot establish a princi- ple, neither can it narrow or limit a known and admitted prin- ciple. And if these positions be right, it follows that the ap- OP MARYLAND. BETTS . UNION BANK op MARYLAND. 1827 pellees have failed to show that the case at bar is an exception of the general rule. If they fail to show the exception, the cast being within the general rule, the evidence is admissible. 4. It is objected, that when it is proved that the considera- tion expressed was not paid, that then the deed is fraudulent, according to the proof it becomes void and inoperative, and the party claiming under it will not be permitted to re-establish it by showing another consideration. The answer to this is al- ready given. It is an attempt by the appellees to except this Mase out of the general rule; to narrow the general rule by in- corporating with it the principle above stated. We show the general rule as settled and continually recognized; and we show the authorities on which it rests. If the rule is to be narrow- ed, or the case at bar to be excepted out of it, the appellees' counsel must show the exception. He must produce the au- thority which establishes the new principle he seeks to engraft on the rule. He has failed to do so. He cannot, therefore, entitle himself to the exception or limitation for which he con- tends. Again: The argument on which tho appellees' counsel rests the above position, is not sound it proves too much. The principle, on which the above position rests, is this: that where a party impeaching a deed, shows by proof de hors the deed, that it is fraudulent, and therefore void, the party claim- ing under the deed thus nullified, shall not be permitted to offer evidence dehors the deed, to re-establish and give life to the deed. If this position were trtie, then the following case would be within it. Property worth $20,000 is conveyed, and the con- sideration expressed is $5. A creditor of the grantor seeks to vacate the deed. He proves that he was a creditor at the time to the amount of $10,000; that the property conveyed was worth $20,000. Upon this proof alone it is clear that the deed is fraudulent It is nullified by evidence de hors the deed. May not the party claiming under the deed prove that be actually paid $20,000? All of the cases admit he may do so; yet this is evidence de hors the deed, and is offered to re- establish and give life to it; or to speak more correctly, it is of- fered to show that the deed was always good, was never null and void. It may be said in the case supposed, the considera- tion expressed in the deed was actually paid-in the case at ba? i 5 194 TCASES IN THE COURT OF APPEALS BETTS v. UXION BANK OF MARYLAND. 1827. it was not. This is a difference in fact, it is true; but a differ- ence in fact is not necessarily a difference in principle. The principle upon which the deed is made void in both cases is, that the deed is a fraud on the creditor. It matters not by what peculiar chain of tacts it is shown to be a fraud upon the creditor. It is the fraud, however, proved, that makes it void; and if it is not fraudulent, whatever may be the facts, it is good, if in other respects regularly executed. Neither does the admis- Tsibility of the evidence depend on the payment or nonpay- ment of the consideration expressed. If the evidence is re- pugnant to the deed, it is not admitted. If it is not repugnant it is admitted. Whether it is repugnant or not, must depend on the words contained in the deed itself, or the writing itself, 'and not on matter de hors the deed; not on matter appearing ty parol out of the deed. Its repugnancy, therefore, does not depend on the question, whether the consideration expressed was or was not paid, but on the question whether the parol evi- dence is consistent with the writing? In the case at bar the testimony is surely quite as consistent with the deed, as in the case above supposed, and if admissible in the one case is equal- ly admissible in the other. Indeed, the only and true question is, how far parol evidence is admissible where there is an in- strument of writing? It is discussed and decided on this prin- ciple in the case of Villers vs. Beamont, 2 Dyer, 146, and in the cases in Coke's Reports already cited; and it is classed un- der this head in Sugden and Phillips in the passages already referred to. It must, therefore, depend not on the payment of the consideration expressed, but on the words of the deed, that is, on what consideration is expressed in the deed; and so in- deed it is decided in so many words in Lord Cromwel's case, 2 Coke, 76. "The consideration must stand with the conside- ration expressed," that is, the consideration named in the deed; and no question is made about whether it has been paid or not. And in Mildmaye's case, 1 Coke, 176, it is decided, that the consideration of marriage is consistent with a money conside- wtion; and the other cases cited affirm the same doctrine. 5. This argument is upon the admission that there is no case decided where the consideration expressed was not paid. If m are right in the principles before urged, the absence of such OF MARYLAND. 195 BETTS v. Union BANK of MARYLAND. 1827. a case furnishes no argument against us. But the appellees' counsel, in assuming that fact, is not strictly correct. In Reads vs. Livingston, 3 Johns. Ck. Rep. 481, the consideration ex- pressed in the deed was money only; and the consideration set up was marriage, it being admitted that no money was paid. It is true, that the point now under consideration does not ap- pear to have been raised in the argument, nor was it directly de- cided by this court, yet the case necessarily presented the very point now under discussion; and as that case was fully argued, and is most ably decided by Chancellor Kent, upon great consi- deration, it cannot be supposed that the eminent counsel, and distinguished chancellor, would entirely overlook a point which met them at the very threshold of the discussion, and which, if the evidence be not admissible, decided the case at once, and relieved it from the many interesting and difficult questions which appear to have been so elaborately considered, and so well decided by the chancellor. The whole argument of Chan- cellor Kent proceeds on the assumption that the evidence is admissible. It may be inferred from this that it was consider- ed a settled point, and no doubts entertained about it at the bar, or by the court. If this inference be just, it sanctions, in all respects, the admissibility of the evidence as contended for by the appellants. It is indeed hardly possible to believe, that the point was overlooked or forgotten; for the very same principle was discussed and decided upon by Chancellor Kent, in Hil- dreth vs. Sands, 2 Johns. Ch. Hep. 35, only about two years before the case of Reade vs. Livingston. The chancellor's de- cision is not on the precise point or the precise facts now under discussion, but it involved the same general principle. It was decided according to all the authorities, and supports the prin- ciple as contended for on the part of the appellants. This case brings us to the only exception to the general rule; which ex- ception is recognized in the case of Hildreth vs. Sands. 6. It may .be admitted, that where a deed purports to be for a valuable consideration, it cannot be set up as a gift or vo- luntary conveyance. This is the doctrine laid down by Ld. Hardwicke in Bridgman vs. Green, 2 Ves. 627, 628. But even there it is subject to certain limitations, and is not to be taken as universally true between all parties who may seek t* 196 CASES IN THE COURT OF APPEALS BETTS v, UNION BALTIC OF MARYLAND. 1827. invalidate it. In Clarkson vs. Hanway, 2 P. Wins. 203, the principle last stated is decided; and this, which is the oldest case upon the subject, may be considered as furnishing the principle by which the case of Bridgman vs. Green, and the subsequent cases, have been governed. In the case of Clarkson vs. Han- way, the deed not only purported to be for a valuable conside- ration, but was insisted oh as such in the answer. In Hildreth vs. Sands, the deed purported on the face of it to be for a va- luable consideration, and was also insisted on as such in the an- swer; and the chancellor's opinion confirms the principle as Above stated^ with this additional limitation, that it must be ts brought forward," that is, insisted on in the answer aa founded on a valuable consideration. The case of Watt vs* Grove, 2 Sch. fy Lef. 492, 501, will be found not to impair the principles we have stated. The result of all of these cases, (and they are believed to be the only ones that bear immedi- ately on this part of the case,) is to make the exception evea still more limited in its operation than is admitted at the head of this division of the subject. The true extent, as proved by the authorities cited, appears to be this Where the grantor was a weak man, liable lo be imposed upon, or from his rela- tive situation was liable to the influence of, or to be imposed upon by, the grantee, in such cases, if the deed appears on the face of it to have been for a full and fair valuable consideration, then the grantee shall not be permitted to set it up as a gift. The cases of ClarJeson vs. Hanway, Bridgman vs. Green, and Watt vs. Grove, were all cases of this description, and de- cided upon principles that are not applicable to any other class of cases. The case of Hildreth, vs. Sands, is indeed a case of a different description, and the deed is impeached by a condi- tion, not on the ground ot imposition on the grantor, but as a fraud by the grantor upon the creditor. In that case, howe- Ter, the defendant had put his defence in his answer, "upon the fact of a fair purchase for an adequate price,' 1 , and it is up*, on that ground that the chancellor rules the evidence to be in- admissible. This case, therefore, does not enlarge the excep- tion beyond what is warranted by the English authorities. It is very clear that a defendant cannot be permitted to put his defence on one ground in bis answer, and another in his evi- OP MARYLAKB. 197 BETTS v. UXIOIT BANK OF MARTI.ASH. 1827. dence. If this view of the subject be right, the exception would not apply to cases, where the deed, on the face of it, was for a consideration merely nominal, and obviously intend- ed merely to give the deed a legal operation; nor to cases where a creditor claimed to vacate the deed as a fraud upon him, unless the defendant in his answer alleged the considera- tion in the deed to be the true consideration. But if these views are mistaken ones, yet it seems perfectly clear, that none of the cases, nor even the arguments of the court in pronounc- ing the judgment, when the whole argument is taken together, carry the exception beyond the limits admitted at the head of this division of the subject. If the cases have carried the ex- ception no further, there is no principle settled in them which requires it to be carried further. For if the danger of perjury is the objection to the testimony, there is precisely the same elanger where an inadequate price is mentioned in the deed, and parol evidence admitted to prove that a larger sum was paid; yet it is agreed on all hands that this may be done. And it inconsistency with the words of the deed be the objection, the proof of the consideration of marriage is no more incon- sistent with the deed, than the proof of an additional money consideration, where a smaller money consideration is the only one expressed. And when the case of Watt vs. Grove, is care- fully examined, it will be found, that not only an additional payment of money may be proved by parol, but the payment of money upon a contract different from that recited in the deed, and distinct from that on which the deed purports to have been made. It results, therefore, 1st. That by the general rule the evidence of the consideration of marriage is admissible in the case at bar. 2d. That the exception to the rule, does not embrace it. The cases of Watt vs. Grove, and Peacock vs. Monk, re- main to be examined, and will be found not to impeach the prin- ciple insisted on by us. In Watt vs. Grove, the considera- tion expressed in the deed was money the additional conside- ration was also money. The remarks of Lord Redesdale must, therefore, be considered as applicable to that class of cases. He speaks of the danger of parol evidence, but does he say the evidence offered was inadmissible? On the contrary, in speak' 198 CASKS IN THE COURT OF APPEALS BETTS v. UNION BANK OF MARYLAND. 1827. ing of the additional consideration alleged, he says, "it should be proved by the most decisive testimony." And he decides against the deed, not because the evidence was inadmissible, but because the testimony was not sufficient to prove the fact. Another important part of this case ought not to be overlooked. The chancellor decides that a contract recited in the deed is falsely stated as the original contract, and that, too, by the grantee, whose interest was to be advanced by the misstatement, and who had himself prepared the instrument. The addition- al evidence was offered to show, not the truth of the recital, but to show another and a different contract, by which the ori- ginal one had been afterwards changed to the one recited 5- yet this evidence he held to be admissible. If the evidence here stated was admissible, in what respect can the case at bar be supposed to differ in principle? Here the consideration, mentioned in the deed, was not paid, and another valuable consideration is offered to support the deed* The deed was not prepared by Mrs. Betts or her agents, and he is not, therefore, responsible for a false recital of the con- tract. In Peacock vs. Monk, I F'es. 128, the parol evidenced was admitted; but there was no consideration expressed in the deed, and the chancellor says, arguendo, that where a particu- lar consideration is expressed, it is a negative of any other 1 , un ' less it is added "for other considerations. " It is not often that the opinions of Lord Hardwicke can be questioned, and per- haps in this case his words may not be accurately reported. For his dictum here is contrary to the judgment of the court in the case of "Fillers vs. Beamont. And the authority of the case of Villers vs. Beamont, is sanctioned by the cases in Coke's Reports, where it is always referred to as settling the law on this point. Phillip's Evid. 426, (note.) Indeed, the principle established by the case of Villers vs. Beamont has never been shaken by any subsequent judgment, and is not questioned by the chancellor in the case now at bar. In addition to the cases already cited, the following are also referred to in maintenance of the same principles. The King vs. Inhabitants of Scammonden, 3 T. R. 474. The King vs. Inhabitants of Laindon, 8 T. R. 379. Eppes vs. Ran- dolph, 2 Call's Rep. 125. Duvalvs. Bibb, 4 Hen. # Munf. OF MARYLAND. BETTS . UHION BANK OF MARYLAND. 1827. 113. In Eppesvs. Randolph, the consideration expressed in the deed to David M. Randolph, was natural love and affec- tion, and for his advancement in life. If there was no other consideration, the deed was voluntary and fraudulent against the creditor. The evidence offered was, that it was in con- sideration of marriage; and the evidence was held to be admis- sible. And the case of Duval vs. Bibb, refers to and recog- nizes the decision in Eppes vs. Randolph. The authorities before uted and remarked upon, are believed to be the only cases bearing upon the principles now in discussion. The de- cisions are all consistent with each other. It is insisted that they establish the principles we contend for, and show the evi- dence of the consideration of marriage to be admissible. If the deed to Mrs. Belts be a fraud upon the bank, the deed to the bank, was equally a fraud upon her. The bank and Mrs. Belts, were both innocent purchasers for a fair and valuable consideration. If a nominal and inadequate or false money consideration had been stated in the deed to the bank, it is clear that they might have shown the true considera- tion in money. It would be a severe rqle of equity, if Mrs. Belts who is equally innocent equally a purchaser should yet be precluded from the like privilege, when it involves on his part no more danger of perjury, and is no more in- consistent with the deed, than it would have been in the case before supposed, on the part of the bank. The authorities do not lead to such a conclusion, nor do they support such a rule, and it is hoped that it will not now be established in this court. The act ot 1766, ch. 14, s. 5, by a true construction, means the date of the deed as therein expressed. This is evident from other parts of that act. 2 Com. Dig. 64. The act then fixes the date of the deed, and as the prior title was in Mrs. Belts, it is of no consequence when the deed was delivered. The question is, whether the appellees have a superior equitable title, Mrs. Bells having the prior legal title? The deed to her must be taken to be a true deed. Curia adv. vult. STEPHEN, J. at the present term, delivered the opinion of the Court. In deciding the question which arises in thi case; 200 CASES IN THE COURT OP APPEALS BETTS . UNION BANK OF MAHTIAND. 1827. no little difficulty has been felt, from the contrariety of opinions which have been expressed by judges of the greatest eminence and distinction, in cases very analogous, if not exactly similar to the present; and the importance of the principle now to be established as a rule of evidence, merits the most full and de- liberate consideration. The question then presented to this court for their adjudication, is simply this. Can marriage be given in evidence as the consideration of a deed of bargain and sale, which is expressed to be made for a money consideration only? The facts of the case are as follows: Enoch Belts being considerably indebted to the Union Bank of Maryland, and being about to be married to Elizabeth Ball, on the 17th of Maich 1819, executed a deed, by which he conveyed to her, and her heirs, a lot or parcel of ground in the city of Balti- more, for the consideration mentioned in said deed, of $4000, On the twenty-fourth day of the same month, and the same year, for the purpose of securing the payment of $1700 to the Union Bank of Maryland, he executed to the said bank a deed of the same lot or parcel of ground, in trust, to sell the same for the payment of said debt, upon the terms and condi- tions therein specified. On the 25th of September 1820, The President and Directors of the T^nion Bank of Maryland filed their bill in the court of chancery, for the purpose of va- cating and annulling the above mentioned deed to Elizabeth Ball, upon the ground that they had no knowledge of its ex- istence, at the time the aforesaid deed was made to them. It is admitted that the consideration of $4000, specified in said deed, never was paid ; but it is contended that the deed of convey- ance may be supported, by proving that the consideration ia truth was marriage, and that such proof is legally admissible. It is not deemed necessary to enter into a more full detail of the facts and circumstances belonging to this case; because if the proof that marriage was the real consideration, is excluded by the rules of evidence upon the subject, the chancellor's de- cree, ordering a sale of the property for the benefit of the bank, under the deed of the 24th of March 1819, and annulling that of the 1 7th of March of the same year, to Elizabeth Ball, now Elizabeth Betts, ought to be affirmed. As has already been remarked, the authorities upon this part of the law tf eyi* MARYlANU. BKTTS v. UNION BANK OF MARYLAND 1827. dence are contrariant, and cannot be reconciled. There is, however, one great and leading principle in the law of evi- dence relative to this subject, in the affirmance of which they all concur. It is this, that no evidence is admissible which con- tradicts the deod. In Maigley vs. Hauer, 7 Johns. Rep. 341, where it was attempted to prove by parol evidence an addition- al consideration to the one expressed in the deed, the court say* "it is a settled rule* that wheie the consideration is expressly stated in a deed, and it is not said also, and for other considera- tions, you cannot enter into proof of any other, for that would be contrary to the deed. This was so decided by this court in Schermerhorn vs. Vanderdeyden, 1 Johns. Rep. 139, and a- gain in Howes vs. Barker, 3 Johns. Rep. 506. The same rule prevails in equity, according to the cases of Clark&on vs. Han- way, 2 P. Wms. 203, and of Peacock vs. Munk, 1 Ves. 127; and the remedy for the party > if the deed be contrary to the truth of the case, is by seeking relief in equity against the deed, en the ground of fraud or mistake, as was intimated in the case of Howes vs. Barker, and as was adopted in the case of Fil- mer vs. Gott, 7 Bro. Parl. Cas. 70." In the case of Pea- fock vs. Monk, 1 Ves. 128, a bill was filed, claiming the bene- fit of a trust under a deed, and the point was^ whether the plain- tiff could prove a valuable consideration, as no consideration, was expressed in the deed. Lord Hardwicke held, that the proof ought to be read. "It differed, he saidj from the com- mon case, upon which the objection is founded, for to be sure,- where any consideration is mentioned, as of love and affection only, if it is not said also, for Other Considerations, you cannofe enter into proof of any other; the reason is because it would be contrary to the deed, for when the deed says it is in considerati- on of such a particular thing, that imports the whole considerati- on, and is negative to any other. But this is a middle case, there being no consideration at all in the deed;" Thus it appears that the supreme court. of New- York have adopted the princi- ple established by Lord Hardwicke, and excluded the proof of any other consideration, where one is expressed in the deed, and it is not said for other considerations, on the ground that the admission of such proof would be contrary to the deed. CThis doctrine is certainly not reconcileable to the decision eiad0 VOL. i. 26 202 CASES IN THE COURT OF APPEALS BETTS D. UNION BANK OF MARYLAND. 1827. in Fillers and Beamont, 2 Dyer, 146. In that case the con- sideration in a deed of bargain and sale of lands was stated to be a sum of money, but it was averred, and found by the jury, that the indenture was made "as well in consideration of mar* riage, (to make it a jointure and bar dower,) as of the said sum of money;" and it was adjudged, that although there was a particular consideration mentioned in the deed, yet an averment might be made of another consideration, which stood with the indenture, and which was not contrary to it. Which decision has since been sanctioned by Lord Coke. Thus it appears that both these conflicting decisions concur in the principle, as indis- putable law, that no averment of any consideration out of the deed can be made when it would tend to contradict the deed/ 1 Phillip* s Evidence, 425, 426. It is not intended by this adjudication to recognize and adopt the rule of evidence as laid down by either of those high authori- ties, but simply to decide the question involved in this case upo the peculiar facts and circumstances which belong to it. It is ad- "initted that the consideration mentioned in the deed now before the court, was merely nominal, and never was in fact paid. Can the party then, claiming under it, be permitted to prove that the consideration expressed in the deed was not the true considera- tion, but that the consideration was marriage? Upon a care- ful examination of the authorities relative to this subject, it appears that the greatest extent to which they have gone, has been to allow an additional consideration to be proved, which, is not repugnant to the one mentioned in the deed. But where a deed is impeached for fraud, the party to whom the fraud is imputed will not be permitted to prove any other con- sideration in support of the instrument. 1 Phillip 1 s Evid. 426. The case of Clarkson vs. Hanway, 2 P. Wms. 203, is to the same effect In that case the Master of the Rolls says, "judging upon the face of a deed is judging upon evidence which cannot err; whereas the testimony of witnesses may be false." It is the consideration expressed in the deed impeach- ed as fraudulent, which excludes the proof of any other con- sideration in support of it, and not the circumstance that the party charged with the fraud has relied upon such consideration in hi* answer, although such reliance might render the proof OF MARYLAND. 203 BETTS v. Uwrow BANK OF MARTLAND. 1827. still more objectionable, because he had thereby put his defence- upon the same ground. But in this case the proof that mar- riage was the real consideration, and not money, as mentioned in the deed, was inadmissible, as being contradictory to the language of the instrument, and not an averment of another consideration, not inconsistent with, but additional to the one ex- pressed. In 1 Phill. Evid.426; it is said, that the rule which the authorities appear to have established is, "that although a consideration is expressed, some other additional considera- tion may be shown not inconsistent with the former." The consideration then, which was offered to be proved in this case, (though a valuable one,) not being in addition to the one ex- pressed, but as a substitute for it, was repugnant to the aver- ment of the deed, and upon the admitted principle, was inad- missible as being contrary to.it. To give the rule a greater latitude would, it is conceived, be repugnant to the general principles and policy of the law in rela- tion to titles to real property, the evidences and muniments of which are required to be in writing,and enrolled forpublic inspec- tion and information in cases of contracts made relative thereto. The objection, that the deed to Mrs. Beits only took ef- fect from- the time of its delivery, cannot be sustained. As a general principle of the law, there is no doubt that delivery is essential to the legal existence and validity of a deed; but our legislative enactment puts that part of the controversy at rest, by declaring the deed to be efficient and operative from the time of its date. It has been doubted whether the deed could be supported*, even if proof that marriage was the consideration could be re- ceived. That ante-nuptial settlements, made in consideration of marriage, are good even though the party be then indebted See Reade vs. Livingston, 3 Johns. Ch. Rep. 494, and the cases there cited; but as the evidence, that marriage and not money, was the true consideration of the deed in this case, is not admissible, it follows that the decree of the chancellor must be affirmed. MARTIN, J. dissented. DECREE AFFIRMEP: 204 CASES IN THE COURT OF APPEALS OLIVER v. GRAY 1827 ^,| , ... ! LI -!-. . ...!.. OLIVER vs. GRAY. June 1827. The act of limitations, (1715, ch, 23,) does not extinguish the debt, but on- ly bars the remedy. An acknowledgment of a debt, or a promise to pay- it, by the defendant, within the time prescribed, is sufficient to revive the action. field, 1. That the suit is to be brought on the original cause of action, and not on the new promise or acknowledgment, which only restores the re- medy. As to what promises or acknowledgments will take a case out of the act of limitations Hdd, 2. That the promise need not be absolute, but a conditional promise is sufficient; and in such case it is incumbent on the plaintiff to show at the trial, either a performance of the condition, or a readiness to per- form it. Held; 3. That the acknowledgment must be of a present subsisting debt* unaccompanied by any qualification or declarations, which, if true, would exempt a defendant from a moral obligation to pay. Held, 4 That such an acknowledgment, accompanied with a naked refusal 4o pay, or a refusal and an excuse for not paying, which in itself implied an admission that the debt remained due, and furnished no real objection to the payment of it, is sufficient. Reid, 5. That any unqualified acknowledgment, &c. with no other excuse for not paying than a reliance on the bar created by the act of limitations, is sufficient to take the case out of the act. Held, 6. That the acknowledgment may be in whole, or in part. Held, 7. That it is sufficient if it be after bringing the suit. tffeld, 8 An admission that the sum claimed has not been paid, is not suffi- cient to take & case out of the act of limitations, without some further admission, or other proof that the debt once existed. Held, 9. The acknowledgment need not be made to the plaintiff himself, but may be made to any body else. Held, 10. It is for the court to decide what kind of promise or acknowledg- ment is sufficient to take a case out of the act of limitations; and the evi- dence offered to prove snch promise or acknowledgment, is proper to be submitted to the jury, as in in other cases, under the direction of the court. Every acknowledgment which is offered to tike a case out of the act of li- mitations, must be taken all together; and no evidence can be received, to turn a denial of the existence of a debt into an acknowledgment of a subsisting liability, by proving that the party making the admission was mistaken in supposing the debt to have been paid. Where the plaintiff chooses to introduce the defendant's declarations to take a case out of the act of limitations, he must be content to take them as they are, and cannot be permitted to disprove them by other evi- dence. APPEAL from Baltimore County Court. This was an ac- tion of assumpsit brought by the appellant, Robert OF MARYLAND. 205 OUTER v. GRAY. 1827. surviving partner of John Oliver, against the appellee, and one Robert Taylor, (who was returned non est,) for money had and received; for money lent and advanced; for money laid out, expended and paid; on an insimul comput assent t and on a promissory note. The writ was issued on the 14th of March 1823. The defendant pleaded non assumpsit, non assumpsit infra tres annos, and actio non accrevit infra tres annos. To which there were the general replications, and issues joined. At the trial the plaintiff read in evidence the following pro~ missory note, which was admitted to be signed by the defend- ant Gray, in the name of Gray and Taylor, in the manner as thereby appears, in his own proper handwriting, and by him delivered to Robert and John Oliver, at the time it bears date. And it was also admitted that the defendant, Gray, arid Ro- bert Taylor the other defendant, who was returned non est inventus on the original writ in this cause, were at the time of the execution of the said note, and for some time before and af- ter the execution thereof, partners in trade, and carrying on trade and commerce under the name and firm of Gray and Taylor. Which said note is as follows: "Dollars 5000. Baltimore, 14th October, 1813. On demand we promise to pay to the order of Robert and John Oliver, five thousand dollars, with legal interest from this date, for value received. . Gray $ Taylor." The plaintiff also offered in evidence, that the defendant, Gray, in the year 1816, paid the interest due on the said notej and that about one year, or one year and an half after the said interest was paid, the witness, as the agent of Robert and John Oliver, called on the defendant for the interest then due, and that the defendant answered that he had paid the last interest out of his own individual funds, and that he was unable to pay the interest then demanded. That the defendant resided in this state, near Baltimore', that the said house of Gray and Taylor resided in the city of Philadelphia, and failed in 1815 or 1816. The plaintiff further offered in evidence, by John Purviance, Esquire, a competent witness, that some time after 206 CASES IN THE COURT OF APPEALS OLIVER v. GRAY- 1&27. Gray and Taylor failed, and had executed the deed of trust for the benefit of their creditors, upon the plaintiff's expressing much dissatisfaction at his being excluded from the benefit of said deed of trust, the defendant said he had excluded him from the belief that he was paid out of the securities in his hands; that he did not consider Gray and Taylor indebted to the plaintiff, but that as the plaintiff was dissatisfied, he would be very glad, if it was not too late, that he should be permitted to come in as one of the creditors of Gray and Taylor, and the defendant said he would write a letter to Philadelphia to ascertain whether this arrangement could be made, and to in- quire of counsel in Philadelphia. It was, however, the opini- on of the counsel, who was consulted, that it was too late, and the plaintiff was excluded from all benefit of the deed of trust. That since this suit was pending, the defendant said to the said witness, frequently, that he regretted that the plaintiff was excluded from the said deed of trust, and wished he had been allowed to come in for his claim under the said deed ; but al- ways added, that he did not consider that he was indebted to the plaintiff, because the plaintiff had it in his power to have saved himself, with the sureties received from William Taylor, and ought not, therefore, to have looked to him for the money. The defendant also, in these latter conversations, stated the hardship of his condition: that he was poor, and no benefit could result from a recovery, if the plaintiff succeeded in establishing his claim. That his partner too was poor; and that his partner, who was sued by the plaintiff in Philadelphia, complained of the situation in which the defendant had placed him with the plaintiff, by not including him among the creditors in the deed of trust. And the defendant stated in one or more of the conversation* n the subject with the witness, that he understood from the plaintiff himself, that he had securities in his possession suffi- cient to cover the amount of his claim against Gray and Tay- lor, as well as William Taylor. The plaintiff further offered in evidence, that he was not paid by the securities referred to in the preceding conversation, and that William Taylor was still indebted to the plaintiff in a large sum of money, although the ship Orozimbo, hereinafter mentioned, had been sold to the OF MARYLAND. 207 OLIVER v. GRAT. 1827 best advantage. The plaintiff further read in evidence the en- dorsement on the bill for discovery, hereafter inserted, and the answer of the defendant to the said bill; which said bill and answer here follow: [The bill here referred to was filed in. 1819, in Baltimore county court, sitting as a court of equity, by Gray and Taylor, against Robert and John Oliver, for a discovery respecting the ship Orozimbo, &c. The answer- thereto, of R. Oliver, was filed in 1824. But as they do not appear to be material in the decision of this cause, they are- omitted here.] It was admitted that Robert and John Oliver, mentioned in the. said bill, and the payees in the above men- tioned note, are the same persons, and that Edward Gray and Robert Taylor, mentioned in the said bill, and who are plain- tiffs in the said bill, are the same persons against whom the ori- ginal writ issued in this cause. The defendant then prayed the opinion of the court, and their direction to the jury, that upoa the evidence above stated the plaintiff is not entitled to reco- ver on the second and third issues joined in the cause. Which opinion and direction the Court, [Hanson and Ward, A. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court. The cause was argued before BucHANAN,Ch. J. and EARLE, MARTIN, STEPHEN, and DORSET, J. Latrobe, for the Appellant, contended, 1. That the statute of limitations operates to create a presumption of payment only, and does not extinguish the original debt. 2. That what amounts to an acknowledgment of a debt to take it out of the statute of limitations, is to be left to the jury, 3 That the conversations of the defendant in this case, amount to such an acknowledgment as is sufficient to take the case put of the statute. On the first point, he cited Sturges vs. Crowninshield, 4 Wheat. 2O7. Quantock vs. England, 5 Burr. 2630. CVe- mentson vs. Williams, 8 Cranch, 72. Lloyd vs. Maund, 3 T. R. 760. Mountstephen vs. Brooke, 5 Serg. # Low. 245. Leaper vs. Tatton, 16 East, 422. Halladay vs. Ward, 3 Campb. 32. 2 Stark. Evid. 892, 893, 895. On the second point Lloyd vs. Maund, 2 T. JR. 760. De 208 fcASES IN THE COURT OP APPEALS OLIVER v GRAY. 1827. La Torre vs. Barclay* 2 Serg. 8? Low.270. Bicknell vs. Kep- pel, 4 Bos. Sf Pull. 20. 2 Stark. Evid. 896. Bryan vs. Horseman, 4 East, 604. Baillie vs. Inchiquin, 1 Esp. Rep. 435. Smith vs. Ludlow, 6 Johns. Rep. 267. On the third point Bryan vs. Horseman, 4 East, 599, Trueman vs. Fenton, 2 Cowp. 548. Lawrence vs. Worrall, Peake's N. P. Cases, 93. 2 Stark. Evid. 893. Baillie vs. Ld. Inchiquin, 1 Esp. Rep. 435, Leaper vs. Tat ton, 1 6 East t 420. Clarke vs. Bradshaw, 3 jEsjt?. /?ej. 155- Jackson vs. Fairbank, 2 H. Blk. 340. JFborf vs. Braddick, 1 Taunt. 104. Smith vs. Ludlow, 6 Johns. Rep. 267. Dean vs. Pitts, 10 Johns. Rep. 35. Anderson vs. Sanderson, 3 tferg-. < OM>. 190. Ward vs. Howell,et al. 5 Harr. Sf Johns. 60, 61. Barney vs. Smith, 4 //am < Johns. 485. Norris's Peake, 420, &c. Raymond, for the Appellee. Independent of the plea of the statute of limitations, the plaintiff cannot recover on the general issue. That plea is a bar to his action. 1. The statute of limitations creates a presumption of pay- ment, which the debtor may waive; but unless he does so, no other evidence can be received to rebut that presumption. The debtor may waive the statute by not pleading it. He may pro- mise to pay the debt.. In this case the defendant has not waiv- ed the statute in either of those ways. But it has been said that his acknowledgment is a waiver. . The making an ac-. knowledgjment is not a waiver of the statute. It is not a pro- mise to pay the debt; but only evidence from which the jury may infer a promise. If a special verdict found that the de- fendant acknowledged the debt, but no promise is found, a judgment could not be rendered. 2. It has been contended, that what amounts to an acknow- ledgment of a debt to take it out of the statute, is to be left to the jury. This would be to take from the court a question of law, and give it to the jury. Here the court below said the acknowledgment was not sufficient evidence to go to the jury, for them to infer a promise to pay the debt. The evidence in, the record was not sufficient to amount to a waiver of the statute. The plea of the statute puts in issue not only the new promise, but the existence of the original debt; and the existence of the original debt must be proved, otherwise the OF MARYLAND. 209 OLIVKK v. ^HAT. 1827. the new promise will not be sufficient. It will be a nudutn pactum. If there is proof that the old debt has been paid, then the new promise amounts to nothing. No chancellor or jury could, on the bill and answer offered in evidence in this case, find that the defendant owed the plaintiff one cent. There is no acknowledgment of a debt, so as to take the case out of the statute, independent of a promise, whereby a pro- mise could be inferred. He referred to Clementson vs. Wil- liams, 8 Crunch, 72. Danforth vs. Culver, 1 1 Johns. Rep. 14G. Sands, vs. Gelson, 15 Johns. Rep. 511. Wetzell vs. Bnssard, 11 Wheat. 310. Laurence vs. Hopkins, 13 Johns. Rep. 288. Gwynn, on the same side. What will restore the remedy when the action is once barred by tha act of limitations? This point has not been decided by this court. It has been said that this judgment must be reversed, 1. That the act of limitations does not extinguish the debt, but bars the remedy. It is a pre- sumption of payment if the debt is not sued for within three years. 2. That an unqualified acknowledgment ot the debt will take the case out of the statute. But what is evidence of an acknowledgment is not to be left to the jury; it is for the court. There are only two cases where the question was left, as a matter of doubt, to the jury. One of those cases was over- ruled in Bicknell vs. Keppel, 4 Bos. $ Pull. 20. Coif man vs. Marsh, 3 Taunt. 380. It is only in very doubtful cases where the subject is left to the jury. But where the acknowledgment is accompanied with a denial, it is not left to the jury. All the English cases go upon the ground that the debt was ac- knowledged to be existing, and no denial of it is made. In Bryan vs. Horseman, 4 East, 599, the fact of the acknow- ledgment would not have been sufficient; and if nothing fur- ther had been said, the case would have been barred. The act of limitations takes in other actions as well as assumpsit. In no case but in assumpsit can an action be brought which has been barred by the statute. All other actions are barred, and no acknowledgment, &c. can sustain the action. Boydell vs. Drummond,2 Campb. 162. Rowcroft vs, Lomas, 4 Maule 4* Selw 4C>7. This action was brought in March 1823, and VOL. i. 27 210 CASES IN THE COURT OF APPEALS OLIVER v. GUAY. 1827. the only evidence at the trial was conversations which took place after the action was brought between the defendant, and the eounsel of the plaintiff. That evidence furnishes complete proof that the defendant always denied the debt to be due. To revive a debt barred by the statute, there must be a voluntary acknowledgment of its existence without any denial or condi- tion. Wetzell vs. Bussard, 11 Wheat. 316, (note.) 1 Com. Dig. 338, (new ed.) The English decisions have gone so far, that if the debtor has acknowledged the debt to be due, but said he would not pay it, it was taken out of the statute. But not where the debtor denied the debt to be due, although he acknowledged that it had once existed. Norris's Peake,423. Hudson vs. Carey, 11 Serg. 4* Rawle, 10, 13. 2 Stark. Evid. S95, (note.) Fries vs. Boisselet, 9 Serg. 4* Rawle, 131. Beale vs. Rowland, Hard. Rep. 301. The evidence in the record is, that within three years the defendant said he regret- ted, &c. These conversations were after the action was brought, and after the defendant had pleaded the act of limitations, and were had with the plaintiff's counsel. Holme vs. Green, 2 Serg. 4* Low. 480. Beale vs. Nind, 6 Serg. $ Low. 517. Har- ney vs. Smith, 4 Harr. 4* Johns. 485, go entirely upon the ac- knowledgment which was made without any denial of the debt being due, or refusal to pay it. It must be with the assent of the defendant that he is made liable for a debt once barred by the statute. Taney, in zeply. The prior debt relied on was the promis- sory note upon which the action was brought; and whether if had been paid or not was a fact for the jury to decide. Thai the debt once existed, is proved positively. The evidence of- fered was read without- objection. The endorsement on the bill filed in equity only, and the answer thereto, were read m evidence. ' The act ot limitations either goes to the right to recover, or it bars the remedy. If the contract is rescinded, then the par- ty could never recover on it. He could only use it in a suit on a new promise. An act of bankruptcy operates to the ex- tinguishment of the contract; and if a new promise is made, the party must sue upon the new promise. In the cases cited from the New- York Reports, the suits were upon new promises. OF MARYLAND. 211 OLIVER v. GHAT. 1827. The case of Sands vs. Gelston, \5johns. Rep. 519, was made analogous to the cases of bankruptcy. Stnrges vs. Crownin- shield, 4 Wheat. 207, is in opposition to the New-York deci- sions. Norris's Peake, 422, 423, 424, (and notes.} The only operation of the act of limitations is to create a presump- tion that the debt has been paid. 2 Stark. Evid. 891 to 897, (and notes.) Clementson vs. Williams, S Cranch, 73, 74. ^Barney vs. Smith, 4 Harr. $? Johns. 485. The act of limi- tations does not extinguish .the debt, but only creates a pre- sumption of payment. This has been repeatedly decided by the courts in England, and in this state. If the statute ought to be expounded differently, yet having been otherwise ex- pounded by a series of decisions for two centuries, it is a ju- dicial exposition, and has become a part of the statute. This court cannot overrule such decisions, as it woultl be to legislate, and not to adjudicate. The burthen of proof is on the plain- tiff to prove that the .debt has not. been paid. If it is assumed that the statute creates a presumption of payment, but does not extinguish the debt, then it is only necessary for the plain- tiff to prove that the debt has not been paid. This will repel the presumption of payment; and it becomes a question of fact whether or not the presumption is repelled. If the defendant acknowledged that the debt was once due, it is not sufficient unless he acknowledged he had not paid it. In Boy dell vs. Drummond, 2 Campb. 162. Rowcroftvs. Lomas, 4 Maule fy Selw. 457, and Clementson vs. Williams, 8 Crunch, 72, the evidence was only that the debt once existed. Where the acknowledgment admits the debt was originally due, and had not been paid, it will remove the bar of the act of limitations. Wetzellvs. Bussard, 11 Wheat. 310, 313. Where a party refers to a mode of settlement, which is proved to be false, the statute is no bar. 2 Stark. Evid. 894, (note.) 895. Here the defendant alleged that the debt sued for had been discharged in a particular way, which has been disproved by the plaintiff's an- swer to the bill, which the defendant and his partner had filed against him, as given in evidence at the trial of this case. Why should this presumption of payment be distinguished from other presumptions? It is not a conclusive presumption, not to be repelled, but is to be left to the jury. Many of the cases 212 CASES IN THE COURT OF APPEALS OLIVER v. GRAY 1827 cited assume the principle that it was sufficient to be left to the jury whether or not payment had been made. Any evidence from which the jury might infer that payment had not been made, was admissible; aad if the jury found that payment had not been made, then the statute was no bar. If it is assumed as the doctrine that the statute goes upon the presumption of payment, it must be dealt with like all other presumptions; and if so it is to be rebutted by evidence upon which the jury aro to decide. It is not for the court to say whether an acknow- ledgment was or was not sufficient to rebut the presumption of payment. If it is a question for the court to decide, then there must be, first, proof of the debt; and secondly, proof of the acknowledgment of the defendant that the debt had not been paid. The question then is, was the proof sufficient to esta- blish that the debt had not been paid? Wetzell vs. Bussard, 11 Wheat. 310. There is no evidence that the defendant paid the debt, but he said he did not consider himself indebted to the plaintiff, because the plaintiff had it in his power to save himself. This is a clear admission that the debt had not been paid. The qualification made by the defendant was evidence to rebut the presumption of payment. The answer to his bill in equity proves that the debt had not been paid. 2 Stark. Evid. 894, 895. Foe vs. Conway's rfdm'r. 2 Harr. 4* Johns. 307. BUCHANAN, Ch. J. delivered the opinion of the Court. The appellee rests his defence upon the act of limitations of this state, on the effect and operation of which we are called upon, to decide; and we approach the subject not without hesitation, surrounded and obscured as it is, by a cloud of discordant ad- judications. Perhaps there is not a British statute which has given birth to so many conflicting decisions, as the statute of the 21 James I, ch. 16, the statute of limitations of that country; and we are familiar with the expressions of regret, by the emi- nent men who have sat in the judicial tribunals there, that the letter of that statute was ever departed from; a regret for which sufficient cause is to be found in the incongruity presented by the numerous decisions on that branch of the law. The statute of James was never held in England to extin- guish the debt, but was always understood as operating upoa OF MARYLAND. 213 OLIVER v GRAY. 1827. the remedy only. In Healing vs. Hastings, 1 Ld. Raymond, 3Stf, Holly Chief Justice, said that "the statute of limitations was founded upon very good reason, because men should not unravel contracts so long after, upon a supposition, that if they were not paid, they would sue sooner; and acquittances being subject to be lost, a man might be sued for what he had paid before." In Quantock vs. England, 5 Burr. 2628, Lord Mansfield said, "it was settled that the statute of limitations did not destroy the debt, but only took away the remedy." In Mountstephen vs. Brooke, 5 Serg. <$ Low, 245, Jlbbott t Chief Justice, said, "the statute was passed to protect persons who were supposed to have paid the debt, but to have lost the evidences of such payment.' 3 Hence after a consultation with all the judges, but one, it was stated by Lord Holt, in Hey* ling vs. Hastings, 1 Lord Raymond, 421, to be their unani- mous opinion, that a promise by the defendant, at any time within six years before the commencement of the action, to pay the debt, was sufficient to take the case out of the statute. But that a bare acknowledgment of the debt within that period was held to be evidence only of a promise, and therefore not of itself sufficient. This distinction prevailed for a long time, but was at length broken down, and ceased to be regarded. In Yea vs. Fouraker, 2 Burr. 1099, it was ruled that an ac- knowledgment of the debt, even after the commencement of the action, took it out of the statute ot limitations. In Quantock vs. England, a submission to a commission of bankruptcy by a debtor, after the debt had been of more than six years stand- ing, was held to be a waiver of the benefit of the statute, and such an acknowledgment as took the case out of it; and Lord Mansfield said, that the slightest word of acknowledgment would do it. And in Trueman vs. Fenton, 2 Cowp. 548, he said, "the slightest acknowledgment has been held sufficient; as saying, prove your debt and I will pay you; I am ready to account, but nothing is due to you. And much slighter, ac- knowledgments than these will take a debt out of the statute. " These cases have been followed by a series of decisions from that time to this, by which this principle at least is now fully settled, that an acknowledgment of the debt by the defendant, within six years before the bringing of the suit, is sufficient to 214 CASES IN THE COURT OF APPEALS OLIVER r. GRAY. 1827. take the case out of the statute of limitations; and very slight evidence, indeed, of an acknowledgment, has sometimes been deemed sufficient. In Leapervs. Tatton, 16 East, 420, Lord Ellenborough said, "as the limitation of the statute is only a presumption of payment, if his own acknowledgment that he has not paid be shown, it does away the statute." In Sluby vs. Champlin, 4 Johns. Rep. 461, Yates, Justice, who deliver- ed the opinion of the court, said, "it is now generally receiv- ed as law, that if a party acknowledges a debt to be unpaid, it is such a waiver of the protection of the statute as to repgl the presumption of payment, being a recognition of the former lia- bility." AncJ in Sturgesvs. Croivninshield, 4 Wheat. 207, Chief Justice Marshall said, "statutes of limitations relate 1o the remedies which are furnished in the courts. They rather establish, that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its per- formance." Since the case of Sluby vs. Champlin, the distinction which formerly prevailed in England between a promise to pay, and an acknowledgment of the debt, has been revived in Netv- Yurk; and now, both in that state, and in Pennsylvania, the latter is held to be evidence only, to be left to the jury, of a promise to pay. Proceeding upon that principle, it seems to be settled in those states, that though- a slight acknowledgment of the debt, when standing alone, will be sufficient, yet that if the debtor qualifies his acknowledgment in such a manner as to show it is his determination not to pay, the statute will protect him; as where a man admits the debt to be due, but declares that he intends to insist on the benefit of the statute. ( Murry vs. Tilly, cited with approbation in fries vs. JBoisselet, 9 Sergt. # Rawle. 131;) or admitting it to be due, declares that he will not pay it as in Fries vs. Boisselet, where the proof was that the defendant on being arrested, said he owed the plaintiff the fnoney, and intended to have paid him, but that he had taken un gentlemanly steps to get it, and as he had taken those steps he would keep him out of it as long as he could; which was held not to be sufficient to take the case out of the statute. And the same principle is fully recognized in Sands vs. Gel- ston, 15 Johns. Rep. 511, and Roosebelt vs. Mark, 6 Johns. OF MARYLAND. 215 OLIVER v. GRAY. 1827. Ch. Rep. 2GG. The only difference between the act of limi- tations in this state, and the statute of James is, that here the limitation is but three years; and in this state, the rule prevail- ing in England, that an acknowledgment .of the debt by the defendant within the time prescribed for bringing the suit, is sufficient to take the case out of the statute, has been adopted. In Barney vs. Smith, 4 Harr 8? Johns. 485, the venerable man who then presided, Judge Chase, said "the act of limita- tions does not operate to extinguish the debt, but to bar the remedy. The act of limitations proceeds upon the principle, that from length of time a presumption is created, that the debt has been paid, and the debtor is deprived of his proof by the death of his witnesses, or the loss of receipts. It is the design, of the act of limitations to protect and shield debtors in such a situation; and consistent with this principle and this view, the decisions have been made, that the acknowledgment or admis- sion of the debt will take the case out of the act of limitations; because, if the money is still due and owing, the defendant has not suffered from the lapse of time, nor has any inconvenience resulted to him therefrom." And again, in another part of his opinion, he says, "the acknowledgment to the surviving part- ner saves and preserves the remedy in the survivor, and avoids the bar by the act of limitations. It does not create a new assumpsit, but is a saving of the remedy on the original pro- mise." We, therefore, are not called upon now for the first time to give a construction to that act; that task has been per- formed by others, at whose hands we have received it, with their interpretation of it, from which, if we were disposed to do so, we should not feel ourselves at liberty to depart. Perhaps it would have been better, if instead of endeavour- ing to rescue particular cases out of its operation, the letter of the statute had been strictly adhered to; if the original debt had always been considered as extinguished, and the moral ob- ligation, treated as a sufficient consideration for an express pro- mise to pay, on which to found an action. But according to all the cases, (for in this at least they agree,) the debt is ccfnsi- dered as not extinguished, and the defendant can only avail himself of the statute in England, and act of assembly here, by pleading it; which, if he omits to do, it is held to be a waiv- 216 CASES IN THE COURT OP APPEALS OLIVER v. GRAY. 1827. er of its benefit, and the plaintiff may recover on the general issue, though the debt should appear by the declaration to be of longer standing than the limited period. This settled con- struction has producpd all the difficulties and discrepancies com- plained of; but it is a construction which is not now to be shak- en by us: nor on the other hand should its operation be ex- tended further than it has already gone. Taking the act of limitations, then, as we find it, operating upon the remedy only, and not as extinguishing the debt; and feeling the necessity for a more definite and certain understand- ing of the effect of the adopted construction, than can easily be collected from particular cases, we will endeavour, not to reconcile the various decisions that are to be found in the books on this subject, but to lay down some general rules for the practical application of the principles they establish; that the act does not extinguish the debt, but only bars the remedy, and that an acknowledgment by the defendant of the debt, or a promise to pay it within the time prescribed, is sufficient to revive the action. First, then, the suit is to be brought on the original cause of action, and not on the new promise or acknowledgment, which only has the effect to restore the remedy; which is not only according to the common practice, but is directly and strongly asserted in Barney vs. Smith. Second. It need not be absolute and unconditional, but a con- ditional promise is sufficient; and in such case, it is incumbent on the plaintiff to show at the trial, either a performance of the conditioner a readiness to perform it; as if the words be, prove your debt, and I will pay you, which is an express pro- mise to pay, on condition that the debt is proved. Hey ling vs. Hastings, 1 Ld. Raymond, 389. Trueman vs. Fenton, 2 Cowper, 548. Davles vs. Smith, 4 Espinasse Rep. 36 Low- eth vs. Pothergill, 4 Camp. Rep. 185. Bush vs. Barnard, S Johns. Rep. 407. These cases furnish different examples of conditional promises to pay, each of which was held sufficient to take the case out of the statute. Third. An acknowledgment, to take the case out of the act of limitations, must be of a present subsisting debt, unaccom- panied by any qualification or declarations, which, if true, OF OLIVER v. GRAT- 1827. would exempt the defendant from a moral obligation to pay. fror the law will not raise an assumpsit,6r imply a promise to pay, what in equity and good conscience a man is not bound to pay. As if the defendant admits the debt, but at the same time resists the payment of it by alleging that he has a set-off against it, and that the plaintiff owes him more money; which virtually amounts to a denial of his liability, and a refusal to pay any part of it, on grounds furnishing a sufficient moral ex- cuse for not paying it. And indeed, taking the whole of the acknowledgment together, (which must always be clone,) is in effect equivalent to a declaration that the debt is discharged. If it were otherwise, and the plaintiff was permitted to avail himself of the acknowledgment of the debt, and to reject the qualification, injustice would always be done where the set-off, claimed by the defendant, should be itself barred by the act, or he should be in want of testimony sufficient to support it. Or, if he admits the receipt of money, and that it has not been paid, but claims it as a gift; which, if true, would exempt him from any liability to pay. Or, if on being called upon, the party says he has paid the debt, and will furnish the receipt, but fails to do so, this will not be sufficient to charge him; but is the very case intended to be provided for by the act, the case of a man who is supposed to have lost his evidence of pay- ment. Fourth. An acknowledgment of the debt, with a naked re- fusal to pay, or a refusal accompanied with an excuse for not paying it, which in itself implies an admission that the debt re- mains due, and furnishes no real objection to the payment of it, is sufficient. Fifth. Any unqualified acknowledgment of a present sub- sisting debt, or acknowledgment, with no other excuse for not paying it than a reliance on the bar created by the act of li- mitations, is sufficient to take it out of the act. Clarke vs. Bradshaw fy Coghlan, 3 Esp. Rep. 155. Bryan vs. Horse- man, 4 East, 599. Evans, in the notes to his translation of Pothier on Obligations, suggests to those whose claims are barred by the statute, and who wish to obtain an acknowledg- ment of the subsistence of the debt, the utility of filing a bill of discovery, and adds, "if the subsistence of the debt is ad- voj,. 1 28 218 CASES IN THE COURT OF APPEALS OLIVER v. GRAT. 1827. mitted, and without perjury it cannot be denied, it will not, if there is any consistency of decision, be of any avail to add a claim to the protection of the statute." The act of limitations, according to the received constructi- on, proceeds upon the supposition, that from length of time the debt is paid, and was only intended to protect a party where the presumption arising from lapse of time is, either, that the debt has been discharged, or never existed, and not to protect him from a debt acknowledged by himself to be still due and un- paid, with no other excuse for not paying it than the supposed bar created by the act. When, therefore, a party admits the debt to be due, but standing upon the act of limitations alone, in the same breath refuses to pay it, he admits a case, to which the act, according to its spirit and reason, does not apply, under the interpretation given to it, and his refusal cannot avail him. But the continuing existence of the debt continues and carries with it the implied assumpsit that the law raises, which is not rebutted by his refusal to pay. Hence the very common use in the books of the terms "takes the case out of the sta- tute of limitations;" that is, that it is a case not embraced by the statute. Sixth. The acknowledgment of the debt may be in whole Or in part Seventh. It is sufficient if it be after the bringing of the suit Yea vs. Fouraker, 2 Burr. 1099. Which could not re- gularly be if it stood upon the footing alone of evidence only of a new promise, the replication being assumpsit infra tres annos before the bringing of the suit, and confining the issue to a time within that period; so that an acknowledgment, made after the bringing of the suit, would not be within the issue. The issue, therefore, in such a case, must be sustained on the part of the plaintiff, on the idea of an implied promise, con- tinuing and running with the old debt acknowledged to be still due. Eighth. An admission that the sum claimed has not been paid, is not sufficient without some further admission, or other proof, thaf the debt once existed. Ninth. The acknowledgment need not be made to the plain- tiff himself, but may be made to any body else. OF MARYLAND. 319 OLIYKR v GHAT. 1827. Tenth. What kind of promise or acknowledgment is suffi- cient to take a case out ol the act of limitations, is for the court to decide; and the evidence offered to prove such promise or acknowledgment, is proper to be submitted to the jury, as ia other cases, under the direction of the court. It has been contended in this case, that where the defendant alleges the debt to have been discharged, and refers to a parti- cular mode of discharge, the plaintiff may entitle himself to recover by disproving the mode of discharge referred to. We are aware that the same has been said efsewhere. In Hellings vs. Shaw, 2 Serg. 4* Low. 236, Chief Justice Gibbs said, "where the defendant has stated, not that the debt remained due, but that it was discharged by a particular means, to which he has with precision referred himself, and where he has desig- nated the time and mode so strictly, that the court can say it is impossible it had been discharged in any other mode. There the court have said, if the plaintiff can disprove that mode, he lets himself in to recover, by strikrng from under the defen- dant the only ground on which he professes to rely." But af- terwards, in Beetle vs. Nind, 6 Serg. fy Low. 517, Justice Bay- ley, afser reciting the words of Chief Justice Gibbs, says, "I certainly am not aware of the cases to which my Lord Chief Justice Gibbs refers to support that proposition." Thus strong- ly questioning the soundness of the proposition, to which, (see- ing the inroads that have already been made upon the statute, which we are not disposed to push any farther, and no such de- cision having been made by this court,) we are not prepared to yield our assent; but think that every acknowledgment of a debt, which is offered to take a case out of the act of limitati- ons, must be taken all together; and that no evidence can be re- ceived to turn a denial of the existence of the debt into an acknowledgment of a subsisting liability, by proving that he was mistaken in supposing it to have been paid. Which would be to take a case out of the act of limitations by other proof than the acknowledgment of the party; for in such a case he manifestly not only does not intend to acknowledge a present subsisting debt, but in fact denies it, and there is nothing to carry, or on which the law can raise an implied assumpsit. The declarations of the defendant are the plaintiff's own proof. 220 CASES Itf THE COURT OF APPEALS* . I .' " .1111 ._ DRCBT v. CONNER 1827. and if he chooses to introduce them, he must be content to take them as they are, and cannot be permitted to disprove them by other evidence, in order to raise an implied promise, or to iurnish evidence of a promise to pay a debt, the exist* ence of which is denied. With these views of the subject we do not think, from the evidence set out in the record, that the plaintiff is entitled to recover. Whatever might have been the effect of the expressions of regret by the defendant, if they stood alone, "that the plaintiff had been excluded from the deed of trust, and had not been allowed to come in for his claim," the declarations, always accompanying them, "that he did not consider that he was indebted to the plaintiff, because he had it in his power to have saved himself with the securities re- ceived from William Taylor, and ought not, therefore, to have looked to him for the money," sufficiently show that it never was his intention to acknowledge the claim of the plaintiff as a subsisting debt due by him, but on the contrary, taken toge- ther, amounted to a denial of any existing liability on him to pay; and for a reason, which, if true, furnished a real objection, and sufficient excuse for not paying it. For, if the plaintiff had in his hands securities with which he should and might have covered the amount of his claim, but from negligence or misapplication of the funds did not do so, he should not now look to the defendant for it; nor can he be permitted by evi- dence of the insufficiency of those securities to convert the de- fendant's denial of his liability into an acknowledgment of a present subsisting debt, JUDGMENT AFFIRMED. DRURT vs. CONNER. June, 1827. Whoever enters upon the estate of an infant, is considered in equity as en- tering as his guardian; and after the infant comes of age, he may by bill in chancery recover the rents and profits. If a person so entering shall continue the possession after the infant comes of age, chancery will de- cree an account against him as guardian, and carry on such account after the infancy is determined. $ne who never occupied an estate, nor derived any advantage from it, but merely rented it out, and collected, and paid over the rent as it came into his hands, as the friend and connexion of another, for whose esc h,_ 6P MARYLAND. 221 DHURT v. CONNER. 1827. received the rent, and to whom he was hound to pay it over as agent, is not r sponsi Me in equity, for mesne profits, to the owner of such estate. It is true, as a general position, that chancery will not entertain a hill, where there is a full and complete remedy at law, and no ground is shown for going into equity; and ordinarily a bill for mesne profits, after recovery in ejectment, showing no obstacle at law, and stating no ground of equita- ble relief, would on plea or demurrer, and perhaps at the final hearing without either, unc'er the practice of this state, be dismissed, tnere being an adequate remedy at law APPEAL from the Court of Chancery. The bill, filed on the 14th of October 1819, 'by the appellee against the appellant, stated that William Conner, the father of the complainant, died intestate in the year 1799 or 1800, seized in fee of a tract of land lying in Anne-Jlrunde.1 county, called Holloway, or Oliver's Preservation, containing 147 acres, which descended to the complainant, and his brother Marmaduke, and his sis- ters Harriet, Nancy and Matilda. That Henry C. Drury, the defendant, being then in possession of the said tract of land, and holding and claiming it under a certain Frederick Mills, one of whose daughters he married, and receiving the rents and profits thereof, the complainant, and the said Marmaduke, Harriet, Nancy and Matilda, on the 12th of Juiuary 1816, instituted an action of ejectment in J2nne-v%rundel county court against him for the recovery of the said land; and on the 27th C>f September 1819, recovered the same each his or her un- divided fifth part, by the judgment of the said court. That a writ of habere facias possessionem issued, and possession was had by the complainant, and the said Marmaduke, Harriet^ Nancy and Matilda. The bill then charges, that the defen- dant had been in possession of the said land a long time previ- ous to the institution of the said action of ejectment, and sub- sequently to the death of the complainant's father, and so re- mained in possession until the execution of the said writ of habere facias possessionem, during which time he received the rents and profits of the same, and cut down and sold a great quantity of wood and timber of yarious description, which was growing thereon, and received the purchase money therefor. The bill then states, that the complainant has not long attained the age of 21 years, to wit, within three years from the insti- tution of the said action of ejectment, and from the filing of the present bill; and that during the whole period of the possession CASES IN THE COURT OF APPEALS DHUBT v. CONNER. 1827. of the defendant, the complainant was a minor, under the age of 21 years; and the defendant received the rents and profits of the said land as guardian of thfi complainant, though he had not been legally appointed. Prayer, that the defendant may be compelled to account, &c. and for general relief. The answer of the defendant stated, that William Conner, deceased, the father of the complainant, and Marmaduke, &c. at the time of his death, possessed a legal estate in fee simple in the land mentioned in the bill; but that he never was in the actual possession thereof; that in his lifetime he sold all his in- terest therein to Frederick Mills, since deceased, for a full and valuable consideration, although no conveyance was ever exe- cuted for the same. That the said Mills left issue four chil- dren, viz. Jlchsah, Jinn, Elizabeth, who is the wife of the de- fendant, and Frederick, and died in the peaceable and undis- turbed possession of the premises, which vested in his said children. That from the 1st of January 1813, the defendant, by virtue of an assignment from the said Jlchsah, and in the right of his wife, was possessed of one moiety of the premises until he was dispossessed thereof as is stated in the bill. That it is not true that the defendant did cut down and sell wood and timber from off the said premises; but that he did receive the one-half of the rents and profits of the said premises for the space of six years, amounting in the whole to $600. That he considers himself entitled to the same by virtue of the said as- signment from the said Jidhsah, and in the right of his wife Elizabeth. That he and his tvife Elizabeth, and the other eo-heirs of Frederick Mills, heretofore exhibited and filed their bill of complaint in the court of chancery against the complain- ant, and the other co-heirs of William Conner, deceased, to compel a specific performance of the said contract for the sale of the said premises so entered into as aforesaid by Frederick Mills and William Conner, in their respective lifetimes, and which bill of complaint .is still depending in the said court. The defendant denies that he ever was in law or in fact the guardian of the complainant; and he denies the right of the com- plainant to compel him to account for the rents and profits of the said premises, or of any part thereof. A commission issued by consent to take testimony, and tes- OF MARYLANB. 23 DRCJIY v. COXNER. 1827. timony was taken and returned thereunder. The material facts proved under it will appear from the opinion delivered by the Chief Judge of this Court. JOHNSON, Chancellor, (July term, 1822,) Decreed, that the defendant account to and with the complainant of and concern- ing the matters charged in the bill; and that the account be stated from the evidence already taken under the commission, and that which may be taken before the auditor. The account to be taken, reserving all equity at the final hearing. The auditor reported two accounts, the one on which the chan- cellor's decree was grounded Account B. charged the defen- dant on the 1st of January 1819, "to rents and profits of one moiety of Holloway, or Oliver's Preservation, for 7 years from 1st of January 1S12, viz. at $90, per annum, $630 1824. Dec. 6. To interest on $90, part thereof . from the 1st of January 1813, 337 58 By Henry C. Drury, (the defendant,) in right of his wife, and of tftchsah Mills, for i By ditto as assignee of Matilda Conner for j. of the balance, 169 By Wm. W. Conner, (the complain- ant,) ditto, 169 By Marmaduke TV. Conner, ditto, 169 By John Franklin, & Harriet his wife, ditto, 169 By Sabritt Trott, & Nancy his wife, ditto, 169 $967 58 To amount due to the complainant, $169 33 To interest on $110 25, part thereof from the 6th of Decem- ber 1824, until paid." Each of the parties excepted to the auditor's accounts and report. And afterwards two exhibits were filed one, the re- cord of the recovery in ejectment brought by the complainant and others against the defendant, as referred to in the bill, and CASES IN THE COURT OP APPEALS DHURY v CONNER. 1827. the other, a decree of the court of appeals, on the appeal of Drury, et al, vs. Conner, et al. 6 Itarr. fy Johns. 288. BLAND, Chancellor, (March term, 1825,) Decreed, that the defendant pay to the complainant the sum of S.33S 66, with interest on $220 50, part thereof, from the 6th of December 1824, until paid, with costs to be taxed by the register. Fiom which decree the defendant appealed to this Court. The cause was argued at the last June term, before BUCHAN- AN, Ch. J. and EARLE and ARCHER, J Taney, for the Appellant, contended, 1 . That the complainant's remedy for mesne profits was at law. Dormer vs. For fescue, 9 Jltk 129. Jesus College vs. Bloom, Ib. 262. Warren < Taylor vs. Fergusson 4* Robertson, 4 Harr. fy Johns. 46. Loker vs. Rolle, 3 Ves. 4, 7. Cooper's Plead, 124. Where relief may be obtained at law, the party cannot proceed in equity. There is no proof in the record that the complainant was an infant; and if he was an infant, he should have rents only from the time of filing his bill. Pulteney vs Warren, 6 Ves. 93, 94. An infant, as sucfy could not bring a bill for mesne profits. But it will be said the bill was not demurred to. The answer denies the right of the complainant to an account for the rents and profits. Where 1 the defendant might have demurred to the bill, he may avail himself of want of jurisdiction at the final hearing. Barker vs. Dacie, 6 Ves. 686. Consent of parties cannot give juris- diction. If it appears by the bill that it is a subject of which the court has no jurisdiction, they will not assume it. It is not necessary for the defendant to deny that the court has jurisdic- tion. Carter vs. United Insurance Company, 1 Johns. Ch, Hep. 463. 2. The proper parties are not before the court. Cooper's Plead. 33. Equity will prevent a multiplicitv of suits. Dun- gey vs. Jlngove, 2 Ves. Jr. 304. The children of Mrs. Mills should be parties there being proof in the record that part of the rents and profits had been paid to her. 3. The complainant has no right to recover more than a \oiety of that part of the land rented. Saunders vs Lord, Annesley, 2 Sch. # Lef. 73, 93. Dungey vs. dngove, 2 Ves* jr. 304. OF MARYLAND. DBURY v. CONNER 1827. 4. The decree of the chancellor is clearly wrong. He has decreed the whole rents and profits, deducting one-eighth, when lie should have deducted one-fourth. From the evidence, the estimated value of the rents and profits is too high. The true rule, as to the Value, is the sum received and paid. The means from which the witnesses could calculate the value must be looked to. Interest too has been charged at the end of each year upon the amount stated as the rents and profits. This is wrong. 1 Fonbl. 159, (note.) The value of the improve- ments ought to be set off against the inflamed amount of the profits. Brewer, jr. for the Appellee. 1. The court of chancery will not, in some cases, give relief, where it can be obtained at law; yet it will give relief for mesne profits where infants are concerned. 1 Madd. Ch. 75. Dormer vs. Fortescue, 3*fllk. 130. Where any person enters upon the property of an infant, he is a guardian or bailiff for the infant. If he entered during the in- fancy, he may be called upon in equity to account after the in- fant's arrival to full age. Where there are not sufficient facts stated in a bill to give the court jurisdiction, the defendant must take advantage of it by demurrer. North vs. Earl of Strafford, 3 P. Wins. 149, 150. Holder vs. Chambury, Ib. 256. Lud- low vs. Simond, 2 Caine's Cas. 18, 19, 39, 40, 51, 52, 56. TT n derhill vs. Van Cortlandt, 2 Johns. Ch. Rep. 369. Li- vingslon vs. Livingston, 4 Johns. Ch. Rep. 290. All the au- thorities opposed to the rule are stated in Baker vs. Dacie, 6 Ves. 686. The old rule is a good one; it was to preveat the protracting litigation. But this case is properly cognizable in chancery. At law the defendant could not be allowed for a discount of the one-fourth claimed by him. He would have been compelled to go into equity to obtain it. This shows the propriety of this suit. 2. Each of the lessors of the plaintiff at law, as he had a right to do, filed a separate bill in chancery. The defendant consented to account, and he cannot now object for the want of parties. The judgment at law was against the present defen- dant only, and he is alone to be made defendant in this action. West vs. Hughes, 1 Harr. $ Johns. 578. VOL. i. 29 226 CASES IN THE COURT OF APPEALS DRUKT v GOWNER 1827- 3. The defendant cannot say he did not receive the whole of the rents and profits. The judgment in ejectment makes him answerable, whether he received them or not; but he did re- ceive them, and is therefore bound to pay over. 4. The rule adopted by the auditor in coming at the value of the rents and profits, is the universal one. The value is only to be proved by witnesses who know it, and who give their opinion as to their ideas of its worth, one year with a- nother. Magruder, on the same side. 1. The defendant should have demurred to the bill, or pleaded to the jurisdiction of the court. B^ answering he has consented to the jurisdiction, and it it now too late for him to take advantage of the want of jurisdic- tion. Before the case of Baker vs. Dacie, 6 Ves. 686, it wat the practice to answer the discovery, and demur to the re lief asked. Lord Eldon said, the defendant might demur tc the whole bill, because relief was asked in the san-e bill, whicl went for a discovery also. In Taylor 8f JVarren vs. Fergus- son Sf Robertson, the point was not raised. In this case tin bill was riot merely for discovery, but it was also for relief; and it is no more a bill for discovery than any other bill. Yallop vs. Ho/worthy, 1 Eq. Cas. Jib. 280. Newburg vs. Bicker- staffe, 1 Fern. 295. Norlhlcigh vs. Luscombe, *flmbl. 612. Mundy vs. Mundy, 2 Ves. jr. 128. 1 Fonbl. 148, 149. 2 Fonbl. 237, (and note. ) Mitf. 1 10. Post vs. Kimberly, 9 Johns. Rep. 470, 493, 501, 505. A person who has established hi* title to land may go into chancery for the rents and profits. li he proceeds at law, he cannot at the same time go into chan- cery. The court of chancery has concurrent jurisdiction with the courts of law in all such cases. The action at law for mesnc profits is of modern invention, and does not take away the chancery jurisdiction. The answer of the defendant shows that this is a case proper for the court of chancery. If the bill had *et forth facts stated in the answer, that would have given the complainant a right to go into chancery. West vs. Jarrett, 3 ffarr. # Johns. 485. 2. The case of Wendell vs. Van Rensselaer, 1 Johns. Ch. Rep. 349, is an answer to the objection as to the proper par- OF MARYLAND. ' 227 UHCHT v. COWHER. 1827. ties. The complainant comes to assert his own claim, and that of no other person. His claim is distinct from any other per- sons. If there are sundry wards, each may call on his guar- dian to account. The representatives of Mrs. Mills have no interest in this suit. The other persons are also claiming a- gainst this defendant in separate actions. The answer does not allege that the defendant paid over a portion of the rents to Mrs. Mills. The testimony of Mrs. Mills is not to be consi- dered as a supplemental answer. Taney, in reply. The general rule, that where a court of law can relieve, chancery cannot interfere, is subject to excep- tions. The party must bring himself within the exception to enable him to go into chancery. There is no exception in fa- vour of rents and profits. In a case of mere legal title chance- ry will never interfere in favour of rents and profits. A claim for rents and profits is not a matter of account. A landlord can- not go into cha.icery to demand an account of rents and profits and demand pa)'ment. He must allege something beyond his legal title that on account of difficulties he is prevented from a recovery at law. There are no difficulties alleged here, nor is it the case of landlord and tenant; but where there has been a recovery of possession of the land at law, and where mesne. profits might also be recovered. There is a complete remedy at law rents and profits are similar to mesne. profits. If an infant claims equitable jurisdiction, he must claim while he is an infant, and canuot when of full age go into chancery. The rei ts and profits are given as an incident on deciding the ques tion of right to the land, where the party has been kept out of possession by fraud, &c. Curia adv. vult. BUCHANAN, Ch. J. at this term, delivered the opinion of the court. There is a manifest error in the account stated by the auditor, on which the decree in this case is founded. William IV. Conner, in his bill ol complaint, seeks to reco- ver our* fifth of the rents and profits of the land recovered in the action of ejectment mentioned and referred to in the bill, by the five children and heirs at law of William Conner, of whom he is one; one undivided fourth part of which land, was $2$ CASES IN THE COURT OP APPEALS DnunT v. CONNER. 1827. on the 23d of July 1824, since the recovery in ejectment, and pending this cause in chancery, adjudged by a decree of this court to the heirs of Frederick Mills. The most, therefore, that William W. Conner could be en- titled to on any principle, would be a fifth of the rents and pro- fits of the remaining three-fourths of the land. Whereas, in the audit >r's account, he is allowed at the rate of one-fifth of the rents and profits of seven-eighths of the whole land, deducting in favour of the heirs of Frederick Mills one-eighth only, in- stead of a fourth, which principle is inadvertently adopted in the decree. And although the difference produced in the amount is not very great, yet it is the duty of this court to correct it. We think, moreover, there is another error in the decree, involv- ing a much larger amount. Henry C. Drury, in his answer, alleges, that he had possession of but a moiety of the land; and although some of the witnesses prove, that he rented out the other half, which standing alone, would have been sufficient to fix him with the rents and profits of the whole, subject to a de- duction of one-fourth, by virtue of the decree of this court of the 23d o July 1824j yet the circumstances under which he acted in relation to the part rented out by him, are so explain- ed by the other evidence in the cause, as to exonerate him from any charge, beyond the rents and profits of the moiety of the 3and occupied by himself. Frederick Mills, the father of the wife of Henry C. Drury, died in possession of the land, claim- ing an equitable title to the whole of it, and his widow, J2nn T. Mills, continued in the undisturbed possession of it, until the fall of the year 1811, or 1812, when, as appears from her testimony, she gave up one half of the land to Henry C. Drury on account of the supposed equitable title of his wife, and of another of the heirs of Frederick Mills, whose interest he had purchased, and continued herself to receive the rent for the o- ther half for the whole of the time covered by the decree, as guardian to one ot the children of Frederick Mills, and on ac- count of the infant daughter of his remaining child. Henry C. Drury, therefore, never did receive the rents and profits for his own use, or occupy and enjoy the benefit of any other part of the land, than the half that was given up to him by tfnn T. Mills; but seems to have acted as her agent only, OF MARYLANB. 229 Uurnv v. CONNER. 1827. in renting out the other half, and receiving for and paying over to her the rent, as it became due and was received by him, which by law, as her agent, it was his duty to do; and this without compensation, and under the belief that the equitable title was in the heirs of Frederick Mills, who had at that time a bill depending in chancery against the heirs of William Con- ner, to compel a conveyance of the land. And to make him answerable now, for the rents and profits so received by *ftnn T. Mills, would be to make him pay for that which he never occupied, or derived any enjoyment, profit or advantage from; but merely rented out, and collected and paid over, the rent as it came into his hands, as the friend and connexion o another, for whose use he received, and to whom he was bound to pay it over. Under such circumstances we think he should not be made accountable to the heirs of William Conner for the rents and profits of that proportion of the land, which was re- tained by Jinn T. Mills, and for which she received the rent; but of the moiety only, according to the proof taken in the eause, with interest, which, in the language of the witness, she gave up to him, and of which he took possession, subject to a deduction of one-fourth, on account of the decree of this court of the 23d of July 1824, for a conveyance by the heirs of Wil- liam Conner, of that proportion of the land to the heirs of Frederick Mills; and that the decree of the chancellor, direct- ing him to pay to William W. Conner a sum that is equal to one-fifth of seven-eighths of the rents and profits of the whole land, is erroneous and ought to be reversed. If William W. Conner wishes to obtain a proportion of the rents and profits of that moiety of the land, which Jinn T Mills did not yield up to Henry C. Drury, he must look to another quarter. The objection, taken in argument, to the jurisdiction of the court of chancery in this case, on the ground that the bill, up- on the face of it, discloses a case, in which the party has a com- plete remedy at law, cannot, we think, be sustained. It is cer- tainly true, as a general position, that chancery will not enter- tain a bill, where there is a lull and complete remedy at law, and no ground is shown for going into equity. And ordinari- ly a bill for mesne profits, after a recovery in ejectment, show- ing no obstacle at law, and stating no ground of equitable re- S30 CASES IN THE COURT OF APPEALS _ - - ...._ DHCRT . CONKER. 1827- Jief, would, on plea or demurrer, be dismissed, there being an adequate remedy at law; and perhaps at the final hearing with- out either plea or demurrer, under the practice of this state, which has not been very fully looked into. But this is not the case of an adult coming into chancery for mesne profits accruing after he became of age, and showing no ground for equitable interference. Whoever enters upon the estate of an infant, is considered in equity as entering as guar- dian for such infant. Bennett vs. Whitehead, 2 P. Wms. 645. Morgan vs. Morgan, 1 JWe. 489. Dormer vs. Fortescue, 3 Jltk. 130. 1 Madd. Ch. 74. And after the infant comes of age, he may, by bill in chancery, recover the rents and profits. Bennett vs. Whitehead, 2 P. Wms. G45. And if a person so entering shall continue the possession after the infant comes of age, chancery will decree an account against him as guardi- an, and carry on such account after the infancy is determined. Morgan vs. Morgan, \ Jltk. 489. 2 Fonll. 236. And treat- ing a person who shall enter upon the estate of an infant, and receive the rents and profits, as the guardian of such infant, as it seems chancery does, there is no reason why the infant, when he arrives at age, should not have a bill in chancery ngainst him for an account of the profits which have so come into his hands as guardian, that would not apply to the common case of a ward, after he comes of age, going into chancery against his guardian, legally appointed, for an account. In this case the bill alleges that Henry C. Drury took possession of the estate of William W. Conner, during his minority; that he continued a minor during the whole period of the possessi- en of Drury, and that Driiry received the rents and profits as Jus guardian. Upon the face of the bill, therefore, there is a case made out for the jurisdiction of a court of chancery; and the objection to the jurisdiction on the ground that the bill presents a case in which the party has a remedy at law, does not properly apply. The bill, upon the face of it, disclosing matter sufficient to give jurisdiction to the court of chancery, it was not a case fit for a demurrer; and if in point of fact, William W. Con- ner, was not a minor at the time Henry C. Drury acquired OF MARYLAND. 231 KABORO . BANK OF COLUMBIA. 1827. possession of the land, it ought to have been pleaded, and can- not now be taken advantage of. Agreeably to the directions of the court an account was stat- ed, charging the appellant on the 1st of January 1819, for the rents and profits of Holloway, or Oliver's Preservation, as by the auditor's account B, $630 On the 6th Deer. 1824 for interest on said rents and profits as per said account, 337 58 Deducting Henry C. Drury's \ part, $725 68 Charging him with William W. Conner's 1-5 of balance, $145 14 With interest on 1-5 of I of $630 or $94 50 from . the 6th of December 1824. Decreed, that the decree of the court of chancery be re- versed Decreed also, that the appellant pay to the appellee the sum of $145 14, with interest on $94 50, part thereof, from the 6th of December 1824 Decreed also, that the appellant pay to the appellee his costs in the court of chancery, each party paying his own costs in this court. DECREE REVERSED, &C. RABORQ vs. THE BANK OP COLUMBIA. June, 1827. W drew a promissory note, which did not bear date at any particular place, but was made negotiable at the plaintiffs' bank: it was in favour of C R 8c Son, or order, and by the defendant, in their name, specially endorsed to the plaintiffs, whose bank was at G Not being paid at maturity, on the day after the third day of grace, it was presented to an agent of W at the said bank, appointed for the purpose of attending to the payment or renewal of VV's notes held by the plaintiff's for payment, which being refused, notice of its dishonour was put into the post office at G. directed to C R, (the defendant,) at B, where he lived. W, when the note be- oume due, lived at P G. It appeared that it was the custom at G, to de- mand payment of notes on the fourth day after they became due. Held, that the defendant was liable on his endorsement to the plaintiffs. In an action on a promissory note drawn in favour of C & It and endorsed by R in their names, to I', the writ was against K as surviving partner of C, but the declaration was not. It was proved that C died before the '232 RABOHC v. BANK OF COLUMBIA. --1827. making of the note. Judgment was rendered against R without stating, as surviving partner. On appeal Judgment affirmed. "Where the appellate court had reversed a judgment and awarded a proce- dendo, and it afterwards, during the same term, appeared that there was a material mistake in the record upon which they acted, they struck out the judgment, &c. and ordered a writ of diminution fnole-J APPEAL from Baltimore County Court. This was an ac- tion of assumpsit, in which the writ was sued out against Christopher Raborg, (the appellant,) as surviving partner of Christopher Raborg. The declaration contained four counts. The first count averred that Jacob Wagner on the 23d of Ja- nuary 1817, at George-Town, in the District of Columbia^ made a promissory note, bearing date the day and year afore- said, and thereby promised to pay Christopher Raborg and Christopher Raborg, junior, by the name of Messrs. C. Ra- borg <* Son, or order, $1500, for value received, negotiable at the Bank of Columbia; that the payee endorsed the said note to the plaintiffs (the appellees.) The second count was like the first, except that it described the note as payable to the said Christopher Raborg, by the name of Christopher Raborg and Son, by which name and style the said Christopher Raborg then and there carried on business and trade as a merchant, &c. The third count was like the first, except that it described the note as payable to one Christopher Raborg, surviving partner of Christopher Raborg, by the name of Christopher Raborg and Son. The first count omitted to aver the presentation ot the note for payment. The second and third counts averred it to have been presented for payment to Wagner on the 28th of March 1817. The fourth count was for money had and received by the defendant, to the use of the plaintiffs. The general issue was pleaded. At the trial the plaintiffs offered in evidence the following promissory note, which was admitted to be drawn by Jacob Wagner, and endorsed by Christopher Raborg, the defendant, by the name of Christopher Raborg fy Son: "$1500. 23 Jan'y. 1817. Sixty days after date, I promise to pay Messrs. C. Raborg $r Son, or order, fifteen hundred dollars, for value rec'd, nego- tiable at the Bank of Columbia. Jacob Wagner. Credit the drawer. C. R. $ Son." OF MARYLAND. 233 HA BOKO v. BASK OF COLUMBIA. 1827. (Endorsed.) "Pay the contents of the within note to the President, Directors and Company of the Bank of Columbia, or order, value received. Christopher Raborg Sf Son. " The plaintiffs also offered evidence, that on the 28th day of March, in the year 1817, payment of the said note was de- manded from Daniel Kurtz, at the banking-house of the plain- tiffs in George-Town, in the District of Columbia, the teller of the Bank of Columbia aforesaid, and that the said Jacob Wagner resided at that time, and for some time before, in Prince-George's county, in the state of Maryland, and that said Kurtz was agent for said Wagner, in attending to the payment and renewal of the notes of said Wagner, held by said plaintiffs, or deposited with them for collection, and that upon the said demand the said note was not paid, and on the same day a letter was put into the post office at George-Town, by the agent of the plaintifls, directed to said Christopher Ra- borg, at Baltimore, where he resided, informing him that the said note was not paid, and that he would be looked to for pay- ment thereof. And also gave evidence, that it had been the cus- tom of the plaintiffs ever since their incorporation, and of all the other banks and merchants in the District of Columbia, to demand payment of notes on the fourth day after they became due, and not on the third. And the plaintiffs offered .no evi- dence to show a personal knowledge by the defendant of the usage aforesaid other than the uniformity and notoriety of the usage for the time aforesaid. The defendant proved that Chris- topher Raborg, senior, the father of the present defendant, died in the month of June, 1815, and before the making and delivery of the said promissory note on which this action is brought. The plaintiffs then moved the court to direct the jury, that if they believed the evidence so offered by the plain- tiffs, they were entitled to recover. Which direction and opi- nion the Court, [Dorsey, Ch. J. and Hanson and Ward, A. J.] accordingly gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court. The cause was irgued at June term 1825, before BUCHANAN, Ch. J. and EARLE, MARTIN, and STEPHEN, J. VOL. 1 -30 234 CASES IN THE COURT OP APPEALS HAUOHG v. BANK OF COLUMBIA. 1827. Mayer,for the Appellant, contended, that the judgment ought to be reversed. 1. Because the judgment could, if at all, have been against the defendant, only as a surviving partner, agreeably to the writ. 2. Because the declaration does not aver the partnership of the Christopher Raborgs, or the survivorship of the defen- dant. 3. Because upon the form and terms of the prayer the court below were not authorised to direct the jury to find the verdict which they gave. 4. Because demand of payment of the note was not made in time, and of the proper person, or at the proper place. On the first and second points, he referred to 1 Chitty's Plead, 294. Cabe.ll vs. Vaughan, 1 Saund. 291, g. (note.} Jell vs. Douglas, 6 Serg. 4* Lowb. 451. He contended that the defects in the declaration were not cured by the act of 1809, ch. 153, s. 2. On the third point, he contended, that as there was no proof of partnership, the direction ot the court was too general; they should have given a special direction. On the fourth point he contended, that the demand on the maker of the note was not made in time -of the proper person, and at the proper place. The demand was not in time, being made on the fourth day after the day of payment. In Renner vs. Bank of Columbia, 9 Wheat. 582, the decision went up- on the ground that the party had knowledge of the custom in the District of Columbia to protest on the fourth day. Tho custom is not considered as a part of the consideration of the note, or forming any part of the contract. The days of grace are given under the usage as an indulgence in extending the time when the note becomes due. It is to rebut the evidence of negligence in presenting the note for payment. A custom like this is in derogation of the common law, and is to be. con- strued strictly. The custom is to be proved, and it must be shown that the party had knowledge of, and was bound by it. In Bank of Columbia vs. Magruder, 6 Harr. $? Johns. 172, this court decided, that if the party knew the custom, he was bound by it. Here the court below went upon the notoriety OF MARYLAND. 235 UA.BORG v. DANK OF COLUMBIA. 1827. of the custom. Both the maker and endorsers of the note re- sided out of the District ot Columbia, and the custom did not bind them. The place where the note was drawn is not stat- ed in the note. There was no privity between the maker and endorsers, and the plaintiffs, (the endorsees.) The law of this- state is to govern as to the days of grace to be allowed. Ro- binson vs. Bland, 2 Burr. 1077. Although the note is ex- pressed on its face to be negotiable at the Bank of Colum- bia, yet it is not to be implied that it is to be paid there. The contract is to be performed in this state where the maker and endorsers resided, and where the holders seek to obtain payment. Mandeville vs. Union Bank of George Town, & Cranch, 9, If the endorser is bound by the custom, yet the demand of payment was not made of the proper person. There was no pro6f of a personal demand of the maker; it was mere- ly made of Kurtz, who is said to be his agent. Where a note is made payable at a particular place, it constitutes a part of the contract, on the ground that the parties agreed it should be paid there; yet the law is that the demand of payment must be made of the drawer personally. Where there is a legally constitut- ed agent, a demand of him is considered different, as in Philips vs. tflstling, 2 Taunt. 206, where the agent was the acceptor of the bill. G. H. Steuart, for the Appellees. On the first and second points, he cited 1 Chitty's Plead. 37. Eccleston vs. Clipsham, 1 Saund. 154, (note I. ) Slipper vs. Stidstone, 1 Esp. Rep. 47. Gow on Part. SOS, 209. Goelet vs. M-Kinstry, 1 Johns. Cas. 405. Wood vs. Braddick, 1 Taunt. 104. Smith vs. Ludlow, 6 Johns. Rep. 667. Spaldingvs. Mure, 6 T. R. 363. On the fourth point. In Jackson vs. The Union Bank of Maryland, 6 Harr. 8f Johns. 150, this court decided that the party dealing with a particular bank was bound to notice the custom prevailing in the place where the bank is established. So here the maker and endorsers of the note in question, trans- acting business with the Bank of Columbia, were bound to no- tice the custom prevailing at that bank. Here the note was made negotiable at the Bank of Columbia, aiid it was bound by all the consequences which flow from ihe custom of that -236 CASES IN THE COURT OP APPEALS KABOHG v BANK. OF COLUMBIA. 1827. bank. Usage must be respected in transactions of this nature. Hatsey vs Brown, 3 Day's Rep. 349. The non-residence of the drawer and endorser does not affect the case. M'Gruder vs. Bankof Washington, 9 Wheat. 598. In The Bank of Co- lumbia vs. Mugruder, 6 Uarr. # Johns. 172, this court said, that knowledge of the custom must be known to the .party, yet they did not say how that knowledge was made to apply. Here the note was made negotiable at the Bank of Columbia, show- ing that it was to come under the usage and custom adopted by that bank, and existing in the District of Columbia, in the col- lection of the notes when they became payable. The lex loci is to govern. Here, by the note, it is plain as to where it was to be paid. The contract was executed with reference to its performance in the District of Columbia. The demand was made on the agent indicated by the drawer himself. He could not take advantage of the demand not having been legally made, when he directed it should be made of his agent. Philips vs, f Columbia, it shows that the maker and endorser were an- CASES IN THE COURT OF APPEALS RABOHG v. BASK OF COLUMBIA. 1827". swerable for all the consequences, and they were bound to know of the usage, by having made and endorsed the note. The Sank of Columbia vs. Okely, 4 Wheat. 236, 243. Know- ledge must be inferred from circumstances, and actual know- ledge is not necessary to be proved. Rentier vs. Bank of Co- lumbia, 9 Wheat. 582. Cutler vs. Powell, 6 T. R. 32O. No- ble vs. Kenneway, 2 Doug. 511. Vallancc, vs. Dewar, 1 Campb. 503, 508, (and note.) Hahey vs. Brown, 3 Day's Rep. 346. Smith vs. Wright, 1 Caine's Rep. 43. The Bank of Uticavs. Smith, 18 Johns. Rep. 230. Lewis vs. Burr, 2 Caine's Cases, Id6. Turner vs. Mead,l Stra. 416. 2 Chit- ty's Plead. 219. Jackson vs. The Union Bank of Maryland, 6 Harr. 8? Johns. 1 50. If the maker of a note appoint a place for demand, a demand there is sufficient to charge the endorser. Woodbridge vs. Brigham, 12 Mass. Rep. 403. Mayer, in reply. The responsibility of an endorser is stricli juris. The three days of grace is stipulated by way of indul- gence a forbearance to demand or sue until three days have elapsed after the note is due. To insist on a countervailing usage, it must be shown that the party to be affected by it had a di- rect knowledge of the existence of such usage. The usage is not to be viewed as a change of the contract. The note, and the contract in pursuance thereof, was that the note was to be paid in this state, and not in the District of Columbia, as no place of payment was designated in the note the residence of both the maker and endorser being in this state. Young vs. Bryan* 6 Wheat. 151. The note being negotiable at the Bank of Columbia, does not necessarily make it payable at that bank; or that it brought home to the endorser knowledge of the special custom of that bank, that demand of payment was not to be made until the fourth day after the note became due. The note was not payable at the bank, unless it had been so expressed. Curia adv. vult. At this term, JUDGMENT AFFIRMED, f0.^ fa) See the following case of The Bank of Columbia vs. Fitzhugh, where the opinion of the court is given at length on the same question as that raised on the fourth point in this case. OF MARYLAXB. 239 BANK OF COLUMBIA v. FJTZIIUGH. 1827. Tlicre were two other appeal* to this court from jnd^iv-nts ren.lered in Baltimore county court, in actions brought by the Bank of Columbia against Rabor mitted to their reflections, the question respecting the possessi- on of the boy at the time of the gift. JUDGMENT REVERSED, AND FROCEDENDO AWARDED- VOL. r. 33 258 CASES IN THE COURT OF APPEALS MURPHEY v. BARROW. 1827. MURPHEY vs. BARRON. June, 1827. The action for money had and received, is an equitable action, and equally as remedial in its effects as a bill in equity. If one man takes another's money to do a thing, and he refuses to do it, it is a fraud; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the nonpayment of it; or to dis- affirm it ab initio, by reason of the fraud, and bring an action for money had and received to his use. But where a vendor was exonerated from, the delivery of a slave, then out of his possession, whom he had sold, and been paid for, and afterwards persuaded or enticed to abscond, so that the purchaser never got posses- sion of him, no action can be maintained upon the contract of sale for 3 nondelivery, or to recover back the purchase money, as money had and received by him to the use of the vendee; either could have been main- tained, if it had been the vendor's duty to deliver the slave; and he had refused. The proper remedy here is a special action on the case for persuading or enticing the slave to abscond. APPEAL from Harford County Court. This was an action of assumpsit. The declaration contained three counts. The first count stated that the plaintiff, (now appellee,) being the owner of a negro man slave named Isaac, sold, conveyed and delivered, the said slave to the defendant, (the appellant,) to be holden in mortgage as a pledge and security for the payment of the sum of $404 61, due from the plaintiff to the defendant, and the defendant did then agree, assume and promise, that he would return and deliver the said negro to the plaintiff, on pay- ment of the said sum of money; and although the money was afterwards paid by the plaintiff to the defendant in discharge of the pledge of the said slave, yet the defendant neglected and refused to deliver the said slave, &c. The second count was for money had and received. The third count stated that the defendant, being the owner and possessor of another slave call- ed Isaac, did agree and contract with the plaintiff, that if he would pay to the defendant the sum of $404.61, as the pur- chase money and consideration therefor, the defendant would sefl and deliver the said slave to him the plaintiff; and the plaintiff confiding, &c. paid the said sum of money to the de- fendant, which the defendant accepted as and lor the price of the said slave; yet the defendant, not regarding his promise, &c. neglected and refused to deliver the said slave to the de- fendant, although, &c. The defendant pleaded non assumpsit, and issue, was joined. QF MARYLAND. 259 MCRPHET v. BARBON. 1827. At the trial, the plaintiff produced one Aquila Keen,, one of the subscribing witnesses to the bill of sale first herein after set forth, who proved that he was requested, by the plaintiff and defendant, to witness the execution of the bill of sale; which he did; that when the plaintiff had signed the same, he request- ed the defendant to relate to the witness the understanding be- tween them, respecting the negro Isaac, named in the bill of sale. In answer thereto, the defendant replied, that the under- standing was that the plaintiff was to have the said negro again, provided he paid the defendant the money mentioned in the bill of sale, within four months, if he wanted the said negro for his own use. The same witness also gave evidence, that when the plaintiff and defendant came out of the house, short- ly after executing the bill of sale, the plaintiff, seeing the- said negro, observed to the defendant, that it was a lucky thing that Isaac was there, that he might take him, as he was his proper- ty, or words to that effect. The bill of sale, which was also read in evidence, was dated the 10th of April 1818, whereby, in consideration of the sum of $404 61, Barron bargained, sold and delivered to Murphey, his negro man Isaac. The negro therein mentioned was in pursuance thereof delivered to the defendant. The plaintiff also gave in evidence, that he did, on the 7th of July next, after the execution of the said bill of sale, call on the defendant and pay him the consideration money mentioned therein; and that the defendant did execute and deliver to the plaintiff a receipt for the money so paid; that at the time of the payment of the money, the plaintiff demand- ed of the defendant that he should deliver up the bill of sale; to which the defendant objected, but stated that he would agree to whatever a certain Walter T. Hall, a magistrate in the vi- cinity, should say he ought to do in this respect. That the plaintiff then brought a letter from Walter T. Hall to the de- fendant, in which he did advise the defendant to give up the bill of sale, which the defendant did accordingly deliver up to the plaintiff; and also proved by Walter T. Hall the acknow- ledgment of the defendant that he had received from the plain- tiff the full amount of the consideration money mentioned in the said bill of sale; that when the plaintiff called upon the said witness to get the said letter to the defendant, he shoived to 260 CASES IN THE COURT OF APPEALS MUHPHET v. BAIUION. 1827. the witness the receipt which he had obtained from the defen* dant; and that the said receipt contained no clause or condition whatever, but was merely a receipt for so much money for the said negro Isaac. And by another witness proved, that on the said seventh day of July, the plaintiff, after he had so paid the money to the defendant, went to take possession of the said negro, who had, previously thereto, been hired, by the defen- dant, to a certain Charles G. Hall, but when he went into the harvest field, where the labourers of the said C. G. Hall were at work, he found that the said negro had absconded, about an hour before his arrival, and left his cradle in the harvest field; and that he never gained possession of said negro, who since then, has not been found. And further produced a certain Thomas H Griffith, who proved that the defendant did, on the eighth day of July, in the same year, declare and say, that as he had understood that the plaintiff intended selling said ne- gro out of the state, he should not gain possession of him; and that the defendant did direct one of his female slaves to go and give information to the said negro Isaac of the intention of the plaintiff to dispose of him out of the state; but that he did not see the said female slave obey the said order, and did not know that the information was conveyed to the said negro Isaac by her, then, or at any other time; or whether the same was conveyed to the said Isaac either by the defendant or by his orders. The defendant then produced one John Murphey, junior, a son of the defendant, also a subscribing witness to the said bill of sale, who proved, that on the same day of the ex- ecution of the said bill of sale, and delivery aforesaid of said negro, shortly thereafter, the plaintiff complained to the de- fendant that the sum which he had received for the said negro was less than he was worth. Whereupon the defendant pro- mised the plaintiff, that if he wanted the said negro for his own use, and would not sell him out of the state, if he would, at any time within four months from the execution of the said bill of sale, pay and satisfy him the amount of the considera- tion money, stated in the said bill of sale, he would relinquish to the plaintiff all the right of said negro so as aforesaid con- veyed to him; and that on the said seventh day of July, at the time when the consideration money aforesaid was paid to the OP MARYLAND. 261 MUKPHEY v. BAHHON. 1827. plaintiff, he did declare and say to the defendant that he di4 exonerate him from the delivery of the said negro; that he knew where he was hired ; that he would take him where he was, and as he was. That on the morning of the 8th of July 1818, the plaintiff called on the defendant, and stated to him that he had lost or mislaid the receipt for the money paid by him, on the day before, and requested another; to which the defendant assented, taking first the following acknowledgment: "I hereby acknowledge I have lost or mislaid the receipt John Wurphey gave me yesterday, for four hundred and ten dollars and sixty-seven cents, which is void if found. Ellis Barren, July 8th, 181S." And then gave the following his second receipt: "Received July Sth, 1818, of Ellis Barron, Four hundred and ten dollars and sixty-seven cents; it will be in full for negro Isaac, in case he is not conveyed out of the state ot Maryland before the eighth of July, in the year of our Lord one thousand eight hundred and nineteen. John M.urphey." And also proved, by the said John ftlurphey, junior, that the following was brought some days afterwards to the defen- dant, by the plaintiff, and delivered by him: "Received, July 7th, 1818, of Mr. Ellis Barron, four hundred and ten dollars and sixty-seven cents, in full for all my right, claim and in- terest, of negro Isaac, which I purchased of him in April last, provided the said Barron does not sell, or cause to be sold, negro Isaac, out of the state of Maryland, for one year from, this date. John Murphey, Test. John Murphey, Junr." And proved, by the said witness, that the aforegoing receipts were the original receipts which were given by the defendant to the plaintiff. And also proved by the same witness the ex- ecution and delivery, by the plaintiff to the defendant, ol the following bond or instrument of writing: "Know all men by these presents, that I, Ellis Barron, of Harford county, and state of Maryland, am held and firmly bound by these pre- sents, unto John Murphey, of the county and state aforesaid,. 262 CASES IN THE COURT OF APPEALS MURPHEY v. BARROX. 1827. in the just and full sum of two hundred and fifty dollars, in case I the said Ellis Barron shall sell or cause to be sold negro Isaac, formerly the property of John Forwood, deceased, or exported out of the state of Maryland for one year, against hie will, from this date. As witness my hand and seal this eighth day of July, in the year of our Lord one thousand eight hun- dred and eighteen. E. JSarron, (Seal.) Test. John Murphey, Junr". The defendant also proved by the same witness, that on the said eighth of July, after the plaintiff had made an unsuccessful effort to gain possession of the said negro Isaac, he went to the defendant's house, and announced to him that the 'said negro had run away. To which the defendant replied he had taken away his cradle, and he supposed he should lose it; and that the plaintiff stated, that if he had taken away his cradle, the defendant should lose nothing by it, but that he would pay him for it. And proved, by Charles G. Hall, that about a year afterwards the plaintiff called upon the said Charles G. Hall, and stated that as the negro was his, he must pay to him his harvest wages. The defendant then prayed the following di- rections of the court to the jury. 1st. That if the jury be- lieve that the plaintiff, on the payment of the money to the de- fendant in July, exonerated the defendant from the delivery of the negro slave aforesaid, and agreed to take him wherever he was, the plaintiff is not entitled to recover for the nondelivery of the said negro; and 2 nelly. That if they should further be- lieve that the defendant induced, enticed and persuaded the said negro to run away, still the plaintiff is not entitled to re- cover on the count for money had and received, nor on either of the special counts in the declaration. The first prayer the Court, [Hanson, and Ward, A. J.] granted; and did then and there direct the jury accordingly; but the second prayer a- feove mentioned the court refused to grant. The defendant ex- cepted; and the verdict and judgment being against him, he appealed to this Court. The cause was argued at December term 1825, before BU- CHANAN, Ch. J. and MARTIN, and STEPHEN, J. OF MARYLAND. 263 MURFHET v. HAIUION. 1827. Mitchell, for the Appellant, contended, 1. That the second direction prayed ought to have been given by the court below; and that the declaration ought to have contained a special count for enticing away the plaintiff's slave. 1 2. That the promise and undertaking laid in the first and third counts were void in law for want of consideration and mutuality, &c. 3. That material substantial averments were wanting in all the counts in the declaration; and the court below ought to have given judgment against the plaintiff below. He referred to Cortel- you vs Lansing, 2 Caine's Cases, 205. Jones on Bailment 7 86, and Appendix xvi. Bank of England vs Glover, 2 Ld. Raym. 753. As to the misjoinder of causes of action, he cited 1 Chitty's Plead. 1^9. Cory ton vs Lythebe, 2 Saund. 117 ? (note. ) On the bill of exceptions, he referred to Bird vs Randall, 1 W. Blk. 373. 1 Sac. M. tit. fictions on the Case, (F) 87. He contended that no one of the counts in the declaration was sustained by the proof; and that parol evidence was not admis- sible to explain a written contract. R. Johnson, for the Appellee. As there was a general ver- dict, any defective count in the declaration is cured by the act of 1809, ch. 153. Here the first is a good count. This is not an action for a tort It is upon a contract. Trover might have been brought, but the plain-tiff may waive the tort, and go upon the promise and undertaking. He may recover upon the second count, there being a breach at the end of the declarati- 6n. If there is a defect at all, it is merely formal, which this court will not regard. 1 Chitty's Plead. 98, 99. Mitchell, in reply, referred to Raborg vs Kirwan, 1 flarr. 4* Johns. 296. Curia adv. vult. STEPHEN, J. at this term, delivered the opinion of the Court. On the 10th of April 1818, the appellee sold to the appellant, a negro man named Isaac, for the consideration of $404 61, and gave him an absolute bill of sale of the said negro; but imme- diately after the execution of the bill of sale, Barron, the ap- pellee, requested Murphy, the vendee and appellant, to stale 264 CASES IN THE COtTRT OF APPEAt# MURPHET v. BARROX. 1827. lo one of the witnesses to the bill of sale the understanding be- tween them respecting the negro, Isaac, when the defendant, Murphey, said the understanding between them was, that the plaintiff, Barron, was to have the said negro again, provided he paid the defendant, Murphey, the money mentioned in the bill of sale within four months, if he wanted the said negro for his own xise. The plaintiff, to support his action, gave in evidence to the jury, that on the seventh of July, next after the execution of the said bill of sale, he called on the defendant and paid him the con- sideration money mentioned in the said bill of sale, and that the defendant did execute and deliver to him a receipt for the money so paid, stating it to be in full for said 'negro Isaac, if not sold out of the state within one year from that time. The plaintiff also gave in evidence to the jury, that on the day he paid the money to the defendant, he went to take possession of the said negro, who- had previously thereto been hired by the defendant to a certain Charles G. Hall, but that when he went into the harvest field, where the labourers of the said Hall were at work, he found that the said negro had absconded about an hour before his arrival, and that he never gained possession of the said negro, who since then has not been found. The plain- tiff further proved to the jury, that the defendant did, on the eighth day of July, in the same year, declare that as he had un- derstood the plaintiff intended selling the said negro out of the? state, he should not gain possession of him, and that the defen- dant did direct one of his female slaves to go to and inform the said Isaac that the plaintiff intended to sell him out of the state; but did not prove that the information was communicat- ed to the said Isaac by the said slave, as directed by the de- fendant. The defendant, to support the issue on his part, prov- ed to the jury, that on the seventh day of July, when the con- sideration money was paid by the plaintiff to the defendant, he did declare and say to the defendant, that he did exonerate him from the delivery of the said negro, that he knew where he was hired, and that he would take him where he was, and as he was.. Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if they should be- lieve that the defendant induced, enticed and persuaded, the said negro to run away, still the plaintiff was not entitled to OF MUHPHET v. BARRON. 1827. recover on his count for money had and received, nor on ei- ther of the special counts in the declaration; which opinion and direction the court refused to give; to which refusal the de- fendant excepted. And the question now to be decided by this court is, whether the court below did right in refusing to in- struct the jury as prayed; or in other words, whether, upon the facts above stated, the action for money had and received can be sustained? The action for money had and received is an equitable action, and equally as remedial in its effects, as a bill in equity. Evans, in his Essay on the action for money had and received, 23, states the principle to be, that a suit in equity must be considered as being merely equivalent to an action for money had and received; and one of the grounds upon which this action can be supported, is where money has been paid up? on a consideration which has failed. It was contended, in the- course of the argument before this court, that upon the pay- ment of the purchase money by the plaintiff to the defendant, the property revested in the plaintiff, and that the action should have been trover. In answer to that argument it may be re- marked, that by the agreement of the parties, the defendant was expressly absolved by the plaintiff from any obligation to deliver the negro Isaac to him, he having expressly agreed to take possession of him where he was hired. But il is not ne- cessary to decide whether or not this is a case where the ac- tion of trover might be supported; for if the action of assump- sit for- money had and received is sustainable, there is no error in the opinion of the court below, and their judgment ought to be affirmed. In Moses vs Macferlan, 2 Burr. 1012, Ld. Mansfield says "the gist of this kind of action is, that the de- fendant, upon the circumstances of the case, is obliged by the. ties of natural justice and equity, to refund the money. " Evans, in his Essays, 17, speaking of a failure of consideration by the misconduct of the defendant, refers to the case of Dutch i)s Warren, which is particularly adverted to by Ld. Mans- Jield in Moses vs Macferlan. That case was as follows: Up- on the 18th of August 1720, on payment of 262 10, by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welch copper mines, at the opening of the books; and for security of his so doing gave him this VOL. I 34 $66 CASES IN THE COUftT OF APPEALS MUHPHET v. HARROW. 1827. 18th of August 1720. I do hereby acknowledge to have re- ceived of Philip Dutch 262 10, as a consideration for the purchase of five shares; which I do hereby promise to transfer to the said Philip Dutch as soon as the books are opened; be- ing five shares in the Welch copper mines. Witness my hand. Robert Warren. The books tvere opened on the 22d of the same month, when Dutch requested Warren to transfer to him the said five shares, which he refused to do; and told the plain- tiff he might take his remedy. Whereupon the plaintiff brought an action for money had and received, for the consideration mo- ney paid by him. An objection was taken at the trial, that the action would not lie; but that the action should have been brought for the nonperformance of the contract. But the ob- jection was overruled by the court, who left it to the conside- ration of the jury, whether they would not make the price of the said stock as it was upon the 22d of August, when it should have been delivered, the measure of the damages; which they did; and gave the plaintiff but 175 damages. And a case be- ing made for the opinion of the court of common pleas, the action was resolved to be well brought. The court said, that the extending those actions depends on the notion of fraud. If one man takes another's money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured either to affirm the agreement, by bringing an action for the- nonperformance of it; or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use. So in the case now before this court, if it had been the duty of the defendant to deliver the negro to the plaintiff, and he had refused to do so according to contract, the plaintiff would have had the right of. electing either to hare af- firmed the agreement, by bringing an action for the nonper- formance of it, or to have disaffirmed it ab initio, by reason of the fraud, and to have brought an action for money had and re- ceived to his use; but the evidence is full and explicit, that from the performance of that duty he was expressly discharged by the plaintiff himself. The other two counts being for the non- delivery of the slave, according to the contracts as therein stated, it follows, of course, that the judgment of the court below sup- porting the action, must be reversed. On payment of the pur~ OF MARYLAND. 267 LEADERHAM w. NICHOLSOIC. 1827. phase money by Barron to Murphey, the property vested in Barren, and his proper remedy to redress the injury he had sustained, would have been a special action on the case against Murphey for enticing or persuading his slave to abscond from his service. JUDGMENT REVERSED. LEADENHAM'S, Ex'r. vs. NICHOLSON, et al. June, 1827. The lands of an intestate being incapable of a beneficial division, on the pe- tition of his heirs, and by the rder of the court of chancery, were sold, and the sale ratified, after this ratification, and as to part of the proceeds prior to any order or decree adjudging who was entitled thereto, one of the heirs, a married woman, died, her husband, who survived her, was a party to the petition, also died. Held, that the husband'^ representa- tives were not entitled to the wife's portion of that part of the proceeds of her father's estate, respecting which no order or decree of distribu- tion had been passed at the time of the husband's death, but that it be- longed to her personal representatives. The representatives of a husband who survived his wife, are entitled to the cJioses in action of the wife, where the husband had either reduced them into possession, or obtained judgment for them at law or in equity, either in his own favour, or in favour of himself and wife. In equity money directed to be laid out in land, will before investment, be considered as land; and land directed to be sold and converted into money, will, before a sale, be considered as money, and pass is such. On an appeal from chancery, the appellate court decrees only in relation to the rights of those who are parties to the appeal. APPEAL from the Court of Chancery. The nature of the 6ase will sufficiently appear from the decree of the chancellor, and the statement made by the judge who delivered the opinion of this court. BLAND, Chancellor, (September term, 1824,) It appears that Joseph Williams died seized in fee of about 175 acres of land, and having made no will, it descended, according to law, to his children, Thomas, Joseph, Sarah the wife of Knigh* ton, Mary the wife of Leadenham, and Elizabeth Jinn Ball, the granddaughter and heir of the intestate's daughter Eliza- beth. The land being admitted to be incapable of division was ordered to be sold. Thomas became the purchaser at the sale; but, after giving bond for the purchase money, he sold the 268 CASES IN THE COURT OP APPEALS t,EAI)ENHAM V. NICHOLSON. 1827. whole, including the right to his own share, to James Nichol- son, who it was agreed should, as to all liability and benefit, ex- actly assume his place. No notice was taken in the bill, nor in the answer, nor in the order of sale, nor in the sale itself, of the fact, ihaiJohn JBallihe grandson of the intestate, and father of the defendant Elizabeth Ann Sail, had left a widow, who was entitled to dower in the undivided share which her hus- band had inherited from his grandfather. But this circumstance, and the claim of John Sail's widow, who had become the wife of Samuel Jones, was, after the sale, brought before the court by their petition, in which they ask only for an equivalent out of the proceeds. Benjamin Welch, having administered on the estate of John Ball, made sundry disbursements and payments in the course of his administration; and, on the final settlement of his accounts, it appeared that the assets and personal estate of his intestate had been wholly exhausted, and that he had overpaid. Whereupon he came into court to ask for a reim- bursement, as a creditor, out of so much of the proceeds of the real estate of his intestate as might be within reach of the court. And, it being one of the ordinary and peculiar powers of this court, under such circumstances, to apply the real es- tate, after the personal had been exhausted, to the payment of the debts of the deceased owner, he was ordered to be paid ac- cordingly. It further appears, that sundry portions of the pro- ceeds of the sale of the real estate of the intestate have been collected and distributed under the authority of the court; and that suits were brought, and judgments obtained by the trus- tee against the purchaser of the land, for the purchase money; when, in the spring of the year 1821, Mary, the wife of Leaden- ham, died without ever having had any issue j and in August of the same year her husband died. The most important and leading question in this case is, whether so much of the proceeds of Mary's share of the land she inherited from her father, as was not collected and distributed, or actually paid over, shall descend or pass as the land itself would have gone, or, like personal property, be considered as vested in her husband, and be paid over to his representatives. The determination of this question must depend upon the ef- fect which the proceedings of this court may have had, if any, OF MARYLAND. 269 LEADENHAM v. NICHOLSON. 1827. in producing a change in the nature of the estate of Mary. In the fee simple estate of Mary, her husband had no transmis- sible or permanent interest whatever; never having had issue by her, born alive, he could not have been tenant by the curte- sy after her death. During the coverture he was merely the possessor and steward in right of his wife. The object of Ma- ry, and her coheirs, in bringing their case before this court, was to have their respective portions given to them in several- ly. And, in order to obtain this object, they consented, and the court awarded, that a sale should be made, and the pro- ceeds brought into court to be divided. To effect this purpose the court appoiateda trustee, who it directed to sell, and in its order of sale, among other things, says "and on the ratifica- tion of the sale and receipt of the purchase money, and not before, the trustee shall, by a good deed acknowledged accord- ing to law, convey to the purchaser." In pursuance of this order the sale was made. Since this question has, in no in- stance, so far as I can learn, been directly decided, it must now be determined upon principle and by analog)*-. Upon a writ of partition, according to the common law, there are two judgments. After the confession of the action, or is- sue tried for the plaintiff, there is a judgment quod parfitio Jiat, upon which a writ is issued, commanding the sheriff to make partition; which is done and returned to the court by him^ and the twelve jurors under their hands and seals. Whereup- on the final judgment of the court is, "therefore it is consider- ed, that the aforesaid partition be holden firm and effectual for- ever, &c." This judgment, when made by writ, after the ap- pearance of the party, shall not be defeated even though made against a feme covert, or though not equal, and any one of the parties be an infant. 2 Sellon's Pr. 222. In this case, it is evident, that the nature of the estate is not changed by the ju- dicial proceedings until aiter the final judgment. 'And, until that point of time, the same consequences would ensue on the death of a joint tenant or parcener, as if no judicial proceed- ings had been commenced for the purpose of effecting a parti- tion. It is said by Lord Redesdale, that partition at law and in equity are different things. The first operates by judgment of 270 GASES IN THE COURT OF APPEALS LEADEVHAM v. NICHOLSON 1827. law, and delivery up of possession in pursuance of it, which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties; and if the parties be not competent to execute the conveyances, the par- tition cannot be effectually had. Whaley vs Dawson, 2 Sch. 4* Lef. 372. But the difference here spoken of clearly re- lates to the mode of proceeding, not to the stage of the ju- dicial proceeding when the estate ceases to be joint and be- comes an estate in severally; as to which there is, evidently, no difference between the principles of law and equity. At law this mutation is effected by the final judgment, which is the last act of the court, when the parties are dismissed with- out further day in court, the whole object of the suit having been fully attained; so, 1oo, in equity, when the conveyances are executed by the parties, and approved by the chancellor, there is an end of the suit, and the nature of the estate is final- ly and conclusively changed, and the court has no further pow- r over the subject that had been submitted to it. Similar views of this matter seem to have been taken in a neighbour- ing state, in a case where a question analogous to that now un- der consideration was determined by the court. Yoke vs Bar- net^ 1 Binney, 364. The acts of assembly of this state have made provision for the partition of the estates of intestates by the courts of law, and also by the courts of equity. The courts of law are not merely invested with power to make partition; but the mode of proceeding in such cases is, in many respects, directed and specified. On the other hand the courts of equity are clothed with authority to make partition, and there is no specification of the mode in which they shall proceed, at least so far as re- gards this question now under consideration. In the case of The State use of Rogers vs Krebs fy others, (6 Harr. fy Johns. 31,^ determined by the court of appeals at June term, 1823, it appeared that application had been made to a court of law to make partition of an intestate's estate, and in order to effect the division sought for, the estate was sold, and the purchase money paid into the hands of the commissioners, and the judicial pro- ceeding at an end. The question was, whether the share of a feme covert, in that situation, should be considered as real or OF MARYLAND. 271 LKADK.VHAM i>. NICHOLSON. 1827. personal property? The court of appeals recite that the "laws direct the commissioners, who have sold for cash, after the rati- fication of the sale, and the deduction of the expenses to be ascertained by the court, to divide justly the purchase money among the several persons interested, according to their respec- tive titles to the estate; and when the estate is sold by the com- missioners on a credit, bonds are to be taken by them for the purchase money, to each representative respectively, accord- ing to his or her proportional part of the net amount of sales." And then they declare their opinion to be, "that the mutation of her estate from real to personal, may be determined to be complete, when the commissioners* sale is ratified by the court, and the purchaser has complied with the terms of it, by pay- ing the money, if the sale is for cash, or by giving bonds to the representatives, if the sale is on a credit. The bond passed to the wife by the purchaser is a chose in action, as is the money in the hands of the commissioners, if withheld from her; both liable to be sued for and recovered by the husband at his pleasure." Hence it appears that the point of time when the partition was complete, and the estate and the nature of the property changed, was that, when the court had finally acted upon the case, and the proceeds were paid over, secured, or placed under the entire control of the husband, without being obliged to apply to a court of chancery to enable him to obtain possession of them. It may be regarded as a general rule, that a court of equity will, in all cases, carefully preserve the character or na- lure of the estate, so as to leave an infant or a feme covert in the unimpaired enjoyment of every right, privilege, or control over the property, which might have been exercised when, and in the shape in which it originally vested. As where the money of an infant is laid out in the purchase ot land. It may be for the benefit of an infant, in many cases, that the money should be laid out in land, if he should live to become adult; but if he does not, it is a great prejudice to him, taking away his do- minion, by the power of disposition he has over personal pro- perty, so long before he has it over real estate. The court, therefore, with reference to his situation, even during infancy, as to his powers over property, works the change, not to al! $72 CASES IN THE COURT OF APPEALS LEADENHAM w. NICHOLSON .1827. intents and purposes, but with this qualification, that if he lives he may take it as real estate, but Without prejudice to his right over it during infancy as personal property. 1 Madd. Ch. 340. So, in this case, the court will continue, to the very last exercise of its authority, to consider this property as Mary's real estate; because to treat it as personalty would be virtually to make a transfer of it to her husband, and deprive her of her privilege of coming into this court and asking to have it secur- ed to her separate use. Attorney General vs Whorwood, 1 Ves. 539. Co. Litt. 351, a, (note \*) From these authori- ties, and from others of a similar nature which might be re- ferred to, this principle is clear, that, whether the parties ap- ply to a court of law, or to a court of equity, no change is pro- duced by the mere operation of the judicial proceedings, either in the character of the estate, or in the nature of the proper- ty, in reference to the rights and power of its owner, until the tribunal has acted conclusively and definitively upon the case. But in this instance, although the sale has been long since made, the whole of the purchase money has not even yet been col- lected; and only a part of that which has been received has been distributed. Nothing definitive has been, or can even now be done. Mary's husband could not have received any part of the proceeds of this property without the express order of this court; because no right to it had been, by any act of the Court, finally transferred to, and vested in him. If Mary had at any time, during her life, asked of this court to have secured the proceeds of her share, before they were paid over, to her separate use independently of her husband, her request could not have been refused. No conveyance for the land has yet been made by the trustee to the pui chaser; and the conveyance has been expressly ordered to be withheld until the court is informed, that the whole of the purchase money had been paid. There is, then, much yet remaining to be done before this case can be finally closed; and consequently, so far, no final change has been wrought by the proceedings in this case in the charac- ter of the estate, or the nature of the property as respects the destination of Mary's share after her death. Since nothing hav- ing been vested in her husband, or placed under his control finally and independently of this court, except that portion of OP MARYLAND. LEADENHAM v. NICHOLSON. 1827. the proceeds which had been actually paid to him before her death; all that now remains of Mary'.? share must descend and pass as her land would have done, of the nature ot which it is, to her heirs, and not to the representatives of her husband. The corisequence of this conclusion is, that John Leeds Kerr's claim, founded on an assignment of apart of the contin- gent expectancy of Mary's husband, must be altogether rejected. But as to the introduction of claims of this sort, in this manner, I would observe, as a general rule, that the court will not allow a claim of this description, wholly distinct in its origin and merits from the principal case, to be thus introduced and de- cided, merely because the fund, out of which payment is claim- ed, happens to be either in court, or about to be brought in. Because, in cases of this importance, concerning land, the pro- ceedings of which are directed to be recorded, it is highly im- proper that they should be expensively and unnecessarily in- cumbered with any matter foreign to the immediate subject of the suit. There is no peculiar equitable ground upon which Kerr's claim can be brought into this case similar to that on which Welch's claim is rested; nor has he succeeded to an en- tire share, as is admitted to be the case of Nicholson. There- fore, on every account Kerr's claim must be rejected. There is another excrescence with which this case has been incumber- ed and disfigured that ought not to have been allowed; that is the injunction bill (a.) All, or the principal portion of the equity of that bill, was to be found in the proceedings of this ase; this injunction, therefore^ was not an original, but strict- ly and properly a proceeding auxiliary to this case with which its equity is so intimately interwoven; and, consequently, should have been obtained by a concise petition, and not by a distinct riginal bill. The share of John Ball, the grandson of the intestate, de- scended to his daughter Elizabeth Jinn Ball, incumbered with debt and dower; therefore, from her share, the claim of Welch must be first deducted, and from the remainder the dower of ("a) That injunction was obtained by N'chalxon, the purchaser of the fend from T WilKaraf t ytii\ one of the grounds was a claim of a cr<<\r. to that ponion of ttie money that T. Williams was entitled to, (who had trans* fem-d it to N~ : .ch;>hon,_) out of the share that would have gone to sirs. Ltadf.nhnm, if alive. VOL. 1 35 274 CASES IN THE COURT OF APPEALS LEADENHAM v. NICHOLSON. 1827. Elizabeth, now the wife of Samuel Jones, must be next de- ducted. She appears to have been only eighteen years of age when her right to dower accrued; she will, therefore, accord- ing to the rule of the court, be allowed one sixth of the share her husband was entitled to; but as she has been so tardy and negligent in making her claim, she will be allowed no interest. But as no final decree can be had in this case, until the court is furnished with an account of the amount due to each claim- ant, estimated upon the principles before laid down, the case must be referred to the auditor for that purpose. And he is di- rected to ascertain from the trustee the whole amount received by him, and the amount he has heretofore distributed; to state what has been paid to Mary, or her husband, before her death; that is, assuming from the proofs that her death happened before the 1st of June 1821 ; and after deducting that amount, together with that which has been upon similar principles distributed to the other heirs, the residue to be divided among the surviving heirs of the intestate, upon the principles before mentioned. Nicholsoji is to be considered as the assignee of the share of Thomas; and an account must be so stated as to show the real balance, if any, due on the judgment against Nicholson. And the injunction heretofore issued on his behalf shall be continu- ed until the auditor has made his report, or further order. The auditor made his report accordingly, and the chancellor passed a final decree directing how the balance of the proceeds, received or to be received, were to be distributed, &c. exclud- ing the claim of the executor of Leadenham to any portion of such balance. From which decree the executor of Leadenham appealed to this court. The cause was argued at the last June term, before BUCHA- NAN, Ch. J. and STEPHEN, ARCHER, and DORSEY, J. B. Johnson, for the Appellant, referred to the act of 1819, ch, 144, s. 6. The State use of Rogers vs Krebs, et al. 6 Harr. 4* Johns. 31. Mitchell and Brewer, jr. for the Appellees. They referred to the acts of 1785, ch. 72, s. 12, and 1798, ch. 101, sub ch. 5, >\ Q, Cooper's Plead. 64 to 69. Wright vs Morley, 11 VesS OF MARYLAND^ 275 LK.UIK.MIAM t*. NICUOLSOJT. 1827. 13. St evens vs Richardson, 6 Harr. Sf Johns. 156. Jarrett's Lessee vs Cooley, Ib. 258. Wildman vs Wildman, 9 Fes. f 76. Mitford vs Mitford, Ib. 87. Richards vs Chambers, 10 Fes. 587. Murray vs Ld. Elibank, 13 Ves. 5. Duns- comb vs Dunscomb, 1 Johns. Ch. Rep. 510. Genet vs Tall- madge, Ib. 563. Heygate vs Jinneslcy, 3 Bro. Ch. Rep. 362, (note a.) Blount vs Bestland, 5 Ves. 515, (note 1.) */2merica for the Islands of France and Bourbon, residing in the N. W. port of the Island of France, being of age, a native of Baltimore, state of Maryland, United States of America, stipulating for him- self, and in his own name, of the one part, and Joseph Mer- ven, residing in this place," &c. "stipulating for Miss Maria JEmelia Louisa Merven, a native of this colony, now under age, his daughter; and Miss Merven, residing with her father, stipulating likewise for herself and in her own name, of the other part. Who in presence of their relations and friends hereafter named, to wit," &c. "have agreed as follows upon the civil conditions of the marriage which will immediately take place between Mr. Buchanan and Miss Merven." The only articles in the contract which seem to be necessary to be in- serted are "Article 8. The future husband has endowed, and endows his intended wife with an annuity of two thousand ef- fective hard Spanish Piasters, by the name of a settlement, (douaire prefix, or prefixed dower,) and exempt from all de- duction, which she shall enjoy immediately upon the opening of said dower; the principal (fonds, or funds,) of which dower, at the rate of five per cent, shall go to the children which shall spring from the marriage of the future husband." * Article 9. The future husband makes by these presents a do- nation, in the best form that a donation can be rendered valid or take place, to his intended wife, who assents thereto under the authorization of Mr. Merven, her father, of all which the French or foreign laws permit him to dispose of, in any pro- perty which the said future husband may possess at the day of his death, in France and in foreign countries, whether there be then children in existence or to be born of the intended mar- riage or not. Should any children, living at the death of the VOL. i, 36 382 CASES TN THE COURT OF APPEALS BCOHANAN v. DESHON. 1827. future husband, afterwards die before or after coming of and before the intended wife, without having disposed of their property, and without legitimate issue, in that ease the intended wife shall take the amount of the donation as if there had been no children." -* Article 10. The future husband reserves to himself the power of disposing of one-fourth of his property." [This translation of the marriage contract was made and agreed to at theargument in this court, on the appeal.] The property was (afterwards) sold by the trustee appointed by the chancellor to make sale thereof, for $14,230, and the proceeds brought in- to the court of chancery for distribution. The auditor, under the orders of the chancellor, stated several accounts, which \vere submitted, &c. Other facts established in the cause, will appear in the opinion delivered by BLAND, Chancellor, (May 4th, 1825. ) The claim of Maria E. L. Buchanan, designated in the auditor's report of the 30th of November 1820, as claim No. 6, has been presented In various points of view, and in every shape is met by strong objections. She is an alien, who never was in this country un- til after the death of her 'husband; and therefore, can take no benefit under the act of 1813, ch. 100. Consequently, she is not dowable, according to our law, of any real estate lying in, this state, of which her husband was seized at any time during the coverture. As an alien, she might take and hold real estate lying in this state, against all but the state, under the marriage contract. But that contract was, in no respect, made and ex- ecuted in such manner and form as the laws of this state require conveyances of real estate in Maryland to be made and ex- ecuted; and, besides, it has no reference whatever to the lands mentioned in this case, or indeed to any real property in this state. A court of equity will decree the execution of a marriage contract, by which the husband binds himself to settle upon his intended wife all the personal property which he should at any time during coverture be possessed of. Thus making the cove- nant attach upon each article, that should, from time to time, come into the possession of the husband. But in the eighth article of the contract, now under consideration, by which OF MARYLAND, 283 BUCHANAN v. DESBON. 1827. alone, if at all, this claim can be sustained, there is no general or specific designation of any property whatever, either real or personal. The translation of the marriage contract is, in many respectsy rery defective. It appears, however, to have been made ac- cording to the legal forms usual in those countries governed chiefly by the civil law; and in reference to that code, as modi- fied by the customs of Paris, by which, it is believed, the Isle of France, where the parties then lived, as well as all the other French colonies, were governed. The first part of the eighth article of this contract, on which this claim is said to be founded, speaks of a settlement to be made on the intended wife, to take effect on the marriage, of an income or jointure, (for dower, in the sense of our law it cannot be,) to be secured to her separate use, independently of her husband; in such man- ner, as was, no doubt, well known to the law of the place where the contract was made And, it then closes with declaring, that the capital of that income estimated at five per cent, should descend and pass to the issue of that wife by that marriage. It is a covenant, on the part of the husband, to settle upon his in- tended wife a jointure of a specified value, and of a particular character known to the laws of the Isle of France; ^doitaire prefix," an endowment in frank bank, or a peculiar species of marriage settlement, by which no particular kind or parcel of property whatever was specially designated and described; and, therefore, it never could have been considered, according to our law, as giving to the wife or children a lien or claim of any kind upon any property of which the husband ever was, at any time, seized or possessed. But marriage, even at law, will not extinguish any prior con- tract between the parties upon which a right of action cannot accrue during the coverture. As, where the intended husband covenanted to pay a certain sum of money to the intended wife> if she should survive him, or within a given time after his death; it was held, that the covenant was valid, and that the widow might recover the sum stipulated to be paid, from the executor of her deceased husband. But the contract, in this case, does not merely stipulate for the payment of money upon the happening of a certain COB- 84 CASES IN THE COURT OF APPEALS BtrcHAJTAH v. DESHOS. 1827. tingency, and nothing more. It is not a mere obligation for the payment of money by the husband to the wife in the event of her surviving him; but it is a marriage settlement, in which an income or jointure of a certain value is to be secured to the wife during her life, and after her death the capital of that in- come, at five per cent, is to go to her children by that mar- riage. The eighth article contemplates, as a part of the gene- ral settlement, the creation of one entire estate, out of funds, real or personal, to be provided by the husband, the income, or present beneficial interest in which, was to be vested in the wife for life, with remainder over to her children. There is nothing in the general sense, object, and scope of the article, which can warrant a court of justice in treating it as a mere obligation to pay a debt, or sum of money in gross, or in con- sidering the widow, under it, as a mere creditor of her late husband. In short, a covenant, in contemplation of marriage, to create an estate for the benefit of a wife and children, can- not, by an undue degree of liberality, be made to mean an ob^ ligation to pay A debt, or sum of money to the wife, to the prejudice of real bona fide creditors. This claim of Maria E. L. Buchanan must, therefore, be rejected. These principles being thus settled and determined, the case is hereby again referred to the auditor, with directions to state san account accordingly, and to report the same to the chancel- lor preparatory to a final order for a distribution of the funds in the hands of the trustee. From this decretal order Mrs. Buchanan appealed to this Court The case was argued at the last June term, before BUCHANAN, h. J. and STEPHEN, ARCHER, and DORSET, J. R. Johnson, for the Appellant, contended, 1. That the appellant was entitled to dower at common law, independently of the act of 1813, cA. 100. 2. If she was not so entitled, she is entitled to dower under the act of 1813, ch. 100. 3. If she is not entitled under that act, then she is entitled tinder the marriage contract. 4 She is entitled to come in as a preferred creditor under lliaL contract. OF MARYLAND. &85 BUCHAVAS v. DESHON. 1827. 5. She is entitled to claim her dower, and also a right to claim as creditor. 1. Is she entitled at common law? This is not a question between the state and Mrs. Buchanan, she being an alien. The land has been sold, and the question is between her and the creditors. It is laid down as a general rule, that an alien wife cannot be endowed. That is, she cannot claim agninst the state; not that she cannot claim against an individual. Her claim is good against all but the state. There had been no decision that an alien feme covert was not entitled to dower, and the object of the act of 1813, ch. 100, was to give to her the state's in- terest. An alien may acquire property by purchase for his own benefit; and no person can contest his right, but the state may. 1 Bac. Jib, tit. */2lien, 8. M'Creery's Lessee vs Mlen- der, 4 Harr. 4' M l Hen. 409. M'Creery's Lessee vs Wilson, Ib. 412. Co. Litt. 2, b, (note. 3.J Page's case, 5 Coke, 52, b. Mooers vs White, 6 Johns. Ch. Rep. 360. Orr vs Hodgson, 4 Wheaton,453. 2 Blk. Com. 132, -241. 2. If she is not entitled at common law, she is entitled un- der the act of 1813, ch. 100. This act was in force at the time of the death of the busband, then at the Isle of France. On his death his widow came to this country, and has resided ever since. It is admitted she was never here during the life of her husband. Her husband was a public agent of the government of the United States; and in construction of law his residence continued to be within the United States. An enlarged con-> struction should be given to the act in favour ot the widow. She has resided here since her marriage, although not during her marriage. This right of the widow is also secured to her by the act of March 1780, ch. 8, s. 2, and the seventh article of the convention between the United States and France of the 30th September 1800. 3. She is entitled to dower under the marriage contract. For this purpose the 8th and 9th articles only of that contract are important. A marriage settlement is to be construed li- berally. If in a devise it would apply to real as well as to personal estate, then under the ninth article it vested, one third in her of his real estate. She is to be considered as a purchas- er. 2 Blk. Com. 292, 293. Higgenson vs Kelly, 1 Ball Beatty,252. Parkes vs White, \\ Ves. 235. CASES IN THE COURT OF APPEALS BUCHANAN v. DESHON. 1827. 4. She is entitled to come in as a preferred creditor under the marriage contract. It was not void as to creditors; be- cause there were no creditors at the date of the contract. But whether there was or was not a creditor at that time or since, a marriage contract is valid against prior as well as subsequent creditors. Nairn vs Prowse, 6 Ves. 759. Reade vs Living- ston, 3 Johns. Ch. Rep. 494. By the 8th article of the con- tract she is to be considered as a creditor. The husband there- by covenanted that on his death his wife should receive an an- nuity of $2000. 5 Bac. *ftb. tit. Obligations, 155. She. is entitled to come in as a preferred creditor to the amount of her annuity. The husband having set no estate apart to pay her, makes no difference. He left no estate but the land out of which the fund in question has arisen; and it will be presumed that she should be paid out of it. 5. The allowance of the annuity is not stated to be in lieu of her dower; and the 9th article shows that it was not so in- tended. Birmingham vs Kirwan, 2 Sch. Sf Lef. 451. Fos- ter vs Cook, 3 Bro. Ch. Rep. 347. Marriott, for the Appellees. The claim of the appellant is to be considered in a two-fold view. 1. As to her dower at common law, or under the act of 1813, ch. 100. 2. As to her claim under the marriage contract.' 1. It is well settled that an alien is not entitled to dower at common law. Co. Lltt. 31, (note 9.J 1 Bac. Jib. tit. Jllien, (C) 136 Kelly v.s Harrison, 2 Johns. Cas. 29. The appel- lant never had a capacity to take. She never had any vested right. Vat. L. N. 102. The act of 1813, ch. 100, shows that there could be no claim to dower at common law, or that act would not have passed. That act gives dower only to married women being aliens, who may have been married in this coun- try, and who reside here with their husbands, or at least they must be residents here at the time of the deaths of their hus- bands. The wife must reside here after her marriage meaning she must reside here after and during her marriage in the life- time of her husband, and not that she might come here and re- side after the dea^h of her husband. If that were the case she plight, after the death of her husband, come here and reside OF MARYLAND. 287 BUCHANAN v. DESHON. 1827. one week, receive her dower, and return to her own country. This was not the intention of the act of assembly, and it is not within its sound construction. The act of March 1780, ch. 8, is not applicable to this case. That act was predicated upon the then existing treaty between this country and France in 1778, which treaty has been since annulled by an act of con- gress in 1799. Congress alone could, since the adoption of the constitution, pass acts of naturalization; and they legislated up- on this subject as early as 1790. The convention between the United States and France of 1800, expired in 1808, before any vested right accrued to the appellant, even if she could have claimed under it were it now in existence. 2. The contract relied on as a marriage settlement is not re- gularly that which it is stated to be. It is a mere contract. Rundle vs Murgatroyd-,4 Dall. Rep, 305. If it is a marriage settlement it has not been legally executed agreeably to OUF laws, so as to operate upon the husband's real estate here. The widow, therefore, under that contract, is not entitled as a com- mon creditor; but if she is to be considered as a creditor at all, she cannot be a preferred creditor; she may come in after all the debts are paid. Free, in Chan. 539. Underwood vs HUh- cox, 1 Ves. 279. Anonymous, 2 Chan. Cas. 17. Emery vs Wase, 5 Ves. 846. The contract is unreasonable, and ought not to be enforced. 2 Pow. on Cont. 221, 222. Mayer, on the same side. This is an unreasonable settle- ment, and should not be enforced against creditors. It is a vague instrument, dealing in generals, and is not formally exe- cuted agreeably to our recording laws, so as to afiect_real estate. It is not tantamount to a grant of an interest. The 8th article of the marriage contract gives a bounty to the wife out of the -husband's general estate, in preference to his disposing power. She does not take as a purchaser, but she takes it as a gilt. The fund produced by the sale of the real estate ought not to be ap- propriated to pay this bounty in exclusion of the creditors. Real estate in this state is similar to personal in payment of debts. This contract is not better than a voluntary settlement, which a court of equity will set aside when to the prejudice of creditors. To make it a marriage settlement an estate must be 288 CASES IN THE COURT OF APPEALS BUCHANAN v. DESHON. 1827. set apart to meet the claim which the wife is to take after her husband's death. Garthshore vs Chalie, 10 Ves. 1, 20. To entitle the appellant to recover she must show she had a grant of the specific property which has been sold under the decree in this case. There can be no Mich thing between husband and wife as debtor and creditor. The wife, to claim, must do so as purchaser. Rundle vs Murgatroyd, 4 Dall. Rep. 304. Where the husband receives the wife's funds, she cannot come upon his estate as a creditor. Powell vs Hankey, 2 P. Wms. 82. 1 Bac. *1b. 479. The eighth article of the contract looks to property to be thereafter settled on the wife in strict conformi- ty to that contract. There being no settlement of any such pro- perty made, the covenant can have no effect. Suppose this land had been taken in execution during the life of the husband, what would have been th3 situation of the wife? She could not go into equity, because this land was not set apart to meet her claim. The contract is not to be regarded as an ante-nuptial settlement. It has none of the attributes of such a settlement; and not being so, the widow cannot be considered as a prefer- red creditor. It is a prodigal allowance which a court of equi- ty will not sanction there was not a sufficient pecuniary consi- deration upon which to found it. Dewey vs Bayntum,6 East, 257. If the widow is entitled to dower, send her to a court of law to recover it. She has no equity under so unequal a set- tlement with reference to her merit or her fortune. The act of 1813, ch. 100, gives her no right to dower, because her right must have commenced, and be consummated -at the death of her husband. On his death she was not a resident of this state, or of the United States, and therefore no dower interest vest- ed in her. Under the act of March 1780, ch. 8, French sub- jects might hold lands in this state. Mrs. Buchanan then may hold lands during her life, but that holding commences with her residence; but not to give birth to any right antecedently acquir- ed. The right must commence after her residence. This act is nothing more than the act of 1813, ch. 100. It must be a resi- dence dui ing the life of the husband. The treaty was to secure- the right of inheritance only such an interest as could be devis- ed; and it is inapplicable to the question now before this court. Dower is not claimed upon independent grounds in oppositioa OF MARYLAND. 289 BUCHANAN v. DESHON. 1827. to the husband. It is a peculiar estate; and the wife is in as of the estate of her husband. Co. Litt. 241. a. The widow is not to be assimilated to a plaintiff in ejectment, where an alien may recover against an individual. R. Johnson, in reply, referred to Chirac vs Chirac, 2 Wheat. 259. Kelly vs Harrison, 2 Johns. Cos. 29. 1 Bac. b. 484. Curia adv. vult. ARCHER, J. at this term, delivered the opinion of the Court. The creditors of William Buchanan applied to the court of chancery for the sale of his real estate to pay his debts, his personal estate being insufficient for that purpose. A de- cree passed for its sale, and the proceeds were brought into the Court of chancery for distribution. Mrs- Buchanan, his wi- dow, to whom he was married in the Isle of France in the year 1803, applied by petition to the court of chancery to re- ceive a dividend as a creditor, in virtue of certain marriage ar- ticles entered into between herself and her husband before their intermarriage in the Isle of France; and also claimed that a cer- tain portion of the proceeds of sale should be allotted to her in lieu of her dower in the lands. Mrs. Buchanan was an alien, never naturalized, and continued to reside in a foreign country until the death of her husband. Both tlese pretensions have been rejected by the chancellor, and she seeks redress from his judgment by an appeal to this court. Mrs. Buchanan^ being an alien, is by the common law not entitled to dower in the lands whereof her husband died seized. An alien may purchase lands, and hold them against every one, (except the state,) until office found, or until the government shall exercise its authority over them. But an alien cannot inherit lands the law, which never does any thing in vain, will not cast the inheritance upon one whom its policy forbids should hold it. The widow cannot be considered as a purchaser, and, there- fore, entitled to hold her dower until office found, but comes to her estate by operation of law, as does an heir by .iescent; and, therefore, cannot take it, and is in the same predicament as an VOL* i. 37 290 CASES IN THE COURT f APPEALS BUCHANAN v. DESHOS. 1827. alien claiming to inherit. Either could take by act of the par- ties, as by purchase, but neither by operation of law. The act of assembly of 1813, ch. 100, which authorises the endowments of aliens residing after their intermarriage in the United States, does not, it is believed, reach a claim situated as this is. Mrs. Buchanan never resided, as it is admitted, at any time during the coverture, in tbe United States, and with- out such residence she was not entitled to any benefit of the provisions of that law. The legislature contemplated a capaci- ty to take dower at the instant of the husband's death, and did not mean that the estate, which should descend to the heirs at law, should be liable even for a season, at any distant period ta be divested by the contingent removal and residence of the wi- dow within the limits of the state. It is not perceived what operation the treaties between the United States and the French government of 1778 and 1801, or the act of assembly of 1780, ch. 8, can have in giving effect to the claim of the appellant to dower. The seventh section of the last convention gave to french subjects power to dispose by donation, testament, or otherwise, of goods, moveable or immoveable, held in the territory of the United States t to such persons as they shall think proper; and by the same arti- cle the capacity to inherit is conferred on the citizens of the then French Republic. Thus was given the power to devise, and the capacity to inherit. It is doubtful whether by the most liberal construction, this clause in the treaty could be made to extend to a claim for dower; yet if extreme liberality were to give to its terms such a construction, yet it must be observed that the treaty expired by its own limitation in 1809, before the death of William Buchanan. If a right had vested un- der this treaty, there can be no doubt but that such right would be maintained notwithstanding the expiration of the treaty, and that it would have been equally valid as if the treaty had a per- petual duration. But Mrs. Buchanan had no vested right, it was altogether contingent, depending upon her surviving her husband, and her rights actually accruing before the treaty should expire. It had (if the treaty by any possibility could be considered as embracing it,) a mere inception and commence- ment, and was not perfected and complete until the death of OF MARYLAND. 291 BUCHANAN v. DESHON. 1827. her husband, and until the treaty had expired, at which time her capacity to take her dower, with which she might have heen clothed, during the existence of the treaty, ceased with* the expiration of that convention. The treaty of 1778, (which was followed by the aci of 17SO, ch. 8,) provided the subjects of the King of France should not be reputed aliens, and gave a disposing and inheritable capaci- ty to them; but whatever might be considered the operation of this treaty, it was abrogated in 1798, long before any right to dower in the appellant could have had even an inception; and the act of 1780, ch. 8, (passed no doubt in part with the view of giving efficacy to the liberal principles of this treaty, and from a supposed necessity of some legislative act being necessary to give operation to it, being passed as it was under the confede- ration,) will be found not to be coextensive with the provisions of the treaty to which it refers, and to contain no enactment (considering it as a permanent law,) which reaches, or in any manner could affect the claim of the appellant. From the above views it appearing that Mrs. Buchanan's alienage would preclude her from her enjoyment of dower, it is rendered unnecessary to examine the marriage articles for the purpose of ascertaining whether the covenants therein contained legally or equitably barred her of dower, nor shall we express an opinion upon that subject. If the appellant is not entitled to dower, it is contended that she is entitled to be considered as a preferred creditor, to the ex- tent of her claim, under the marriage articles, or, at all events, to be considered as having an equal right witMhe other credi- tors for a distributive share of the proceeds of sale. It is not perceived upon what ground her pretensions to a preference can be rested. The articles cannot be viewed as a settlement, but must be considered merely in the light of a cove nant or agreement made for the valuable consideration of mar- riage. To maintain this position no authorities need be cited; it may be sufficient to say that the marriage articles have no one legal attribute of a marriage settlement, so as to overreach the claims of creditors. But why should she not be considered in the light of a general creditor of her husband's estate, and although entitled to no preference, yet to an equal claim with the rest of> CASES IN THE COURT OF APPEALS BUCHANAN v. DESHOS.- 1827. the creditors? The absence of a settlement has no bearing on the question. A legal obligation can be created without such settlement. A covenant or agreement before marriage, to pay her a given sum of money, could, after his decease, be enforced against the husband's representatives. Then why could not this agreement to pay her an annuity? It was made upon a consideration which was valuable, and one upon which the law always looks with a favourable eye. The mode stipulated by which it is to be raised ought not to affect her substantial rights under the agreement. The great object of the Sth article was to secure her the payment of an annual sum, and must be equivalent to an agreement or obligation for that purpose the mode by which it was to be effected was to her immaterial. Had a settlement, after marriage, been made, grounded upon this ante-nuptial agreement, it would have been clearly sustaina- ble against the claims of the creditors. Rob. Fraud. Conv. 218. And it is not perceived why a failure on the husband's part to comply with the agreement, can have the effect, not only of depriving the wife of a preference over other creditors, but of postponing her claim until they shall be entirely satisfied. The obligation to pay cannot be lessened by the neglect to set apart the fund from which the annuity might arise. If we ought not to look with peculiar beneficence upon her claim, it is surely entitled to equal regard and consideration with those of the creditors. Her pretensions are condemned by no frau- dulent considerations, but are built upon the same moral founda- tion upon which those of the creditors rest. Her right to come in with the general creditors having been determined, the extent of that claim is the next question for consideration. The Sth article of the marriage agreement, up- on which it rests, is peculiarly worded; but we cannot doubt, upon a just construction of it, that she was to receive an an- nuity during life of $2000. It would be difficult to resist the claim of Mrs. Buchanan to the payment of the annuity during the whole period of the marriage. We conceive that it commenced at the period of their union; for the parties covenant that there shall be no com- munity of property, and the husband covenants to support the domestic establishment, and to maintain his wife and children OF MARYLAND. 293 BCCHAXA* f. DESHOX. 1827. out of his own resources. Hence there could be no room to suppose or presume that this an.nuity was applied during cover- ture to the maintenance of the wife, as it might be if the hus- band had not explicitly bound himself to support her out of his own estate. We could not consider her maintenance as equiva- lent to the annuity, because it docs not appear to be secured for such an object. Nor can we conceive that the circumstance of her never having, demanded it during her coverture, could be considered as a waiver of her right, for she was under the legal control of her husband, and sufficient reason might spring from such a consideration for her failure to demand the annui- ty; but we are precluded, from the shape in which these pro- ceedings are presented to the court, from making her a credir tor on the estate for the amount of her accruing annuity during coverture, as it does not appear to have been claimed on her part, and she only seeks to be considered a creditor from the death of her husband. The auditor has valued the life annuity, and added it to the arrearages claimed, for the purpose of ascertaining her debt; and, for the purpose of ascertaining the childrens' claim he has given them in presenti, a sum in lieu of what they are by the contract to receive at their mother's death. It must be observed, as an objection to this course, that the children by the agreement were not to have an/ thing until their mother's death; and the contract of the husband with the wife and children, will be both gratified by considering the capital of $40,000, from which was to arise the annui- ty, as a claim entitled to a dividend, equally with the other claims, which dividend should by the court of chancery be invested in some profitable stock, the accruing interest on which should be directed to be paid to the mother for life, and the principal at her death be distributed equally among the children. The auditor has calculated the arrearages of the an- nuity from the death of W. Buchanan, with the accruing in- terest to the day of sale. These arrearages properly constitute the debt due her, and when the amount shall have been ascer- tained she must, for such an amount, be considered a creditor, and entitled to a dividend. This dividend then, together with the interest which shall arise on the investment, which it bar 294 CASES IN THE COURT OF APPEALS BUCHANAN v. DESHON. 1827 been suggested should be made, will constitute her entire claim against the estate of her husband. Decreed, that the order or decree of the court of chancery of the 4th of May 1825, so far as it rejected the claim of the appellant to be allowed any portion of the proceeds of the sale of the real estate of her hus- band, William Buchanan, be reversed, with costs to the ap- pellant, both in this court and in the court of chancery. And this court proceeding to decree, as they are of opinion the chancellor should have done, do further decree, that the appellant is entitled to a dividend out of the amount of the pro- ceeds of the sale of the said real estate, as a general creditor upon the said fund to the amount of the arrearages of the an- nuity due to her under the marriage contract between herself and her said husband, in the proceedings mentioned, together with the accruing interest on the said annuity from the time of the death of her said husband, to the time of the sale of his said real estate, as estimated and ascertained by the auditor of the court of chancery by his account in the proceedings accom- panying his report of the 30th of November 1820. Decreed also, that over and above the said amount due to the appellant for the arrearages of the said annuity, and with a view to give her the full benefit of the said marriage contract, as far as may be, consistently with the rights of the other creditors of the estate of William Buchanan, and of the rights secured to the children of the said marriage, that the capital of $40,000 from which the annuity to the appellant, under the said marriage contract, was to arise, be considered as a claim entitled to a dividend equally with the other proper claims against the pro- ceeds of the sale of the said real estate. Decreed also, that the amount of the said dividend upon the said sum of $40,000 be invested by the court of chancery, or under its direction, in some profitable stock, or in some good real securities, as in the discretion of the chancellor shall seem to him sufficient, and under all circumstances most to the interest of the appellant and her said children, to be selected by the court of chancery; and that the said court shall direct the whole of the interest or profits which may from time to time accrue upon the said stock or real securities as aforesaid, during her life, to be paid to the appellant, or her representatives; and that at her death, the OF MARYLAND. 295 JOLLY v. THE BALTIMORE EQUITABLE SOCIETY, &c. 1827. whole of said investment of the dividend of $40,000 be di- vided equally among the children of the marriage of the ap- pellant, and the said William Buchanan, or their proper re- presentatives. Decreed also, that the chancellor pass all such orders and decrees in the premises as may be necessary to- car- ry this decree into effect. DECREE REVERSED, &C. JOLLY'S Adm'rs. vs. THE BALTIMORE EQUITABLE SOCIETF FOR INSURING HOUSES PROM LOSS BY FIRE. June, 1827. The strictness and nicety which have been widely adopted, in the trial of questions arising 1 on policies of marine insurance, are not to their full extent applicable to the policies of a fire insurance association, formed for the individual accommodation and security of its members, the risks being assumed on the knowledge acquired by an actual examination made by the officers of the company, and not on the representations coming from the assured. Such an association cannot be viewed as involving in it a mutual relin- quishment of the right of exercising- those ordinary necessary acts of ownership over their houses, which have been usually exercised by the owners of such property; and, consequently, the insured is authorised to make any necessary repairs in the mode commonly pursued on such oc- casions; but if by _gross negligence or misconduct of the workmen env ployed, a loss by fire ensue; or if alterations be made in the subject in- sured materially enhancing the risk, and not necessary to the enjoyment of the premises insured; or which, according to usage and custom, were not the result of the exercise of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of the insurance, and a loss by fire is thereby produced, then are the underwriters released from all liability to indemnify for such loss. In the absence of any contract, or established rule of law, determining 1 what repairs or alterations the insured was authorised to make, or whe- ther if authorised, they were made in the usual way, the jury is the pro- per tribunal to decide those questions. Alterations and additions to houses insured against fire, do not per se change the risk; they remain subject to the same perils, although their degree may be increased or diminished, and the jury 13 the proper tribunal to decide whether the risk has been increased. APPEAL from Baltimore County Court. This was an ac- tion of covenant brought by the appellants agninst the appel- lees, the plaintiffs and defendants in the court below. The action was grounded on the policy of insurance hereinafter 296 CASKS IN THE COURT OP APPEALS JOLLY v. THE BALTIMORE EQ.CITABLE SOCIETY, &c. 1827. mentioned. The defendants, (now appellees,) pleaded that they had not broken the covenant, &c. on which issue was joined. At the trial the plaintiffs, (the appellants,) read in evidence the acts of 1794, ch. 39, granting a charter of incorporation to the defendants, and the act of 1801, ch. 35, a supplement to the said act of incorporation. They also offered in evidence the following policy of insurance, dated the 26th of December 1814: "Baltimore Equitable Society, (No. 4,106.) Whereas William Jolly of Baltimore, in the State of Maryland, hath become a member of the Baltimore, Equitable. Society, for insuring houses from loss by fire, agreeably to the deed of settlement and act of incorporation thereof, passed by the le- gislature of Maryland, in the year of our Lord one thousand seven hundred and ninety-four, and hath paid and deposited in the hands of the treasurer of said society, nineteen dollars and thirty-three cents, the receipt whereof we do hereby acknow- ledge, being the full consideration for insuring him the sum of twelve hundred dollars, on the property hereinafter mentioned. Now be it known by this policy of insurance, that the said so- ciety do insure, and cause to be insured, against loss by fire, (on the terms and subject to the eventual deficiency of funds in the said deed of settlement mentioned and expressed,) the said William Jolly, his heirs, executors, administrators and assigns, in the sum of twelve hundred dollars, upon his brick dwelling- house, fronting on the south side of New Church-street, be- tween Charles-street and St. Paul's Lane, twenty four feet, and extending back twenty -one feet, being three stories in front, and two stories in the rear, finished in the plainest manner. This insurance to be and continue for the full term of seven years, from and after the date of these presents. And for the further security of the said insured, we, the directors of the said society, do hereby order and direct the treasurer thereof, for the time being, when and so often as the said house, or any house built in the room thereof, shall be demolished by fire, during the term of this insurance, to pay unto the said Wil- liam Jolly, his heirs, executors, administrators or assigns, within three months after such demolition, out of the funds OF MARYLAND. 297 JOLLY v. TUB BALTIMORE KU.IUTABLE SOCIEPV, &c. 18-:7. r^ i . of the society, the sum of twelve hundred dollars, and when and so often as the said house, or any house built in their room, or either of them, shall be damaged, injured or im- paired by fire, during the said term, that the same be paid agreeably to the estimate thereof, not exceeding the sum of twelve hundred dollars, out of the funds of the society as aforesaid, or that the said buildings be repaired, and put in as good condition as they were before such damage accrued. And we do further order and direct the said treasurer, for the time being, at the expiration of this policy, to repay to the said William Jolly, his heirs, executors, administrators or as- signs, nineteen dollars, thirty-three cents, the sum by him paid and deposited as aforesaid, together with his proportionable part of the profits of the business, (if any,) or so much of botli or either of them as shall remain unappropriated, towards the payment of losses, and the necessary expenditures of the society; all which payments and repairs shall be made agreea-> bly to the principles and provisions, and subject to the limita* tions and eventual deficiency of funds in the said deed of set- tlement mentioned and expressed. It is provided in the deed of settlement, and hereby declared, that if the said deposit mo- ney shall not be demanded at the office of the society, within, one year after the expiration of this policy, that then the right of payment thereof shall cease, and the same remain sunk to the insured, for the benefit of the society. It is also provided in the deed of settlement, and is hereby declared and under- stood, that if the entire funds of the society should at any time be insufficient fully to pay and discharge all the losses incurred, that then and in such case a just average shall be made, and the. payment to be demanded in virtue of this policy, in case of loss or damage by fire to the premises insured, shall be a divi- dend of the said funds in proportion to the sum insured, agree- ably to the true intent and meaning of the said deed of settle- ment. If the premises insured in this policy are or shall be insured elsewhere, this policy to be void," &c. It was admitted that the said policy was duly executed, and that the insured was at the time the owner of the house in question. The plaintiffs also offered in evidence, that after the death of the insured, the plaintiffs, who arc his administrator^ duly appoint* YOL. p. 38 298 CASES IN THE COURT OF APPEALS JOXIY v. THE BALTIMOKE EQ.UITABLE SOCIETT, &c. 1827. ed, took possession ot the said house, and the same having be- come much dilapidated, they determined to give it a thorough repair, and in February 1820, engaged a workman to make the repairs; that while the said repairs were going on, in March'' 1820 the house was set on fire by an incendiary, and damaged in the floors, stair-cases, window frames and roof, to the value of $600; and that due notice Was given to the defendants of the said loss, and a demand made in clue form that they should repair the damages, or pay the sum insured, according to the policy; but the defendants refused to repair or pay the said sum, alleging that they were not liable to be charged with ei- ther, and have ever since refused to repair or pay the said sum insured, or any part thereof. The plaintiffs then gave in evi- dence, that no carpenters* or joiners' work was done in said house for any other purpose than for repairing the said house; that a work bench is considered by carpenters in the light of one of their tools, and that it was usual to do the whole or the chief part of the work at the house undergoing repairs, when those repairs were expected or intended to be considerable; and that the repairs made on this house as aforesaid were ne^ cessary for the purpose of rendering it tenantable. The plain- tiffs further gave in evidence, that no repairs were ever made upon the aforesaid house after the fire damaged it, as before set out; but the same remained, until within four or five months since, in a ruinous statb, without being tenanted or tenantable, when it was wholly pulled down; and that the ordinary rent of such a house so situated, if in good repair, was at least $150 per annum. It was admitted that the premises insured by the said policy were held in leasehold. The defendants then of- fered in evidence, that the repairs made by the plaintiffs to the house in question was a thorough repair, and made in the fol- lowing manner A plank floor was laid in the kitchen pait of the basement story, which floor was of brick at the time the insurance in question was made, the old porch at the front door was taken down, and a new one of the same description put up; new stairs were made from the basement story, to the first floor, new doors were made for several of the rooms, and new window cases in some instances, put in, in the basement story. That in order to make these repairs all the materials were tak- OF MARYLAND. 299 JOLLY v. THK BALTIMORE K,Q.uiTABLZ SOCIETY, &.c. 1827. en to the house in question, in a rough state, and were there dressed and fashioned in the usual manner; a work bench and the necessary tools were carried to the house for the purpose of doing the work; that before the fire in question took place, the workmen had been engaged in making the repairs from four to six weeks; that during that time nobody lived in the house, and the chips and shavings and fragments of wood, pro- duced by the work of the joiners or carpenters, were lying about the house, nor had it been occupied for some weeks pre- viously thereto, the same having been suffered by the owners to be untenantable for want of repairs. That the materials were dressed and fashioned in a room on the first floor above the basement story, where the work bench was placed, and the floor of that room was covered with shavings and fragments of plank and seasoned wood, and that it was in this room the fire commenced. And the witness proved, that there was reason to believe that the fire which consumed the premises had been in- troduced through the broken window, among the shavings with- in, as the interior of the building was more accessible in that- way than any other. The defendants then prayed the direc- tion of the court to the jury, that if the jury should find the evidence as above stated in this exception to be true, then the plaintiffs were not entitled to recover. Which opinion and di- rection the Court, [flrchcr, Ch. J.] gave to the jury.- The plaintiffs excepted; and the verdict and judgment being against them, they appealed to this court. The cause was argued at the last June term before BUCHA- JSTAN, Ch. J. and EAHLE and DORSET, J. Williams, (District Attorney of U. S.) for the Appellants, contended, 1. That the repairs, which are described in the bill of ex- ceptions as going on, in regard to the house insured, and the ne- cessary occupancy thereof by the carpenter and his tools, were no violation of the terms of the policy of insurance, but were entirely consistent with the contract between the parties. 2. That the court below erred in giving an absolute direc- tion to the jury that the plaintiffs were not entitled to recover, instead of leaving it to the jury to say by their verdict, whe- 300 CASES IN THE COURT OF APPEALS JOLLY r. THE BALTIMORE EQ.UTTABLE SOCIETY, &c 1827. ther the risk of the insurers was so enhanced by the repairs, that the defendants were not liable on the policy to indemnify the insured for the loss by fire, which happened to the premises. On the first point, he referred to the act incorporating the Appellees, 1794, ch. 39, s. 1, Art. 28, 32. 1 Marsh. 185, 200, Taylor vs Cur Us, 3 Serg. 4* Low. 69. On the second point, he cited 1 Stark. Evid. 409, 410, fyc* 1 Marsh. 469, (note,) 470, (and note,) 473, (noteb.) Li- vingston vs Maryland Insurance Company, 6 Crunch, 279. 1 Phill. Evid. 13, (note,) 128. Hucks vs Thornton, 3 Sc.rg. 8? Low. 15. Duff vs Budd, 7 Serg. fy Low. 399. Laidlaw vs Organ, 2 Wheat. 178. Roach vs Pendergast, 3 Harr. $ Johns. 33. Jlthey's Ex'x. vs Collins, 1 Harr. $,* Johns. 213. Wirt, (Attorney General of U. S. ) and Taney, for the Ap- pellees, on the first point, cited Maryland Insurance Com- pany vs Le Roy, 7 Cranch, 26. On the second point, they cited 1 Stark. Evid. 416, 417. Curia adv. vult. DORSET, J. at the present term, delivered the opinion of the Court. The Baltimore Equitable Society for Insuring Houses from loss by fire, being a private association formed by owners of houses in the city of Baltimore, by which, col- lectively, they agree to contribute to the payment of all losses by fire, by them individually sustained, it appears reasonable that their policies should receive a fair and liberal construction, free from all captious technical exceptions. The strictness and nicety which have been wisely adopted in the trial of questions arising on policies of Marine Insurance are not, to their full extent, applicable to the policies of this society. The former are entered into by the assurer almost ex- clusively on the statements and information given by the as- sured himself; in the latter case the insurers assume the risk on the knowledge acquired by an actual survey and examina- tion made by themselves, not on representations coming from the insured. This association, therefore, formed for their in- dividual accommodation and security, cannot, upon any sound principles of construction, be viewed as involving in it a mu- tual relinquishment of the right of exercising those ordinary, OF MARYLAND. 301 JOLLY v. Tar. HALTIMORK E%UITABU SOCIETY, &fc. 1827. necessary acts of ownership over their houses, which have been usually exercised by the owners of such property. It hence follows, that the insured is authorised to. make any ne- cessary repairs in the mode commonly pursued on such occa- sions. But if, by the gross negligence or misconduct of the workmen employed, a loss by fire ensue; or if alterations be made in the subject insured materially enhancing the risk, and not necessary to the enjoyment of the premises insured, or ac- cording to usage and custom were not the result of the exer- cise of such ordinary acts of ownership, as in the understand- ing of the parties were conceded to the insured at the time of insurance, and a loss by fire is thereby produced; then are the underwriters released from all liability to indemnify for such loss. The policy of insurance here being perfectly silent on the subject, and no general principle or rule of law having been established, in cases like the present, by which to determine, whether the repairs or alterations were such as the insured had authority to make as being necessary to the user of the proper- iy; and whether, if authorised, they were made in the usual and customary way, the proper tribunal, to decide those ques- tions, is the jry, and not the court. It appears to have been conceded in argument, that ordinary, necessary repairs might be made by the insured; but not a thorough repair like the present. The proof of the appellants- is "that the repairs made on this house were necessary for the purpose of rendering it tenantable," and that they were made in the usual way. The bill of exceptions shows, that by the word "repairs" both parties meant all that was done to the house. The distinction attempted to be taken has not been supported by any authorities, and in common sense and jus- tice, there can be no discrimination between the right to make ordinary repairs, and such a thorough repair as is necessary for the purpose of rendering the house tenantable. It has been stated by the counsel of both parties, that there can be found in the books no adjudication on a policy against, fire analogous to the present. It becomes this court, then, ma- turely to deliberate before they sanction the doctrine contend- ed for by the appellees, which, contrary to justice and the un- derstanding and intention of the parties at the formation of 302 CASES IN THE COU11T OF APPEALS : X* JOLlY V TrtE BAIT MORE EXCITABLE SOCIETY, &.C. 1827 their contract, annihilates all claim to indemnity on the part of the insured, and yet leaves the insurer in the full enjoyment of the premium for responsibility. It perhaps scarcely ever hap- pens, that during the period of seven years, the usual term to which such policies are limited, some trifling alteration or ad- dition is not made to the property insured; as a new door or window opened, an additional closet, shelf, or such like fixture erected. Any ot which acts, if the grounds assumed by the appellees are supported, change the identity of the property, create a new risk, and absolve the underwriters. Indeed, if alterations and additions are per se a change of the risk, it would follow, that the erection of a parapet wall in a cit}-, a substi- tution of brick for a wooden floor, or a marble for a wooden mantlepiece, or the introduction of a coal-grate in a chimney constructed for wood as the only fuel, though .lessening the peril would discharge the policy; as, according to the princi- ples of maritime insurance, every change of the risk exonerates the underwriter, whether the danger be increased or diminish- ed, or happen the loss from whatsoever cause it may. To in- fer, without any express provision or necessary implication arising out of the contract itself, or public policy demanding it, that the insured surrendered all right to make such common place, trivial, unimportant additions to, and alterations of his property, as its safety or his convenience or comfort might sug- gest, is a construction too rigorous to be rational. The effect of which would be to render worse than useless those most useful and indispensable institutions in populous cities the Fire Insurance Companies, and give a fatal stab to our enter- prising manufacturers. Who, if suing for a loss under a policy covering the manufactory and machinery, would be turned out of court without remedy or hope, if perchance the insurer could prove that the most immaterial alteration or improve- ment were made in his machinery by substitut ; ng the power of the screw for that of the lever, the leather strap for the iron wheel, or the iron for the wooden shaft. But suppose all the rules of marine insurance applicable to the question at bar, ean a case be found in which it was ever contended that to add to the equipment of a vessel insured a yard more of canvass, or an additional cleet or clew line, was to vacate the insurance? OF MARYLAND. JOLLY v. THE UALTIMOUE KHUITABLE SOCIETY, &.c. 1827. The numerous and warmly litigated questions of deviation and change of risk, which burthen the records of courts of jus- tice, bear no analogy to that now under consideration. There, departing from the course of the voyage, or performing it at any other lime than that required by the policy, subjects the vessel to different perils than those contemplated by the con- tracting parties; a flaw, a whirlpool, a breaker, may be encoun- tered in one course of the voyage, which would be a cause of neither danger nor alarm at a mile's distance. The tempests or casualties attending the performance of- a voyage to-day, bear no similitude or proportion to those attendant on a like voyage of to-morrow. But no such total revolution is wrought in the perils to a house insured against fire, which has undergone al- terations or repairs; it remains subject to the same perils, al- though their degree may be increased or diminished. It be- comes a question of increase, not of change of risk, for the as- certainment of which the jury, and not the court, is the pro- per tribunal. The only authority which was strongly relied on by the ap- pellees' counsel, and which was pressed as strictly analogous to the case before the court, was that of The Maryland Insur- ance Company vs> Le Roy, and others, 1 Cranch, 26, which was considered as turning, not upon the common principle of deviation, but upon the ground of a torfeiture of the insurance by a change of the cargo insured. The suit there instituted was upon a policy on the ship, and the right to recover, there- fore, could not be affected by any change in the cargo, unless the risk were increased, or it were a violation of an express warranty. The supreme court, in reversing the judgment of the circuit court, negative the idea that their decision was bot- tomed on an increase of risk, and furnish not the slightest pre- text for placing it on the ground of an express warranty. It cannot, therefore, be viewed as determining any other than the familiar question of deviation; and although the reasoning of the court is not marked with that precision and perspicuity, which is usually displayed by the learned judge, by whom the opinion was pronounced, yet great reluctance would be felt in, putting a different construction upon it, after an examination o( 304 CASES IN THE COURT OF APPEALS JOLLY v. THE BALTIMORE EQ.UITABLK SOCIETY, &c. 1827. the authorities on the subject, the facts in the cause, and the grounds upon which the reversal was claimed. The ship was insured "at and from New York, to five ports on the coast of Africa, between Castle D'Elmina and Cape Lo- pcz, including those ports, with liberty of touching and trad- ing at all or any of said ports backwards and forwards, and at and from her last port on the coast to New York; with liberty of touching at the Cape, de Verds, on her return passage, for stock, and to take in water." The declaration was for a total loss by the perils of the sea; and the bill ol exceptions, among other facts, stated, "that the ship, in the prosecution of her voyage, arrived at the island of Fo%o, one of the Cape de, Verd Islands, on the 7th of May 1S05, where the captain re- ceived on board four bullocks and four jack asses, besides wa*- ter and other provisions, and unstowed the dry goods, .and broke open two bales, and took out forty pieces of each for trade. That the ship remained there until the 24th of May. That the time generally employed by a vessel in taking in Stock and water at the Cape de Verd Islands, is from two to three days, unless the weather should be very unfavourable; that the weather was good; and that the bullocks and jack asses encumbered the deck much more than small stock would have done." Upon these facts the court were prayed to in- struct the jury, that the taking the jack asses on board the ship, while she lay at the Island Fogo, was not within the privilege allowed to ihe insured to touch at the Cape de Verd Islands, in the performance of the voyage insured, for the pur- chase of stock, and to take in water, and therefore vitiates the policy; which direction the court refused to give; but the court directed the jury, that the taking in the four jack asses at the island as aforesaid, did not avoid the policy unless the risk was thereby increased. To this direction an exception was taken; and Mr. Pinkney, in showing error, alleges "that the court re- fused to say that the taking in of the jack asses discharged the underwriters, although it might produce delay. It is not stat- ed that it did not produce delay, and the evidence shows that it did. The principle of deviation is not increase of risk, but delay. If, therefore, here was any delay, the policy was void from that time." By thus arguing, that eminent lawyer ad- OF MARYLAND. 3(56 Joi.i.v f. THB BALTIMORE KQ.UITAHLE SOCIETY, &c. 1827- ' mils that the policy wis not vacated by the simple fact of tak- ing the jack asses on board, but by the delay at the Island of FogOy for which delay no other reason was assigned. Indeed, when \vc advert to the facts in the cause, that the ship remain- ed fourteen days at Fogo without pretext or apology for so do- ing, it is difficult to imagine how a momentary doubt could ex- ist on the question of deviation. And it is much more difficult to comprehend why an objection so obviously fatal to the claims of the insured, should, by the prayer of the underwriters, be so loosely arid indistinctly presented for decision to the court be- low. That the supreme court, by whom it was decided, view ihiscasc as turning principally on the 'point on which it is here made to depend, is manifest from the review taken of it by Chief Justice Marshall, in Hughes vs Union Ins. Co. 3 IVhcat. 166. lie says, "the assured traded, and the delay was consi- derable and unnecessary; the risk, if not increased, might be and certainly was varied." But admit that the interpretation which has been given by the appellees' counsel to the case of The Maryland Ins. Co. vs Le Roy, and others, be correct, and that the court there decided that the taking on board the jack asses, whether it caused delay or increased the risk or not, discharged the underwriters, this court should not follow a de- cision at war with reason, justice and public policy, which is bottomed on a nisi jirius determination, long since acknow- ledged by its author to have been overruled; and which is in- consistent with numerous decisions of tribunals of the highest authority made after argument and due deliberation. Among which may be numbered the cases o( Raine vs Sell, 9 East, 195. Kane vs Columbian Ins. Co. 2 Johns. Rep. 264. Cor- mack vs Gladstone, 11 East, 347. Laroche vs Oswin, 12 East, 131. Kingston vs Girard, 4 Dallas, 274; and Hughes vs Union Ins. Co. 3 Wheat 159. The case of Stetson vs The Massachusetts Fire Ins. Co. 4 Mass. Rep. 330, (not cited in the argument) though not contain- ing the same facts, yet presented for decision a question, which in principle cannot be distinguished from that now before the court. In his proposals for insurance Stetson represents his house, (on which insurance was required,) as connecteu with, other buildings on one side onlyj and such at.tho time was the- VOL. j/ 39 306 CASES IN THE COURT OF APPEALS JOLLT v. THE BALTIMORE EVJITABLE SOCIETT, &c. 1827 fact. Under the authority derived from the insured a frame build- ing was subsequently erected and joined to the house insured, so that it became connected, in relation to other buildings, oa two of its sides. . It was afterwards consumed by fire, together with the building annexed to it. By one of the articles of the company (to the operation of which all persons contracting with them are subjected,) it is provided that the insurer may declare the policy null and void in all cases where the insured shall have repaired or enlarged a building, and thereby rendered the risk greater. The question submitted was in effect, whether the court could ex natura rei pronounce the erection of tho frame building an increase of risk, or whether that fact were a matter to be found by a jury. The learned juflge, by whom the opinion of the court was pronounced, states, "tint the ques- tion may be examined upon general principles, and upon the terms of the contract." In considering it on general princi- ples he states, that "if every the least alteration or enlargement of a building insured against fire is necessarily and of course material to the risk, and whenever it is made by the act or consent of the insured, is to vacate the policy, unless it should be renewed by the insurer, so close a restraint upon the party would place contracts of this kind in a state of complete un- certainty, and would render them so inconvenient as wholly to prevent them." That "the true reason why in a case of ma- rine insurance, a deviation discharges the insurer, is not the increase of the risk, but that the party contracting has volun- tarily substituted another voyage for that which was insured. This change of the voyage determines the contract from the time it happens. The same strictness is not requisite in an insurance against fire, where the building, although enlarged or repaired, remains the same: and it is only necessary to guard the insurer from an increase of risic, by an alteration of the building in- sured." He further states, that it is obvious that "an alteration may diminish and not increase the risk; and if this may be rea- sonably supposed in any case, then, whether the enlargement of a building insured has increased the risk of the insurer, is a question of fact to be determined by the jury." It should not bo forgotten, that there is no express stipulation restricting the insured as to the acts of ownership he may ex- OF MARYLAND. 307 JOLLY . THE BALTIMORK KQ.UITABLE SOCIETY, &c. 1827. ercise over liis property $ or the repairs or alterations he may cause it to undergo. All restraints of this character, therefore, arise from necessary implication, founded on the presumed in- tentions and understanding of the parties; and are such as are called for by the dictates of reason, 'justice or public policy. Apply this doctrine to the tase at bar, as exhibited in the ap- pellants' proof, the truth of which must be conceded in grant- ing the prayer .of the appellees. All the work was done in the usual manner, and was necessary to render the house te- nantable. The insurer, before he assumed the risk, viewed the property, examined its condition, considered all the casual- ties and incidents to which it might be liable, and, until the contrary is proved, is presumed to be as cognizant of these matters as the insured himself. Did he not know that the in- sured intended to derive benefit from the use and occupation of his house; that he contemplated keeping it in a tenantable con- dition? If so, does not reason, justice, and the understanding of the parties, revolt at the idea of an implication which should wrest from the insured the enjoyment of those important, in- valuable rights, for the security of which, cr an equivalent therefor, the very contract of insurance itself was effected? Nay, docs not common sense, public policy, and fair dealing between man and man, demand that you should consider it as having been the intention of the parties, and as of the very essence of the contract, that the insured should exercise such acts of ownership over his property, as were necessary to keep it in tenantable condition? This being a case in which the intervention of a jury way indispensably necessary to adjust the rights of the contending parties, the county court erred in granting the prayer of the appellees, that the appellants were not entitled to recover; for which their judgment should be reversed. JUDGMENT REVERSED, AND TKOCEDENDO AWARDED. CASKS IN THE COUKT OF APPEALS . I-I.ANNAGAN.- , et al. vs. FLANXAGAN'S Adnrr. June, 1827. The jury alone are competent to decide on facts of which contradictory* evidence may be offered Before the court can legally give an instruc- tion to the jury, on the prayer of one of the parties, they must admit the truth of the testimony offered by the other, and 1hat also offered by tha first, which may operate in his opponent's favour, and the existence of all material facts reasonably deducible therefrom, even though contra- dicted in every particular by the testimony of him who seeks the in- struction. Upon no other principle can the case be withdrawn from the consideration of the jury. . Where the extent and limits of property leased are not exactly defined by the contract under which a tenant took possession, and in an action to recover the rent, the tenant relied upon an eviction of part of the de- mised premises by a third person claiming under his landlord, as bar to its payment, the jury should look to all the facts in evidence, and from them determine the limits of the tenant's lease, and whether there was an eviction or not. Where a landlord having 1 leased property to one tenant, subsequently lesv esa part of the same to another, -the- first is under no obligation to resist the second by force in taking possession; and notice by the first to the Second tenant, (after a distress levied by the landlord on the former,) that he should consider him his tenant, is nugatory and inoperative. Joint property in the possession of one of the owners, may be seized and sold under a fieri facia* against him only; and the purchaser's right would be complete to the extent of the interest of him against whom the execution issued, and he might hold accordingly. Where F, a ship-carpenter, contracted with C to build him a sloop, for which C was to pay as the work advanced, and furnish all the materials and labour except what appertained to the ship-carpenter's work, the vessel being in F's possession, not entirely paid for, and nearly finish- ed, was levied on by the landlord of the ship-yard as a distress for rent Held, that F hud an interest in the vessel to the extent of his carpenter's work not then paid for, liable to seizure and sale on process for the reco- very of debts, or rent due by him. One joint owner of a chattel cannot maintain replevin against another. APPEAL from Baltimore County Court. Replevin by the appellee agai;;sf. the appellants for a sloop or vessel on the stocks, taken in a certain place called The Ship Yard of the plaintiff. The defendants avowed the taking, &c. for two years rent in arrear of the lands and tenements in which, &c. under a de- mise thereof made by the defendants to the plaintiff's intestate, on the 18th of August 1813, at the yearly rent of $500; and be- cause $1200 were due for two years, &c. well avows the taking, &.c. for and in he name of a distress for the said rent, &c. The plaintiff pleaded to the avowry 1. That the plaintiff's inteja- OF MAHYLAXD. 30 v. FLAWWAGAW. 1827. tate did not hold or enjoy the said place in which, &c. as te- nant thereof to the avowants under the supposed demise there- of, &c. 2. That no part of the supposed rent was or is in ar- rcar, &c. Issue tendered. 3. That the said place in which, &c. was parcel of a close which the plaintiff's intestate held as tenant to the avowants a long time before the time when the said distress was made; and that the avowants, a long time be- fore the time at which the said distress was made, and before the time at which the supposed rent for which the said distress was and is pretended to have been made, or any part thereof, was supposed or pretended to be due, entered wrongfully into the said close, and put out the plaintiff's intestate from a great part thereof, &c. 4. That the plaintiff's intestate was a ship- carpenter, and that the said place, in which, &c. was occupied by him as a common and public ship-yard for the building and repairing of ships and other vessels; and that the said goods and chattels were the property of one William Carman, and were a certain sloop or vessel upon the stocks -and unfinished, and at the time of the said distress was in the possession of the plaintiff's intestate in the said public ship-yard, in the ordinary course of his trade as a ship-carpenter, for the purpose of be- ing built and finished, and for no other purpose, and that the plaintiff's intestate had no property therein except as bailee as aforesaid of the said Carman, &c. The defendants joined is- sues to the first and second pleas. To the Mm/ plea they re- plied, that they did not, before the time at which the distress was made, and before the time the said rent was due, enter wrongfully into the said close, and put out the plaintiff's intes- tate, &c. Issue joined. To the fourth plea they replied, that the said goods and chattels were not the property of Wil- liam Carman, and the sloop or vessel was not, at the time of the distress, in the possession of the plaintiff's intestate, in his public ship-yard, in the ordinary course of his trade, &c. and and that he had property therein. Issue joined. % 1. The avowants, at the trial, gave evidence, that in the year 1S10, William Flannagan, the plaintiff's intestate, rented of Thomas M'Elderry, under whom the defendants claim, part nf the property, for the rent of which the distress was laid it| 310 CASES IN THE COURT OF APPEALS M'ELDEHRT y. FLANNAOAN. 1827. this cause, at the rent of $500 per annum, and afterwards rent- ed another part of said property at the additional rent of $200 per annum; and that the property thus rented extended from, &c. That afterwards Flannagan on the 18th of August 1811, rented by parol of the defendants the whole property from *3, round to N, for five years, for $1200 per annum. That after Flannagan had enjoyed the same for somewhat more than one year, the avowants having received a proposition for the rent- ing of the wharf from /to M, called upon Flannagan and asked him if he would give up a part of said wharf for a pro- per consideration, to enable them to make a lease in perpetuity to Martin F. Maker; that Flannagan in July 1813, agreed that the avowants should lease to Martin F. Maker a part of aid property called the New Wharf * as described in the lease to them; and that he, Flannagan, should rent the residue in liis possession at the rate of $600 per annum; and that Flanna- gan enjoyed the property from .# to / for two years next after this 18th of August 1813, and until the time of the distress which was laid by the defendants. And the avowants further proved, that immediately upon said agreement the avowants executed the following lease, to said Maker, dated the 29th of July 1813, for all that lot, piece or parcel of ground, situ- ate, lying and being in the city of Baltimore, and contained within the following metes and bounds, courses and distances, to wit: Beginning, &c. To have and to hold, &c. for 99 years, at the yearly rent of $2125, with the usual covenants to pay the rent, and liberty to re-enter on nonpayment, &c. Which lease extends from /to M; and that Flannagan having some timber on said part so leased to Maker, he removed the same from off said lot when requested so to do; and that Flanna- gan was present and saw the improvements made by Smith and Maker on the whole of said lot, and never objected to the game. That Maker paid rent to the avowants for his part of said lot up to the time of laying the distress in this case, and was never forbidden so to do by Flannagan. And that after the said lease was made by the avowants to Maker, the front of which, from /to M, was lying on the navigable waters of the Basin of Baltimore, Maker applied to the port wardens of Baltimore for permission tq, drive the piles from H to N t which P MARYLAND. 311 M'ELDEUBY i' FLAJI.VAOA* 1827. permission was granted to him by said port wardens, and that said piles were not driven by the direction or authority of the avowants, or either of them; and that during all the holding of flannagan there wasachained moveaWe floating log fixed with one end to //, and the other on the piles, long enough to per- mit vessels and timber to come to the wharf from //to 1, thi* log serving as a door for that purpose, and that there never was a period during the whole of said renting by Flannagan, in which there" was not ample room on the other part of said de- mised premises, at which he might land lumber or carry in ves- sels, those being the only two purposes for which said whart was requisite. The avowants further gave in evidence, by one Daniel Conn) a competent witness, that after the two years rent became due, which are in controversy in this cause, he went with Mrs. M-Elderry, one of the avowants, and one of the lessors of Flannagan, to Flannagan, to require of him the payment of said two years rent. That they saw Flanna- gan, who objected to pay it, but that nothing was said about any other rent than that now in dispute. The plaintiff, in order to support the third issue on his part, gave in evidence, that Wil- liam Flannagan, the original plaintiff in this cause, some time prior to the year 1810, held as tenant to Thomas M'El- derry, deceased, whose heirs at law the defendants are, at the annual rent of 500, a portion of the property known by the pameof M'Elderry's Wharf, beginning for the water front of said portion of property at the point marked JL upon the plot hereunto annexed, and running thence southerly to B, and thence round to 0; that one Ludwig Herring occupied under the said Thomas M'Elderry, and as his tenant, about 80 feet froKt, or thereabouts, lying immediately north of the point .#; and that one Salisbury occupied the lower end of the wharf; that at that time the wharf extended as far south as the line H I R; and that there was also an unfinished wharf projecting southwardly from the line / R, about 60 feet; that Salisbury occupied the whole lower end of the wharf, including the said unfinished wharf or projection, and the water right in front thereof, and of the line HI. That by a contract made be- tween the said Thomas M'-Elderry and Flannagan, sometime ia 1810, the said M'Elderry demised to Flannagan the whole 312 CASES IN THE COURT OF APPEAL* M'ELDEHHT v. FLANNAOAN. 1827. of said wharf property, which had been rented both by Flan- nagan and Salisbury, ai the annual rent of 700. That subse- quent to the said last mentioned demise the wharf was extend- ed to its present limits, as laid down upon 'the plot, southward- ly from the termination of the old wharf to the point J/and JV. That after the said extension, the defendants, who ha;l then succeeded to the property upon the death of Thomav M'Elderrij) whose heirs at law they are, demised by parol, to Flannagan, the whole of said wbarf property beginning at # round to N, at the annual rent of $1200 for five years, com- mencing on the 18th of August 1811. That on the 29th of July IS 13, the defendants leased to Job Smith, and others, at the annual rent of $2125, all that part of the wharf which is south ot the line H I JR. That Smith, and others, entered and look possession of the part of the whari so leased, and drove piles in the place indicated by the dotted curved line from // to Nj to the utter destruction of that part of the wharf called the South Cross Wharf; that is to say, that part of the wharf from //to /. That the said piles, and the occupier of the West front wharf running southerly from / to M by the said last mentioned lessees, not only deprived Flannagan of the use of all that part of the property south of the line ////?, but rendered the south front wharf from //to /of no use or valus to Flaninagan. That the said south front wharf had previously been of great importance to Flannagan. That Flannagan was a ship-carpenter, and that the said south front wharf was, on account of its situation in relation to the part, particularly adapted for the purpose of heaving down vessels, and was employed by Flannagan for that purpose; one large brig was actually hove down at the said south front wharf. Af- ter the said lease from the defendants to Smith, and others, no vessel could be hove down at said south front whari, as well on account of the driving of the piles aforesaid, as of the occupa- tion of the west front wharf, running southwardly from /, by the said last mentioned lessees. The plaintiff further proved by William Carman, a witness sworn in the cause, that in the month of March 1813, the defendants leased to the witness 100 feet of ground for 99 years, renewable for ever, at the rate of five dollars per foot per annum, by deed dated the Sth o OF MARYLAND. 313 r FLAS.VAKAN March 1813, and which was executed by Elizabeth* John and Thomas M-EUerry, in virtue of an act of assembly appt int- ing them trustees, &c. to William Carman, James Mosher and Robert Carey Long, in the proportion of one undivided half to Carman, one undivided fourth to Mosher, and the remain- ing undivided fourth to Long, &c. And that in pursuance of, and by authority of said lease, the witness entered into the said 100 feet of ground, and began to remove some lumber and timber belonging to Flannagan from off the same, and to dig the foundation for an office. That while so removing said tim- ber and lumber, and digging said foundation, Flannagan came to witness and told him he was encroaching on the grounds leased to him, Flannagan, by the defendants. That witness replied that he did not know how that was; that he had a lease of the ground, and that he, Flannagan., would have to settle it with the defendants. That the witness proceeded to remove, and did remove the lumber of Flannagan from off the ground, and dug the foundation, and built a brick office thereon, and enclosed the whole of said 100 feet of ground by a fence. The plaintiff further proved, that 16 feet of the 100 feet leased by the defendants to Carman, (from which 16 feet Carman removed the lumber and on which he built the office as before stated,) was part of the ground origi- nally leased by Flannagan from the defendants; and that Carman has continued to hold the said 16 feet under and by virtue of the authority of his lease aforesaid, ever since, and held the same as aforesaid during the time in which the rent in this case is alleged to have accrued. The avowants then proved, that about the time of the lease to Carman, he pro- ceeded to erect a brick shop on said 16 feet, and proceeded to remove some of Flannagan's lumber which was lying there- on; that Flannagan came and at first objected to it, but that Carman told him he had leased of M-Elderry, and then pro- ceeded to remove the lumber, Flannagan standing by and see- ing its removal without making any further objections; and that Flannagan never did object afterwards to the erection of said office, until the quarrel arose in 1816, and he sent Car- man notice that he should consider him his tenant. The plain- tiff then moved the court to direct the jury, that if they shall VOL. i. 40 314 OAStS IN THE COURT OF APPEALS M'ELDERBT v. FLANNAGAN 1827. believe the lease from the defendants to William Carman, as given in evidence, included a part of the ground to which Flannagan was entitled under his lease from the defendants of the 18th of August 1811, and that Carman, by virtue of his lease, entered upon such part, and thereby excluded Flan- nagan from the possession thereof, without bis consent and against his will, then such entry and exclusion suspended the legal right ot the defendants to demand rent from Flnnnagan for the whole or any part of the property so leased to him, as long as Flannagan was deprived of the possession of that part so leased and occupied by Carman, and included in the leasa from the defendants to Flannagan as aforesaid. Which opini- on and direction the Court, [Jlrcher, Ch. J.] gave. The avow- ants excepted. 2. The preceding evidence having been given, the avowants made the three following prayers to the court: 1st. If the jury should believe from the evidence, that on the 18th of August 1813, the date of the lease from the ayowants to Flannagan, upon which was reserved the rent of 600, Flannagan knew that Carman claimed, and had taken possession of, under his lease from the avowants, of the 16 feet lying between the lines on the plot from /? to, &c. that then they may presume that said 16 feet were not intended to be included in the lease afore- said to Flannagan. Which direction the court refused to give; but informed the jury that they should look to all the facts in evidence, and from them determine the extent and li- mits of the lease to the plaintiff. 2d. If the jury believe from, the evidence, that after Carman took possession of the 16 feet marked on the plot, Flannagan did not apply to the avow- ants in relation to said possession, but afterwards gave Carman notice to pay the rent of said 16 feet to him, Flannagan, that then Flannagan elected to take Carman as his tenant, and that his so doing prevents said possession from amounting to an eviction of Flannagan from the property held by him from the avowants. 3d. Upon all the evidence and pleadings in. this cause, the avowants prayed the court, to instruct the jury^ that they are entitled to recover. Which direction the court refused to give. The avowants excepted. OP MARYLAND. M'ELDERRT v. FLANNAGAN. 1827. 3. The plaintiff, in order to support the fourth issue on his part, gave in evidence that William Carman, mentioned in the fourth plea of him the plaintiff, agreed with William Fiannagan, the original plaintiff in this cause, that he, Flan" nagan, should build for him, Carman, a sloop, for which Car' man was to pay as the work advanced. That Flannagan ac- cordingly built a sloop for Carman, and that Carman paid to Flannagan money on account of the said sloop. That on the 27th of February 1816, the captain employed by Carman to command said sloop, commenced superintending the said sloop, and did actually superintend and work on board her, and that his wages commenced from that day, she then being upon the stocks. That the said sloop was intended to be launched upon the 1st of March 1816, about 12 o'clock at noon; that about 10 o'clock, A. M. on the said 1st of March, the defendants distrained the said sloop; that in the course of the day she was replevied, and was actually launched about 5 o'clock, P. M. of the same day. That previous to the distress, Carman had paid to Flannagan, for and on account of the said sloop, and in pursuance of the contract for building her, the sum of 1,450. That at the time of the distress the mast of the said sloop was in her, and she was as much. rigged as she could be previous 10 launching. That the joiners' work was all done; that she was painted and varnished. That there was much blacksmiths' work done upon her. That Flannagan had nothing to do with the rigging, joiners' work, blacksmiths' work, painting or varnishing the said sloop; but that the same were to be paid for by Carman. That there were other workmanship and materials employed in and about the s;iid sloop before the said distress, for which Carman had paid, or was responsible, and which were finished by persons other than Flannagan, and with which Flannagan had nothing to do. That Carman had paid, and was responsible for the sum of $710, and up- wards, for the workmanship and materials furnished and em- ployed in and about the said sloop, by persons other than Flan- nagan, and with which he, Flannagan, had nothing to do. That Flannagun was a ship-carpenter; and that the place tvhere the distress was made was his ship-yard. The defen- dants, to support the said issue on their part, gave in evindence, 816 CASES IX THE COURT OF APPEALS M'EniERRY v. FLASNAGAN. 1827. that there was due to Flannagan, on account of the said sloop, the sum of $333 66. That the contract between Carman and Flannagan was that Flannagan should furnish all the ma- terials for his work on said vessel, and should finish. the said sloop to a cleat. That the meaning of said contract, as under- stood by merchants and ship-carpenters, is that the whole of the ship-carpenter's work shall be done; that it is part of the ship-carpenter's work to launch the vessel, which is a difficult and dangerous operation, and until it is over, vessels are always considered at the risk of the builder. That said vessel was only measured, and her tonnage ascertained, after she was launched; and that said distress was levied whilst said vessel was on the Stocks, and before the carpenter's certificate was given for her; and it is quite usual for captains of vessels to superintend the building and equipping of vessels whilst on the stocks. The defendants then prayed the court, that upon the foregoing evi- dence, the plaintiff was not entitled to recover. Which opinion the court refused to give. The avowants excepted. Verdict and judgment for the plaintiff; and the defendants (the avow- ants,) appealed to this court. The cause was argued at the last June term before BUCHA- NAN, Ch. J. and STEPHEN, and DORSEY, J. R. Johnson, for the Appellants, contended upon the first bill of exceptions, 1. That admitting Carman, under his lease of the 8th of March 1813, took possession of 16 feet of the whole ground originally leased by the appellants to Flanna- gan, such possession did not in law amount to an eviction of Flannagan by the appellants, of those 16 feet, so as to extin- guish their right to the rent. 2. By the evidence, Carman's possession under his lease of the 8th of March 1813, of the 16 feet, was before the lease Stated in the avowry from the appellants to Flannagan of the 18th of August 1813, and did not interfere with Flannagan's enjoyment under his last lease, of any part of the property em- braced by it; and, therefore, did not operate to suspend or ex- tinguish the appellants' right to the reserved rent. 3. Upon the second bill of exceptions he contended, that the notification by Flannagan to Carman, after the date of OF MARYLAND. 317 M'F.LDKHBT v. FLANJCAGAN. 1827. Carman's lease from the appellants, operated to make Carman an under-tenant of Flannagan, and to prevent that lease from having the effect of evicling Flannagan from any part of the property leased to him by the appellants, so as to suspend the right of the appellants to demand, under the last lease, their rent from Flannagan. Upon the first and third prayers in this bill of exceptions, no question will be raised. 4. On the third bill of exceptions, he contended, that the form of this exception admits the lease stated in the avowry, and that the rent was due at the date of the distress, &c. 1. That as Flannagan continued in possession of the property distrained at the time of the distress, he had such an estate in the property as rendered it liable to distress. 2. That if he had not such an estate, it was because he had parted with his possession, in which event he had neither a general nor special property in the vessel distrained, and could not, therefore, as is the prayer in this exception, maintain this action for the vessel. On the first and second points, he cited Clayton vs Blakey, 8 T. R. 3. The act of 1766, ch. 14. Laidler vs Young's Lessee, 2 Harr. $ Johns. 69. 4 Bac. tfb. tit. Leases, &c. (S 3,) 212. On the fourth point, he cited 3 Blk. Com. 7. Zagary vs Furnell, 2 Campb. 240. M' Donald vs Hewett,15 Johns. Rep. 349. Allegre vs Maryland Insurance Company, 6 Harr. 4' Johns. 403. Mucklow vs Mangles, 1 Taunt. 318. Wirt, (Attorney General of U. S.) Meredith and Evans, for the Appellee. Upon the first bill of exceptions they con- tended, that an eviction of part of the land demised suspended the whole rent. 3 Bac. M. tit. Extinguishment, (A) 105. 6 Bac. M. tit. Rent, 49. Co. Litt. 148. a. Gilb. on Rents, 178. Eddowes vs Niell, 4 Dull. Rep. 134. The entry of Car- man was an eviction of Flannagan; and the act of Carman, \vasthe act of the appellants, his lessors. Co. Litt. 249, (note.) 217, (note 3.) Freeman vs Barnes, 1 Vent. 80. The lease to Flannagan was not a void contract under the statute of frauds, or the act of 1766, ch. 14. A parol lease from year to year for seven years, is not a lease for a year certain, but for seven years. Rob. on Frauds, 242, 243, (note.) Legg v$ -318 CASES IN THE COUIIT OF APPEALS M'EtDERKT v. FLASNABAS 1827. Strudwick, 2 Salk. 414. Birch vs Wright, 1 T. R. 378, 381, per Buller, J. A new lease of a part is no surrender of an old lease. A surrender of part is no surrender of the whole. 6 Com. Dig. tit. Surrender, (I 2,) 320. Rob. on Frauds, 258,259, 261. 4 Bac. Jib. tit. Leases, 217. 3 Bac Jib. 105. It is not a new lease of any part. The avowry does not state what part was demised. The first and second issues were found for the plaintiff without any direction from the court to the jury. Rob. on Frauds, 244. Doe vs Bell, 6 T. R. 471. As to the apportionment of rent Co. Lilt. 148. Com. Dig. tit. Suspension, (Ei.) On the third bill of exceptions. A landlord has a right to distrain any property on the premises, excepting that placed there for public convenience, and the benefit of trade and com- merce. Oilman vs Elton, 7 Serg. fy Low. 355 Here the property of sundry persons was taken as the property of one person. The vessel taken was the common property of diffe- rent mechanics if she was not the property wholly of Car- man. He was responsible to the mechanics. Take him as having a joint property with Flannagan, the distress was im- proper. Co. Lift. 47. But the whole property in the vessel was in Carman. Woods vs Russell, 1 Serg. 8? Low. 310. A mere right of possession is sufficient to maintain replevin. Smith vs Williamson, 1 Harr. Sf Johns. 147. Taney, in reply. Three questions arise under the third bill of exceptions on the fourth issue. 1. Was the right of pro- perty in the vessel in Flannagan or Carman? 2. If in Car- man, was she liable to distress? 3. If not liable, had the plain- tiff such a property in her as could support replevin? 1. The contract was for building the vessel. Carman had the right of action to claim the property, but the right continued to reside in Flannagan. A right under a contract, and a right of property, are two different things. If any thing is to be done to the thing contracted for, it is the right of the vendor, and not the right of the vendee. Until the vessel was launched she was the property of Flannagan not as bailee. The risk was Flannagan's if the vessel was destroyed in launching, &c. M' Donald vs Hewett, 15 Johns. Rep. 349. Woods vs Rus- OF MARYLAND. 319 M'ELDERHT v. FLANNAWAX. 1827. sell, 7 Serg. $ Low. 310. A person mixing his property with another's is to abide the consequences resulting therefrom. It cannot exempt the property from distress for rent. 2. The property was not privileged from distress. Oilman vs Elton, 7 Serg. Sf Low. 357. 3. The prayer in the third bill of exceptions went as to the- fourth issue, and was intended to apply to that issue only, although it was general. On the first bill of exceptions. The eviction is not under the lease to Maher, but under the lease to Carman. The other leases have nothing to do with the case. The lease to Flannagan commenced in August 1811. In July 1813, Flannagan agreed to the lease to Maker. The 16 feet were not then in his possession. The new lease by parol was in 1813, for a rent of $600 per annum. An evictiou {suspends the rent from the time of the eviction. By the Statute of Frauds all leases for more than three years were leases at will. (See the statute in 1 Bac. Jib. tit. Agreement, (C) 115.) If the lease is for five years, that would be a tenan- cy from year to year, so long as the parties agreed. This is the case in England. But our act of 1766, ch. 14, declares that leases for above seven years shall be recorded; but it left all leases for seven years, and under, as they stood before, and did not repeal the law as to such leases. The effect of a lease from year to year, is a lease for a single year. Looking back for several years they are united, and it is a continuing contract; but looking forward it is only a lease for a year. If a lease is for three years, and the term has expired, the lessor could not distrain at common law. Rob. on Frauds, 241. The evic- tion by Carman was on the 13th of March 1813. What was Flannagan 's interest at that time? His right then expired in August 1813. The agreement between him and the appellants was a new lease after August 1813, so that no rent could be exacted which fell due in August 1813, because of the evic- tion. But that eviction could not operate upon the new lease, which commenced in August 1813, at the expiration of the former lease. When he was evicted he had no interest. He got a new interest under the new lease. Hob. on Frauds, 242, (and note.J Here it cannot be presumed that the 16 feet 329 CASES IN THE COURT OF APPEALS M'ELDERRT V. FtANJfAGAIf. 1827. were included in the new lease, because they had been leased to Carman. An agreement to continue must be the act of both parties. Under the new lease Flannagan never was in possession, nor was to be, of the 16 feet leased to Carman. The presumption of a continuing lease is where the whole pro- perty remains in the possession of the tenant. The lease to Carman for the 16 feet was notice to Flannagan. Accept- ance of a new lease for a part, is a surrender of the old lease as to all except that part 4 Bac. tfb. 212, 217. Curia adv. vult. DORSEY, 3. at this term, delivered the opinion of the court. The correctness of the opinion given by the county court on the first bill of exceptions, depends entirely On the existence of a fact, of which, to view it in the aspect most favourable to ^he appellee, there is considerable doubt. By the demise of the 18th of August 1811, Flannagan held of the appellants, by parol, for five years, the whole of the wharf property al- luded to in any part of the proceedings in this cause. On the 8th of March 1813, the appellants leased to William Carman a part of it fronting 100 feet on the water; and on the 29th of the succeeding July, by the consent of Flannagan, made a lease of that part of said wharf called The. New Wharf, to Martin F. Maker, for 99 years renewable forever; and ac- cording to the testimony of the appellants, as stated in this bill of exceptions, he, Flannagan, agreed to rent the residue of said wharf in his possession, at the rate of $600 per annum. Whether, in the opinion of the court, according to the weight of testimony, this contract of July 1813, is to be considered as a surrender of all those parts of the wharf only which were leased to Maher, and an apportionment of the rent for the re- sidue, or as a surrender of the whole wharf, and an acceptance by Flannagan of a new lease of all that part of the wharf not included in Maker's lease, is wholly immaterial in deciding on the prayer made to the county court. Before the court could legally give the instruction prayed for by the appellee, they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants' favour, and the existence of all material facts I* MARYLAND* 321 v. FLANNAGAN 1827. reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee. Upon rto other principle can the case be withdrawn from the Consideration of the jury, who alone are competent to decide on facts of which contradictory evidence inay be offered. The agreement of the 29th of July 1813, us proved by the appel- lants, is therefore a concession In th/j cause* If there were no proof to show that the possession of Carman's lot was out of Flannagan at the time of that agreement, then were the court below justified in the opinion they hava given. But if there be evidence from which a fational mind could infer such a" fact, the county court have invaded the province o<* the jury* and their judgment must be reversed. The proof on the part of the appellee, is that Carman, in pursuance of his lease, en- tered upon his 100 feet of ground, erected a shop on 16 feet thereof, and enclosed the whole with a fence. The appellant* prove that this was done about the time of the lease to Car- man. When this testimony is coupled with the agreement of the 29th of July 1813, in which the word possession is usedj for no other purpose that is discernible, unless it be to exclude from the demise to Flannagan the lot leased to Carman^ can it be said that there is no evidence admissible to the jury to show possession in Carman at the time of such agreement? He who would refer to the case of Ludlow vs Ogdon, 2 WTieat. 178, (which however it must be admitted extends the power of a jury to the utmost verge of rationality,) would not hesitate in returning a negative answer to this question. The second bill of exceptions presents three separate pray- ers on the part of the appellants, all of which were refused by the court. In the decision on the first and third, the counsel of the appellee have stated their entire acquiescence; and of that made on the second thefe is as little cause of complaint. Whether there was an eviction or not depends upon all the cir- cumstances of the case, and not upon the two isolated facts which have been selected as the basis of the prayer. Flanna- gan was not bound to resist by force the acts of Carman itt taking possession of the lot demised to him, and his notifying Carman, after the distress was levied, that he should consider liim his tenant, did not make him so, or release him from his VOL. IT 41 CASES IN THE COURT OF APPEALS 1827. covenants to the appellants; and upon no principle of law or justice should an act so nugatory and inoperative be construed to divest Flannagan of an unquestionable legal right. The only question designed to be raised by the third bill of exceptions is, whether Flannagan had such an interest in the sloop, as could be the subject of a distress for rent. By the refusal to give the instruction demanded by the appellants, the court below have determined, that such a distress was unlaw- ful; and from this decision an appeal has been wisely taken. Even let it be conceded that all the materials and work of the blacksmith, the ship-joiner, the painter and rigger, were the general property of Carman, and that he had a like interest in the materials and workmanship of the carpenter to the ex- tent of his payments made on the sloop, and also that the ship- yard of Flannagan, for reasons of public policy, and for the encouragement of commerce, protects from distress the pro- perty of third persons, placed there in the ordinary course of business; yet is it not a proposition equally undeniable, that Flannagan had the same property in his materials and labour on the sloop, to the extent ot the balance due to him therefor? The privileges of his ship-yard cast around his interest no pro- tection, and it remained liable to distress in the same manner that his separate property would have been. Joint property, in the possession of one of the owners, may be seized and sold under a fieri facias against him only, and the purchaser's right would be complete to 'he extent of the interest of him against whom the execution issued ; and he might hold possession accord- ingly. In the present case, if under the Stat. of 17 Car. II, ch. 7, the jury be required by the appellants to ascertain the amount of property distrained, they must have limited its value to the balance due from Carman to Flannagan; and if de- clining to proceed under this statute, a general judgment for a return had been rendered, Carman, by application to a court of equity, would have recovered the sloop, upon his paying to the purchaser the balance due for it according to his contract Flannagan's interest being adjudged distrainable, his right to maintain replevin as the bailee of Carman, so much relied on in the argument, necessarily falls to the ground one joint owner of a chattel being incompetent to maintain replevin 0* MARYLAND. 323 f. FLASNAGAN. 1827. .against another. And upon no principle can the rights of the bailee, in such a case, be extended beyond those of his princi- pal. The case of Woods vs Russell, 5 Barn. $>' Aid. 942, urged by the appellee's counsel as conclusive upon the case before us, is clearly distinguishable from it. Here no act was done by Flannagan which could be tortured into an admission thai the entire property in the sloop should pass to Flannagan, but upon the payment of the whole price stipulated to be paid for her. There the ship-builder was privy to the chartering of the ship by him for whom she was built, assented to the measurement thereof, and gave the usual certificate of build- ing, &c. to authorise the granting to him a register, which is- sued accordingly, and could only have been ohtained by mak- ing an affidavit of ownership. These facts create an irresisti- ble implication, that the builder consented that the general pro- perty in the ship should be considered from that time as being in the defendant. And in that light were they viewed by the court. The rights of the party, for whom any article is built agree- ably to contract, is very strongly marked out in Mucklow vs Shingles, 1 Taunt. SIS. Royland contracted to build a barge for Pocock, and received from time to time, as the work proceeded, 190, the value of the barge. When it was nearly completed, Pocock's name w r as painted on the stern. Royland became bankrupt before its completion. The court held that the barge was not the property of Pocock until finished; that it was a quite different thing from a contract of sale. And Law- rence, Justice, stated that no property vested, till the thing is finished and delivered. Such a general rule, though applica- ble to the case in which it was pronounced, would be produc- tive of much inconvenience, and great injustice, if applied to the facts before us. There the contract was simply to build the barge. No agreement to pay the stipulated price as the work proceeded nothing to specify the particular barge to which the contract or money paid should attach nothing by which its identify could be ascertained. The delive- ry of any other barge would have been strictly a compli- ance with the contract. Not so here; the sloop was to be 324 CASES IN THE COURT OP APPEALS Umow BANK OF MAKTIAXD v. RiDBELT.-*-1827. paid for "as the work advanced," all the materials and labour, ex - r 'pt. what appertained to the ship-carpenter 's work, were to be furnished and paid for by Carman. The contract, there- fore, attached on and identified that particular sloop; the de- livery of no other would have been by Flannagan a perform- ance of his contract. Carman had, therefore, at the time of the distress, a general property in the sloop equivalent to the money paid, and labour and materials by him found on account thereof, but no further. The residue of the property therein remained in Flannagan, liable to seizure and sale, on process for the recovery of debts or rent due by him; and by no pro- ceeding in a court of law could Carman recover possession of the sloop until payment, or tender of payment, of the whole price specified by the terms o5 his contract. The opinion given by the county court on the second bill of exceptions is assented to; but that delivered by them on the Jirst and third bills of exceptions is dissented from. JUDGMENT REVERSED, AND PROCEDENDO AWARDED THE UNION BANK OP MARYLAND vs. RIDGELY. June, 1827. A plea of special non est factum is a general isaue plea, and like other gene- ral issue pleas need not be pleaded before the rule day, but may be re- ceived when the cause Is called up fov trial. When an amendment of the pleadings is made at the trial under the act of ! 09, eh. 153, s. 1, time is to be given during the term, to the adverse party to prepare to support his case; yet the cause is not, therefore, t be continued, unless the court shall be satisfied that a continuance is ne- cessary. Whatever apparent inconsistency there may be between the pleas of gene* ral performance and non est factum, it is the settled practice under the tatute, 4 Jinn, ck. 16, to receive them; for defendants are not confined to pleas strictly consistent- The only pleas now disallowed on the mere ground of inconsistency are the general issue and tender, and the reason is, that one goes to deny the existence of any, while the other admits some cause of action. The discretion vested in the courts by the act of 1809, eh 153, to order and allow amendments to be made in all proceedings whatever, before verdict, so as to bring the merits of the question between the parties fairly to trial, is not a capricious but a sound legal discretion; to the pro* Her exercise of which the party claiming it is entitled, and from which, be cannot properly be debarred by any rule, that is the mere creature f the court. OF MARYLAND. 325 Usiow BANK OP MARTIAN it . KIDGELI. 1827. It is a general rule of evidence that in a suit brought by a bank, one who is a stockholder and interested in the event of the suit is not a compe- tent witness in behalf of the institution, but that rule is not without ex- ception as where an interested corporator is called upon to prove liinv eelf either to be or to have been the depository of the muniments of his corporation. An interested corporator, however, is not a competent witness to prove, that a book continued to be one of the muniments of his corporation af-.er he had ceased to be the depository thereof. The adoption of a code of by-laws by a corporation need not necessarily be by writing, but may be proved as well by the acts and uniform course of proceedings of such corporation, as by an entry or memorandum in writing. Where a plaintiff in his replication sets out a code of by-laws of a corpo ration, which prescribe the duties of an officer of such corporation, and then assigns as a breach a violation of duties so prescribed, on which breach issue is tendered by the defendant and joined by the plaintiff", such by-laws are virtually admitted by the defendant in his pleadings. It is a general principle of pleading, that where a plea produce;, a direct affirmative and negative by denying the allegation in the declaration, it should conclude to the country, whether the affirmative of the issue is held by the plaintiff or defendant; and that the proof of the affirmative rests on him who asserts il. When new matter is introduced on either side, the pleading ought to con- clude with a verification. In the application of these rules, the plea of general non est factum in an action of debt on a bond, which by denying the allegation in the decla- ration, that it is the writing obligatory of the defendant, makes the issue between the parties, concludes to the country, and throws the whole proof of the execution of the bond, including the delivery, upon the plaintiff, who in that case asserts the affirmative. Under an issue joined upon a plea of general non eat factum, the defendant may give in evidence any thing which goes to show that the instrument of writing was originally void at common law as lunacy, fraud, cover* ture, &.c. or that it had become void subsequent to its execution- as by erasure, alterations, &c. for that plea puts in issue as well its continuance as a deed, as its execution. A defendant may plead specially any matter which he migh^ fjive in evi- dence under the plea of general non est factum; but if he chooses 10 do so, being new matter, he must do it with a verification, and holding the affirmative, he draws the burthen of proof upon himself. If a defendant seeks to avoid a bond for duress, infancy, usury. &c which cannot be given in evidence under the general issue, (lecompense of and for all such monies, bills, notes, goods, wares and effects, or other things whatsoever, of or belonging to the said President and Directors of the Union Bank of Maryland) or their successors, or of any other person or per- MARYLAND. 329 USIOH BASK OF MARTIAHI* v. KIDGELT. 1827. sons wherewith they, the said President and Directors of the Union Bank of Maryland, or their successors, shall or may be charged or chargeable, which, at any time or times, shall ap- pear to have been received or discharged by, or come to the hands, charge or custody of the said Ralph Higginbothom^ and which he shall not duly account for, pay, deliver or discharge himself from, to the said President and Directors of the Union Bank of Maryland, and their successors, or which he shall be found, confessed or proved to be wasted, embezzled, misspent or otherwise made away with, or unjustly detained by the said Ralph Higginbothom, or by any other person or per- sons by or through his means, privity or procurement, then the above obligation to be void and of none effect, otherwise to be and remain in full force and virtue in law." Signed and seal- ed by the obligors. The defendant, (the appellee,) craved oyer of the bond, and pleaded. First Plea. "That the plaintiffs ought not to have or main* tain their aforesaid action thereof against him, the said Nicholas, because he says, that the said Ralph Higginbothom, in tha condition of the said writing obligatory mentioned, from the time of the appointment of the said Ralph, as Cashier, by the said plaintiffs, and from the time of the making of the said writing obligatory, hitherto hath well and truly observed, per- formed, fulfilled and kept, all and singular the matters and things in the condition of the said writing obligatory mentioned and comprised, in all things therein contained on his part and behalf to be observed, performed, fulfilled and kept; and hath from time to time made and given unto the said plaintiffs, a just and true account in writing, and hath discharged himself of, for and from, and hath likewise paid and delivered unto the said plain- tiffs, all such sum or sums of money, bills, notes, goods and things whatsoever, which he, the said Ralph, did, from time- to time, receive, discharge, or which came to bis hands, charge or custody, of or belonging to the said plaintiffs, or of or be- longing to any other person or persons whatsoever, wherewith the said plaintiffs should or might have been charged or charge- able; and also, that he, the said Ralph, hath, in all things, well and truly performed the duties of a cashier to the said plain* VOL. I* 43 33$ CASES IN THE COURT Q* APPEALS UNION BANK OF MARYLAND v. RIDHELT. 1827. tiffs, to wit, at the county aforesaid, and this the said Nicholas is ready to verify: wherefore he prays judgment if," &(\ Second Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, the said Nicholas, because he says, that by a certain act of the general assembly of this state, made and passed at a session of assem- bly, begun and held at the city of Annapolis, on the fifth day ot November, in the year eighteen hundred and four, and end- ed the twentieth day of January, eighteen hundred and five, entitled, An act to incorporate the stockholders in the Union Sank of Maryland^ the proprietors of shares in the said bank, as well as those who might thereafter become stockholders, their successors and assigns, were created and made a corpora- tion and body politic, by the name and style of The President and Directors of the Union Bank of Maryland; and it was, amongst other things, enacted by the said act, that the same, that is to say, the said act, should continue in force until the expiration of the year eighteen hundred and fifteen, and until the end of the next session of assembly thereafter. And the said Nicholas further says, that at the time the said Ralph Higginbothom, in the said supposed writing obligatory men- tioned, was appointed cashier of the said Union Bank of Ma- ryland, by the directors thereof, and at the time of the making of the said writing obligatory, to wit, on the thirtieth day of March, in the year eighteen hundred and five, the said Presi- dent and Directors of the Union Bank of Maryland, were acting under, and conformably to, the said act of assembly; and under and by virtue, and in pursuance of saidact, the said Ralph Higginbothom was appointed cashier as aforesaid, and that the said supposed writing obligatory was made and delivered to secure the faithful performance of the duties of cashier, and of the other acts and things therein mentioned, by the said Ralph y for and during, and until the expiration of the said act of in- corporation or charter, and no longer, to wit, at the county aforesaid. And the said Nicholas further says, that the said Ralph Higginbothom, from the time he was so appointed cashier as aforesaid, and from the time of making of the said supposed writing obligatory, and from thence until the expira- tion of the year eighteen hundred and fifteen, and tmtil the end OF MARYLAND. 331 Uwios BANK OF MARTLAXD r. HIDGELY. 1827. of the next session of assembly thereafter, to wit, until the sixth day of February, eighteen hundred and seventeen, hath well and truly observed, performed, fulfilled and kept, all and singular the matters and things in the condition of the said sup- posed writing obligatory mentioned and comprised, in all things therein contained, on his part and behalf to be observed, per- formed, fulfilled and kept; and hath from time to time, made and given unto the President and Directors of the Union Sank of Maryland, for the time being, a just and true ac- count in writing, and hath discharged himself of, for and from, and hath likewise paid and delivered unto the President and Directors of the Union Bank of Maryland, for the time being, all such sum or sums of money, bills, notes, goods, and things whatsoever, which he, the said Ralph did, from time to time, receive, discharge, or which came to his hands, charge or custody, of or belonging to the President and Directors of the Union Bank of Maryland, for the time being, or of or be- longing to any other person or persons whatsoever, wherewith the said President and Directors of the Union Bank of Ma- ryland, for the time being, or their successors, should or might have been charged or chargeable; and also, that he, the said Ralph, hath, in all things, well and truly performed the duties of a cashier to the President and Directors of the Union Bank of Maryland, for the time being, to wit, at the county afore- said; and this the said Nicholas is ready to verify: Wherefore he prays judgment if," &c. Third Plea. "That the plaintiffs ought not to have or main- tain their aforesaid action thereof against him, the said Nicholas, because he says, that the act of assembly incoiporating the said President and Director's by its original limitation, would have expired long before the commencement of the said action, to wit, on the sixth day of February, in the year eighteen hundred and seventeen, and that the said act was continued and extend* ed by an act of assembly, passed at December session, eighteen hundred and fifteen, entitled, An act declaring the continua- tion and extension of the charters of the several banks therein mentioned, upon condition that the said President and Direc- tors fulfilled and complied with the terms and conditions of the act of assembly, passed at December session, eighteen nun* 332 CASES IN THE COURT OF APPEALS USION BANK OF MAHTLAND v. KIDGELT. 1827. dred and thirteen, entitled, A supplement to the act, entitled, An act to incorporate a company to make a turnpike road lead- ing to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other pur- poses. And the said Nicholas in fact says, that the said Presi- dent and Directors have not fulfilled and complied with the terms and provisions of the said last act; because the said Presi- dent and Directors have not subscribed for as much stock in the company incorporated by the said act, as by the second sec- tion of the said act, the said President and Directors were directed and ordered to subscribe for; and because the said President and Directors, though directed and ordained by the seventh section of the said act so to do, have not paid annually On the first day of January, after the first day of January, eighteen hundred and fifteen, the sum of twenty cents upon every hundred dollars of the capital stock of the said Presi- dent and Directors, which was and has been actually paid into the treasury of the western shore of the state of Mary- land, but, on the contrary, the said President and Directors have neglected to pay the same, as well when the same became payable, as for the space of six months thereafter, to wit, at the county aforesaid. By means whereof, and long before the commencement of the present action, to wit, on the fifth day of February, in the year eighteen hundred and seventeen, the charter of or the act incorporating the said President and Di- rectors, became and was null and void, and of no force, and the said President and Directors ceased to have any right to have or maintain any action or suit whatever, to wit, at the fcounty aforesaid ; and this, the said Nicholas is ready to verify* Whereupon he prays judgment if," &c. fourth Plea. "That the plaintiffs, their action aforesaid thereof against him the said defendant, ought not to have or maintain, because he says, that it was the duty of a committee of the board of directors of the said bank, consisting of at least three of their number, to visit in rotation at least once in every three months during the time which said Ralph was cashier of the said Union Bank, the vaults in which the cash and other' Valuable effects belonging to or in the custody of the said bank, "Were deposited j and also, to make, or cause to be made in their <>F MARYLAND. 333 HA.NK OF MAUYLASU v. RIDUELT 18:27. presence an inventory of the same, to be compared with the books, in order to ascertain their agreement therewith, and make a report to the board. And the said defendant avers, that a committee of the board of directors, consisting of at least three of their number, did not visit in rotation at least cnce in every three months, during the time which said Ralph was cashier of said Union Bank) the said vaults, nor did the said committee make, or cause to be made in their presence, an inventory of the said cash and other valuable effects to be com- pared with the books, in order to ascertain the agreement of the said cash and other valuable effects with the said books, nor did the said committee make a report to the board, but on the contrary thereof, the aforesaid matters and things, which it was the duty of said committee to have done, they wholly ne- glected and omitted to do, to wit, at the county aforesaid. And the said defendant further says, that any loss, damage or injury, which may have happened to, or been sustained by the said plaintiffs, has happened and been sustained by reason and on account of the said neglects and omissions of them the said plaintiffs; and this he is ready to verify; wherefore the said de- fendant prays judgment if," &c. Fifth Plea. "That the plaintiffs ought not to have or maintain their aforesaid action thereof against him, because he says, that by a certain act of the general assembly of this state, made and passed at a session of assembly, begun and held at the city of Annapolis, on the fifth day of November, in the year one thousand eight hundred and four, entitled, An act to incorporate the stockholders in the Union Bank of Mary- land, the proprietors of shares in the said bank, as well as those who might thereafter become stockholders, their successors and assigns, were created and made a body politic and corporate, by the name and style of The President and Directors of the Union Bank of Maryland, and it was amongst other things enacted by the tenth section of the said act, that certain rules, restrictions, limitations and provisions, should form and be fun- damental articles of the constitution of the said corporation. And the said Nicholas further saith, that by the second of said fundamental articles of the said constitution, it is, amongst Other things, provided, that no director, having served for thr^c 334 CASES IN THE COURT OP APPEALS UNION BANK OF MARYLAND v. RIDGELT. 1827 years successively, shall be eligible for the two succeeding years thereafter. And the said Nicholas further saith, that at the time the said Ralph Higginbothom, in the said supposed writ- ing obligatory mentioned, was appointed cashier of the said Union Bank, by the directors thereof, and at the time of the making the said supposed writing obligatory, to wit, on the twentieth day of March, in the year one thousand eight hun- dred and five, the said President and Directors of the said Union Bank of Maryland, were acting under and by virtue of the said act of assembly and conformably thereto. And the said Nicholas further saith, that afterwards, to wit, on the thir- ty-first day of December, one thousand eight hundred and six, at a session of the general assembly of this state, begun and held at the city of Annapolis, on the third day of November, in the said last year, an act was made and passed by the said general assembly, at the request and solicitation of the said President and Directors of the Union Bank of Maryland, and without the knowledge or consent of the said Nicholas, entitled, An act supplementary to an act, entitled, An act to in- corporate the stockholders in the Union Bank of Maryland; by which said supplementary act it was enacted, that so much of the said second fundamental article of the constitution of the said bank, as rendered a director, after serving for three years successively, ineligible for the two succeeding years, should be, and was thereby repealed. And the said Nicholas further said, that the said President and Directors of the said bank, and the stockholders therein, assented to the said repeal of so much of the said second fundamental article, and have always, ever since, acted under and conformably to the said original act, as thus altered, and in part repealed, and that at an election of di- rectors of the said bank, held on the first Monday in July, in the year one thousand eight hundred and eight, sundry persons who had been elected and served as directors of said bank, for three successive years previous to the said last mentioned day, were and have been, ever since, continually re-elected directors of said bank, and served as such. And the said Nicholas fur- ther saith, that the said Ralph Higginbothom, from the time of his appointment as cashier of said bank, and from the time of the making of the said supposed writing obligatory, and OF MARYLAND. 335 UNIOX BANK OF MARYLAND v. RIDGELT. 1827. from thence until the said first Monday in July, in the year last aforesaid, did, from time to time, make and give unto the said President and Directors of the Union Bank of Mary- land^ just and true account in writing, and discharge himself, of, for and from, and did likewise pay and deliver to the Pre- sident and Directors of the Union jSank of Maryland, for the time being, all such sum or sums of money, bills, notes, goods and things whatsoever, which he the said Ralph did, from time to time, receive, discharge, or that came to his hands* charge or custody, of or belonging to the said President and Directors of the Union Bank of Maryland, or of or belong- ing to any other person or persons whatsoever, wherewith the said President and Directors of the Union Bank of Mary- land, for the time being, or their successors, were or might have been charged or chargeable; and also, that he, the said Ralph did, in all things, well and truly perform the duties of cashier to the said President and Directors of the Union Bank of Maryland, for the time being, to wit, at the county aforesaid; and this, the said Nicholas is ready to verify; where- fore he prays judgment if," &c. To these pleas the plaintiffs replied, viz. Replication to 1st plea. "That they, by any thing by the defendant, in his first plea, by him above pleaded, ought not to be barred from having their said action thereof against him, because, protesting," &c. "For plea, nevertheless, by way of replication to the said plea, by the defendant, first above pleaded, the plaintiffs say, that at a session of the general as- sembly of Maryland, begun and held at the city of Jlnnapo- lis, on the fifth day of November, in the year eighteen hundred and four, amongst others, a certain act of assembly was passed, entitled, An act to incorporate the stockholders in the Union Bank of Maryland, (1804, ch. 48,) which follows in theser words, to wit: An Jict to incorporate the Stockholders in the Union Bank of Maryland. [The following appear to be the only material parts of the act necessary to be noticed. ] 1. WHEREAS the president and directors of the Union Bank f Maryland, on behalf of themselves and others, proprietors 336 CASES IN THE COURT OF APPEALS UNION BANK OF MARYLAND v. RIDOEIY. 1827. of stock in the said bank, have petitioned this general assem- bly, setting forth, that sundry persons, by articles of voluntary association, have contracted and agreed, each with the other, to conduct and carry on the usual operations of the banking sys- tem, at the city of Baltimore, under the name and style of The President and D>r'ectors of the Union Bank of Mary- land^ and praying that an act may pass to incorporate the stock- holders in the said bank; and the same being reasonable, Therefore, II. Be it enacted by the General Assembly of Maryland, That the said bank shall be, and the same is- hereby established at the city or precincts of Baltimore, at the discretion of the president and directors; and the capital stock of the said bank shall consist of three millions of dollars, money of the United States, divided into shares of one hundred dollars each; and that five thousand shares be reserved for the use and benefit of the state of Maryland, to be subscribed for by the said state, when desired by the legislature thereof. VI. And be it enacted, That the president and directors of the said bank, to wit: William Winchester, President; James A. Buchanan, Solomon Etting, David Winchester, Andrew Ellicott, jr., Luke Tiernan, Charles Ridgely f of Hampton, Solomon Birckhead, Thomas M'Elderry, Wal- ter Dorsey, Henry Payson, Hezekiah Clagett, Isaac Tyson, Ebenezer Finley, Stewart Brotvn, John Hollins and Henry Schroeder, shall continue to act as such, until the first Monday of July, eighteen hundred and five, and until a new election of directors shall take place. VII. And be it enacted, That the affairs of the said compa- ny shall be conducted by a president and sixteen directors, to- gether with such other directors as the state shall appoint, in the manner hereinafter directed, and that there shall be an elec- tion of sixteen directors, by ballot, on the first Monday in July jnext, and on the first Monday in July of each and every year thereafter, by the stockholders and proprietors of the capital stock of the said corporation, and by plurality of votes>at such place, and in such manner, as the president and directors for the time being shall appoint; and those who shall be chosen at any ejection, shall be capable of serving as directors, by virtue of OF MARYLAND. 337 UNION BANK OF MARYLAND v. HIUGULT. 1827. such choice, until the end and expiration of the first Monday of July next ensuing the time of such election, and no longer, un- less in case of failure of election on the day appointed, and in that case, until such election takes place, and the said directors,' at the first meeting after such election, shall choose a president And in case it should happen that an election of directors should not be made upon the day, when, pursuant to this act, it ought to have been made, the said corporation shall not, for that cause, be deemed to be dissolved; but it shall be lawful, on any other day, within ten days thereafter, to hold and make an election in such manner as shall have been regulated by the laws and ordinances of the said corporation. And in case of the death, resignation, disqualification, or removal out of the state of a director, or his being appointed president 01 the bank, his place may be filled up by the directors, for the remainder of the year. Vf II. Jlnd be it enacted, That the directors for the time being shall have power to appoint a cashier, and such other of- ficers and servants under them, as may be necessary for execut- ing the business of the said corporation, and to allow them such, compensation for their services respectively, as shall appear reasonable. IX. tfnd be it enacted, That the president and directors for the time being, may make aTl such rules, orders, by-laws and regulations, for the government of the said corporation, its of- ficers and servants, as they, or a majority of them, from time to time shall think fit, not inconsistent with law or the provi- sions of this act, the same at pleasure to revise, alter and annul, and may use, employ and dispose of the funds, money and cre- dit of the said bank, as they, or a majority of them, may deem expedient, subject, however, to the restrictions and limitations hereinafter mentioned. X. Jlnd be it enacted, That the following rules, restrictions, limitations and provisions, shall form and be fundamental arti- cles of the constitution of the said corporation, viz. &c. 2d. None but a stockholder, except in the case of director chosen by the state, being a citizen of the United States, shall be eligible as a director or president; and every president or' director, as the case may be, shall cease to be a director or voi ?. 43 CASES IN THE COURT OF APPEALS BANK OF MARYLAND v. RIDGEI.T. 1827. sident upon his ceasing to be a stockholder, and not more than eleven directors in office shall be eligible for the next succeed- ing year; and no director, having served .for three years suc- cessively, shall be eligible for the two succeeding years there- after. 7th. The president, each director, cashier or treasurer, be- fore he enters upon the duties of his office, shall take the fol- lowing oath, or affirmation, as the case may be: I - , do swear, or affirm, that I will faithfully, impartially, diligently and honestly, execute the duties of - , agreeably to the provisions of law, and the trust reposed in me, to the best of my skill and judgment. 9th. The president and eight directors, shall constitute a board for the transaction of business, but ordinary discounts may be done by the president and five directors; in case of sick- ness, or the necessary absence of the president, his place may be supplied by a director, who he, by writing under his hand, shall nominate for the purpose. 14th. Every cashier, or treasurer, before he'enters upon the duties of his office, shall be required to give bond, with two or more sureties, to the satisfaction of the president and directors, in a sum not less than fifty thousand dollars, with condition for his good behaviour. XL find be it enacted, That this act shall continue in force until the expiration of the year eighteen hundred and fifteen, and until the end of the next session of assembly thereafter. And the plaintiffs further say, that after the passage of the said act, and in pursuance thereof, and conformably thereto, the said directors for the time being, did constitute and appoint tho said Ralph to be the cashier of the said- Union Bank of Ma- ryland, to wit, on the first day of March, in the year eighteen hundred and five, to wit, at the county aforesaid; and the plain- tiffs further say, that in pursuance of, and in conformity to, the said act of assembly, the said president and directors for the time being, did afterwards, to wit, on the twentieth day of Fe- bruary, in the year eighteen hundred and five, make certain rules, by-laws and regulations, for the government of the said corporation, its officers and servants, to wit, at the county afore- said ; which said by-laws follow in these words:- OF MARYLAND. 339 UNIOX BANK OF MAUTLASD v. RIDGELT. 1827. The first code of By- Laws adopted by the Union Bank of Maryland, and which remained in force until the 4th of October 1819, when they were repealed, and those in the printed copy, adopted. BY-LAWS. [The following appear to be the only parts of the by-laws ma- terial in this cause.] 'Art. 1. The President and Directors of the Union Bank of Maryland, shall take charge of the cash belonging to the said bank, shall receive deposits, issue bills or notes, signed by the president and countersigned by the cashier, to any amount they may think necessary, not exceeding two millions of dol- lars; discount bills or notes, at the rate of interest charged by other banks in the city of Baltimore, and shall do and perform all such matters and things, as may be necessary for conducting and carry ing on in a proper manner, the business of said bank; and during the first six months of the operation of this bank, no note or bill shall be discounted for any term exceeding sixty days. Art. 2. *3nd be it ordained by the President and Directors of the Union Bank of Maryland, That all and singular the resolutions and acts of the late commissioners and present di- rectors until this time, be and are hereby confirmed, and held to be good and valid to all intents and purposes, as if the same had been made, and entered into at a regular meeting of the stockholders. Art. 4. That the bank shall keep open for ordinary business from nine o'clock in the morning till three o'clock, P. M. every day except Sundays, Christmas day and the fourth day of July. Art. 5. That all bills and notes offered for discount shall be delivered into the bank on such day or days in each week as the directors may hereafter appoint, and be laid before the di- rectors on the next succeeding day, (together with a state of the funds of the bank, at least twice a week) on which day the discount shall be settled, and be drawn for accordingly, at any time after twelve o'clock, and the notes or bills, not discount- ed, shall be returned on demand. Art. 6. That all discounts shall be made on personal securi- ty, with at least two responsible names, (the firm and all the 340 CASES IN THE COIJRT OF APPEALS UNIOS BANK OF MARYLAND v. RIDOELT 1827. partners of a house being considered as one name only,) allow- ing three days grace on all notes and bills payable at the bank, and discount to be taken for the same. Art. 7. That to entitle a note or bill to be discounted at this bank, the maker or acceptor thereof must usually reside in the city of Baltimore or precincts thereof; and notes made at a distance must have two responsible names residing in the city or precincts aforesaid Art. 18. That it be the duty of the president to pay all pos- sible attention to the operations of the bank; to take into his safe keeping (at the bank) the plates, paper moulds and bank paper; to superintend the printing at the bank of all bills or notes that may be printed; to keep a regular account of the bank paper, and of the quantity from time to time ordered for impression; to superintend the duty of all persons employed in the bank; to sign all bills and notes which may be issued; and should this bank be incorporated, the president is to have iij his charge and custody, the seal of the corporation, and cause the same to be affixed to all such instruments and documents, as the board of directors shall order or authorize; and do all .Other matters and things that the law directs. Art. 19. That it shall be the duty of the cashier to counter- sign at the bank, all bills or notes signed by the president; care- fully to observe the conduct of the persons employed under him; daily to examine the settlement of the cash account of the bank; to count the money deposited in the vaults; to compare the amount thereof with the balance of the cash account that day, and in case of disagreement, to report the same to the di- rectors as early as possible; for which purpose, if necessary, the president may call a special meeting. Art. 22. That a committee of the board of directors, consist- ing of at least three of their number, shall, in rotation, visit the vaults in which the cash and other valuable effects are de- posited, at least once in every three months, and make, or cause an inventory of the same to be made in their presence, to be compared with the books, in order to ascertain their agreement therewith, and make a report to the board ; that on the door of the great vault, there shall be three locks, and that the presi? dent, cashier and first teller, shall each keep a key. OF MARYLAND. 341 UNION BANK OF MAHTLAND v. KIDGELY. 1827. Art. 24. That a book shall be kept for the use of the board of directors, in which all discounted notes and bills shall be en- tered, in such manner as to discover at one view, on each dis- count day, the amount which any person is indebted to the bank, jon such notes and bills, in the capacity of payer, and in the rapacity ,of discounter severally. Art. 26. TJiat the president and directors of the bank afore- said, be authorised and appointed, and they are hereby autho- rised and appointed, to make and adopt any further by-laws for the government of said bank, which they may think necessary and convenient, provided they are not contrary to the articles of association. And the plaintiffs further say, that after the said act of assem- bly, and after the making of the said by-laws, to wit, on the thirtieth day of March, in the year eighteen hundred and five, the said Ralph, in pursuance of the said act of assembly, gave the bond in the declaration mentioned, with the condition there- in contained, to wit, at the county aforesaid: And the plaintiffs further say, that the said Ralph continued to be cashier, and to act in the capacity of cashier of the Union Bank of Mary* land, from the day last mentioned, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, under and in pursuance of the said bond last mentioned, to wit, at the county aforesaid : And the plaintiffs further say, that at a ses* sion of the general assembly of Maryland, begun and held at the city of Annapolis, on the fourth day of December, in the year of our Lord, eighteen hundred and fifteen, and ending on the thirtieth day of January, in the year eighteen hundred and sixteen, among other things, a certain act of assembly was pass- ed, entitled, An act declaring the continuation and extension of the charters of the several banks therein mentioned; which said act of assembly, (1815, ch. 167,) follows in these words, to wit: tfln *ftct declaring the continuation and extension of the Charters of the several Banks therein mentioned. WHEREAS the Preside/it, Directors and Company, of the Bank of Baltimore; the President and Directors of tht Union Bank of Maryland, [and various other banks therein rjamed,] have transmitted to the executive of this state, certi* 342 CASES IN TtfE COURT OF APPEALS I UNION BANK. OF MARYLAND v. RIDGF.LY. 1827 ficates of their determination to agree to and accept of the re- newal of their charters, upon the terms and conditions pre- scribed by an act, entitled, A supplement to the act, entitled, An act to incorporate a company to make a turnpike road lead- ing to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes, passed at December session, one thousand eight hundred and thirteen: therefore, Be it enacted, by the General Jlssemblgr of Maryland, That the charters of, or the several acts of as- sembly incorporating the above mentioned banks, be and the same hereby are continued and extended to the first day of January, one thousand eight hundred and thirty-five, f and to the end of the session of the general assembly next thereafter; Provided, that nothing herein contained shall be construed to release the said banks from the compliance of the terms and conditions prescribed in the act of assembly, entitled, A sup- plement to the act, entitled, An act to incorporate a company to make a turnpike road leading to Cumberland, and for the extension of the charters of the several banks in the city of Baltimore, and for other purposes, passed at December session, eighteen hundred and thirteen, chapter one hundred and twen- ty-two. 1st. Breach Embezzlement. "And the plaintiffs in fact say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently, intending and contriving to injure and deceive the plaintiffs, did, on various days and times, from the day of the date of the said writing obligatory until the twenty-seventh day of January, in the year eighteen hundred arid sixteen, and from the said twenty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth day of May, in the year eighteen hundred and nineteen, privately, fraudulent- ly, and in violation of his duty as cashier as afoiesaid, use, em- bezzle, take out, and otherwise make away with the funds, monies and promissory notes for the payment of money, com- monly called bank notes, to a great amount, to wit, to the a- of fifty thousand dollars, at the county aforesaid, be- OF MARYLAND. 343 Uxrow BANK OF .MAHTLASD v. RIDOF.LT 1827. longing the plaintiffs, and wherewith the plaintiffs were chargea- ble, and which cams to his, the said Ralph's hands, charge and custody, as cashier as aforesaid, and the same did unjustly detain and convert to his own use, whereby the plaintiffs were greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid, and this they, the plaintiffs, are ready to verify." The 2d. assignment of breaches was like the first, except that it charged them to have been committed "on various days and times, from the day of the date of the said writing obliga- tory, until the 27th of Jaauary 1816." The 3d. assignment of breaches was like the first, except that it charged them to have been committed "on various dayg and times, from the day of the date of the said writing obliga- tory, until the 6th' of February 1817." The 4th. assignment of'breaches was like the first, except. that it charged them to have been committed "on various days and times, from the day qf the date of the said writing obliga- tory, until the 25th of May 1819," without any other allega- tion of the time. 5th. Breach Unlawful discount ings. "And further breach by way of replication to the said plea by the defendant first above pleaded," &c. "the plaintiffs say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently intending and contriving to injure and deceive the plaintiffs, did, on various days and times, from the day of the date of the sold writing obligatory, until the twenty-seventh day of Janua- ry, in the year eighteen hundred and sixteen,, and from the twenty-seventh day of January, in the year eighteen hundred and .sixteen, until the -sixth day of February, in the year eigh- teen hundred and seventeen, and from the sixth day of Februa- ry, in the year eighteen hundred and seventeen, until the twen- ty-fifth of May, in the year eighteen hundred and nineteen, privately, fraudulently, and in violation ot his duty as cashier as aforesaid, use the funds and monies belonging to the plain- tiffs, and wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody, of the said Ralph, as cashier as aforesaid, in secretly and unlawfully discounting notes for divers p ersona, and in appropriating the profits of 344 CASES IN THfe COT/RT OF APPEAtS 1 UXION BAVK OF MAHYLAXD v. HIDGKLT. 1827. such secret and unlawful discountings to his owiruse, to a great amount, to wit, to the amount of fifty thousand dollars, at the county aforesaid, whereby the plaintiffs were greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they, the plaintiffs, are- ready to verify." The 6th, 7th and 8th breaches, were assigned upon unlaw- v ful discountings as in the 5th breach, the time being laid as in the 2d, 3d and 4th assignments of breaches, and in that re- spect only differing from the 5th breach. 9th. Breach Conspiracy, $c. False Entries. "And for assigning further breach by way of replication to tne said plea by the defendant, first above pleaded, according," &.c. "the plaintiffs say? that the said Ralph did, on various- days and times, from the day of the date of the said writing obligatory, until the twenty-seventh day of January, in' the year eighteen hundred and sixteen, and from the said twenty-seventh day of January, in the year eighteen hundred and sixteen, until the' sixth day of February, in the year eighteen hundred and seven- teen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth of May, in the year eighteen hundred and nineteen, to wit, at the coun- ty aforesaid, falsely and fraudulently combine, collude and con- spire, with a certain Andrew Burt, teller of the said bank, and a certain Pierce L. Tanner, book-keeper in the said bank, falsely and fraudulently, and in violation of his duty as cashier as aforesaid, to lend out and give out, and in pursuance thereof, did fraudulently lend out and give out large sums of money belonging to the plaintiffs, and others, wherewith the plaintiffs were chargeable, and which came to the hands, charge and -cus- tody of the said Ralph, as cashier as aforesaid, and which he has not yet duly accounted tor, paid, delivered or discharged himself from; amounting in all to a large sum of money, to wit, to the sum of fifty thousand dollars, to divers persons, and wrongfully and fraudulently to appropriate, and then and there, in pursuance thereof, did fraudulently appropriate the funds and monies of the said bank to their own private purposes, whereby the funds and monies of the said bank were wasted, j misspent, and otherwise made way with, and un- OF MARYLAND. 345 Uwios BASK OP MAnrtAND v. RIDOELT. -1827. justly detained by the said Ralph, and by other persons through his means, privity and procurement, to a great amount, to wit, to the amount of fifty thousand dollars, at the county aforesaid. And the plaintiffs in fact say, that neither the said Ralph, nor the said Robert Ptirviance, nor the said Daniel Delozier, nor the said Edward Johnson, nor Nicholas G. Ridgcly, nor either nor any of them, nor either nor any of their heirs, executors or administrators, has or have yet, either made or given, or caused to be made or given unto the plaintiffs, or their succes- sors, full satisfaction and recompense of and for such monies and funds belonging to the plaintiffs, or to other persons, where- with the plaintiffs are chargeable, so as aforesaid wasted, mis- spent, embezzled and otherwise made away with, and unjustly detained by the said Ralph, and by other persons through his means, privity or procurement, or any part thereof. And the plaintiffs further say, that the said Ralph, in order to conceal the said secret, and unlawful and fraudulent doings from the plaintiffs, at divers days and times after the date of the said writing obligatory, and while he continued cashier of said bank as aforesaid, made or caused, or knowingly permitted to be made, certain false and deceptious entries in the books of the said bank, in violation of his duty as aforesaid, whereby the plaintiffs were greatly damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they, the plaintiffs, are ready to verify. " The 10th, llth and 12th breaches, were assigned upon con- spiracy with the clerks and false entries as in the 9th breach, the time being laid as in the 2d, 3d, and 4th assignments of breaches, and in that respect only, differing from the 9th breach. 13th. Breach Over Drafts. <-And for assigning further breach, by way of replication to the said plea, by the defen- dant first above pleaded, according to the form of the statute in such case made and provided, the plaintiffs say, that the said Ralph, not regarding his duty as cashier as aforesaid, but fraudulently intending and contriving to injure and deceive the plaintiffs, did, at divers days and times, from the day of the date of the said writing obligatory, until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the twenty-seventh day of January, \\\ the year eighteen TOL. i, 44 346 CASES IN THE COURT OF APPEALS UNION BANK. OK MARYLAND y. KIDOELY. 1827. hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of February, in the year eighteen hundred and seventeen, until the twenty-fifth day of May, in the year eighteen hun- dred and nineteen, during which several times the said Ralph continued cashier of the said bank, frequently, and from time to time, wrongfully and unlawfully take out of said bank, di- vers sums of money, to wit, the sum of fifty thousand dollars, at the county aforesaid, by draughts and checks upon the said bank and otherwise, when he, the said Ralph, had not money deposited in the said bank, wherewith to pay the said draughts or checks, and that during the said time the said Ralph did not, from time to time, make and give unto the plaintiffs and their successors, a just and true account in writing of all such sum or sum of money, bills and notes, which did from time to time come into his hands, charge and custody, of and be- longing to the plaintiffs, or their successors, or to other person or persons, wherewith they, the plaintiffs or their successors, stood chargeable, whereby the plaintiffs suffered great damage, to wit, to the value of fifty thousand dollars, at the county afore- said; and this they are ready to verify." The 14th, 15th and 16th breaches were assigned upon over draughts as in the 13th breach, the time being laid as in the iid, 3d and 4lh assignments of breaches, and in that respect only, differing from the 13th breach. 17th. Breach Embezzlement of a Check, 2lst Novem- ber, ISIS. "And for assigning further breach, according," &c. by way of replication to the said first plea, by the defendant, above pleaded, the plaintiffs say, that the said Ralph, with a view to injure and defraud the plaintiffs, and in violation of his duty as cashier as aforesaid, did, on the twenty-first day of No- vember, in the year eighteen hundred and eighteen, to wit, at the county aforesaid, take from the funds and monies of the said bank, the sum of eight thousand three hundred and thirty dollars, and fraudulently charged or caused the same to be charged to a certain William Dandridge, cashier of a certain bank, styled " The Bank of Virginia" which said sum ot money was never forwarded to the said William Dandridge, or to any person for him, but by the said Ralph was fraudu- OF MARYLAND* 347 UVTOJT RANK OF MARYLAND v. KIDHELT 1827. Jently and wrongfully appropriated to his own private use, the said Ralph having charged or caused the same to he charged to the said William Dandridge the hetter to conceal his fraudu- lent and wrongful purpose from the plaintiff*, in breach and in violation of his duty as aforesaid, and to the great prejudice and damage of the plaintiffs, to wit, to the value of ten thousand dollars, at the Bounty aforesaid^ and this they are ready to verify." 18th. Breach Another Embezzlement, l9th,McrchlS18, "And for assigning further breach, according," &c. "by way of replication to the said first plea by the defendant above pleaded, the plaintiffs say, that the said Ralph, fraudulently and unlawfully intending to injure and deceive the plaintiffs and in violation of his duty as cashier as aforesaid,, did, on the nineteenth day of March, in the year eighteen hundred and eighteen, take from the funds and monies of the said bank, the sum of seven thousand five hundred and four dollars and eighty rents, and fraudulently and unjustly appropriated the same to his own private uses, which said sum of money the said Ralph, with a view to deceive and defraud the plaintiffs, did falsely charge or cause to be charged in the books of the said bank, as for a certain bill of exchange, alleged by him to have been bought by the plaintiffs of a certain John, Goading, and which the said Ralph pretended to have remitted to a certain Thomas Williamson, cashier of a certain bank in the borough of Aor- folk, styled "JZ Branch of the Sank of Virginia;" which .said bill of exchange, or pretended bill of exchange, the plain- tiffs say, never was remitted to the said Thomas Williamson, but that the said Ralph falsely charged the same to the said Thomas Williamson, as a pretence to conceal the said fraudu- lent appropriation from the plaintiffs, in breach and violation of his duty as aforesaid, whereby the plaintiffs suffered great damage, to wit, to the value of ten thousand dollars, at the county aforesaid; and this they are ready to verify." 19th. Breach False Statements. "And for assigning further breach, according," &c. "by way of replication, to the said plea by the defendant first above pleaded, the plaintiffs say, lhat the said Ralph, with a view to deceive and defraud the plaintiffs, and in violation oj hi* duty as aforesaid, did, at vari- 348 CASES IK THE COURT OF APPEALS UNION BANK OF MARYLAND v. RIDGKLT. 1827. ous days and times, from the day of the date of the said writ- ing obligator)', until the twenty-seventh day of January, in the year eighteen hundred and sixteen, and from the said twen- ty-seventh day of January, in the year eighteen hundred and sixteen, until the sixth day of February, in the year eighteen hundred and seventeen, and from the said sixth day of Februa- ry, in the year eighteen hundred and seventeen, until the twen- ty-fifth day of May, in the year eighteen hundred and nine- teen, to wit, at the county aforesaid, knowingly make divers false statements of the condition of the said bank to the plain- tiffs, frequently, wilfully and fraudulently charging or causing to be charged, divers individuals and banks, with large sums of money as due and owing to the plaintiffs, than the said indi- viduals or banks in fact owed or were indebted to the plain- tiffs, to wit, the sum of fifty thousand dollars, whereby the plaintiffs suffered great damage, to wit, to the value of fifty thousand dollars, at the county aforesaid; and this they are ready to verify." The 20th, 21st and 22d breaches, were assigned upon false statements made of the condition of the bank, as in the 19th breach, the time being laid as in the2d, 3d and 4th assignments of breaches, and in that respect only, differing from the 19th breach. 23d. Breach Negligence. "And for assigning further breach by way of replication to the said plea by the defendant first above pleaded," &c. "the plaintiffs say, that the said Ralph, on various days and times since the day of the date of the said writing obligatory, and while it was in full force and virtue, and during the time the said Ralph was cashier as aforesaid, and before the commencement of this suit, did not carefully examine the conduct of the persons employed under him by the plaintiffs as it was his duty to have done, and as he was re* quired by the said by-laws to have done, but to do so, omitted and neglected, by which said omission and neglect of the said JRalph, the plaintiffs were damaged to a great amount, to wit, to the amount of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify." 24th. Breach Omitted to count the money, &c. "And for assigning further breach, according," &c. "by way of re- OF MARYLAND. 349 UNION BANK OF MARYLAND v. RIBGELT. 1827. plication to the said plea by the defendant first above pleaded, the plaintiffs say, that the said Ralph, in violation of his duty as cashier as aforesaid, at various days and times, since the date of the writing obligatory, and whilst the same was in full force and virtue, and during the time the said Ralph was em- ployed by the plaintiffs as cashier as aforesaid, and before the commencement of this action, did not, when it was his duty to have done so, count the money deposited in the vaults of the said bank, and compare the amount thereof with the balance of the cash account of the said bank, in the manner he ought to have done, but omitted and neglected so to do, whereby large sums of money, to the amount of fifty thousand dollars, where- with the plaintiffs were chargeable, and which were in the charge and custody of the said Ralph as cashier as aforesaid, where wholly lost, and the plaintiffs greatly prejudiced and damaged, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify." 25th. Breach. Did not compare the books, &c. "And for assigning further breach by way of replication to the said plea by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph, in violation of his duty as cashier as aforesaid, at various times during the time he was cashier as aforesaid, and after the date of the said writing obliga- tory, and whilst the same continued in full force and virtue, and before the commencement of this action, altogether omit- ted and neglected to examine and compare the several books of account of the bank, which were kept by the clerks and subor- dinate agents of the said ba :k. under the superintendance and direction of the said Ralph, as cashier as aforesaid, as it was his duty to have done, whereby material errors, mistakes, false statements and disagreements arose and occurred therein, and large sums of money, wherewith the plaintiffs were chargeable, and which came to the hands, charge and custody of the said Ralph as cashier, were thereby wholly lost, to the amount of fifty thousand dollars, and the plaintiffs have thereby sustained damage to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify." 26th. BreachDid not examine cash account. <4 And for assigning further breach, by way of replication to the said plea, 350 CASES IX THE COURT OF APPEALS UNION BANK OF MAnYLAxn v. KIPGF.T.T. 1827 by the defendant first above pleaded, according,'"' &c. "the plain- tiffs say, that the said Ralph, in violation of his duty as cashier ns aforesaid, during the time he was employed hy the plaintiffs as cashier as aforesaid, and after the date of the said writing, obligatory, and when the same continued in full force and virtue, tind before the commencement of this suit, did not daily ex- ?mine the settlement of the cash account, as it was his duty to have done; but wholly neglected and omitted to do so, where- by the plaintiffs have sustained great damage, to the amount and value of fifty thousand dollars, to wit, at the county aforesaid; tind this they are ready to verify." 27th. Breach Negligence in not reporting deficiencies. '"And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according to the form of the statute in such case made and provided, the plain- tiffs say, that after the date of the said writing obligatory, and while the same was in full force and virtue, and during the time the said Ralph was employed by the plaintiffs, as cashier as aforesaid, and before the commencement of this suit, at various days and times, there were large and improper deficiencies of the money in the vaults of the said bank, which the said Ralph as cashier as aforesaid, ought to have reported to the directors of the said bank, but which, on the contrary, in violation of his duty as cashier as aforesaid, he wholly omitted and neglected to do, by which omission and neglect the plaintiffs have sustain- ed great damage, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this the plaintiffs are ready to verify." 28th, Breach Did not account, fyc. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph since the date of the said writing obligatory, and while the same continued in full force and vir- tue, and during the time he wag employed as cashier as afore- said, and before the commencement of this suit, did not, from time to time, mike and give unto the plaintiffs, a just and true account in writing of all such sums of money, as from time to time came to his hands, charge and custody, as cashier as afore- said, wherewith the plaintiffs were chargeable, ss it was his OF MARYLAND. 351 UNION HANK OF MAHILANM) v. KIIIUKLIT. 1827. duty to have done, but wholly omitted and neglected so to do, by which omissions and neglect, the plaintiffs have sustained great damage, to the amount and value of fifty thousand dollars, to witj at tiie county aforesaid; and this they are ready to veri- fy. 29th. Breach Received money, $c. Did not pay, $c. "And for assigning further breach, according," &(,. "by way of re- plication to the first plea by the defendant above pleaded, the plaintiffs say, that the said Ralph, since the date of the said writing obligatory, and while the sanie continued in full force and virtue, and during the time he was employed and acted as cashier as aforesaid, and before the commencement of this suit, did from time to time, receive into his charge and custody as cashier as aforesaid, divers large* sums of money, bills and notes, to the amount and value of fifty thousand dollars, belong- ing to the plaintiffs, and wherewith they were chargeable, which the said Ralph has not since paid or delivered to the plaintiffs, or otherwise discharged himself from, as he ought to have done, but so to do, hath wholly omitted, neglected and re- fused; whereby the plaintiffs have susutained great damage, to wit, to the value of fifty thousand dollars, to wit, at the county aforesaid; and this they are ready to verify." 30th. Breach Combination to take money, $c. "And for assigning further breach, by way of replication to the said plea, by the defendant first above pleaded, according," &c. "the plaintiffs say, that the said Ralph, since the date of the said writing obligatory, and while the same continued in full force and virtue, and during the time he was employed and acted as cashier as aforesaid, to wit, at the county aforesaid, did falsely and fraudulently combine, collude and conspire with a certain Andrew Hurt, teller of the said bank, and a certain Pierce L. Tanner, book-keeper in the said bunk, falsely and fraudulently, and in violation of his duty as cashier as aloresaid, to take out of the said bank, a certain sum of money, to wit, the sum of enght thousand dollars, which had been before that time depo- sited by, and belonging to a certain flmos >ft. Williams, and in pursuance thereof did fraudulently take out of the said bank, the said sum of money, to wit, the sum of eight thousand dol- &rs, which had been bef.oro that UraA\K OF MARYLAND v. RIDGELY. 1827. dent and directors as aforesaid, were entered during the said period aforesaid, and no other writing or memorandum of their proceedings when they were assembled as the president and di- rectors as aforesaid. Third. The plaintiffs offered to read in evidence from the said book, a writing headed the by-laws, un- der which, as the plaintiffs allege, the said president and di- rectors acted. Fourth. The plaintiffs offered to read from the said book a resolution passed by the board of directors of the original association, on the 27th of September 1804, "That no- tice be given in the public newspapers in this cit3 r , that a peti- tion would be presented to the general assembly of Maryland, at their next session, for a law to incorporate the stockholders of the said institution." Fifth. The plaintiffs offered in evi- dence the act of incorporation, and the several other acts of as- sembly, relating to the said incorporation, duly authenticated, copies of which are herewith filed, and are to be considered as part of this exception by agreement of parties. Sixth. The plaintiffs offered to read from the said book, entitled "by-laws," the following entry: "Thursday, 24th January, 1805. At a meeting of the president and directors this day, the members on behalf of the state being present, the charter, so far as it re- lates to the oath of officers, being read, it was resolved, That the president, each director, and cashier, take the following oath or affirmation, as the case may be 'I , do swear or affirm, that J will faithfully, impartially, diligently and honest- ly, execute the duties of a director, agreeably to the provisions of law, and the trust reposed in me, to the best of my skill and judgment.' This being done, they proceeded to vote on the propriety of advertising," &c. which said entry the plaintiffs gave in evidence, was in the handwriting of the said Ralph Higginbothom. Seventh. The plaintiffs offered to read an en- try from the said book before mentioned, as iollows: "Where- as by an act to incorporate the stockholders in the Union Bank of Maryland, it is, among other things enacted, that an elec- tion for sixteen directors, to conduct the affairs of the said bank, shall be annually held on the first Monday in July. And where- as the said first Monday in July may sometimes fall on the fourth of said month, on which the bank will be shut, agreea- bly to the provisions of the fourth article of the by-laws, or- , 358 CASES IN THE COtTRT OF APPEALS UNTO* HAWK or MAnYtAyn r. HIDOELT. 1827. dained and passed for the regulation and government of tho said corporation," &c. Eighth. The plaintiffs offered to read from the said book, an entry made on the 30th of August 1819, in the following words and letters, "S. Etting, D. Winches- ter and Jl. Ellicoff, are appointed a committee to revise the by- laws." Ninth. The plaintiffs offered in evidence the by-laws, as revised, a copy of which is herewith filed and agreed to be considered as a part of this exception. Tenth. The plaintiffs of- fered in evidence the bond in the declaration mentioned, which it is admitted was signed and sealed by the defendant in this cause* The plaintiffs, further to prove the issues on their part, produc- ed John Hollim, a competent witness, who gave in evidence to the jury, that he was a member of the corporation of the Union Bank, at the time of its incorporation, and had been so under the articles of association; that he continued to be a mem- ber of said corporation lor several years after the act of incor- poration. The said witness also gave in evidence, that upon inspection of the book marked "by-laws," as produced in court, he knew the said "by-laws," or regulations entitled "by-laws," and many of the other minutes written therein for a long peri- od after the act of incorporation, as well as before the said act from the commencement of the association, to be in the hand- writing of Ralph Iligginbothom, who was at the time of the said writing, and afterwards, the cashier of the said bank; the said witness also gave in evidence, that he believed the said writings entitled, "by-laws," as aforesaid, to be the true by- Jaws of the plaintiffs, and adopted and used by them, although the witness did not know that he had ever before seen the book in which they were written, his memory as to this matter being too uncertain to identify the said book; and the said witness be- ing interrogated to each "by-law" separately, as written and numbered in the said book, gave in evidence, that while he was a director in the said bank, it was the usage of the said bank to act according to the first article of 'he said by-laws, whether the bank acted agreeably to the second article he did not re- member. That the bank practised conformably to the 3d arti- cle, also to the 4th. To the 5th article of the by-laws, the wit- ness gave in evidence that the president and directors for the first five or six months after their association, and before the OF MARYLAND. 359 UMU.N HANK UK MAUYLAND (>. Hi HOLLY. 1327. act of incorporation, met but once a week, but at the end of that time, the said president and directors met always twice a week, and this article Was thea complied with. That the bank acted according to the Gth article, aud also ilie 7th and 8th. The 9th article the witness could not say how far it was complied with, as it would have, required a porsoa to be in the bank to know it; of the following articles up to the 20th, the witness gave in evidence, it was the usage of the bank to act according to them; of the 20th article he did not remember; the 21st article was a customary rule; the 22d article lie did not remember that it was complied with, but that it was understood by the directors to have been a part of their duty; the 23d article he did not re- collect; the 24th and 2jth were according to the usage of thw bank; and to the 2Gth, the witness staled that he knew of no revision of the by-laws. The witness further gave in evidence, that he never heard of any other by-laws, than those which had been read. The plaintiffs further produced Solomon Birckhead, a legal and competent witness, who gave in evidence that he was formerly a member of the association, and one of the first board of directors, and that he remembered there were by-laws ia the said bank, although he could not undertake to identify them. The plaintiffs also produced Stewart Brown, a legal, compe- tent witness in the cause, who gave in evidence, that he also had: been a director in the said bank, for one or two years, a short time after its incorporation, and had also been a member of tho association. The witness lurther stated that he was not ac- quainted with the by-laws produced ia court, his memory not being sufficiently strong to enable him to recollect, but upon hearing them read, he gave ia evidence that the direc- tion and government of th<* bank, was in general conforma- ble to these regulations, but never saw the rules now produced, or any other. The plaintiffs further offered James si. Buch- anan, a legal and competent witness, who gave in evidence that lie had been a member of the original association, and also of the bank, after its incorporation, and was for some lime a di- rector; that he had no recolle ction that he had ever seen the by-laws, though he presumed he had seen them as a.xlirector. Being examined to the by-laws t-eparately, the witness guve ia evidence, that will* the exception of the articles Nos. 1, 2, 10, 360 CASES IN THE COURT OP APPEALS^ MOX BANK OP MARYLAND r. KIDELY. 1827. 11, 12, 13, 20, 25 and 2f>, of which he had no distinct recol- lection, he remembered that the bank was usually regulated ac- cording to the system prescribed in the said by-laws, and parti- cularly in regard to the cashier's duty, as contained in the 19th article; he remembers that such regulations were required of him, and in regard to the 25th article, he remembered such a rule, although he knew nothing of its execution; the witness further gave in evidence, that he knew of no other regulations of the bank, than those read, and that, in general, he believed them to have been complied with, yet that they were not ri- gidly observed, either by the directors or officers. The plain- tiffs further produced George T. Dunbar, a legal and compe- tent witness in the cause, who gave in evidence that he was a clerk in the bank of the plaintiffs, at the time of the act of in- corporation; that at that time the said Ralph Higginbothoirt was the cashier of the bank of the plaintiffs, and the said writ- ings, entitled, "by-laws," are in the hand-writing of the saidt Ralph. And also that the minutes in the said book, from the commencement of the institution, until the act of incorporati- on, and from that time for several years afterwards, are in the handwriting of the said Ralph, and the said minutes were kept by the said Ralph, who was considered in the bank the proper officer to write the said minutes. The said witness also gave in. evidence, that while he remained in the bank, the said Ralph was in the habit generally of performing the duties, though not with regularity, assigned to the cashier by the 19th article of the by-laws. The plaintiffs produced Thomas N. Gouldsmith, a legal and competent witness in the cause, who gave in evi- dence that he had been a clerk in the said bank for the last ten.' or twelve years, during the greater part of which time the said Ralph was cashier of the said bank; that in the book, entitled, "by-laws," many of the minutes, and particularly those pur- porting to be during the first five or six years of the charter, are in the handwriting of the said Ralph, and that the said writings, entitled, "by-laws," arc all in the handwriting of the said Ralph. The witness further gave in evidence that said Ralph was in the habit of performing the duties which are enumerated as duties of the cashier in the 19th article of said by-laws, or that he professed to perform them, though it was 1 OF MARYLANET, 361 UNION BANK 01- MARYLAND v. HIDOEJ.T 1827. done with irregularity. The plaintiffs also produced George Taylor, a legal and competent witness, who gave in evidence that he was a director in 1817 or 1818 that when he was elected a director, he inquired at the bank for the by-laws, and that a book or paper containing by-laws, similar in purport to those which were produced by the plaintiffs in court, and read to the other witnesses, were delivered to him by some officer of the band; that he remembered them, because the board act- ed according to them while he was a director, though they were not very rigidly observed? he remembered them also from the fact, that discussions as to what were the rules in particular cases would sometimes take place at the board, and that such questions would be decided by the older members, who were more conversant with the rules than himself, in a manner agree- able to the rules he had heard read, but no book or paper con- taining the by-laws was ever produced; he did not particular- ly recollect the book in court, so as to be able to identify it. The witness further stated, that he was in the bank when the new by-laws were adopted in 1819; that he was present at the meeting when the new by-laws were adopted, and that tjiese old ones, now in court, were the by-laws which were revised by the board; that the bank, as long as he was a director, and until the new by-laws were adopted, corresponded in its regu- lations and government, with the system contained in the by- laws in the book now offered in evidence, and that the witness never heard of two sets of by-laws previous to the revision, as above mentioned. The plaintiffs further produced Jonathan Pinkney, a legal and competent witness in the Cause, who gave in evidence, that he is, at this time, the cashier of the plaintiffs, ami had been so from the year 1819. That when he came in- to the bank he found the book, entitled, "By-Laws," among the other books of the corporation, and that the said book had the reputation in the bank of being the former by-laws and mi- nutes of the corporation, and that the new by-laws were adopt- ed a short time before he became the cashier of the plaintiffs," the said witness also gave in evidence that the said by-laws, as well as the minutes for several years, were in the proper hand- writing of the said Ralph Higginbothom, the former cashier. The plaintiffs further gave in evidence by Elias Glenn, Es* ?OL. R. 46 362 CASfcS IN THE COURT OF APPEALS ' UNION BANK OF MARYLAND *>. RIDGELY. 1827. quire, a competent witness, that he was a director in the Uni- on Bank for two years, and thinks he was so between the y ears 1806 and 1811; knows that certain by-laws were handed to him when he was sworn in as a director, or about that time, and that he read them, but the contents of them he does not recol- lect; he thinks that when they were shown to him, some of the other directors told him the bank had a set of by-laws, and that it would be necessary for witness to read them, as he was now a director; witness is not sure that the by-laws he read were in a printed or written form; he never heard of bat one set of by-laws, in said bank; does not know whether the by- laws contained in the book produced by the plaintiffs, entitled, * 502, cited on the other side, the churchwardens and parishioners acted conjointly in the appointment of a collector; yet his office was held a con- tinuing office, notwithstanding the churchwardens were an- nual officers, and were removable at the end of the year; be- cause the parishioners were still a continuing body corporate, whom the collector represented, though the churchwardens were gone, by whom he was nominated. The same observation will apply to Hassel vs Long, 2 Maul. $ Selw. 363, and Mil- ler vs Stewart^ 9 JVheaton, 702, and indeed to all the cases cited against us. The court will find upon examination that these are all cases where the subordinate officer was the de- puty of those who nominated him that his life depended on theirs as his principals. The amotion or death of the principal then would of course vacate the power. But be- cause the governor and council, who are annual officers, ap- 380 UNION BANK OF MARYLAND v. RIDGKLY. 1827 point the judges of this high tribunal, and also the chancel- lor of the state, was it ever suggested that those officers were their deputies and do not hold their offices during good be- haviour? So in the case of our senators and registers of wills, though the appointing power may be extinct, the result of its exertion may be and is lasting. The learned counsel opposed to us rely on the words of the Sth section, as showing that the cashier was only a servant "under them;" that is, under the board of directors. This argument would reach too far; as it would leave to the hoard the same discretion as to the necessity or propriety of appointing any cashier as they are vested with, in relation to the other servants or officers there mentioned; to whom alone these words ''under them" obviously refer; such as the porter, the book-keepers, tellers, &c. The cashier is as necessary an officer of the corporation as the president. The board of directors appoint both, and it might just as well be contended that the president is only a deputy of the board of directors and not an integral part of the corporation, as that the cashier is. 2d. Does the bond extend beyond the 6th Februa- ry, 1817? This may be answered by another question Is this corporation which sues identical with that to which the bond was given and to whom the service of the cashier was condi- tioned to be performed? If so, the bond is sufficiently broad to cover the whole time of R. Higginbot horn's service as cashier of the president and directors of the Union Bank. It is to be borne constantly in mind, that the words, the very terms of the bond, cover the whale time that Higginbothom should hold the office. There is no limitation in the preamble or in any other part of the bond, looking to the expiration of the first charter. His appointment was not coextensive with their charter. It was during good behaviour. He held by no other tenure before 1817, and by the same tenure afterwards. Here was no new appointment of Higginbothom after the new charter, and if he did not hold his office legally afterwards by virtue of his first appointment at the time this bond was given, then all his subsequent acts were invalid and did not bind the corporation. He had no power, if this argument be well found- ed, to sign or issue bills, to discharge debts or receive deposits, or pay checks, &c. so as to bind the stockholders. He waa OF MARYLAND. 381 Uwio* BANK OF MARYLAND .'. KnmEi.i. IB 7 either cashier to all intents and purposes under his first ap- pointment from 1817 to 1819, or not. If the former, then the surety has undertaken for his fidelity during that period', because no shorter period is Kmitcd hy the bond than during his continuance in that service of those who appointed him. If the latter, then no act of the cashier after February 6, 1817, is valid in law. 'And the same construction which will absolve the surety here will annul and cancel every official act of Hig- ginbothom respecting the concerns of the bank during those two years. If the corporation after 1817 was not one and the same with that before, then no part of the property, funds or notes of the old corporation belongs to this; no debts owing by or to the old corporation can survive to this; nor could the pre- sent plaintiffs maintain a suit upon this bond even against the cashier himself, because they are not the obligees according to that construction. But in Scarboro vs Butler, 2 Levintz, 237, it was held too clear for argument, that a debt due to a corpora- tion is also due to the second corporation after a renewal of its charter, even though the name ot the obligees is changed, and the debt shall be recovered in the new name. So it is laid down by Lord Coke., (Co. Lit. 52, b.) that an attorney's power is not countermanded even by a dissolution of the corporation. Shepman vs Thompson, Willes's Rep. 105. Wynne vs Thomas, Ib. 565. 2 Livermore on Jlgency, 298. Was A .he duration of this bond then extinguished when, the service con- tinued' to be to the same persons and the terms of the condition are made coextensive with such service? When the defendant signed this bond, fixing the time of service under that appoint- ment as the only measure of its duration, he must have known that the legislature might with the concurrence of the bank and of the cashier protract his risk and continue the officer beyond the time limited by the first law. Why did he not provide against this by the terms of the bo d? As he did not, can he now ask the court to insert for him a new limitation in the con- tract and restrict it to the duration of the first charter, when he himself has fixed the limitation, not by that, but by the term of service? Suppose he had declared by parol at the time he signed the bond, that he intended it should only endure as long as the first charter. The court would not admit of such 382 CASES IX THE COURT OF APPEALS UNION BANK OF MARYLAND v. KIDGELT 1827. parol explanation of his intention to contradict the plain im- port of the terms used by him in the writing. If the terms of service of that corporate body, is departed from, by construc- tion, what rule can the court adopt? Shall it be a vague con~ jecture as to the variance of risk? Then every change of the clerks, every augmentation of the capital of the bank called in, every imposition of new duties upon the cashier by subsequent by-laws, varied the risk of the surety, by enhancing the re- sponsibility of the cashier. If the court is to speculate on the political conjectures of the surety at the time, the practice of the legislature of this state must have led him to foresee that the charter would probably be renewed. Every charter had been renewed in Maryland whose limitation had run out. Such were the Baltimore Insurance Company, incorporated by act 1795, ch. 59, for nine years, renewed 1S04, ch. 37; the Maryland Insurance Company by act 1795, ch. 60, and 1804, ch. 106, and the charter of Baltimore city continued 1798. As he made no provision for a limited time of service, he con- stituted the cashier his agent to extend the period from year to year, with the concurrence of the bank, so long as both should assent to his holding the office. If the cashier's fidelity be- came questionable, or his defaults known, the surety could at any time discharge himself by notifying the other party, and requesting his removal. But after standing by from the year 1814, (when the first act of assembly was published, renewing the charter,) until 1819, and seeing this cashier continuing to hold his office, and knowing that his own bond was in possession of the bank, guaranteeing the faithful service of Higginbothom, shall the defendant now be permitted to say that he was not his surety for the two last years of his service? We do not con- tend, that the surety is ever to be held beyond the strict scope and letter of his engagement. We admit that he is not to be made constructively liable, but we know of no case where he has been relieved in a court of law from the plain contract, be- cause he has received no value for his undertaking. How do the cases, which will no doubt be cited on this point against us, trench upon our doctrines? They consist of three classes. 1st. Those, where there was an express limitation in point of time by reciting the duration of the office, or referring to the law OP MARYLAND. U.vios BANK OF MARYLAND v. KMIGKLY. 1827. which limited it. And the default occurred subseqtient to the express limitation in the engagement. Such are Arlington vs Merrick, 2 Saund. 412. Liverpool Water Company vs At- kinson, 6 East, 507. Wardens of St. Saviour vs Bostock, 5 Bos. 4- Pull. 175. Hassell 8? Chirk vs Long, 2 Maul. < Selw. 363; and United States vs Kirkpatrick, 9 Wheat. 702. 2d. Those where the persons hringing the suit were different from those contracted with, and one or more of the plaintiffs had not been obligees of the contract, or sued for different in- terests; as Wright vs Russell, 3 Wils. 530; where the contract was with Wright as a sole trader, and he sought in that suit to- charge the surety for his moiety of co-partnership loss. So in Barker vs Parker, 1 T. R. 257. The bond was to the testator for the fidelity of clerk in his service. After his death the ex- ecutor carried on the trade, and sued for a loss in such distinct trade. The court very properly held it a distinct concern from the business of the testator, and that the bond did not survive to the executor, so as to cover defaults in his ser- vice. 3d. Cases of partnership bonds, where one partner die? or goes out, or a new one comes in. In all these cases, the in- terest that accrues after such event, is a distinct interest from the previous one which was guaranteed, and the courts have held, that the bond did not extend to a new partnership^ because, the characters of the partners was an essential ingredient in the con- tract. Such are the cases of Strange vs Lee, 3 East, 484-9. Pepin vs Cooper, 2 Barn. 4' A/d. 421. Weston vs Barton, 4 Taunt. 67 3. Myers vs Edge. 7 T. R. 250. Lead ley vs Evans, 9 Serg. 4" Lowb. 30G. But where the bond is given to a fluctuating body, the change of the members does not de- stroy the obligation of the bond, because individual character does not enter in the consideration of the surety from the very nature of the association. The case of corporations is made an express exception from the general rules in the above cases by- Lord Ellenborough, in Strange vs Lee. The same doctrine is laid down in Medcalf vs Bruin, 12 East, 399; and cases there cited. Barclay vs Lucas, \ T. Rep 291, (note a.) Dance vs Girdler, 4 Bos. 4* Pull. 34, 41. Ka&sell 4* Clark vs Long, 2 Maule.fy Selw. 363. Miller vs Stuart, 9 Wheaton, 680; and especially, Curling vs Chalklen, 3 Maule 4* 384 CASES IN THE COURT OF APPEALS UVION BAXK OF MAHTLASD y. HIIIRELY. 1827. 502. One of those cases turned upon the circumstance that the bond was given to a voluntary association, and default occur- red after it was incorporated; held, that not being incorporat- ed, the obligees could not transmit the obligation to their suc- cessors, but only to their individual administrators or executors. In the case of Barclay vs Lucas, Lord Mansfield, endeavour- ed to establish a different doctrine, but failed,- although the prin- ciples he there asserts are fully sanctioned by all subsequent decisions, that if it had been a case where the bond could be given to the house or firm, it would continue in force as long as the house should exist. Now the only case where it can be so given consistently with the rules of law is, that ot" corporations whose obligations are transmitted to -successors. But. here are no successors; it is the identical person who sues, with whom the bond was made, the first (,orporate body never did expire; its life was never suspended for an instant. Higginbot horn reld in 1819 under the same appointment that he held in 1805. His commission was the same; the obligees were the same; and his duties were the same in 1819, as when the bond was given; the r.ew law did not operate as a grant, but as a confirmation. If a temporary law be continued by another, the former statute is as if it had been made per- petual at first. Via. Ah. tit. Statutes, 513. 6 Bac. Jib. 372. Shepman vs Ilenbest, 4 T. K. 114. A covenant runs with a corporation, though the charter be renewed. 4 Leon. 187, case 290. So the new body may sue for breaches as well before as afterwards. Lee vs Waring, 3Desaussure,7Q,73. Copley vs Delaitnoy, 2 Ld. Itaym. 1050. Burland vs 7'yler, Ib. 1391. Lee vs Pilney, Ib. 1513. Vin. Jib. tit. Covenant, 112, 416. The case of a covenant by a lessee for life to a cor- poration sole, to victual the cellerer. The corporation was dis- solved, and possession given to a new body, the lessee was held bound to victual the steward of the new body; this is a case precisely in point. Finally, if the cashier be the deputy of the corporation, and his principal still lives and breathes, consi- ders, approves or condemns, is still occupied in the same busi- ness, and in the same place, under the same charter and authori- ty; so is his deputy in full life, vigour and health, with all his functions unimpaired. As well might we dispute the identity OF MARYLAND* 385 N'K. OF MAHVLAXII v . RiDrrKtT. 1827. of our image in a clear running stream, because the drops that reflected it a moment since are not the same that reflect it now, as to deny that the cashier of the seventh of February, 1817, was the same officer that acted that day, the hour, the moment, the punctuin temporis before. Who cfan catch the last glimpse of the old charter, or the first of the new? 5. As to the plaintiffs' 2d, 3d and 6th bills of exceptions* 1st. Henry Payson was u competent witness to prove him- self the depositary of the book called the By-Laws, &c. as a muniment of the bank. The case of Rex vs Net her throng, 2 Maule 4' Selw. 337, is precisely in point, and in that case the interest of the witness was admitted. Northrop vs Speary, 1 Day's Rep. 23. Peak. Evid. 155, 169. Moor vsPitt, 1 Ventr, 359. IVeller vs The Governors of the Foundling Hospital, Peake, N. P. 153; The objection on the other side that he had ceased to be the depositary in May 1819, and therefore not Competent, is singular, because the facts offered to be proved, occurred while Paysonwas the depositary and Higginbothom was cashier. He alone of course could identify the by-laws which had prescribed the cashier's duties under this bond, and, if he were a competent witness, to prove himself the deposita- ry of this book. The decision of the county court was erro- neous as stated in the plaintiffs' 2d exception; because they held him incompetent to prove any of the matters offered to be proved by him. 2dly. The by-laws were sufficiently proved. These were the rules of duty prescribed for the cashier, and under which he acted; They are proved in toto as to the ca- ahier's duties, the only point material, by James Ji. Buchanan, by Dunbar and Goldsmith, and the genuineness of the book was proved by Jona. Pinkney. All the witnesses prove the 19th article prescribing his own duties to be in the handwrit- ing of Higginbothom. The court below proceeded on the ground that a written entry was the only legal evidence of the appointment of a cashier or of the rules of his conduct. As this question has been discussed under the first division of the argument, it will not be repeated here. By the charter, (9th sect.) the president and directors were authorised not only to make by-laws, but such rules, orders and regulations, for the go- vernment of the officers and servants of the bank, as they should VOL i, 49 CASES IN THE COURT OF APPEALS UNIOV HANK OF MARYLAND v. RIDGELY. 1827. see fit, either in writing or otherwise; and Ridgely guaranteed Higginbothom should faithfully perform such rules and regu- lations whether in writing or not. John Hollins, a former di- rector, proves that these by-laws offeree! were adopted and used by the bank, although he could not identify the book; but the plaintiffs gave other evidence that there was no other book in which the proceedings of the board were entered. How coujd the rules of conduct be better identified and established? 3d. As to the.v/a?M bill of exceptions (The admissibility of the books in evidence.} It appears that the court below on this bill of exceptions rejected all evidence of the truth of the breaches, before the jury had found the truth of the matters of fact alleged in the sixth plea; the court thus assuming the ques- tion of fact, that the bond was so delivered as was stated in the plea. The opinion given on the 6th plea only ascertained what was sufficient evidence of acceptance of the bond. And the question whether it was delivered conditionally to await such acceptance or not, was a pure question of fact, and not cover- ed by the opinion of the court. Delivery by obligor, and le- gal acceptance by obligee, are two distinct matters. The opi- nion of the court assumes that absolute delivery would not be good and sufficient, however satisfactory; that there can be no presumed assent of the obligee, but there must be written ac- ceptance to make it his (the obligor's,) deed. Deed, or not, is a question for the jury. Nominal damages ought to be assess- ed on all the breaches, and if nominal, why not real, by the same jury that tried the issues? They had a right to find a ver- dict against the direction of the court upon all the issues, es- pecially on the sixth plea, and the court had no right to reject evidence legal upon one issue, upon the presumption that the jury would find another issue conformably to the direction of the court which would render such issue nugatory. If the evi- dence offered here was admissible before the court had express- ed its opinion on the sixth plea, it was admissible after. The competency of evidence does not depend upon the order in which the issues are tried; there being no legal evidence of the bond in the opinion of the court. When the fourth and fifth exceptions were signed by the court, it did not preclude the plaintiffs from offering further proof of it in a later stage of the OF MARYLAND. 387 UMOM BANK OF MAUYLAU r. RIDGKLY. 1827. case. At all events, all the issues were on trial together, and were to be found by the. same verdict, and the court had no right to shut out evidence to prove the breaches assigned, upon a presumption that the jury would find that there was no bond. ' The court decided both law and fact on the issue upon the sixth plea, in order to exclude this evidence. 4th. *3s to the proof of the books. They are public corporation books, in which the state itself is interested to a large amount; of a corporate body so recognized as a part of the state, that some of its offi- cers are Appointed annually by the legislature, under whose di- rection the books are kept. The books are directed to be in- spected by the treasurer of the state, and are as much public records as the books of the county clerks, surely as much as those of the bank of England, and other public corporations. Again, the genuineness of the entries or their falsity, com- pared with each other, was alone in issue, and not the truth of the facts which those entries professed to assert. It is one thing to offer an entry to prove the delivery of an article, or the payment or receipt of money, and quite another to prove merely the genuineness of the entry itself, by proving that /?. 7?. or C. made such an entry; and that he made others incon- sistent with it; so that one or the other must be false. Now, the 20th, 23d and 25th breaches assigned, put in issue the false entries by the clerks in the books, as the consequence of the cashier's neglect of duty; and the 10th and llth breaches put in issue the charge, that the cashier fraudulently caused and permitted deceptious entries to be made in these books. Bar- ry vs Bebbington, 4 T. R. 514. Stead vs Heaton, Ib. 669. St. Lawrence, vs fVebb, 3 Bro. Farl. Cos. 640. Price vs Earl of Torrington, 1 Salk. 285. Warren vs Greenville, 2 Stra. 1 129. How were these breaches to be proved? Surely- not by the conspirators, even if present; but by any indifferent witness who could prove these entries to be made by them, or in their handwriting The books being the common organ of deceit between the clerks and the cashier. Besides, the conspirators, Burt and Tanner, could not have been compelled to, answer, if thev had been present, and Hart was dead. The books were not offered to prove per se, that they were kept under the su- perintendence of Higginbothom, but that fact was offered to 388 CASES IN THE COURT OF APPEALS UNION BANK OF MARYLAND v. RIDOKLY. 1827. - be proved as a distinct fact by other evidence, as well as the fact that Jacob Hart was dead. Jill the books were offered, because some might explain the others, and if only part of .them had been offered, it would have been objected to, as only a mutilated confession, or an extract from a deed, &c. Besides, if these are to be considered only as entries, by the agents of the cashier acting under his superintendence, they would have been admissible in evidence; because the witnesses were out of the jurisdiction, and not within the reach of the party, and their residence unknown, so that no commission could be issued. Ni- chols vs IVebb, 8 Wheat. 335, 336. Owings vs Speed, 5 Wheat. 423. 1 Phil. Evid. 169. Finally, the entries were evidence as acts covenanted against by the cashier and his surety. They both knew that the conduct of the clerks in keeping these books was subject to the cashier's superinten- dence. The complaint is, that he did not superintend their conduct in this respect, nor report their defaults to the board when he knew it, 'as was made his duty by the by-laws. .We complain that he knew that the clerks made false entries in the books of the bank; that he knew that they received money with which the bank was chargeable, which they did not credit to the depositors, and that they paid out money of the bank to persons who ought not to receive it. Barry vs Bennington, 4 T. R. 514; and all this is proved by their own confessions, who were common agents between the cashier and the bank. We do not complain that he did not perform what was impos- sible, but that he connived at all these acts of misconduct in the clerks. In the case relied upon on the other side, (Man- hattan Company vs Lydig. 4 Johns. Rep. 377,) the depositor employed a clerk out of his proper department, and the court held the bank liable only in the department where they had employed him. It is said we did not offer to prove his con-.- nivance at the false entries. The question is, whether this was not directly in issue; and if so, whether the evidence offered did not tend to prove the issue? Is a bill of exceptions to re- cite all the pleadings, in order to show the evidence rejected, pertinent to the issue, or will not 'he court inspect the plead- ings to see whether such evidence offered could in any way tend to prove the issue? The by-laws proved it to be the duty OP MARYLAND. 38$ Uios BANK OF MARYLAND v. KIDGELT. 1827. of the cashier to inspect the books; his duty was in issue, and if the books were offered first, were they to be rejected, be- cause the other matters in the same issue, were not first proved? The plaintiffs had a right to prove any one of the facts in issue, in such order as they pleased, and the natural order was first to prove these were false entries, and then to proceed to the proof that they were with the connivance of the cashier; and lastly, that this was a violation of his official duty. Upon the whole, it is submitted to the court, that the court below erred, not only in all the points involved in the three bills of excep~ tions presented, under this branch of the argument, but also in the several opinions canvassed in the two first branches of this argument. And that, although sureties are not to be made liable by construction, they are not on the other hand to be re- lieved from the letter and spirit of their solemn engagements, upon which faith has been reposed by multitudes of helpless members of the community, whose all has been embezzled and squandered, and who have now left to their hopes, no other re- source than those high tribunals of justice who are entrusted with the protection of their rights against lawless depredations. If sympathy is to approach the bench in behalf of the surety, is a deaf ear to be turned to the cry of the widow and the fa- therless?^.^ Taney, R. Johnson and Eichelbergcr, for the appellee. 1st branch of the argument. 1. Points on the plea of non est factum 1st, 4lh and 5th bills of exceptions. 1st. The amendment was not too late. The court had the right to per- mit it to be made at the time it was done. Act of 1809, ch. 153, sec. 1. 2d. The plaintiffs were not surprised. They did not ask time "to prepare to support their cause." There can be no error in not giving them time, when they did not desire time. 3d. The plea of non est factum is not inconsistent (in the legal sense, of the word,) with the plea of performance. Steph. on Plead. 293. 1 Chitty's Plead. 541. Com. Dig. lit. Pleader, (E 2,) 5 Bac. rfb.448. Wright vs fiussell, 3 (~aj The preceding Argument of the Counsel of the Appellants is intend- ed to embrace that made by them, as well in the opening of the case, as in reply to the Arguments of the Counsel of the Appellee., -390 CASES IN THE COURT OF APPEALS UNION BANK OF MARYLAND v. RIDOF.LT. 1827 < ' Wils. 536. Peppinvs Cooper, 2 Barn. 8? Md. 432. Dance vs Girdler, 4 Bos. 4* Pull. 34. Macchllan vs Howard, 4 T. P. 194. Jenkins vs Edwards, 5 T. JR. 97. 4th. The special plea of non est factum, does not throw the burthen of proof on the defendant. There is no issue joined on the special cir- cumstances stated in the plea. The affirmation in the declara- tion, that it is the "writing obligatory," of the party, and the denial of that fact in the plea, makes the issue between the parties. Upon this issue the affirmation is on the part of the,, plaintiff; the denial on the part of the defendant. And as the plaintiff holds the affirmative, he is, according to the settled Jule in courts of justice, bound to prove his allegation. In the cases of infancy, duress, usury, &c. the burthen of the proof lies on the defendant, and in those cases the plea always con- cludes with a verification, and the issue is joined on the matter alleged in the plea, in which issue the affirmation is on the part of the defendant, and the denial on the part of the plaintiff. See the precedents, 2 Chit. Plead. 464, 465, &c. In the case of Bushell vs Passmore, 6 Mod. 217, and referred to in 5 Boc. Jibr. 373, the issue was joined on the matter alleged in the plea. The affirmation of the defendant was traversed by the plaintiff, and issue thereupon joined. On that issue the defen- dant held the affirmative, and the plaintiff* the negative; and it is only to a case of that description that the dictum of Holt can be supposed to apply. If the issue be necessarily on the matter alleged in the plea, then the plea of delivery as an es- crow could not conclude to the country. If the substance of the plea be the matter stated in avoidance, then, as this is new matter alleged by the defendant, the plea must conclude with a verification. For the conclusion to the country is never proper unless it follows the denial of some fact alleged on the other side. It. is this affirmation on one side, and negation on the other, which makes the issue between the parties. But it seems to be well settled, that the conclusion TO the country is proper in a plea of this description. 2 Chit. Plead. 463, (note t,) and the cases referred to in that note. We conclude, therefore, that the burthen of proof is on the plaintiffs. They hold the affirmative of the issue, and must prove that it is "the writing obligatory" of the defendant. F MARYLAND. 391 UNION BANK or MARYLAND v. KIDGELIT. 1827. 5th. It is contended that the plaintiffs have not proved that it is the deed of the defendant. The only proof on this point is stated in the fourth bill of exceptions; that the bond was sign- ed and sealed by the defendant, and was found by the present cashier of the plaintiffs, in the manner described in this excep- tion, when he entered on his office of cashier, November 16, 1S19. The bond, is dated March 30, 1805. There is no sub- scribing witness to it, and it does not, on its face, purport iu the usual form, to have been "signed, sealed and delivered" by the defendant. By the charter, sect. 14, of the fundamental articles, it could not be the bond of ihe defendant unless it wa* accepted as such by the president and directors; and the board which accepted the bond must consist of the president and eight directors. No business but that of ordinary discounts could be done by a smaller board. Vid. rule 9th. It appears that there was no written evidence of acceptance by the bank. In maintaining the proposition above stated, it is insisted that there could be no legal acceptance in behalf of the corporation unless it was in writing. The president and directors are the representatives of the corporation, and could do no corporate act unless they were assembled together in the character of president and directors. The bond in question could be legal- ly accepted only when they were thus assembled. When they are thus assembled, they have no common voice by which they may be heard to pronounce that they are satisfied with the bond, and thus evidence by words that they have accepted it. They have no common hand which can be seen to receive the paper, and thus evidence, by the act, that they are satisfied with it Their assent, their will, cannot be evidenced in the same man- ner as that of an individual; and as they cannot be heard to speak, or seen when they act like an individual, it seems of ne- cessity to follow thut their acts must be proved in some other manner; that is, by writing or the common seal. Anciently, their acts could be evidenced by the common seal only; in modern times by writing, because in modern times the writing may be proved with as much certainty as the common seal. The proposition now under discussion is supported by adjudged cases as \yell as by sound reason. 1 Fonb. 805, (note, o,) ed. of 1807. Bank of Columbia vs Patterson, 1 Crunch, 299, 392 GASES IN THE COURT OF APPEALS UNION BANK OF MARYLAND v. KIDGELY 1827. 305. Fleckner vs Bank of United States, 8 Wheat. 357, 358. All of these cases imply, that the corporate act must be evidenced by writing; and this is in analogy to the proceedings of all political as well as corporate bodies; whether those bodies be representative or primary, they all keep a written journal of their acts, and their decisions are evidenced by the writing only. Any other rule would be pregnant with mischief. In the Sank of Columbia vs Patterson, it was admitted in the case that the corporation had authorised the committee to make agreements on the subject. The manner in which such an au- thority from a corporation must be proved was not a questioa before the court. If writing is necessary to confer the power, the admission included it. When, therefore, in that ease, the court speaks of the evidence of the contract, they speak of the promise of the agent, he being first proved to have been duly appointed by the corporation. The acts and promises of agents may, doubtless, be proved by parol. For although they are the agents of a corporation, yet they themselves are not a cor- poration. They must act, and promise, and contract as natural persons, and their contracts may, therefore, be made and be evi- denced like the contracts of other individuals; that is, by words. It is hot intended to maintain that in every case of express contracts made by the agent of a corporation, the party claim- ing the benefit of the contract must produce written evidence of the agent's authority. Although a corporation can neither be seen .nor heard, yet in legal contemplation, it can both see and hear. And if it permits any one to hold himself out to the public as their agent in any particular business, and by its ac- quiescence induces a belief in the agency, the corporation, like an individual, would be bound by his acts, whether the agent was lawfully appointed or not. The law will not sanction the fraud of a corporation, sooner than that of an individual. So too in cases of implied contracts. In some of these cases the contract implied is a mere fiction of law invented for the pur" poses of justice. When the law implies a contract, it implies a valid contract, a legal undertaking, and consequently it must and does imply every thing that is necessary for that purpose. If a writing be necessary to evidence the contract of the cor- poration, the law implies tho promise, in writing upon the OF MARYLAND. Utuox BANK OF MAKTLAND v. RIDGELT 1827. principle that it implies the promise by parol in the case of an individual. Both are equally fictions, and the one can as pro- perly be implied as the other. The cases of parol agreements by the duly authorised agent of a corporation, and the cases of implied contracts, are perfectly consistent with the principles now contended for. The cases of implied contracts prove that a corporation may contract without its seal; that is, without deed; and it is on this ground that assumpsit is maintained on them. But they do not prove that such contracts need not be in writing. They do not touch that question. If, however, the court should be of opinion, that "the satisfaction" of the president and directors might be declared by parol, and need not be evidenced by writing, yet it is contended, that such parol acceptance must be proved to have been .made by the president and eight directors duly assembled; and that the mere possession of the instrument in the manner and at the time stated in the exception, is not of itself sufficient evidence of such parol acceptance. It may be admitted for the sake of this ar- gument, that in the case of an individual obligee his possession of the instrument is of itself sufficient evidence of the delivery without the aid of any other circumstance, provided the sign- ing and sealing by the obligor be proved or admitted. Yet this proposition can hardly be deemed a settled one in regard to a deed, and is well worthy of the deliberate consideration of this court, before it is here pronounced to be a general rule of law. Bull. N. P. 250. Talbot vs Hodson, 7 Taunt. 251, (2 Serg. Sf Lowb. 91.) But conceding the proposition to be true in the case of an individual, it is denied that the same rule can apply in this case. The reason of the rule would fail 1. The bond in question is declared upon as a bond dated March 30, 1805. In order to support the declaration it must be proved as a bond of that date. 5 Bac. Jib. 159, 160. Now in the case of an individual obli- gee there is at the date of the instrument a person in existence and in a condition, to accept, and no steps are necessary to be taken by him to obtain a proper attitude for receiving it, when the delivery is tendered. But in this case something more was necessary than the mere existence of the corporation. There must also have been a board convened consisting of the presi- VOL. i. 50 394 CASES IN THE COtfRT OP APPEALS UNION BANK OF MARII-AND y. KIDGELY. 1827. dent and eight directors, in order to accept this bond. There must have been a board larger in number than that required for the ordinary purposes of the bank; for the president and five directors are authorised to make ordinary discounts, which is the usual and chief business of the bank. There is no evidence that a board competent to accept was in actual existence, that is, assembled together on the day averred in the declaration? on the contrary, the minutes of the bank go to show there was no such board on that day. Yet the plaintiffs insist that the jury may, from the fact of possession in 1819, presume a de- livery and acceptance on the 30th of March, 1805, without of- fering any evidence that, on the day last mentioned, the obli- gees or any body for them, were in a condition capable of ac- cepting. Jackson vs Phipps, 12 Johns. 418, 422. 2. In the case of an individual obligee the bond cannot be delivered to him as an escrow. Whatever conditions may be annexed t the delivery by the obligoi when he delivers it to the obligee, the bond is absolute according to its tenor the moment it is ac- cepted into the hand of the obligee. When, therefore, the obligee is found in possession of the instrument, it is not a matter of speculation, nor even a subject of proof, whether it is an escrow or an absolute deed. If it came into his hands- from the obligor, or by his authority, the delivery by operation of law is absolute and not an escrow. His possession, therefore, may be deemed evidence of an absolute delivery, because it -could not come into his possession without his consent to re- ceive it; and if he accepted, it was, when accepted, necessarily an absolute deed and not an escrow. In the case of an indi- vidual then, a lawful possession by the obligee is inconsistent legally with any other state of things than an absolute delivery and acceptance. It cannot, lawfully, get into his hands but as the deed of the obligor, and the law will not presume that the possession was unlawfully obtained. But in this case it is entire- ly otherwise. The bond may, and perhaps must, come into the possession of the president and directors as an escrow. It must come into the hands of the preside it and directors before they can pass judgment on its sufficiency; and after it is in their possession, the law makes it an escrow until they have declared their approval in some way. This instrument, then, may have OP MARYLAND. 395 UWION HANK OF MARYLAND v. KIDGELT. 1827. come into their hands originally as an escrotv; their possession is consistent with its being an escrow. How, then, can that possession be evidence that it is not an escroiv, but an absolute deed? As they would, in the ordinary course of business, obtain possession of it as an escrow, it would seem to follow, that it should be presumed to be an escrow until the plaintiffs prove that its character was changed; at all events the possession is consistent with its being an escrow as well as it is consistent with its being an absolute deed. The possession, therefore, cannot be evidence that it was not an escrow, but an absolute deed. If there was not a board to act upon it, when it was re- ceived, it would naturally and properly be placed where it was found until the board did act upon it. Indeed, it does not ap- pear from the testimony to have been out of the possession of the cashier, who was the principal obligor; and nothing can be inferred from his acting as cashier afterwards, for it appears in evidence that he acted as cashier for more than two months be- fore the bond is alleged to have been given. 3. There is yet another distinction between this case and a bond to an indi- vidual obligee. This instrument could not be accepted by the corporation aggregate; that is, by the stockholders themselves: it could not be accepted by agents or officers appointed by them, for they had not the power to make an election, as a cor- poration, until the first Monday in July, 1805. The persons named, or the president and any eight of them, were the agents, constituted by law to act in behalf of the corporation. It was a special authority conferred by law, and in all cases of special authority, the power given must appear in the proceedings to have been strictly followed. The chancellor is, by law, the agent of the oKligee, to approve and accept for him a writ of error bond. The county court has the like authority in appeal bonds; yet it never has been supposed that such a bond, found in the custody of the officer of the court among the "archives and valuable papers of the court," was of itself evidence that it had been approved and accepted by the chancellor, or the coun- ty court, without the aid of any other circumstance. It is be- lieved it never can be so held in the cases of writs of error . bonds and appeal bonds, and this case is, in principle, perfectly analogous to these cases. It may^ also, be added that in the 396 CASES IN THE COURT OF APPEALS UNION BANK OF MARYLAND v. RIHGBLT 1827. case of an absolute deed, or a bond for the payment of money, the party obligee or grantee being in possession, may be pre- sumed to have accepted it, because it was for his benefit to ac- cept it. But, in this case, unless the security was good, it was not for the benefit of the corporation to accept it, and there is nothing in the case to show that the security was good; and no argument can be drawn from the fact of Hi gginbot horn's con- tinuing to act as cashier, for it is in proof that he acted as cashier for more than two months without any bond. For aught that appears in the case, it may have been the interest ef the corpo- ration to refuse this bond and demand better security. But, conceding for the sake of ihe argument, that the possession is sufficient evidence that the instrument was delivered and ac- cepted; yet it is denied that it can be evidence of the delivery and acceptance on the day it bears date, which is the day al- leged in pleading by the plaintiffs, &c. to be proved by them. In the cases in which it has been held that a deed shall be pre- sumed to have been delivered on the day it bears date, it will be found (or is to be inferred from the period at which the de- cision was made) that the deed upon the face of it purported to be delivered on that day. The bond, in the body of it, usually, and, indeed, always certifies, that it is sealed on that day. The subscribing witnesses certify that it was "sealed and delivered" in their presence. The old deeds, therefore, and most of the modern, bear on the face of them the evidence that they were completely executed on the day they bear date. Of such deeds it may reasonably be predicated that they were executed at the time they profess to have been executed; and it is ot such deeds, it is believed, that the courts speak when they say it is to be presumed they were executed on the day they bear date. But, this instrument, although it professes to have been sealed on March 30, 1805, does not purport to have been delivered on that day; and, indeed, does not on the face of it contain any evidence that it was delivered at all. It does not, therefore, come within the reason of the rule. Again; in all of the above mentioned cases there was a body in existence and in a condi- tion to accept on that day; and it so appeared. But, in this ' case, there is no such evidence; and, indeed, it would appear from the proceedings of the bank, that there was not on the 30th OF MARYLAND. 397 BANK OF MARYtAwn v. RIPOELY. 1827. of March, 1805, a meeting of the president and eight directors. Moreover, it is believed that in all of the cases in which the rule is laid down, the precise day of the delivery did not ma- terially affect the rights and obligations of the parlies. The date of the delivery was not of the substance of the contract. But, in this case the time of the delivery and acceptance is of the very ess^iice of the contract. The whole extent of the de- fendant's liability depends upon the time it was accepted. The time is not less material than his signature and seal; and it would seem to be just as reasonable to presume his signature and seal, because the obligee was in possession, as to presume the precise time of delivery, in the absence of all proof as to that time. The possession itself may be considered as equivocal, for it seems to have been in the possession of the principal obligor, and in his power and under his control until 1819. The in- strument in question is a common law instrument, and to be proved and established according to the principles of the com- mon law. No argument can be drawn from promissory notes and other instruments of modern invention, which are not go- verned by the rules of the common law. In fine, this is the case of a surety ; it is one of that class of cases in which the rights of the plaintiffs are strictly scanned and no implication or in- tendment made to the disadvantage of the defendant. Miller vs Stewart, 9 Wheat. 702 703. The first division of the argument, that is the points arising on the plea of non est fac- tum, is here concluded. As these questions seemed to depend on the application of general principles, in the absence of ad- judged cases, on the very points in controversy it was sup- posed that it would be more satisfactory to the court to state the argument somewhat at large. Except the case decided by Ch. J. Marshall, there is, perhaps, no case directly on any of the points in controversy, on this part of the subject. The other points of the case will be more briefly disposed of. 2. Jls to the duration of the bond. The points under this head of the argument arise on the demurrer to the first breach assigned in the replication to the first plea. The defendant's 1st plea is general performance. The plaintiffs reply, and assign as the first breach the embezzlement by Higginbothom of $50,000 on various days and times between the date of the bond 398 GASES IN THE COURT OF APPEALS UNION BANK or MARYLAND v. RIIHJELT. 1827. (March 30, 1805,) and the 25th of May, 1819. The defen- dant demurred to this breach, and the judgment of the court be- Jow was in his favour. If the breach assigned was too large, that is, if the condition of the bond did not cover the whole space of time, the plea was ill on demurrer, and the judgment of the court, therefore, right. It is insisted that the breach assigned was too large, upon the following grounds: 1st. It is contended, that if the instru- ment in question be the bond of the appellee, yet he was not thereby liable as the security of Higginbothom for any em- bezzlement which took place after the first Monday in July, 1805, at which time a new election of directors took place. The charter directed that the affairs of the corporation should be conducted by the president and directors; see sect. 7. By sect. 6, the persons there named are to act as the president and directors until the first Monday in July 1805, and until a new election of directors. By sec. 8, the directors for the time being have power to appoint a cashier and such other of- ficers and servants under them as may be necessary lor exe- cuting the business of the corporation. The cashier then was one of the servants under the directors, to enable them to exe- cute the business of the corporation. The business of the cor- poration was to be managed by these directors until the first Monday in July 1805, and no longer provided the new elec- tion took place on that day. Now as the president and direc- tors were appointed for a limited time, and to perform certain duties, and the cashier was a deputy or servant under them to aid in the performance of those duties, it is insisted that his ap- pointment cannot endure longer than that of the appointing power. In other words, as the directors themselves had no power to manage the business of the corporation after the first Monday in July 1805, they could confer no power to do so, on any agent or servant, by virtue of their appointment. They could give no greater power to their servant, the cashier, than they themselves had. The law indeed might authorise them to appoint for a longer time, but as the law does not pro- fess to confer such a power, the question must depend upon the general doctrine of principal and deputy. The principles above Stated will be found to be established by the following cases: OF MARYLAND. 399 Usiox DANK OF MARYLAND v. KIDGEIT. 1827. Lord Arlington vs Merricke, 2 Saund. 411. Liverpool Wa- ter Works vs Atkinson, 6 East, 507. The King vs Corpora- tion of Bedford Level, Ib. 363. Wardens of St. Saviour's 'vs Bostock, 5 Bos. # Pull. 175. Hassell vs Long, 2 Maule. $ Selw. 363. Peppin vs Cooper, 2 Barn. $ tfld. 431. Lead- ley vs Evans, 9 Serg. <$ Lowb. 306. It is not necessary to en- quire whether the president and directors might not so have taken the bond as to hold the security bound for a longer peri- riod. The above cases, it is conceived, abundantly show, that the bond in question cannot be construed to hold the surety li- able beyond the time to which the appointment itself was li- mited. 2dly. But if it be even conceded, for the sake of the argument, that the above proposition cannot be maintained up- on the principles and authorities above stated, yet it is insisted that the defendant was not liable for any embezzlement which took place after February 6, 1817, when the first charter ex- pired. It may be admitted, that the defendant is liable to the new corporation, to the full extent of any contract he made with the old one, no matter whether the bfeach occurred be- fore or after the expiration of the first charter. But it is con- tended that his contract could not be enlarged by the renewal of the charter. His liability as security could not be increased without his consent. It could not be made to extend to times or things for which he had not contracted. When he entered into the contract it is very clear that as the law then stood he could not be liable beyond February 6, 1817. The days of the cor- poration were numbered, and they ceased to exist on that day. They could, by no possible interpretation of the charter, ap- point a servant for a longer period. They could have no ser- vant after that time; for there would, as the law then stood, be no master to serve. Can a new law enlarge the liability ot a surety without his consent? Is the contract to be expounded by the law as it was when the contract was made? Or, is it to be interpreted by laws passed afterwards? It is believed that the answers to these questions can hardly be a matter of doubt. And the following cases, (if cases be necessary on such a point,) it is hoped, will be deemed conclusive. Fell on Guar. 116, 117, (note.) Barker vs Parker, \ T.fi.287. Miller vs. Stew- art, 9 Wheat. 702. United States vs Kirkputrick t Ib. 733. 400 CASES IN THE COURT OP APPEALS UNION BASK OF MAUTLAND v. RIDOELY. J827. Strange vs Lee, 3 East, 490. Dance vs Girdler. 4 Bos. 4* Pull. 34. Ludlow vs Simond, 2 Caine's Cas. in Error, 1. The present case bears a very strong analogy to that of Bar- ker vs Parker, 1 T. JR. 287. There, a bond was given with condition that a clerk should serve faithfully, and account for all money, &c. to the obligee and Ms executors. After the death of the obligee, the executors continue the business and retain the clerk in the same employment. It was held, that. the obligor was not liable for money received by the clerk in the service of the executors. Lord Mansfield says, "This is a very plain case. The service in the contemplation of the parties, was the service of the testator. There was no idea then of carrying it further." Now, in the present case the contract of the defendant was to secure the fidelity of a ser- vant in the service of a corporation. This corporation is a le- gal, artificial being, depending entirely for the commencement, duration and termination of its existence upon the power creat- ing it the legislature. At the time this contract of the de- fendant was made, there was a legal statutory life assigned to this legal, artificial being. Was not then the service, in the contemplation of the parties, a service during the life of this artificial being, as this time was limited at the time of the con- tract? Was there any idea then of carrying it further? When, the charter was renewed, the corporation became, with regard to the defendant in this cause, precisely like the executors with regard to the defendant in the case of Barker vs Parker. They were, as to him, the executors of the old corporation, retaining the same servant in the same employment 3. Points on Evidence. 1. The first question under this head is presented by the plaintiffs' second bill of exceptions. Was Henry Pay son, who at the time of the trial was a stockholder in the bank, and therefore to gain by a verdict for the plaintiffs, a competent witness? 1st. It is in the first place insisted that upon the general rules of evidence he was not competent to testify in support of his own interest. 2dly. It is insisted that he was not excepted out of the general rule by reason of being the depositary of the by-laws. For it appears by the excep- tion that he ceased to be the president on the 27th of May, 1819, and consequently at that time ceased to be the deposita- OF MARYLAND. 40J UNION BANK OF MAIIYLAND v. RIVGELY. 1827. ry. 2. The second question of evidence is under the plain- tiffs' third bill of exceptions, upon the admissihility of the writ- ing offered as the by-laws of the corporation. The court re- fused to suffer the writing to be read in evidence as the by-laws of the corporation. It was offered as containing the written by-laws of the corporation. It is contended, 1st. That by- laws, ex vi termini, \v\ modern times mean written enactments, and the power given by the charter ought to be so interpreted. The cases where they have been suffered to be proved by parol, were the cases of ancient corporations, and when the writing might be presumed to be lost 2dly. The evidence stated in the exception does not prove that the entire paper offered was adopted as the by-laws of the corporation. And it was that particular paper, and the whole too of that particular paper, that was offered to be read as the written by-laws of the corporation. It is not identified by any of the witnesses, as the paper adopted and passed by the corporation as their by-laws. 3dly. The paper itself on the face of it, purports to be the by-laws of the association and not of the corporation See art. 18, and art. 26. The parol evidence was offered to contradict the writing. If the corporation adopted similar by- laws by parol, and by-laws can be proved by parol, then the witness ought to state in words the contents of the parol by- laws. The written by-laws of the association could not be read as evidence of the parol by-laws of the corp ration. It will be noted that the heading to by-laws is not in the book produced, and rejected by the court, as stated in the exception. The last question is on the admissibility of the books. If the court below were right in their direction upon the plea of non est fact tin, they are then clearly right in this opinion. For it would be absurd to admit evidence to prove damages for the breach of the condition of a bond, when the bond itself was not proved when there was no contract to be broken, and con- sequently no damages to be claimed for a breach. If, however, the court erred as regards the issue of non est factum, yet it is insisted that the said books were not admissible for the pur- pose for which they were offered. 1. The general superinten- dance and direction of Higginbothom, mentioned in this ex- ception must, unquestionably, be understood to mean, his gene> VOL. if 51 402 CASES IN THE COtJRT OF APPEALS UMOST BANK OF MAHTLAWD v. RIDGELT. 1827. ral superintendence and direction as cashier. There is no evi- dence that he directed the particular entries, or even saw them or knew that they were made. The cashier's duty of super- intendence is precisely like the president's, and nobody sup- poses that the president. is responsible by reason of his super-; intenHence, for the false entries alleged to exist in the books - *ftri. 18, 19. 2. The entire books were offered, and not parti- cular items, and a part of the entries in the books were made by a witness still living. The relaxation of the rule as to the handwriting of an absent witness, it is contended, is confined to the single case of an instrumentary witness, and has never been carried farther. The books could not, therefore, be read un- less the living witness was called to prove his entries, and for the best reason because he would be able to explain why they were made. Cooper vs Marsden, 1 Esp. Rep. 1. 3. The books were offered, not only to show that they contained false entries and omissions; but also, to prove by the books that such false entries, &c. occurred therein by the neglect and fraud of Uigginbothom. Now, although the books might show false entries and mistakes, they could not show that they occurred by the fraud or neglect of Higginbothom; and being offered for a purpose for which they were clearly incompetent, they were properly rejected by the court. They could not, in any view of the subject, be evidence to charge the defendant, un- less they were coupled with an offer to prove, that the entries spoken of were occasioned by his neglect of duty, or that he knew their falsehood, and connived at it >-no such proofs are of- fered; the books are offered by themselves, and it is not even said that it w 52 410 CASES IN THE COURT OF APPEALS . ; : ' " UNION BAVK UF MARILAND v. RIDGKLY. 1827. be read, was one of the books of the corporation, and that, in which the proceedings of the president and' directors were en- tered, from the time the charter was obtained, until the year 1819, so far as they were reduced to writing, and that there was no other "book, in which their proceedings were entered during that period, nor any other writing or memorandum of their proceedings. One of the witnesses, the cashier who suc- ceeded Higgiiibofhom, in the year 1819, and after other by- laws had been adopted, proves, that when he went into the bank, he found the same book among the other books of the corporation, and that it had in bank the reputation of being the former by-laws and minutes of the corporation. If then there were any by-laws of the corporation, they were contained iu that book, and were they that were offered to be read, and were rejected by the court there were none other. It is contended, Isf. That there is no evidence that the en- tire writing, headed "Bv-Laws," was adopted as the by-laws of the corporation. And 2d. That there does not appear to have been any entry or memorandum of such adoption, among the minutes of the proceedings of the corporation. As to the first of these positions. The writing, headed "By- Laws/' consists of 26 articles, the witnesses who were examin- ed in relation to their adoption, had each of them been a direc- tor under the charter, except txvo who had been clerks; and the proof is, that the 19th article prescribing the duties of the cashier, which, in truth, is all that is material in this part of the case, was required by the corporation to be particularly ob- served; and that Higginbothom, acting as the cashier, after the act of incorporation, was in the habit of observing, or of pro- fessing to observe it, but that he did nor perform the duties with regularity. With regard to the rest, several of the wit- nesses, taking their testimony together prove, that the govern- ment and proceedings of the bank were in conformity with all of them, with the exception only of the 20th and 23d, concern- ing which they have no distinct recollection, and which have po relation to the duties of the cashier; some, that the direction and government of the bank was in general in conformity with them; one, that when he was elected a director, in 1817 or 1818, he inquired for the by-laws, and that a book or paper OF MARYLAND. 411 BA*K OF MARYLAND r. RIDGELT. 1827. was delivered to him by an officer of the bank, containing by-- laws similar to those in question; that he remembers them, among other things, from the fact, that questions sometimes arose at the board, as to what were the rules in particular cases, which were decided agreeably to the by-laws offered to be read ; and because the regulations and government of the bank cor- responded, while he was a director, and until other by-law* were adopted in 1819, with the system prescribed by the arti- cles, headed "By-laws." And another, that when he was sworn in as a director, between the years 1806 and 1811, or about that time, certain by-laws were handed' to him, as proper to be read by him as a director;, but does not prove that these are or are not the same; and it appears that all the articles, head- ed "By-Laws," and many of the minutes entered in the book, entitled, "By-Laws," which was kept by Higginbothom, as cashier, were in his handwriting. This is the substance of the material part of the oral testimony stated in the third bill of exceptions, and it seems to us to be quite sufficient to show a practical adoption by the corporation of the articles, headed "By -Laws." As the book, in which they are written, was one of the books oi the corporation, and the only book in which any of the proceedings of the president and directors were entered, from the time the charter was obtained until 1819, and as- there was no other writing or memorandum of their proceed- ings, it was necessarily the book that was put into the hands of the two witnesses, when they first went into the bank as di- rectors. And what circumstance could be stronger to show, that the writing or articles, headed "By-Laws," had before been adopted by the corporation as such, than the delivery of the book containing them, by one of its officers, to a newly appoint- ed director, on his inquiring for the by-laws, and their being handed to another, on the occasion of his berng >worn in, as proper to be read by him as a new director? The testimony of each of those witnesses goes to the whole writing, and not to any particular article. It was put into their hands to read, as containing a system of by-laws, not confine. i to one portion more than another, but embracing all the articles of which it consists. And although they do not identify the writing pro- 412 CASES IN THE COURT OF APPEALS UNION HANK OF MARTLAND y. HIURKLT. 1827. duced, by swearing it is the same which they saw in the bank, and of which they speak; yet its identity is sufficiently establish- ed by the proof, that the book containing it was a book of the corporation, in which the proceedings of the president and di- rectors were entered until the year 1819, and that there -was no other in which any of their proceedings were entered, nor any other writing or memorandum of their proceedings before that period. The testimony then of these witnesses, clearly relates to the articles headed "By-Laws," and evinces the understand- ing at the bank upon the subject, and the light in which they were viewed. And the proof by some of the witnesses, that the direction and government of the bank was generally in con- formity with the system they presribe; by one, that the regu- lations and government of the bank, corresponded with them as a system, and that they governed the decision of questions, which occasionally arose as to what were the rules in particular cases; by some that the proceedings and government of the bank were in conformity with 24 of the 26 articles, particular- ly in the recollection of the witnesses; and by some, that the 19th article was required by the corporation to be particularly observed, and that Higginbothom himself, acting s the cashier, professed to observe it, form together a mass of evidence rela- tive to the acts and general government of the corporation, con- clusive of their adoption as a system, and not of particular arti- cles merely, if they could be adopted otherwise than by writ- ing. They were treated and acted upon as a system, and there is nothing to show that they were partially adopted only, or that any particular articles of that general system were except- ed. But it is supposed, secondly, That an entry or memorandum in writing was necessary to their adoption by the corporation. INo reason has been shown in .argument, nor can we perceive any, why their adoption may not be proved, as well by the acts and uniform course of proceeding of the corporation, as by an entry or memorandum in writing. They were originally the by-laws of an association, and an entry or memorandum would have been evidence only as an act of the corporation of their adoption; and, without the common seal, which was once held to be necessary to every act of a corporation aggregate, could OF MARYLAND. 413 UNION BANK OF MARYLAND t>. UIDGELT. 1827. \ no more unite the several assents of the individuals composing it, so as to make it the act of the corporation, than any other act without the common seal. But it is admitted, that a corporation aggregate may nmv act without its common seal; and if so, why may not the adoption by such a corporation, of a set of written rules, (already pre- pared by others,) as and for its by-laws, be evidence otherwise than by writing? Where is the law substituting writing for the common seal, and declaring it to be necessary in all cases? If there is any act of a corporation that need not be in writing, it would seem to be such an act of adoption; not being a con- tract, but a recognition only, of certain written rules for its own government, and" that of its officers and servants, which, when adopted, whether by writing or otherwise, become its written by-laws, speaking the sense of the corporation; and it does not appear to be material, in what manner, or by what acts, its as- sent to them is manifested, assuming that it need not be evi- denced by the common seal. In this case authority to make by-laws is specially delegated by the charter to the president and directors, without any di- rection as to the manner in which it is to be done. And if in the exercise of that authority, as the agents (under the char- terj) of the corporation, they could adopt as rules for its go- vernment, the written by-laws of the former associations, which is not denied, it was no more necessary to be done in writing, than the acts of any other duly appointed and authorised agents. And it will not be contended, that an agent, duly authorised and appointed by a corporation, can only act or contract by writing. But authorities are not wanting to sustain the position, that acts or contracts of corporations may be proved otherwise than by writing, and may be inferred from other corporate acts; two only of which will now be noticed, which are we think con- clusive upon this point of the case. The Bank of Columbia vs Patterson's Jjdm'rs. 1 Crar/ch, 299, and Whittington vs The Farmers Bank of Somerset and Worcester, 5 IJarr. ty Johns. 489. The Bank oj Columbia vs Patterson's Jldm'rt f was an action of assumpsit, by Patterson's administrators, for work and labour done by their intestate, for the bank, growing 414 CASES IX THE COURT OF APPEALS UNION BA.VK OF MARYLAND v. KIIIKKI.Y 1827. out of a sealed agreement between Patterson, and an authorised committee of the directors of the bank, in their own names. There was no entry or memorandum in writing produced, of the adoption by the corporation of the contracts of the com- mittee, nor of any vote for the payment of the money. But it appearing that the corporation had from time to time paid money on the contracts to the intestate, and that they were for the benefit of the corporation, the court said the jury might from that evidence "legally infer, that the corporation had adopted the contracts of the committee, and voted to pay the whole sum which should become due under the contracts, and that the plaintiff's intestate had accepted the engagement." And in Whitiington r.s The farmers Bank of Somerset and Worcester, it was decided by Worcester county court, and on appeal affirmed by this court, that it was not necessary an or- der of the president and directors should be in writing to give it validity, but that it might be proved, if not reduced to writ- ing, by oral testimony. But the proof in this case of the adoption by the corporation of the writing produced, as its by-laws, does not rest entirely on oral testimony. There is among the minutes of the pro- ceedings, which were produced, a written recognition of them in these words: "Whereas by an act to incorporate the stock- holders in the Union Bank of Maryland, it is among other things enacted, that an election for sixteen directors to conduct the affairs of said bank,, shall be annually held on the first Mon- day in July: And whereas the said first Monday in July may sometimes fall on the fourth of said month, on which the hank will be shut agreeably to the provisions of the fourth article of the by-laws, ordained and passed for the regulation and govern- ment of the said corporation," &c. Now that this entry re- lates to the writing or articles headed "By-Laws," and could have related to nothing else, is manifest, not only from ivhat has been already saiil, and the proof that there were no others, but also from the language of the fourth article itself under that heading; which is in these words: "That the bank shall keep open for ordinary business, trom nine o'clock in the mo .-ning till three o'clock P. M. every day, ox rr-t S ;n. KIHOELT. 1827. position, and if it had been met by as plain an acceptance by vote recorded, no one would imagine that any question could rise as to the effect." And he added, "the question is nar- rowed to this; have The Proprietors of the Canal Bridge as- sented to this proposition and acted under it? We find no vote to this effect; but we do find, that the cross bridge was suffered to unite with theirs pursuant to the proposition, and that for lour years, all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now corpo- rations can be bound by implications, as well as individuals, as has been before stated, and no acts could be stronger to show an assent to a proposition, an agreement or bargain, than those which have been mentioned." Here was no vote or written memorandum, nor any foundation for presuming a vote, or other written assent of the corporation. On the contrary, the court went expressly on the ground that there was no vote, but that the assent of the corporation might be inferred from other corporate acts. And in Whittington vs The Farmers Bank of Somerset and Worcester, before adverted to, it was decided, that it was not necessary an order of the president and directors should be in writing to give it validity, but that it might be prov- ed, if not reduced to writing, by oral testimony. Other decisions in Pennsylvania, New- York and Massachusetts, might with effect be brought into this discussion, but it is thought to be unne- cessary. In Smith and others vs The Governor and Company of the Bank of Scotland, in the House of Lords, 1 Dow's Rep. 272, the appellants were sureties in bond to the bank of Scotland, with Patterson the principal, who was an agent of the bank. The bond was at first sent to the bank, but returned to Patter- son to get it properly executed, and was then sent back again to the bank; but while it was in transitu, and before it got back to the bank, or into the hands of its officers, Patterson was removed from his office. One of the questions raised in the House of Lords was, as to the due delivery of the bond, Lord Eldon said, "the court below had attended to the objecr tion with respect to the delivery of the deed, they seemed to have considered it properly delivered, and he did not think, there was sufficient ground to quarrel with their decision on that head." Lord Redesdale said, "as Patterson seemed to OF MARYLAND. 429 Usioir BANK OF MAIITLAHD v KIDGEIT. 1827 have acted as the agent of the bank in the transaction, delivery to him might be considered as delivery to the bank." And the House of Lords decided, "that if not impeachable on other grounds, it was to be considered as a delivered deed." The case was argued by Sir Samuel Romilly and Mr. Brougham for the sureties, and is a very strong case. The opinion of Chief Justice Mashall, in The Bank of the United States vs Dandridge, in the Circuit Court of Virginia, (which was ex- actly similar to this,) "that the bond was inoperative, unless the assent thereto of the directors, had been entered on the record of their proceedings," was pressed upon us in the argument. And if any thing could have caused me to doubt, it would have been the opinion of that distinguished judge; the decision how- ever, of the circuit court, has we are informed been reversed in the Supreme Court of the U. S. by the unanimous opinion of all the other judges. It will be admitted, that a corporation may be bound by the acts of its duly authorised agent, although such acts are not reduced to writing. The charter of this bank requires, that the cashier shall give bond with two or more se- curities, "to the satisfaction of the president and directors." If there had been no such provision, and the corporation had appointed an agent, or board of agents, or a committee, for that purpose, could it have been successfully contended, that the ac- ceptance of the bond by such agent or committee, or board of agents, must have been in writing? If not, what is there in this case, to distinguish it materially from that? Are not the di- rectors constituted by the charter the duly autl orised agents of the corporation? By the seventh section of the charter, it is provided, that "the affairs of the said company shall be conducted by a presi- dent and sixteen directors, together wilh such other directors as the state shall appoint." By the eighth section, the direc- tors are empowered to appoint a cashier and other officers for conducting the business of the corporation. By the ninth sec- tion, the president and directors are empowered to make by- laws, &c. for the government of the corporation, &c. By the Oth fundamental article of the constitution, the piesident and eight directors are constituted a board for the transaction of business; and by the 14th, the cashier is required to give bond 430 CASES IN THE COURT OF APPEALS' UNION BANK OF MAHYLANH v. UIDGF.LT. 1827. with two or more sureties, to the satisfaction of the president and directors. The directors then are agents of the corporation appointed; by the charter, and why should their acts, within the scope of their authority, be required to be in writing, more than the acts of agents appointed by the corporation itself? The acceptance, of the cashier's bond, is within the scope of their authority, and the terms of the charter from which they derive that au- thority, do not require their acceptance, or their being satisfied with the sureties in the bond, to be in Writing, nor do we per- ceive on what ground the affirmative of the proposition can at this clay be maintained. But it is thought unnecessary farther to prosecute the examination of this branch of the case. The bond in question, which was not attested, having been found deposited among the archives and valuable original papers and documents of the bank, in an iron chest in tlie banking-house ol the corporation, together with other papers, purporting to be the bonds of the tellers, book-keepers, and other inferior of- ficers; and having been produced at the trial by the plaintiffs, and Higginbothom, whose original appointment as cashier, is recited in the bond, having been continued in the constant em-> ployment of the bank from that time until he was dismissed in 1819, without any reappointment, or on any other bond being given, we think the jury, in the absence of all other evidence respecting the execution of the bond, ought to have been per- mitted to infer, that it was duly executed and delivered by the defendant, and accepted by the plaintiffs; which acceptance ne- cessarily included the approbation of the board, or their satis-, faction with the sureties, and was not necessary to be in writ- ing- The question presented by the plaintiffs' sixth bill of excep- tions, is upon the admissibility of the corporation books, on proof that they were kept by Pierce L. Tanner and Jacob Hart, as officers of the corporation; that the several entries contained in the books, were in the proper handwriting of Tan- ner and Hart', that they were kept under the superintendence and direction of Higginbothom; that Hart was dead, and that Tanner was residing out of the jurisdiction of the court in parts nnknownj which were rejected by the court as inad- OF MARYLAND. 431 USION BANK OP MAIULAND v. RIDOELT. 1827. missible. And perhaps it could not well have been other- wise, after the bond on which the suit was brought had been rejected. It appears from the pleadings in the cause, which are very prolix and complicated, that the fact of there being in the books, false and deceptious entries, made by the clerks with the knowledge and connivance of Higginbothom, were dis- tinctly put in issue on several of the breaches assigned in the- replication. The books were not offered for the purpose of proving the truth of the facts which the entries professed to as- sert, as in the case of an offer to prove, by the entries in a book, the delivery of the articles charged. But to show as facts what entries were in the books, which could only be done by the production of the books themselves. For which purpose, un- der the pleadings in the cause, and being of opinion that the bond was improperly rejected, we think the books ought to have been received in evidence, on proof that they were kept by Tanner and Hart as officers of the bank, and that the en- tries were in their handwriting; which we think might well be done in such a case, in order to lay a foundation for letting in other testimony to show fraud, malconduct, neglect, or viola-f tion of duty on the part of Higginbothom, and of Tanner, in relation to the entries, arid the manner of keeping the books. Moreover, it is stated in the exception, that the plaintiffs offer- ed to prove that the books were kept under the superintendence and direction of Higginbothom; and if that were the fact, their admissibility was no more subject to objection, than if they had been kept by himself. Upon the whole, then, we concur in opinion with the Balti- more county court on the plaintiffs' first bill of exceptions, an delivery, between the OF MARYLAND. 445 WILLIAMSON . DILLON. 1827. flour delivered and that contracted for, was the true measure of the plaintiff's damages in this case. In an action on an agreement to deliver a specific article, at a particular time and place, to be paid for at the time of the delivery, the measure of damages is the same, whether brought for a nondelivery, or a delivery of a different quality from that contracted for. The value of such article at the time and place of delivery, is the true measure; .unless where the contract showed it was for a particular purpose, and special damages were laid in the declaration. In proving the relative prices of different qualities of flour at Z, in 1817, other testimony is admissible than direct positive proof from a witness who knew the value at that place; in the absence of such positive proof the jury may infer such value, from proof of the price, of each kind of flour in 1817, at other places in the neighbourhood of Z, and at N O, a port to which flour was commonly sent from Z, for inspection and sale; and this latter species of evidence, which is admissible for the above pur- pose, is not secondary, though of a less conclusive character than dircfft proof. Where it was doubtful, from the want of care in drawing a bill of excep- tions, whether the whole testimony of a witness was hearsay, part of it being unquestionably so, the appellate court made a comparison of the several parts of the testimony, and determined the whole to be hearsay, and therefore incompetent. Information received by one partner, the witness, from his copartner, of the price of merchandize purchased by him ai Z, for which the witness knew that his house at B, where he resided, paid at the price mentioned, is but hearsay evidence of the price of such merchandize at Z. "Where a witness in his answer taken under a commission declared, "that lie was called on in the spring of the year 1817, to state the difference usually allowed on the sale of flour between superfine, fine, &.c. that he then stated the difference was as follows," &c Held, that this might be true, an i \ t the witness have no knowledge of the facts; his declaration being, that he made the statement, and not that it was true. Such tes- timony is not admissible in evidence. APPEAL from Baltimore County Court. Action of cove- nant, brought by the appellant, (the plaintiff below,) who de- clared against the appellee, (the defendant,) fora breach of the covenant hereinafter mentioned. The breach assigned was, that the defendant did not deliver 500 barrels ot flour to pass l-3d as fine quality, and the remaining 2-3ds as superfine, lined and in good shipping order; but that on the contrary thereof the said flour when delivered was sour, common, inferior, and of bad quality, and not in good shipping order, and would not and did not, nor did any part thereof pass inspection, as fine or superfine, according to the said covenant; and so, &c. The defendant pleaded performance^ on which plea, issue was joined, 446 CASES IN THE GOUHT OF APPEALS WILLIAMSON v. DILLON. 1827. 1. At the trial the plaintiff offered in evidence the contract executed between the plaintiff and defendant, bearing date on the 5th of January 1817, which here follows: "Zanesville, Ohio. Memorandum of an agreement made and entered into .this twenty- fifth day of January 1817, between Moses Dillon, of Zanesvilie? state of Ohio, and David Williamson of Bal- timore, state of Maryland, whereby the said Moses Dillon obligates and binds himself to deliver to the said Williamson, or order, at Zanesvillc, two hundred and fifty barrels of flour r not less than one- third of same flour to pass as fine quality, the remaining two-thirds of superfine, to beat said place by the first day of March next, to be lined and in good shipping or- der; and to deliver, on the 15th of same month, two hundred and fifty barrels of flour oi same quality as the first mentioned quality, and in like order, to the said Williamson) or order, at the above named place, for which flour, on its delivery as above, the said David Williamson, Jr. binds and obligates himself to pay to the said Moses Dillon, or order, the sum of Steven dol- lars per barrel, for which flour payment will be made to the said Dillon with his bonds passed to Luke Tiernan and Ken- nedy Owen, of Baltimore, interest being added in said bond to the day of the delivery of said flour at the par of exchange. In testimony whereof we have hereunto set our hands and seals this day and year above written. Moses Dillon, (Seal.) D. Williamson, Jr. (Seal.) Signed, sealed and delivered, in the presence of Isaac Dil- lon." And also gave in evidence, that the plaintiff was at the time of the making and executing of the said contract, a mer- chant residing in the city of Baltimore, and the defendant was the owner of a mill near Zanesville, in the state of Ohio, and that New- Orleans was the great mart for the flour on the Mis- sissippi, and its tributary waters. And the plaintiff further of- fered in evidence, that the trade in flour in the neighbourhood of Zanesville was then in its infancy, and that when flour was intended for New-Orleans, it was, according to the course of the flour trade in the Mississippi, and its tributary waters, to inspect flour at New-Orleans, when there was no public inspec- OF MARYLAND. 447 WILLIAMSON w. DILLON. 1827. tion of flour at the place where it was loaded in the boats in- tended to convey it down the river, and that on its passage down the river flour is never taken out of the boat to be in- spected before it arrives at New-Orleans, when destined for New-Orleans. And also offered in evidence the depositions of sundry witnesses, and other proceedings taken and had under commissions for that purpose issued out of the said court to certain commissioners of Zanesville, in Muskingum county, in the state of Ohio, and of the city of New-Orleans, in the state of Louisiana. That part of the testimony which seems necessary to be stated, (it being admitted by the parties that the said commissions had been regularly executed,) is that of Isaac Dillon, the subscribing witness to the contract, who proved its execution. Also that of Maunsel White, of the city of New- Orleans, in answer to the third interrogatory propounded to him by the plaintiff, who proved ''that he was called upon in the spring of the year 1817 by Richard Relf, to state the dif- ference usually allowed on the sale of flour, between superfine, fine, common and middling: that he then stated that the diffe- rence was as follows: that two-thirds superfine and one-third fine, was the proportion established as merchantable; that when merchantable flour is worth twelve dollars a barrel, fine is only worth eleven, and middling and common worth eight. That when merchantable flour is worth eight dollars a barrel, fine is only worth seven, and middling and common six, and so in proportion." Also that of " William Ross, of the city of New- Orleans, of full age, being produced, sworn and examined, on the part of the plaintiff in this cause, deposeth as follows: 1. To the first interrogatory on the part of the plaintiff he an- swers, that he knows neither of the parties. 2. To the second interrogatory on the part of the plaintiff he answers, that in May 1817 he inspected a boat load of flour, amounting to four hundred and ninety-nine barrels, said to be from Putnam, in. the state of Ohio, brought to the city by captain Tarrier, and consigned to John C. Wederstrandt, Esq. who being absent, the flour was delivered to Richard ReJf, Esq. by whom this deponent was called to inspect it. 3. To the third interroga- tory on the part of the plaintiff he answers, that the report of the inspection was as follows: Eighty-three barrels fine, three 448 CASES IN THE COURT P APPEALS WILLIAMSON v. DILLON 1827. hundred and ninety-nine common, sixteen middling, and one condemned. 4.. To the fourth interrogatory on the part of the plaintiff he answers, that the flour, except the condemned bar- rel, did not appear to have been at all injured in its passage down the river, but its bad quality was owing to its having been b;idly manufactured. 5. To the fifth interrogatory on the part of the plaintiff he answers, that he was commissioned by James Villere, governor of the state of Louisiana, on the 1st day of January 1816." The defendant then offered in evi- dence the depositions taken under one of the said commissions at -Zanesville; and he also offered in evidence, that in the year 1817 New-Orleans was the principal port to which flour, that passed the falls of the Ohio, was carried, but that it was some- times sold at other places, when it was discovered that the. New- Orleans market was not a favourable one; and that boats em- ployed in the transportation of flour, ultimately destined for New-Orleans, were in the habit of calling at various places on the Ohio and Mississippi, such as Cincinnati, Louisville and Notches, when the owner or agent was on board, for the purpose of trying the market at these several places, and were govern- ed on the further prosecution of their voyage to New-Orleans by the state of the market at the said places. And thereupon the court, upon the prayer of the plaintiff, gave the following instructions and directions to the jury: If the jury believe from, the evidence that there was no public inspection of flour at Zanesville, then the plaintiff had a right to take the flour to any port or place on the Ohio or Mississippi rivers, where there was a public inspection of that article, provided in so doing he did not take it to an unusual port or place lor the inspection of flour, descending from Zanesville; and if they believe the flour was inspected at New-Orleans, that New-Orleans was the great mart for the flour of the country on the Muskingum % and that flour, sold at any port or place' on the Muskingum where there was no public inspection, was not usually inspected at any intermediate port between such place and New-Orleans, and that this was generally known to the dealers in flour OB said river at the time the contract in this cause was executed, that then the jury might infer that New-Orleans was not an Unusual place for the inspection of flour descending from Zanes- OF MARYLAND. 449 WlLLIAMSOX V. DlLLOIT. 1827. ville. And furthermore, if the jury believe that the flour was not taken to an unusual place for inspection, that the defendant in that event took the risk of inspection; and if it does not at such place pass in quality such as the contract has stipulated^ then the plaintiff is entitled to a fair indemnity for the diffe- rence in value of the flour as delivered and inspected, and the flour contracted to be delivered. The plaintiff then prayed the opinion and instruction of the court to the jury, that if the jury find from the evidence that New-Orledns Was a usual and proper place for the inspection of flour delivered at Zanes- ville,at the time of the delivery of the flour in question; and if they also find that the flour, when inspected at Neiv-Orleans, was of interior quality j and of less value, as is stated in the depo- sition of William Ross, the flour inspector at New-Orleans, iu one of the commissions herein before mentioned, than the flour contracted to be delivered, that then the measure of damages is the difference in value at New-Orleans, at the time of the in- spection, between the flour contracted to be delivered, and the flour in question as passed by the inspector. Which opinion and instruction the Court, [tfrcher, Ch. J. and Hanson, and Ward, A. J.] refused to give; but instructed the jury, that ac- cording to the fair construction of this contract, the proper measure of damages is the difference in value at Z .'nesville be- tween the flour stipulated to be delivered, and that which was delivered at the time the flour was by the contract to be de* livered. The plaintiff excepted. 2. The plaintiff then offered to prove by a competent wit- ness, that at the time of the contract in question, and of the de- livery of the flour, and of the inspection at New-Orleans, the market price at New-Orleans regulated the price of superfine, fine, and common flour, on the Mississippi and the Ohio, at all the places with which he was acquainted, and also the relative value of such flour; and also that the witness was, at the times above mentioned, well acquainted with the ftbur trade on the Mississippi and the Ohio, but had not at those times any ac- quaintance at Zanesville, or with the flour trade oh the Musk- inguni above Marietta; that the witness has no knowledge of the prices or relative value of flour at Zanesville itself, but that VOL. i. 57 430 CASES IN THE COURT OP APPEALS WILLIAMSON v. DILLON. 1827. at the times above mentioned he was acquainted with the flour trade at Marietta, and up the Ohio to Pittsburgh and there was not the difference throughout that course of more than six cents or 12 cents per barrel for flour at any of the above places, if it were of the same quality; that at the times above mention- ed, flour at Marietta, which would not pass inspection as fine, was of no value for exportation, and was not saleable for that purpose; that Marietta and Zanesville, are both situated on the Muskingum river, Marietta at its mouth, and Zanesville a- bout sixty miles higher up; that the price of merchantable flour, at the times above mentioned, at Marietta, was at least six dollars or upwards; and by merchantable flour, the witness means flour two-thirds superfine and one-third fine. The plain- tiff offered in evidence, by another competent wjtness, that in 1S17 he resided in the western country at Steubenville, and was acquainted with the prices of flour from Louisville to Pittsburg, and with the relative prices which it bore at diffe- rent places on the OAi'0,but not off the Ohio, and not at Zftnes- ville-, but at this time cannot State the prices at any of those places; that the buyers made their purchases, and were regulat- ed in their prices by the prospects at New-Orleans; and that it was the usage in the places above mentioned to settle any damages for deficiency in quality, when the flour was to be in- spected in Orleans, by the Orleans prices; that whenever there was no inspection at the place where the flour was put on board the boats, it was usual for the flour to be inspected at Orleans. To the admissibility of which evidence the defendant objected. And the court were of opinion that the same was not admissi- ble to prove the relative value of superfine, fine, and common flour at Zanesville, and was not evidence which the jury were entitled to consider in ascertaining the damages which the plain- tiff had sustained by the breach of the contract in this case; but that in order to furnish a standard of damages in this case, the plaintiff is bound to prove the value at Zanesville of the flour which the defendant contracted to deliver, and the relative value of that which was delivered at that place at that time; and thereupon refused to suffer the said evidence, or any part thereof, to be given to the jury for the purpose aforesaid. The plaintiff excepted. Olf MARYLAND. 451 WILLIAMSON v. DILLON. 1827. 3. The plaintiff then prayed the opinion of the court, that in the absence of all proof as to the relative prices of superfine flour, fine flour, and common flour, at Zanesville, or at any other place on the Muskingum river, except Marietta, the jury may, in estimating the damages of the plaintiff in thie cause, take into consideration the relative value of the above mentioned qualities of flour at Marietta, it being the nearest point to Zanesville mentioned in the testimony. Which opinion the court refused to give. The plaintiff excepted. I 4. Upon the above evidence given as stated in the first bill of exceptions, the plaintiff prayed the opinion of the court, that in the absence of all proof as to the relative value of su- perfine flour, fine flour, and common flour, at Zanesville, or at any other place on the MusJdngum river, except Marietta* the jury may, in estimating the damages of the plaintiff in this cause, take into consideration the relative value of the above mentioned qualities of flour at New-Orleans, with a proper al- lowance for the expenses and risk of transportation to New- Orleans Which opinion the court refused to give. The plain,- tiff excepted. 5. The plaintiff further offered in evidence by a witness, that he purchased flour at Zanesville in the spring of 1817, and paid for it from six to eight dollars per barrel; and that the witness, at , the time above mentioned, was engaged in shipping flour from the waters of the Mississippi and Ohio, and is acquaint;- ed with the flour trade in those waters; and that in the opinion of the witness, no merchant acquainted with the said trade would purchase for exportation at Zanesville, flour that would not pass inspection as merchantable flour, provided he knew it would not pass. That the witness paid for the freight of flour -from Zanesville to New-Orleans two dollars per barrel; that the witness was not in the Western Country in the spring of the year 1817, and did not make the purchases he has mention* ed, in person, but that some of the said purchases were made by the partner of the witness, and that some of them were made by his brother, as agent for the mercantile house of which the witness then was a partner, and that all the information of the witness of the facts of the purchases which he has mention* 452 CASES IN THE COURT OP APPEALS WILLIAMSON v. DILLON. 1827. ed is derived from his said partner and brother, who are both living; but that the witness knows that his house paid for the flour above mentioned, and lor other flour purchased at other places on the Western waters, at the prices above mentioned, and which prices were stated to him by his said partner and brother as being the prices which they had contracted to give ior the said flour- The defendant objected to the admissi- bility of the said evidence. And the court were of opinion, that the said evidence was not admissible to prove the re- lative value at Zanesville of superfine, fine, and common flour, and was not evidence which the jury were entitled to consider in ascertaining the damages which the plaintiff had sustained by the breach of the contract in this case; but that in order to furnish a standard of Damages in this case, the plaintiff is bound to prove the value at ganesville of the flour which the defendant contracted to deliver, and the relative va- lue of that which was delivered at that place at that time; and, thereupon refused to suffer the said evidence-, or any part there- of, to be given to the jury for the purpose aforesaid. The plaintiff excepted. 6. The plaintiff then offered to read in evidence that part of the deposition of Maunsel IFhite, which is contained in hia answer to the third interrogatory. To the admissibility of tvhich evidence the defendant objected. And the court were of opinion that the said statement contained in the said answer was inadmissible evidence, and refused to let the same go to the jury. The plaintiff excepted. 7. The plaintiff then, in addition to the evidence above stat- ed, offered to prove by a competent witness, that the witness purchased flour on the Mississippi in the spring of 1817; that the said flour was sold in New-Orleans in the spring of that year; that part of the said flour was part superfine, and part common; that the difference in price between superfine and fine was one dollar per barrel, and the difference between su- perfine and common was four dollars per barrel; that witness was not in New-Orleans himself at the time when the sales "were made; he knows that his house received payment for flour fold in Neiu-Orleans, at the relative prices above mentioned, OF MARYLAND. 453 WILLIAMSON t'. DILLON. at the time above stated; that the said sales were made by the partner of the witness, and the accounts were rendered of the sales in the manner and at the prices above stated; that the witness had no personal agency in making either the said sales or purchases, or any of them, having himself been residing all along in Baltimore, and that the ;ibove statement is made en- tirely on the information of his partner, and the agents of the house who resided in New-Orleans, and transacted the business, his said partner being still living. The said sales were made by agents of the house under the immediate direction of the partner of the witness, as he was informed by his said partner, and the accounts of which witness speaks, were rendered by euch agents, and received by the witness from Hs said partner. To the admissibility of which testimony the defendant object- ed. And the court were of opinion, that the said testimony was inadmissible, and refused to suffer the same, or any part thereof, to go to the jury. The plaintiff' excepted. 8. The plaintiff further offered to prove by a competent wit- ness, that the witness was in New-Orleans in May 1817, and had orders to purchase flour; that the price of superfine flour at that time was $13; that he docs not know the comparative va- lue of fine and superfine flour. In the market of Baltimore the difference between fine and superfine is hall a dollar. That fine and common flour is inferior in value generally to super- fine, but that the witness made no inquiries at Orleans in rela- tion *o fine or common, and cannot therefore speak of the re- lative value of those qualities of flour at New-Orleans. The plaintiff further offered to prove by another competent wit- ness, that he resided in New-Orleans, and did business there as a commission merchant from 1806 to 1811; that he was, dur- ing that time, in the practice of selling a good deal of flour, and was well acquainted with the Neiu-Orleans market for flour, and the usage of that market at that time, and with the course of trade. That the flour, of which he speaks, was the flour which came down the Mississippi; that during the time above mentioned the difference in value between superfine flour and common flour was as follows: that is to say, that when su- perfine was eleven and twelve dollars, common flour would bf 454 CASES IN THE COU11T OF APPEALS WIUIAMSOK t 1 . Dinos. 1827. about nine dollars per barrel, and so in proportion, the diffe- rence being greater when flour was higher, and less when flour was lower; that the smallest difference the witness ever knew between superfine flour and common flour in the New-Orleans market was three dollars, and the difference between fine and superfine was about one and one half dollars per barrel, when the price was such as is above mentioned, and that difference increased and diminished according to the price of flour in the rates above mentioned; fine flour is inferior in value to super- fine flour, and common flour inferior in value to fine flour. It was generally difficult to sell fine or common flour in the mar- ket at Orleans, but superfine flour had generally a ready sale. That witness had not been at New-Orleans Jffnee May 1811, and has no personal knowledge of the prices of flour, or the usages of trade since that period of time; that they could al- ways obtain for flour of the Baltimore brand two or three dol- lare more than for flour brought down the Mississippi from the Western Country, and would always sell superfine flour for something, when fine and common flour could not be disposed of. And also offered to prove by another competent witness., that the said witness resided in New-Orleans in 1819, and was a clerk in a mercantile house at that place; that the price of merchantable flour was at that time $8 per barrel, and that mer- chantable flour, so called in the market of New-Orleans, were one third fine and two thirds superfine; that the prices of flour during the months of November and December 1819, and Ja- nuary and February 1820, were at $8 per barrel, and that prices fluctuated during the residue of 1819 from 50 cents to a dollar; that at the time above mentioned, flour which passed inspection at New-Orleans as common only, was of less value, and was worth in New-Orleans only five and a half dollars per barrel, when merchantable flour was worth $8 per barrel. Witness lived there from 1819 to 1822; that while the witness resided there flour which passed inspection as common flour was al- ways inferior in value to merchantable flour as above described", and that when flour was high the difference was greater, #nd when lower the difference was less. And also offered in evi- dence by another witness, that the witness resided at Zanes- villefrom 1811 to 1817, and left Zanesville on the 20th of OF MARVLAM). 455 WILLIAMSON v. DILIO.V. 1827. April 1817; that when he left Zanesville he was between 14 and 15 years of age, and the fall before he left there he was em- ployed by several persons, in conjunction with two others, to make an enumeration of the inhabitants of the town of Zanes- ville. The flour from Zanesville was generally sent to the New-Orleans- market, but was sometimes sold on the way., where a market offered, as at Cincinnati, Louisville, or other places. There was no public inspection for flour at Zanesville before or at the time when the witness left there. That at the time they were making the enumeration as above mentioned, they endeavoured to ascertain the amount of flour dispatched from Zanesville, and the witness made inquiries on that sub- ject, but he was unable to ascertain it, and gave it up. That the father of this deponent was a physician, and in the habit of re- ceiving wheat from his patients, which he somestjmcs sold to millers, sometimes had it ground into Hour, and sometimes bar- tered the wheat or flour for such articles as he wanted; that there was very little money in the country, but flour generally had a ready sale for cash, because it was one of the articles usual- ly sent to market to New-Orleans; but has no knowledge of any particular sale of flour having been made at Zanesville, and speaks only of what he generally understood to be the course of business in relation to flour, and as to what he has already stated in relation to the general destination of flour to Ncw-0r>- leans. He has no personal knowledge on the subject, and no- other knowledge than what he derived from the information of others, and from seeing boats frequently depart from Zane- ville, which he understood from the boatmen, when he saw them taking their departure, to be destined for Orleans, and also from what he generally understood at Zanesville to be the course of the trade. He had frequent conversations with boat- men who were engaged in the trade on the river, and also had conversations with the young men who were employed to super- intend the sale of flour, and his information as to the course of the trade, as above stated, is derived from these sources. To the admissibility of all which testimony, so far as the same refers or relates to the relative value of flour at New-Orleans, or so far as the same refers or relates to the relative value of the different qualities of flour at any place on the Ohio, other than at Z-anes* 456 CASES IN THE COURT OF APPEALS WILLIAMSOX v. DILLON. 1827. Dille, the defendant objected. Of which opinion was the court, and refused to let the said evidence go to the jury so far as above objected to. Whereupon the plaintiff prayed the court to de- signate the particular sentences, passages, and parts of the tes- timony above stated, which were admitted and rejected. Which the court refused to do further or more particularly than is done in the above stated objection and opinion. To which opinion of the court, as stated in this exception, the plaintiff excepted. 9. After the plaintiff had closed the evidence in support of the issue on his side, all which is set forth in the several pre- ceding bills of exceptions taken on the part of the plaintiff, the defendant prayed the instruction of the court to the jury, that to enable the plaintiff to support his action in this case, it is ne- cessary that he should prove, by competent evidence, the com- parative value at ZanesvilJe of the flour contracted to be de- livered, and of that which was actually delivered at the time specified in the covenant; that the difference between these values constitutes at once the proof of damage, and the mea- sure of that damage; that the plaintiff has offered no proof of such comparative value, and that in the absence of all evidence of that comparative value, the plaintiff is not entitled to a ver- dict in this case. Which opinion and direction the court gave to the jury. The plaintiff excepted; and the verdict and judg- ment being against him, he appealed to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and DORSEY, J. Scott, for the Appellant, contended, 1. That the court be-< low erred in. not granting the second prayer contained in the first bill of exceptions; because the measure of damages wa* the difference of value at New- Orleans, at the time of the in- spection, between the kind of flour contracted to be delivered, and the flour actually delivered as passed by the inspector of flour at New- Orleans. 2. That even if the court were right in refusing the second prayer contained in the first bill of exceptions; yet they erred in rejecting the evidence contained in the second bill of excep- tions, and in the opinion therein expressed; because iho evi-r OF MARYLAND. 457 WILLIAMSON v. DILLON. 1827. tlence contained in the second bill of exceptions was competent testimony to go to the jury, to prove the difference in value at Zanesville, between the flour stipulated to be delivered, and that which was delivered, at the time the flour was by the con- tract to have been delivered. 3. That the court below erred in not giving the opinion and direction prayed for by the plaintiff, as set forth in the third bill of exceptions; because, in the absence of all proof of the re- lative prices of superfine, fine, and common flour, at Zanesville^ or at any other place on the Muskingum river, except at Ma- rietta, the jury ought to have been permitted to take into con- sideration the relative value of the above mentioned qualities of flour at Marietta, it being the nearest point to ZanesvUle mentioned in the evidence. 4. That the court below erred in not giving the opinion pray- ed for by the plaintiff, as is set forth in the fourth bill of ex- ceptions; because, in the absence of all proof of the relative value of superfine, fine, and common flour, at Zanesville, or at any other place on the Muskingum river, except at Marietta, the jury ought to have been permitted to take into considera- tion the relative value of the above mentioned qualities of floui' at New-Orleans, with a proper allowance for the expcncesand risk of transportation. New-Orleans being a suitable and pro- per place tor the inspection of the said flour. 5. That the court below erred in refusing to permit the evi- dence contained in the fifth bill of exceptions to go to the jury; because the evidence therein set forth was competent evidence to go to the jury, for the purpose of showing the value of super- fine, fine, and common flour, at Zanesville,\n 1817, at the time ^ was not considered the measure of damages, unless where the- contract showed it was for a particular purpose, and special da- mages were laid in the declaration. In Chipman on Con- tracts, 121, it is stated, "If property be sold at a particular price, to be delivered at a future day, and in the meantime the? property rise, the purchaser is entitled to the rise of property; and if the property be not delivered, the value of the proper- ty, at the time and place of delivery, is the measure of da- mages." And in Shepherd vs Hampton, 3 TVheat. 200, "It was the unanimous opinion of the court, that the price of the article, at the time it was to be delivered, is the measure of damages." See also the case of Leigh vs Patterson, 4 Serg- 4* Lowb. 204. Gains ford vs Carroll and others, 9 Serg. $ Lowb. 204, and Canmll vs M' Clean. 6 Harr. $ Johns. 297. The same rule, we think, will apply, where the damages arc claimed, not for the nondelivery of the article, but for the tic- livery of an article of a different quality from that contracted to be delivered. The difference of price,- at the time, and pla& OP MARYLAND. 465 WILLIAMSOX v. DILI.OX. 1827. stipulated for the delivery between the article delivered and that contracted for, is the measure of damages. The case of GUpins vs Consequa, 1 Peters' C. C. Rep. 86, sustains this position. That was an action brought to recover damages for the nondelivery of teas, of the quality contracted to be delivered, by Consequa, the defendant, to the supercargo of GUpins. Consequa stipulated to deliver at Canton a cargo of tea for the Pennsylvania Packet, to be' fresh, prime, and of the first chop. The tea was delivered, and carried first to Philadelphia, and afterwards to Amsterdam, where it was sold at public sale, according to the usage. From a comparison of the sales, it appeared these teas sold for less than some other teas of the same kind, which was attributed to their being of inferior quality. Judge Washington charged the jury, that us the contract was to deliver teas at Canton of a certain quali- ty, they would consider the sales at ^nlsterdam, arid the com- parison of them with those of other teas, not as furnishing the amount, but the rate of loss; and having ascertained the rate, to apply it to the prices of the same articles of first quality at Canton, when these teas were delivered. And the learned judge, in illustration of this doctrine, stated "If a man con- tract to deliver a quantity of flour, for instance, by a particular day, and fails, or deliver it of a qualify inferior to that stipulated for, all that can be claimed from him in the first case, is the price of such flour at the time and place when and where it was to be delivered; or in the second, to make up the difference |n quality/' In the case of Witlings 8f Francis vs Consequa., 1 Peters' C. C. Rep. 176, the doctrine laid down in the first case is recognized and adopted. Speaking of the rule in Gil- pins vs Consequa, the Judge says, "with this rule the court finds no cause to be dissatisfied; and the reason of it is obvious, the contract is to deliver teas of the best qualify at Canton; if it be not complied with, the price of such teas at that place, is the just measure of the damage sustained by the plaintiff." But it is thought this rule, to ascertain the damages, will not afford to the plaintiff ample justice; he ought also to recover the amount of expenses necessarily incurred in transporting the fl > .ir to New-Orleans- for inspection. The answer is, such was not the. contract. If that had been a stipulation between the VOL. i. 59 466 CASES IN THE COURT OF APPEALS WILLIAMSON v. DILLON. 1827. V ; ; ' __ parties, it should be found in the agreement. In its absence, this court can only act upon the contract as they find it, and ap- ply to such contract the general established principles of Ia\v. The next question is, whether the testimony offered by the plaintiff was admissible for that purpose? Through the whole trial of this cause, the court of Balti- more county seems to have acted under the impression that no testimony was admissible to prove the relative price of flour at Zanesville, unless it was direct, positive proof, from a witness, who knew the value at that place, and that in the absence of such positive proof, the jury could not be permitted to establish that fact, by any other testimony. In this, we think the court rred. The evidence offered is not, as was contended, seconda- ry evidence. It is of the same grade with that required by the court, although perhaps of a less conclusive character. Where testimony is offered, which of itself shows there is other evi- dence of a higher character, it is secondary evidence; as in the case of a written agreement the copy is not admissible, until you first show the original cannot be had; because the copy of itself clearly proves, there is evidence of a higher character, which ought to be produced, unless its absence is accounted for. Not so, where the testimony is of the same grade, although it may not have an equal effect with the jury. The object to be attained in this case, was the relative value of flour at Zanes- ville, between that delivered, and that contracted for; and this might be proved either by a witness who knew the price of each kind of flour at Zanesville, or by showing the value at different places, by which the jury could judge of its relative value at Zanesville. The testimony, therefore, offered by the plaintiff, of the price of each kind of flour at New-Orleans, Marietta, and other places, was admissible, and ought to have been given to the jury. The evidence offered in i\\e fifth bill of exceptions was hear- say, and, therefore, properly rejected by the court. Some dif- ficulty arises in forming a decision on this exception from the want of care in taking down the evidence. The witness, after stating that "he had purchased flour at Zanesville in the spring of 1817, and paid for it from six to eight dollars a barrel, and that he had paid for the freight of flour from Zanesville to OP MARYLAND. 467 WILLIAMSOX v. DILLON. 1827. New-Orleans two dollars per barrel," said, that all the infur- mation he had as to the purchases and prices was derived from his brother and partner; but it is not distinctly ir.cntioned whether the prices spoken of related to the price of flour alone, or was intended to include the price of both flour and freight from Zanesville to Netv-Orleans. From a comparison of ther several parts of the testimony, we are led to the conclusion, that his knowledge of both was derived from the same source. He was not in the Western Country in the spring of 1S17, nor did he make the purchases himself, but the whole business was transacted by his brother and partner. The court were also right, in not receiving the testimony in the sixth bill of exceptions. Maunsel White, the witness, stated, "that he was called on in the spring of the year 1817, by Richard Relf, to state the difference usually allowed on the sale of flour between superfine, fine, common and middling; that he then stated the difference was as follows," &.c. This might be true, and yet he might have no knowledge of the facts, lie only swears he made the statement to Relf, but he does not swear that statement was true, or that he either then knew, or ever did know, the facts to be as he stated them to Relf. The testimony offered in the seventh bill of exceptions was hearsay, and, therefore, liable to the same objection with that contained in the fifth. That part of the evidence in the eighth bill of exceptions that relates to the price of flour in New-Orleans in 1817, and that which was offered to prove there was no public inspection at Zanesville, at or before the time mentioned, ought to have been received; the residue of the testimony mentioned was pro- perly rejected. The price of flour in 1811 and 1819, could not afford a correct standard to show its value in 1817. We concur in the opinions given by the court below, in the first, fifth, sixth, and seventh bills of exceptions, and dissent from those in the second, third, fourth, eighth, and ninth bills of exceptions. DORSET, J. dissented from the opinions of the court Mow in the first, third, and fifth bills of exceptions. JUDGMENT BEVEHSEP, AND PROCEDEXDO A w AftDED> 468 CASES IN TJ3E COURT OP APPEALS CATHELL r. GOODWIN 182r. CATHELL vs. GOODWIN. June, 1827- The drawer of a dishonoured bill, who neither at the time he drew it, nor when it was presented, had any funds in the hands of the drawee, nor such expectation of its payment as would induce a merchant of com- mon prudence and ordinary regard for his commercial credit to draw a like bill, is not entitled to notice of such dishonour. "Where the defendant drew a bill in favour of the plaintiff's wife, and thus authorised her, in express terms, to receive its amount the bill being presented by her, and payment refused, in an action on the bill by the husband, the defendant cannot deny the wife's right to demand its pay- ment. Whether or not the drawer of a bill had reasonable grounds to expect that his bill would be honoured, and the facts upon which that question arises are admitted or undeniable, it is exclusively a matter of law to be pronounced by the court; but if the facts be controverted, or the proof be equivocal, or contradictory, then it becomes a mixed question, both of law and fact, in which case, the court hypothetically instruct the jury as to the law, to be by them pronounced accordingly as they may find the facts. Under the money counts the plaintiff may recover, by evidence of the de- fendant's dishonoured bill, drawn payable to the order of the plaintiff's wife the drawer, under the circumstances of this case, not being enti- tled to notice of the nonpayment of his draft. APPEAL, from Baltimore County Court. Action of assump* sit for money lent and advanced, paid, laid out and expended, and an insimul computassent. The defendant, (now appel- lee,) pleaded non assumpsit, and issue was joined. At the trial the plaintiff, (the appellant,) offered in evidence the fol- lowing bill of exchange. "Mr. Jno. Gooding. Pay to the or- der of Mrs. Matilda Cathell five hundred dollars, and charge the same to your ob. st. Robt. M. Goodwin. $500. June 24th, 1818." And proved it to be in the handwriting of the defendant, and payable to the plaintiff's wife. And further proved that the said bill was presented to the witness, the drawee of the bill, by Mrs. Matilda Cathell, at which time he refused to pay the bill; and at that time, and at the time the bill was drawn, the drawee had not in his possession any funds belonging to the defendant. And the said witness, the drawee, further proved, that at tlfe time the bill was presented to him for payment, he told Mrs, Cathell) that if funds should afterwards come into his possession, which he shortly expected, he would pay said bill, OF MARYLAND. 469 v. GOODWIN. 1827. and that Mrs. Cathell left the witness without reply. That funds did afterwards come into the witness' hands, hut the bill was not again presented to him for payment, and that if it had been, he would have paid it. And further proved that the de- fendant, when he drew the bill, was indebted to the witness, the drawee, but that notwithstanding he would have paid the draft when funds came into his hands; and that the said funds were all disposed of for account of the drawer of the said bill. Upon which the defendant prayed the court to instruct tl - ,u- ry, that the plaintiff was not entitled to recover. Which in- struction the Court, t V 'nson and Ward, A. J.] gave to the jury. The plaintiff excepUM Verdict a: d judgment for the defendant, and the plaintiff appealed to this court. The cause was argued at the last June term, before BUCHA- NAN, Ch. J. and STEPHEN, ARCHER, and DORSET, J. R Johnson and Gill, for the Appellant, contended, that un- der the circumstances stated in the bill of exceptions, no no- tice of the refusal of the drawee of the bill to pay it, could be required by the drawer. They referred to Eichelberger vs Finley fy Van Lear, 1 Harr. fy Johns. 381. 2 Phill. Evid. 10,21, Meredith and R. B. Magruderjor the Appellee, cited Eick- elbergervs Finley Sf Van Lear, 7 Harr. 8? Johns. 381. Chitty on Bills, 268. Bailey on Bills, 2T>9, 240, 241. Rucker vs Hiller, 3 Campb. 217. S. C. 16 East, 43. Robins vs Gib- eon, 3 Campb. 334. Blackhan vs Doren, 2 Campb. 503. Clop- per vs Union Bank of Maryland, 1 Harr. 8? Johns. 92. Curia adv. vult. DORSEY, J. at this term delivered the opinion of the court. To support the opinion of the court below, the appellee's coun- sel have relied on three positions, (either of which, if tenable, would be sufficient for their purpose,) viz.' 1. That Mrs. Ma- tilda Cathell was not competent to demand payment of the bill. 2. That she consented to receive a conditional accept- ance, and thereby gave time to the acceptor. 3. That the drawer had reasonable grounds to expect that his bill would "have been honoured. 470 CASES IN THE COURT OF APPEALS CATHEIL v. GOODWIN 1827. There is nothing to sustain the first position. The defen- dant has in express terms authorised Mrs. Cathell to receive the amount of the bill. To den) 7 her the right to demand it, would be sanctioning an absurdity for the mere purpose of working injustice. The second position is equally untenable. The facts stated in the bill of exceptions would not have warranted the jury in finding Mrs. Cat hell's acceptation of a conditional acceptance of the bill, much less are they of that conclusive, resistless cha- racter which would authorise the court to assume thefact r to the ascertainment of which a jury only were competent. The third position was that most obstinately contended for, which was conceived to be impregnably fortified by that part of the rule established in Eichelberger vs Finley 4* Vun Lear, 7 ffarr. < Johns. 381, which dispenses with notice only where the drawer had no reasonable grounds to expect that his bill would be honoured. The reasonableness of such expectation is matter for the court, and not for the jury, to decide. If the facts, upon which the question arises, be admitted or be unde- niable, then the question becomes exclusively a matter of law to be pronounced by the court; but if the facts be controvert- ed, or the proof be equivocal or contradictory, then it becomes a mixed question both of law and fact, in which case, the court hypothetical!)? instruct the jury as to the law, to be by them pro- nounced accordingly as they may find the facts. What are the facts to be found in this case justifying the drawer's expecta- tion that his draft would have been paid? So far from having funds in the drawer's hands, he was his debtor no proof of such a commercial intercourse between them as would imply a mutual credit no previous promise by the drawee to accept this or any other draft for the drawer's accommodation no consignment of goods to the drawee, which the drawer had any reason to expect would be received in time to meet his bill, but the only proof is, that the drawee informed the payee, that he expected funds of the drawer would shortly come to his hands, with which, when received, he would pay. That funds after- wards did arrive, but whether in one month, or five years after, does not appear. What may have been the expectations of the drawee, as to the receipt of funds from the, drawer, is immate- OF MAINLAND. 471 MURDOCK v. WIXTEII. 1827. rial; they are not even admissible evidence in this cause. But 'if they were, they can have no influence on those of the draw- er into whose expectations only is the enquiry to be made. The facts in the cases of Legge vs Thorpe, 12 East, 170, and Claridge vs Dal ton, 4 Maule. <$ Sdv?. 22 6, afford much strong- er evidence of a reasonable expectation in the drawers that their bills would be honoured, than those in the present case; yet there they were adjudged insufficient. The "reasonable grounds" required by law are not such as would excite an idlo hope, a wild expectation, or a remote probability, that the bill might be honoured, but such as create a full expectation, a strong probability of its payment; such indeed as would induce a mer- chant of common prudence and ordinary regard for his com- mercial credit, to draw a like bill. The facts in this case con- stitute no such reasonable grounds. Wo therefore think that the county court erred in instructing the jury that the plaintift* was not entitled to recover, and consequently reverse their judgment JUDGMENT REVERSED, AND PROCEDENDO AWARDED. MURDOCK vs. WINTER'S Adnvr. June, 1827. It is an established rule in pleading, that upon the argument of a demurrer, the court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective ia substance; as if a plea be bad, the defendant may avail himself of any substantial defect in the declaration, or if the replication be bad, the plaintiff may avail himself of any defect in the plea. So where in an action on a promissory note payable four months afterdate, the defendant pleaded nan assumpsit infra ires nnnoa, to which the plain' tiff replied, that he at the time of making the promise, was beyond seas and without the jurisdiction of the court, and so remained and continued,. &c. and the defendant demurred Judgment was rendered for the plain- tiff; for that mode of pleading the act of limitations in this case, is defec- tive. The act of limitations begins to operate as a bar from the time the cause of action arises, and not from the time of making the promise. APPEAL from Charles County Court. Action of assumpsit. The writ issued on the llth of February 1822. The declara- tion contained a count on a promissory note, dated at Boston on the 15th of July 181 G, for SS, payable in four months, with 472 CASES IN THE COURT OF APPEALS MURDOCK "J. WINTER. 1827. interest, executed by the intestate of the defendant, (the ap j pellee,) to the plaintiff, (the appellant. ) The defendant plead- ed non assurripsit, and non assumpsit infra tres annos. Is- sue joined on the first plea; and a replication to the second plea f stating that the plaintiff, at the time of making the promise, was beyond the seas, and without the jurisdiction of the court, and remained and continued, &c. Demurrer to the replication, and joinder in demurrer. The court ruled the demurrer good. The plaintiff then prayed the court that the first issue be tried by the country. Which prayer the Court, [Stephen, Ch. J. and Key, and Plater^ A. J.] refused. The plaintiff excepted; and the verdict and judgment being against him, he appealed, to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE$. MARTIN, ARCHER, and DORSET, J. Slonestrcet, for the Appellant, contended, 1. That the pleu of non assumpsit infra tres annos is no answer to a declara- tion on a promissory note payable four months after date, as it might be true that the defendant did not assume at any time within three years before the issuing of the original writ, and still be liable. He should have pleaded actio non accrevit infra ires annos. That this objection is good on general de- murrer, needs no authority to prove. 2. That the act of assembly of 1818, ch. 216, repealing tire savings in favour of nonresidents, as given in the act of limita- tions, in its operation upon this case, is unconstitutional and void. The note in this case is dated in 1S16, in Boston., where the plaintiff then resided, and continued so to reside until the issuing of the writ. The act of assembly taking away the savings in favour of nonresidents passed the 1.9th of February 1819, and therefore subject eel the note to be defeated by the defendant's pleading the act of limitations C. Do)*sey, for the Appellee. ARCHER, J. delivered the opinion of the court. It is an es- tablished rule in plead hg, that upon the argument o/ > '' mur- Ter the court will, notwithstanding the defect of th ' p'ending demurred to, give judgment against the party whuse pleading OF MARYLAND. 47o MURDOCH r. WINTER. 1827. was first defective in substance. Duppa vs Mayo, 1 Sound. 285, (note 5. ) Chitt. Plead. 647. As if a plea be bad, the defendant may avail himself of any substantial defect in the de- claration, or if the replication be bad, the plaintiff may avail himself of any defect in the plea. Here the replication is de- murred to, and although it may be defective, the plaintiff in- sists that the defendant has in his plea committed the first fault in pleading; and this objection leads us to the inquiry, whether the defendant's plei is maintainable? The suit is instituted for the recovery of money due on a promissory note, payable in four months; the declaration is in the usual form, and to this declaration the defendant has plead non assumpsit infra Ires annos. This mode of pleading; the statute of limitations is in many cases not available; and Williams, in his notes to Hodsden vs ffctrridge, 2 Saundere, G3, (note 6,J assigns as a reason, that if the cause of action accrued within six years, it is immaterial when the promise was made, because the statute operates as a bar only from the time the cause of action arose, and not from, the time of making the promise, the words of the statute being "within six years next after the cause of action accruing," and not after, and he puts these cases in illustration of the princi- ple. If a promissory note were made seven years ago to pay money within three years after, the statute is no bar; so if it were made seven years ago to pay money within three months after, though the statute would be a bar, yet the defendant must not plead non assumpsit infra sex annos, for that would be bad; but the plea must be causa actionis nun accrevit infra sex annos. This last case is precisely the one presented here for our consideration, and must have the same rule applied to it; for the phraseology of the English statute, so far as con- cerns this point, is precisely in conformity with our statute of limitations. And it is recommended in the note referred to, as the safest and best mode in all cases of assumpsit where limi- tations attach to plead actio non accrevit, Sf-c. The plea then being substantially defective, the judgment of the court below should have been for the plaintiff upon this de- murrer, instead of the defendant. And the court should have empannelled a jury to try the issue on the plea of non assump- VOL. i. 60 474 CASES IN THE COURT OF APPEALS DUVALL v. HARWOOD. 1827. sit, which would have been the only issue before them, had their judgment been correct upon the demurrer to the replication. This being our opinion upon the demurrer, the cause must be remanded to Charles county court by procedcndo. And it is in this aspect of the case unnecessary to institute any in- quiry into the very important point which has been raised by the appellant, whether the act of assembly, taking away from the plaintiff the savings of the statute, be constitutional, so far as respects his claim, which originated before the passage of the repealing law? Nor shall we venture to intimate any opinion on that subject, especially in this case which has been submit- ted to our consideration, without argument on the question. JUDGMENT REVERSED, AND PUOCEDEXDO AWARDED, DUVALL, et ux. vs. HARWOOD'S Adm'rs. June, 1S27. An intestate had several brothers and a sister, who died before him, leaving 1 children and grandchildren, and one brother who survived him, but who died before the distribution of the intestate's estate. In the distribution of the intestate's personal estate, it was decreed, that the children of his sister, and the children of each of his brothers, who died before him. should receive the share to which such sister or brother, if she or he had survived the intestate, would have been entitled, and to the exclusion of any grandchildren of such sister or brother of the intestate such grand- children being 1 the children of a son or daughter of the said sister or bro- ther of the intestate, and who died before him. And that the share of the brother who survived the intestate, is payable to the executor or ad- ministrator of such brother. An intestate died without descendants a sister, and the children and grandchildren of several deceased brothers and sisters surviving him. Of one of the brothers no child was alive at the death of the intestate, but several of the grandchildren of that bro- ther were then living, the plaintiff being one Held, that he was not en- titled to any part of the intestate's personal estate. (Note.) APPEAL from a decree of the Orphans Court of ,ftnnc-,ftrun~ del County. The administrators of Benjamin ffarwood, de- ceased, petitioned the orphans court to order a distribution of all the personal assets in their hands, amongst the legal repre- sentatives of the deceased, according to law. The orphans court, on the 26th of May 1827, having considered the petition, and being satisfied that the said Benjamin Parwood left, at the time of his death, one brother, Richard Harwood, who is OF MARYLAND. 475 DCVALL r. HARWOOD. 1827. since dead, leaving children, and other descendants; and that Thomas, William, Nicholas, John and Samuel Harwood, who were brothers of the said Benjamin, and Mary Stockett, who was a sister of the said Benjamin, departed this life in the lifetime of the said Benjamin, leaving children, and other descendants; and it being proved to the court that the said Ri- chard Harwood was indebted unto the said Benjamin in his lifetime in a large sum of money, and that the said debt is still due and owing, the court do adjudge and order, that the said Richard's distributive share of the said Benjamin's estate is not in any manner liable to the payment of the said debt. And the court, therefore, order that the said administrators do make distribution of the personal assets in their hands on the 4th of June next, and pay over the said assets as follows: One seventh part or share to Richard Harwood of Thomas, who is the only child of the said Thomas Hamvood, brother of the deceased. One other seventh part or share to the legal representatives of the said Richard Harwood, deceased. One other seventh part or share to the legal representatives of the said William Har- wood, deceased. One other seventh par* or share to the legal representatives of the said Nicholas Harwood, deceased. One other seventh pait or share to the legal representatives of the said John Harwood, deceased. One other seventh part or share to the legal representatives of the said Samuel Harwood, deceased. And one other seventh part or share to the legal re- presentatives of the said Mary Stockett. And the court do consider that the legal representatives of the said Richard, William, Nicholas, John, Samuel and Mary, are their chil- dren, and that if any of the said children shall have died be- fore the death of the said Benjamin, leaving children, or other descendants, the said children and descendants are, by repre- sentation, entitled to the share or shares to which their parent or parents would have been entitled, in case the said parent or parents had survived the said Benjamin. For example, the said Nicholas Harwood having died as aforesaid in the life- time ot the said Benjamin, leaving Sarah Duvall and Mary Green, daughters, and Henry S. Harwood, a son, and the said Henry S. Harwood having also died in the lifetime of the said Benjamin, leaving children, the court d consider and adjudge 476 CASES IN THE COURT OF APPEALS DPVALL v. HAHWOOD 1827. the seventh part or share, before ordered to be paid to the legal representatives of the said Nicholas, shall be distributed one third part thereof to the said Sarah Ihtvall; one other third part to Mary Green, and the remaining third part to and amongst the children of the said Henry S. Ilarwood. And in case any of the legal representatives of the said Richard, IViU Ham, Nicholas, John and Samuel Harwood, and Mary Stock- eft, shall have died since the death of the said Benjamin, then the share of the representatives so dying shall be paid over to the person or persons who shall be entitled to distribution of the personal estate of the said representative. From this decree Lewis Duvall, the husband of Sarah Du~ vail above mentioned, for himself, and his said wife, appealed to this court. The cause was about to be argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, and DORSEY, J. by Marriott and Speed, for the Appellants, when they were stopped by the court, who stated that the only question in the case wrich this court could act upon, had been decided in Ro- bins et al. vs The Slate use Polk, (a). Decreed, that the Ca.J The case of ROBINS, et al. t-sTHE STATE use of POLK was decided at June term 1809, on an appeal from Worcester county court. It was an action of debt on the administration bond given on the estate of Zadoh Purnell, deceased. The following case was stated for the opinion of the court, viz Col. Zadofe Purnell died intestate in January 1305, and without children or descendants of children. At the time of his death he left one sister living, and the legal descendants of three brothers and three sisters, who were dead, to wit, John, who had no child living at the death of the intestate, but who had seven grandchildren, one of whom is the equitable plaintiff Thomas, who left five children and four grandchildren. William, who left three children and one grandchild. Jlrralanta, who left four chil dren and six grandchildren. Zepporah, who left eight grandchildren; and Elizabeth, who left seven children and three grandchildren. The question was, whether or not the equitable plaintiff was entitled to a distributive share of the personal estate of Zcdok Purnell, deceased? The County Court, [Done, A. J ] gave judgment for the plaintiff. From which judgment the defendants appealed to this court. The cause was argued at the preceding June term before TILGHMAN, BUCHANAN, NICHOLSON and GANTT, J. by Bui- titt and Whittington, for the Appellants, and by J. Eayly and W. B. Mar- tin, for the Appellee; and at June term 1809, THE COTJHT, (except NICHOI< OK, J.) dissented from the opinion of the court below? and JUDGMENT BEVER6EB. OF MARYLAND. 477 FAUEHWEIH v BRCNSEK decree of the orphans court be reversed with costs to the ap- pellants. Decreed also, that in the distribution of the person- al estate of Benjamin Harwood, the intestate, the children of his sister, and the children of each of his brothers, who died before the intestate, shall receive the share to which such sister or brother, if she or he had survived the intestate, would have been entitled, and to the exclusion of any grandchildren of such sister or brother of the intestate such grandchildren being the children of a son or daughter of the said sister or brother of the intestate, and who died before the intestate. Decreed also, that the share to which Richard Harwood, brother of the in- testate, and who survived the intestate, but died before a dis- tribution of his estate took place, is payable over to his execu- tor or administrator, and not to his children, as directed by the decree of^the orphans court this court not meaning to inter- fere in any manner with the question of retainer by the admi- nistrators of Benjamin Harwood, for the claim they have, if any, against the said Richard Harwood, deceased, the proper parties not being before the court to justify them in deciding on that question. DECREE REVERSED, &C. SAUERWEIN vs. BRUNNER. June, 1827. A promissory note for $1,745, payable 90 days after date, made by B at the request of K, and for his accommodation, and by K token to G, who en- dorsed it with F., and then delivered by G to M, who negotiated it with H for the sum of $1,648 08, which was paid to E, is void for usury. AVhere a note commences in usury; or in other words, where a note is taint- ed with usury at its birth, when it first becomes legally efficient and operative so as to give to the holder a right of action upon it, no subse- quent holder, for a valuable consideration without notice of such usury, can maintain a suit upon it such note being declared by statute null and void. A note endorsed for the accommodation of the maker, and passed by him as a security for a usurious loan, is a usurious contract in its inception; as the lender is in fact to be considered the first holder of the note. The terms to negotiate a note, import the passing it for money; and to pas* a note for money, means to transfer such note to another proprietor. APPEAL from Baltimore County Court. Jlssumpsit by the holder, (now appellant,) against the maker, (the appellee,) of a promissory note, payable to George J. Brawn> and by him en- 478 CASES IN THE COURT OF APPEALS SAUERWEIN v. BRUNNER. 1827. dorscd to Martin Eichelberger, who endorsed it to the plain- tiff. The case is fully stated by the judge who delivered the opinion of this court. The cause was argued at the last June term, before BUCHANAN, Ch. J. and MARTIN, STEPHEN, and DORSET, J. Mayer, and Cruse, for the Appellant, contended, 1. That the time at which the instrument, on which this action is found- ed, became a complete and perfect note, was a question of fact for the jury, and not a question of law, and, therefore, that the court below erred in giving the directions prayed to the jury. 2. That if it be a question of law, yet, on the first delivery of the said note by its maker to Martin Eichelberger, the per- son for whose accommodation it was drawn, it became a com- plete and valid note. 3. That as no usurious consideration passed between any of the said parties at the time of said delivery, no subsequent usurious loan made on said note could vitiate it, and that it was therefore valid in the hands of a subsequent bonu fide holder for a full and valuable consideration. They cited Parrvs Eliason, 1 East, 92. Dagnallvs Wig- ley, 1 1 East, 42. Daniel vs. Cartony, 1 Esp. Rep. 274. Foltz vs Mey, 1 Bay's Rep. 4S6. Barclay, qui tarn vs Walmsley, 4 East, 55. Bowyer vs Bampton, 2 Stra. 1155. Lowe vs Waller, 2 Doug. 735. Young vs Wright, 1 Campb. 139, 141. Jlckland vs Pearce, 2 Campb. 599. Lowes vs Mazzaredo, 1 Stark. Rep. 385, (2 Serg. fy Low. 438 .) Wilkie vs Roose- velt, 3 Johns. Cas. 66. Jones vs Hake, 2 Johns. C as. QQ. Ben- nett vs Smith, 15 Johns. Rep. 355. Churchell vs Suter, 4 Mass. Rep. 1 56. Powell vs Waters, 17 Johns. Rep. 181. Mar- vin vs M'Cullum, 20 Johns. Rep. 288. Durham vs Dey, 13 Johns. Rep. 40. Munn vs The Commission Company, 15 Johns. Rep. 44. Smith vs Beach, 3 Day's Rep. 268. Ellis vs. Warn, Cro. Jac. 33. Burt vs Gwinn, 4 Harr. < Johns. 507. Jones vs Davison, 1 Holt's Rep. 256, (3 Serg. <$* Low. 92. J Lucas vs Latour, G Harr. $ Johns. 100. Mitchell, R. B. Magruder, and Kennedy, for the Appellee, cited Lowe vs Waller, 2 Doug. 736. Nevison vs Whitley, Cm OF MARYLAND. 479 S r. BBUNNER. 1827. Car. 501. Booth vs Cooke, 1 Freem. 264. Parr vs Eliason, 1 East, 92. Heylyn vs Jldamson* 2 Burr. 676. *ftcklandvs Pearce, 2 Campb. 599. Munnvs The Commission Company, 15 Johns. Rep. 44. Powell vs Waters, 17 Johns Rep. 176. Marvin vs M'Cullum, 20 Johns. Rep. 258. 2 Stark. Evid. 250. Chitty on Bills, 78, f am/ notes. ^ Lansing vs Gaine t 2 Johns. Hep. 303, 304. Lowes vs Mazzaredo, 2 Serg. < Loio. 138. Jones vs Davison, 3 9crg-. < Z/ow. 99, (note.) Webber vs Maddocks, 3 Campb. 1. cited in Chitty on Bills, 132, b. 1 Si ark. Evid. 414. Bank of Utica vs Wager, 2 Cowen's Rep. 763. New- York Fire Insurance Company vs Ely, Ib. 705,706,707. Chitty on Bills, 105, (note.} 100, (note 5.) Tyson vs Richard, 3 Harr. <* Johns. 111. Curia adv. vulf. STEPHEN, .T. at this term, delivered the opinion of the court. On the trial of this case in the court below, the plaintiff, (now appellant,) gave in evidence the following promissory note: ''Baltimore, Feb'y. 26th, 1S19. Ninety days after date I promise to pay George J. Brown, or order, seventeen hundred and forty-five dollars, and twenty cents, for value received;" which note was signed by the defendant, ^Ihe appellee,) and was endorsed by George J. Brown, Martin Eichelberger, and the plaintiff, and proved the handwriting of the maker and en- dorsers respectively; and further proved, that the said promis- sory note was passed bona fide, and in the due course of trade, and tor a valuable consideration, into the hands of the plaintiff; and here the plaintiff rested his case. Whereupon the defen- dant called Martin Eichelberger, whose name is on the note, who being released, was admitted to be a competent witness, who testified, that having been pressed for money, at the time this note was made, he applied to the defendant to lend him, for his sole accommodation, the defendant's note, to be nego- tiated in order to raise money for his use. He further proved by said witness, that the defendant complied with his request, and that he the witness applied, with the note, to George J. JBroivn, for a loan of money, which Brown agreed to make him upon the said note, and did accordingly lend the witness oash to the amount of $1,G4S OS, which was all that he ever 480 CASES IN THE COURT OP APPEALS SACEHWEIX v. BHUSSKH 1827. received for or on account of the said note. That Brown de- ducted for the use of the money loaned, $91 12, which the witness and Brown then understood to he the discount for in- terest, and for no other purpose. On being cross examined, the witness further said, that the note was drawn in blank, with- out the name of the payee inserted in it, when he passed it to Brown, having first inserted his name as payee, and that he considered Brown as the lender of the money, and not as his agent to procure a loan for him on the note, for a commission. That the note was first negotiated for the purpose of raising money at usurious interest, and that the above mentioned sum of $1, 648 08, was paid by Brown to him, a few days after he had delivered the note to Brown. The plaintiff then produced as a witness, George J. Brown, who testified that he ha.l no recollection whatever of the said note, on which this suit was brought, other than from his name being endorsed thereon in his own handwriting; that he had no recollection of having discounted said note, or any other of said Brunner's notes, at usurious interest, his pecuniary affairs being then much embarrassed, so that he was compelled to scrape together all the means in his power for his own use; that he has discounted Brunner's note at l-.ink for the ust oi the said Eichelberger, and that from his embarrassed situation at that time his memory might have been very inaccurate. The defendant then offered John M'Fadon, a competent witness, who stated that he did not particularly recollect the note in question, but that the memorandum, then shown to him, was in his handwriting, that it corresponded precisely with the note, and that he believes it related to that identical note. That thrt money mentioned in the memorandum, he remembered having received from one He.idlc.lt ack, who paid it to him after de- ducting the usurious rate of interest, mentioned in the memo- randum, and that he carried the money to Brown, and gave it to him with the memorandum. Whereupon the defendant prayed the direction of the court to the jury, that if the jury believed that the note in question was made for the purpose of raising money for the accommodation of Martin Eichelber- ger, and without any value being received by Andrew Brun- ncr, and that it was passed by Martin Eichelberger to George. OF MA.BYLAND. 481 SACEHWEIX r. BRCTSKEB. 1827. J. Brown, at a usurious rate of interest, then it was void, even if it passed afterwards, into the hands of a bona fide holder, and the plaintiff is not entitled to recover. And the defendant also prayed the court to direct the jury, that if they should be- lieve that the said note was made by Brunner without consi- deration, for the accommodation of Martin Eichelberger, and by him was put into the hand* of George J. Brown, that he might procure a loan of money thereon for said Eichelber- ger, and by George J. Brown was accordingly negotiated, to raise money, and that the sum of 31648 OS only, was raised thereon by George J. Brown, and paid over by him to Martin Eichelberger, then the plaintiff is not entitled to recover, not- withstanding he was not the lender of the money, but a subse- quent holder for a valuable consideration, without notice of such previous usury. And the defendant further prayed the direc- tion of the court to the jury, that if the jury should believe that the note was made by Brunner, without consideration, for the accommodation of Martin Eichelberger, and by Martin Eich- elberger was put into the hands of George J. Brown, without any value paid therefor by Brown, that he might procure a loan of money thereon for Martin Eichelberger, and by George J. Brown was put into the hands of the aforesaid John WFadon, a broker, to negotiate to any purchaser, for the pur- pose aforesaid, who negotiated the same at a discount of $97 12, to one Heidleback, who became the first holder thereof for value, and that the proceeds thereof, after deducting the interest aforesaid, and his own commission as broker, was paid over by- said M'Fadon to George J. Brown, who paid the same over to said Eichelberger, that then the said note was usurious and void in its inception, and the plaintiff not entitled in law to re- cover, notwithstanding the jury should be satisfied that he was not the lender of the money, but a subsequent holder for a va- luable consideration, without notice of such previous usury. Upon these several prayers, the court fa) gave the instructi- ons prayed for; and the plaintiff exceptcd. And the question to be decided by this court is, whether there is error in any of the opinions given by the court below? Upon an examination of the authorities relative to this subject, the principle fa.J Archer, Ch. J. and Hanson and Ward, A. J. VOL. i. 61 482 CASES IN THE COURT OF APPEALS SAUKRWEIX y. BRUNXER. 1827. to be well settled, that where a note commences in usury; or, in other words, where a note is tainted with usury at its birth, when it first becomes legally efficient and operative, so as to give to the holder a right of action upon it, no subsequent hold- er, for a valuable consideration, without notice of such usury, can maintain a suit upon it such note being declared by sta- tute null and void. In Munn vs The Commission Company, 15 Johns. Rep. 55, Spencer, Justice, in delivering the opinion of the court, says "the true test, in distinguishing between a case, where the discount of a bill, at a higher premium than the legal rate of interest, will be deemed legal, by considering it the purchase of a perfect bill, and where it will be illegal, as a usu- rious loan of money, is to ascertain whether the bill was a per- fect and available bill to the party holding it." He says "the principle is too well settled to be questioned, that a bill, free from usury, in its concoction, nay be sold at a discount, by al- lowing the purchaser to pay less for it, than it would amount to at the legal rate of interest, for the time the bill has to run. The reason is obvious; as the bill was free from usury, between the immediate parties to it, no after transaction with another person can, as respects those parties, invalidate it. And I take it to be equally clear, that if a bill, or note, be made for the pur- pose of raising money upon it, and it is discounted at a higher premium than the legal rate oi interest, and where none of the parties whose names are on it, can, as between themselves, maintain a suit on the bill when it becomes mature, provided it had not been discounted, that then such discounting of the bill would be usurious, and the bill would be void." This princi- ple is also recognized and adopted by the court in Powell vs Waters, 17 Johns. Rep. 181. The note in question was made by Brunner for the accom- modation of Eichelberger, and no right of action ever grew out of it, or attached upon it, in favour of any holder, until it was discounted at a usurious rate of interest, either by George J. Brow2> H. Blk. 408, 410. M* Daniel. vs Hughes, 3 Most, 367. Emlrce vs Hanna, 5 Johns. Rep. 101. Holmes vs Remscn, 4 Johns. Ch. Rep. 407. S. C. 20 Johns. Rep. 268. It is admitted that the judgment given in evidence in this case is properly authen- ticated. But it has been said that the judgment is examinable for irregularity. It is well settled, that if a foreign judgment comes collaterally as a defence in the cause, it is conclusive and unexaminable. Cas. temp. Hardw. 83. Burrows vs Jemino* 2 Stra. 733. Roach vs Garvan, 1 Vex. 159. Tarleton vs Tarleton, 4 Maule 8f Selw. 20. Hamilton vs Moore, 3 DalL Rep. 372,373, (note.) Smith vs Lewis, 3 Johns. Rep. 168, 169. Grant vs M'Lachlin, 4 Johns. Rep. 34. Barney vs Patterson's Lessee, 6 Harr. <$ Johns. 203. JZmbree vs Hanna, 5 Johns. Rep. 101. Holmes vs Remscn, 4 Johns. Ch. Rep. 467. There is no difference between a judgment in attachment, from a judgment in any other case. It may be inquired, 1. \Vas the court at Port-au-Prince a court of competent jurisdiction? 2. Does it judicially condemn the debt, which is the subject of the present action? 3. Is there any evidence o.f fraud or collu- sion as between the defendant and the attaching creditor? 1. The law of the place was produced in evidence; and if it was duly approved, it did authorise the proceeding by attach- ment. It cannot be doubted, but that Kramer was a creditor of the present appellants. Is the law properly proved? This may be done in one of two ways. It may be by an authenti- cated, or by a sworn copy. The witness docs not say express- ly that he examined the law; but it is to be presumed frqm .thf, 500 CASES IN THE COURT OF APPEALS TAYLOR &. M'NEAL v. PHELPS. 1827. interrogatory propounded, and his answer thereto, that it was a sworn copy. It cannot be doubted but that it is a sworn copy. If the law is out of the case, there is still sufficient prima facie evidence from the record, to show that the court had jurisdic- tion. A want of jurisdiction must be shown by him who con- tests it. Molony vs Gibbons, 2 Campb. 502, Shmnway vs Tilghman, 4 Cowen's Rep. 292. This court will intend that the court of Port-au-Prince had jurisdiction over the subject matter, unless it is shown to be otherwise. 2. What does the judgment condemn? Although the record has been incorrectly translated, yet shows that Kramer was indebted to the defendant's house In $797 50, for money bor- rowed for the appellants on Kramer's own responsibility, with a collateral security of debts due to Dennis and Brown. Pro- ceedings were had to enforce payment of Kramer. A re- ference was made to arbitrators, who awarded that Kramer ehould pay to the defendant's house a sum of money. The award was not complied with, and an execution was awarded against Kramer. Kramer then petitioned the court to authorise this debt to be deducted out of the funds in the hands of the defendant's house, belonging to the appellants; and this the court directed to be done. 3. No fraud appears in the transaction. Need not show a, debt due to the plaintiff in the attachment. M'-Danielvs Hughes, 3 East, 367. Under our act of 1715, ch. 40, a person having funds in his hands belonging to his debtor, may attach the amount in his own hands to pay his own debt. The case at bar is not stronger, nor so strong, of a case of inferred fraud than our own laws sanction. in reply. A judgment on a foreign attachment is only prima facie evidence of a debt, when it is to be enforced in this country. But it has been said, that when brought in incidentally it is then conclusive. The plaintiffs were never residents in Port-au-Prince, and had no notice of the proceed- ings, now attempted to be set up in bar of their action. There is no difference when a foreign judgment is offered as a set-off, and when it is to be enforced. This court did not, in Barney ys Patterson's Lessee) 6 Harr. ff Johns, 202, say, that a foreiga OF MARYLAND. 501 TAYLOU & M'NEAL v. PHELPS. 1827. judgment was conclusive when offered by way of set-off. There the judgment was offered in evidence as a link in the chain of the plaintiff's title. There can be no difference between a foreign judgment to be enforced, and where offered by way of set-off wings 4* Chest on vs Nicholson 4' Williams, 4 Harr. $ Johns. 66, where all the parties were before the foreign tri- bunal, and yet this court decided that the judgment was not conclusive. In all the cases relied on by the counsel for the appellee, the parties affected by the foreign judgment were, or had been resident of the country in which such judgments were rendered, To make a foreign judgment on attachment, evi- dence for any purpose, it must appear that the defendant had been a resident or had been summoned. Fisher vs Lane, 3 Wih. 297. The record offered in evidence in this case does not show that the plaintiffs ever had been summoned, or had notice, or ever were under the jurisdiction of the court. Nor does it appear that any debt had been proved against them. JBuchananvsRucker, 9 East, 194. Bordenvs Fitch, 15 Johns. Hep. 121, 142, 143. To bind a person by a judgment he must be a party to the proceed- ng. There is nothing to show in this case that any proceeding was had by Kramer against the plain- tiffs, so as to attach the funds of theirs in the hands of the defen- dant. Nor is there any thing to show that there was any process of attachment against the plaintiffs. The statute law of a foreign country must be proved by a copy, either properly authenticat- ed, or sworn to be true. But the common law may be proved by parol evidence. IJere there has bepn no legal proof of any law\ BUCHANAN, Ch. J. delivered the opinion of the Court. The facts of this case, as set out in the bill of exceptions taken at the trial, are in substance these: F. */l. Kramer, upon his own responsibility, borrowed on account of the appellants $797 50, from Montandevert, JValker 4* Co merchants at Port-au- Prince, who sued and obtained judgment against him for the amount so borrowed. To discharge himself from which, he sued out an attachment against the funds of the appellants, in the hands of Montandevert, Walker 4* Co. consisting of a ba- !$nce of the proceeds of a shipment of herrings, amounting t $459 71, which he recovered by a judgment of condemnation 508 CASES IN THE COURT OF APPEALS TAYLOR 8c M'NKAL v. PUELPS 1827. in the civil tribunal sitting at that place. For the amount so recovered, this suit was brought against the appellee, as surviv- ing partner of the house of Montandevert, Walker fy Co. and that recovery is relied upan as a full defence to the action, No principle is now better established, than that where a debt has been recovered by attachment in a foreign court, the recovery is a protection to the debtor, as garnishee, against his original creditor. Chevalier vs Lynch, 1 Doug. 170. Philips vs Hunter, 2 H. Elk. Rep. 402. Holmes vs Remsen, 4 Johns. Ch. Rep. 460. S. C. 20 Johns. Rep. 229. Embree $ Collins vs Hanna, 5 Johns. Rep. 101, are in point, with many others, proceeding upon the same principle, to which it is unnecessary to refer; and nothing could be more unreasonable and unjust, than that a person, who has been coerced by the sentence of a court of competent jurisdiction to pay a debt once, should be compelled to pay it a second time. It would be any thing but Tight and proper, and therefore not sanctioned in law. It may indeed be said to be hard, that a creditor should lose his mo- ney, without having had an opportunity afforded him of being heard, and perhaps in such cases, injustice is frequently done. These attachments, however, are resorted to by such as claim to be creditors of Ihose whose funds are sought to be affected; and when in truth they are creditors, no injury is in fact done to those whose debts are attached, being only an application of their funds in that form to the payment of their debts, to which they might be coerced by the attaching creditors in a different form. It is but the turning over one debt in discharge of ano- ther. And in the absence of any proof of fraud or collusion^ the presumption is, that what is done is rightly done, and that the claim of the attaching creditor is established to the satisfac- tion at least of the court, in which the judgment of condemna- tion is obtained. Injustice may, and is sometimes, but not al- ways done, in that ex parte form of proceeding; but in the case of a debtor, it would be extremelv hard, that after having been made to pay the debt, by the authority of a court which he could not resist, he should be compelled to pay it over again; and in every such case, where he was not himself tainted with fraud, &c. injustice would be done. And it is not for us to com- {dain of the effects of foreign judgments in attachment on the OF MARYLAND. TAYLOR & M'NeAi v. PIIELPS. 1827. rights of creditors here; our own attachment law has the same operation upon the rights of nonresident creditors. The cases relied upon by the counsel for the appellants, to show that foreign judgments are not conclusive, are chiefly cases in which they were sought to be enforced by suits being brought upon them; and in such cases they certainly are not conclusive. The distinction is between the effect of a foreign judgment, when it is sought to be enforced by the party claim- ing the benefit (jf it, by bringing suit upon it, and when it only comes incidentally in question. In the former case it is not conclusive, but prima facie evidence only, and may be im- peached for irregularity, and rebutted by other evidence. But in the latter, if it be by a court of competent jurisdiction, it lias the force and effect of a domestic judgment, and the cor- rectness of it cannot be examined into, but it is conclusive. This distinction was fully recognized and adopted in Barney vs Patterson, 6 Plarr. <$ Johns. 182. . In this case the judgment of the civil tribunal at Port-au- Prince, does come incidentally in question, and is only intro- duced and relied upon by the appellee as a protection against the claim of the appellants, his former creditors, who are seek- ing to compel him to pay over again a debt, which under pro- cess of attachment he has once already been obliged to pay. The jurisdiction of the civil tribunal at Port-au-Prince is not impeached, and however the fact may have been, there is no evidence in the record of any fraud or collusion having been, practised. As far as appears to us, and we cannot look beyond the record, it was the common case of a creditor, attaching the funds of his absent debtor in the hands of a third person, and that is what is done every day in our own courts. And it would be thought very strange, and hard too, by a citizen of this state, if, after being obliged by a judgment in attachment in one of our courts to pay the amount of a debt due from him to a citizen of Virginia, he should on going into that state, be subject to be sued by his original creditor there, and made to pay the same debt over again; and that is exactly what it is sought to fhake the appellee do in this case, but which the law will not sanction. JUDGMENT AFFIRMED. ,504 CASES IN THE COURT OF APPEALS* BALTZELL v. Foss. 1827. J. &.C. BALTZELL vs. Foss, ct al. June, 1827. The lands of which G F died seized, on the application of his heirs, were sold under an order of the court of chancery, by a trustee appointed for that purpose, to J & C B, and the sale was ratified. The purchasers vf ere- creditors of J F, one of the heirs, and filed a petition setting forth their claim, the death of J F, that his children, who were minors, resided 5n Illinois, and praying an order of publication against them, and payment of their debt; it did not state that J F's personal estate was insufficient to pay his debts. The chancellor, without granting any order of publi- cation, dismissed the petition at once. On appeal, it was held, that cre- ditors may, by way of petition, instead of pursuing the accustomed course of an original bill, affect funds under the control of chancery Upon the same terms that they might by bill, and that notwithstanding* the defect in the petition in this case, the chancellor erred in deciding the merits of the petition -without publicationjOr without an answer, and without setting it down for hearSng; as the right existed the petition might have been amended, and the defect cured, if the proceedings had pro- gressed to a hearing; and to enable the petitioners to subject the- funds in question to the payment of debts, they must show either that no per- sonal fund existed applicable to the extinguishment of their claims, or that they are insufficient for that purpose, and must, in addition, establish their claims in the customary method. The acts of 1785, ch. 72, and 1794, cfi. 60, s. 2, are in pan maieria, and where proceedings are had under the one taw or the other, to sell real property for the payment of debts, evidence of an insufficiency of assets will be required. APPEAL from the Court of Chancery. This case, the facts of which are stated by the Judge who delivered the opinion of this court, was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY. J. by Williams, (District Attorney of U. S.J for the Appellants j and by Scott, for the Appellees. ARCHER, J. delivered the opinion of the Court. The repre- sentatives of John Foss, Jacob Foss and George Foss. minors, by Mary Foss their next friend, the said Mary ^os.t and the widow of George Foss, jr. Jinn Foss, M'/rgaret Fuss, Tho- mas Owens and EHzabeth his wife, Christiana S'idler. Jo- seph Foss and Catharine Foss, the representatives of Gznrge Foss, of the city of Baltimore, applied to the court of chance- ry for the sale of the real estate of which George Foss died seized, alleging that some oi the representatives were minors. OF MARYLAND. 505 BALTZELL v. Foss. 1827. and that a sale would be conducive to their interest. The court of chancery having instituted such inquiries as were required by law for the purpose of ascertaining; the value of the real es- tate of George Foss, and whether it would be conducive to the interest of the parties that it should be sold, decreed the sale of the real estate as prayed for by the petition, and appointed a trustee for that purpose, who in the execution of the trust com- mitted to him, exposed the lands to sale, and reported to the court that Jacob and Charles Balizcll, (the appellants,) be- came the purchasers of certain portions of the real estate to the amount of $3335. This sale was ratified and confirmed by the court on the 24th of September 1S25. On the 26th of October following, Jacob and Charles Baltz- el/, the purchasers, by petition represented to the chancellor, that Catharine Foss, one of the heirs of George Foss, was in- debted to them in the sum of $918 13, and that John Foss, Joseph Foss and Catharine Foss, three other heirs of George Foss, were jointly and severally indebted to them in a note for $1958 58, with interest irom the 26th of December 1822, which claims were exhibited with the petition, and prayed the chancellor to order that the trustee should credit them on ac- count of their purchases to the extent of their claims against the representatives entitled to a distributive sha^ of the pro- ceeds of the estate; which prayer was conditionally granted, and an order, in conformity thereto, was passed, directing the credit to be given, provided cause should not be shown to the contrary on or before the 20th of November 1824. Answers were filed to this petition by Catharine Foss, Joseph Fats and Christiana Sadler. No answer seems ever to have been filed by the representatives of John Foss, nor does it appear that a copy of the chancellor's order was eve? served on them. In this state of the proceedings the chancellor dismissed the peti- tion of Jacob and Charles Baltzell, on the 7th of January 1825. Afterwards the petitioners renewed their petition, pray- ing, under the circumstances which they have stated, that their application should be reinstated, and that the chancellor would review his decree dismissing their petition. It alleged the pay- ment of all the debts of George Foss by his executrix, before the application for the sale of his lands by his representatives VOL. i. 64 BALTZKLL v Foss. 1827. averred that John Foss had died in the state of Illinois, and prayed publication against his legal representatives, who are parties to the bill; and they furthermore withdrew all applica- tion for a reimbursement from the amount of their purchases to the extent of any claim they had against all or any of the representatives of George Foss, except as against the children and legal representatives of John Foss. No order for publication ever passed in conformity with the prayer of the petitioners; but the court, acting on the petition, decreed at once its dismissal, upon the ground that the petition- ers' remedy was at law; and from this order an appeal has fceen taken. This court are not aware of any remedy which the petition- ers could have for the recovery of their claim against the heirs of John Foss, if his personal estate be insufficient to pay his debts, other than that which they have been pursuing. Un- less there are personal assets, if they are left to law, they are entirely remediless. The law has pointed out no mode by which its process could reach these funds, which are in chance- ry for distribution. They may not, strictly speaking, be said to be in litigation, but they are under the control and power of a court of equity, whose jurisdiction, courts of law could not be permitted, by its process, to oust. The act of 1794, ch. 60, s. 2, authorises the sale of the lands of nonresidents, which they shall derive by descent or devise, for the payment of the debts of the person from whom they descend, or by whom they are devised, and makes no provision relative to a deficiency of personal estate. But the act of 1785, ch. 72, requires that the personal estate shall be insufficient for the payment of debts before the real estate of the deceased shall be subjected to sale for their payment, and is general in its terms. The act of 1794, above referred to, is supplemen- tary to the act of 1785, and is in pari materia. They must, therefore, be construed together; and evidence will be requir- ed, of an insufficiency of assets, where proceedings are had under the one law or the other. The petitioners then, to entitle themselves to a favourable judgment, and to subject these funds to the payment of debts, must, before they can succeed, show, either that no personal OF MARYLAND. 5Q7 BAETZF.LL t 1 . Foss. 1827. existed applicable to the extinguishment of their claims, or that they are insufficient for that purpose; and must, in ad- dition, establish their claims in the customary method. The petition is informally and untechnically drawn, and is indeed, defective in substance in not alleging one or the other of the above facts indispensable to give jurisdiction to the court in their final decree, and it would also seem to require amendment in its prayer, which designates the object it desires to attain. It cannot, at this day, be questioned but that creditors may by way of petition, instead of pursuing the accustomed course of an original bill, afieet funds situated as are these; yet unless the petitioners are the only creditors of Foss, they could not have the entire fund going to these representatives, applied to the extinguishment of the purchase. Such a course would be doing injustice to other creditors, if such existed; but they could be permitted, as on an original bill by a single creditor, to come in for their distributive share. Notwithstanding the defects in the petition to which we have adverted, we conceive the court erred in deciding the merits of the petition without publication or without an answer, and with- out setting it down for a hearing. We cannot say, had the pub- lication been ordered, or had it been refused merely without any decision on the merits of the petition, but that an amended petition might have been filed the right existing to do so; nor can we say that the respondents might not have confessed all the necessary facts by answer, or failing to answer, upon an amended petition being filed and publication made, that the ne- cessary proofs would not have been adduced to have enabled the chancellor to have decreed the application of these funds to the extinguishment, so far as they would go, of the debts of thp deceased, and among the rest that of the petitioners. The order, therefore, of the chancellor, dismissing the appellants' petition, is reversed. ORDER REVERSED. AN INDEX TO THB CONTAINED IU THIS VOLUME. ABATEMENT. Sic Ejectment 1. ABSCONDING. See Slaves 1. ACKNOWLEDGMENT. See Limitation of Actions. ACTION & ACTION ON THE CASE. 1. A promise by a debtor to his credi- tor to pay his debt to a third per- son, will not enable such person to maintain an action at law, in his own name, for its recovery. Ow- ingti's Ex'rs. v Owings, 484 2. Where one person pays money to another for the use of a third per- son, or where a person, having ready money belonging to another, agrees with that other to pay it over to a third person, in both these cases an action may be brought in the names of the persons benefi- cially interested. /. 3. A promise to one to pay a sum of money to several other persons in equal portions, where it was not the intention of the contracting parties, that such other persons should receive or recover by Jaw, the entire sum, and then divide it among themselves, if the founda- tion of an action at all, it will con- fer a right to maintain a separate action for each part. Ib, See Assumpsit 5, 6. ADMINISTRATION. 1. It is not consistent with the policy of the law to encourages agree- ments, by which the right to ad- minister on the estates of deceased persons, is declined in favour of one, who contracts to pay the de- clining party for permission to ad- minister, all the commissions al- lowed for the settlement of such estates, as in bad hands the prac- tice might lead to gross violations of trusts, and the most pernicious consequences. Owings's Ex'rs. v See Orphans Court 1. ADMINISTRATOR. See Executors & Administrators. ADMISSION. See Assets 1. - Limitation of Actions 5, 12, 13. AGENT. See Assumpsit 2. AGREEMENT. 1. Where an agreement does not de- signate the person to whom its con- sideration is to be paid, the law- will raise an assumps'f,- and this is always implied in favour of those who are the meritorious cause of action, or from whom the conside- ration moves. Higdon t et ux. v Thomas, jgg See Administration 1. - Contract. - Husband & Wife 6, 7. - Statute of Frauds 1, 2, 3, 4. ALIEN. 1. An alien may purchase lands, and hold them against every one, (ex* INDEX. cept the State,) until office found, or until the government shall exer- cise its authority over them; but by the common law a feme covert, be- ing an alien, i# not entitled to he endowed, nor to inherit lands. Bu- chanan v Deskon, et al. -80 ALLEGATION. See Bill of Complaint. Court of Chancery 2. -- Declaration 1. Verdict 1. AMENDMENT. 1. When an amendment of the plead- ing is made at the trial under the act of 1809, ch. 153, s. 1, time is to be given during the term to the adverse party to prepare to sup- port his case; yet the cause is not, therefore, to be continued, unless the court shall be satisfied that a continuance is necessary. Union Sank of Maryland v Ridgely, 324 2. The discretion vested in the courts by the act of 1809, -ck. 153, to or- der and allow amendments to be made in all proceedings whatever before verdict, so as to bring the merits of the question between the parties fairly to trial, is not a ca- pricious but a sound legal discre- tion? to the proper exercise of which the party claiming it is en- titled, and from which he cannot properly be debarred by any rule that is the mere creature of the court. Ih ANSWER TN CHANCERY. 1. It is a general ruK that an answer responsive to the bill of complaint, is evidence for the respondent; but the answer of a defendant, when it asserts a right affirmatively, in opposition to" the plaintiff's de- mand, is not evidence. S- y T. fiincgold v M. Ringgold, et al. 1 1 2. An answer will not support a mat- ter set upin avoidance or discharge, \vhere the matter of avoidance is a distinct fact; in such a case, the defence must be proved. ' Ib. 3. On a general bill to account, the answer is no evidence of disburse- ments; such a bill is nothing more than a demand on the defendant, to show his receipts, and the legal sufficiency of his expenditures. Ib. 4. In all cases, where a complainant seeks a discovery and relief, and to make out his case applies himself to the conscience of the defendant, if in his answer the liability is once admitted, there can be no escape from it, but by proof; though every thing which he says with regard to the creation of that liability, must be taken together. Ib, ANTE-NUPTIAL SETTLEMENT. See Husband & Wife 6, 7. Marriage 1, 2. APPEAL. 1. The setting aside a judgment a- gainst the casual ejector, on motion of the landlord of the tenant in possession, awarding restitution of the premises, and ordering the ac- tion to be tried, is but an interlocu- tory proceeding, from which an appeal will not lie; and the refusal of the court below to reconsider such proceedings, does not alter the case. Gover, el al. Lessee v Cooky, 2. By the act of 1818, ch. 204, ap- peals from the orders and decisions of the orphans courts, must be taken within thirty days after such order or decision. See ORPHANS COURT 1, and Sewell v Sewell's Adm'r. D. B N. 3. Will an appeal lie from an order of the orphans court granting let- ters of administration' Quere Ib. 4. Where a record had not been transmitted to the appellate court under an appeal or writ of erroiv that court will lay a rule on the appellant or plaintiff in error, and clerk of the court where the ap- peal was had, or to which the writ of error was directed, to show cause, &c. On the record being filed, the court will, if it be the regular term for judgment in case the record had been duly returned, and no counsel appearing for the appellant or plaintiff in error, dis- miss the appeal or writ of error. Bourne v Mackall, 5. An appeal does not lie from the refusal of the county court, on mo- tion of an insolvent debtor, to grant a rule on the trustee of such insolvent, who had given the usual bond, requiring him to show cause why his appointment should not be revoked. Chase v Glenn, 160 6. On an appeal from chancery, the appellate court decrees only in re- lation to the rights of those who INDEX. are parties to the appeal. Leaden- ham's Ex'r v Ni.cfujlion, et al, 257 See Amendment 2. ASSETS. I. An administrator who relies on the general issue plea, after verdict, and judgment thereon, has admit- ted assets to pay the amount of the claim against him. Giles, Adm'r, of Bacon, v Ferryman, 164 12. The act.-, of assembly of 1785, ch. 72, and 1794, ch. 60, s. 2, are in pari materia, and where proceed- ings are had under the one law of the other, to sell real property for the payment of debts, evidence of an insufficiency of assets will be re- quired Baltzdl v Foss, el al. 504 See Averment 1 - Declaration 4. ' Insolvent Debtor 1. ASSIGNMENT. See Assumpsit 7, 8, 9. ASSUMPSIT. 1. After verdict in an action of as- sumpsit by an administrator, a de- fective allegation in the declarati- on, of the promise to the adminis- trator, and tile death of the intes- tate, and an omission to mafce pro- fert of the letters of administration, cannot be taken advantage of; though they might have furnished good causes of demurrer. Van- d'Tsmith v Washmein's Adm'r. 4 2. W, being taken sick at the house of V, deposited in his hands a sum of money, and directed V to send fora physician, to furnish him with every thing that was necessary, and to apply the money to the payment of the physician's bill, and of any expenses which might be incurred *>u his account during his sickness. V did send for a physician, and furnished W with every necessary and attendance during his sickness, which in a few days ended fatally. On his death, V paid all the ex- penses, including the physician's bill. In an action of assumpsit brought against V by W's adminis- trator, to recover the amount of the deposit Held, that V was to be allowed for the amount paid to the physician, if it was such as he was entitled to receive, as well as the other expenses. That the fund placed in his hands by W, was to be considered as a special fund, .and tht in relation to it lie was to be looked upon as a trustee, of agent, of the physician, for whose remuneration it was in part creat-. ed; but that it would have been otherwise if V had received the deposit for safe keeping only. Ib. 6 o. When an agreement does not de- signate the person to whom its con- sideration is to be paid, the law will raise au assumpsit; and this is always implied in favour of those who are the meritorious cause of action, or from whom the conside- ration moves. Ifigdon, tt ux. v Thomas, 139 4. The action for money had and re- ceived, is an equitable action, and equally as remedial in its efTVctsas a bill in equity. Murphy v Barron, .5B 5. If one man takes another's money to do a thing, and he refuses to d it, it is a fraud; and it is at the elec- tion of the party injured, either to affirm the agreement, by bringing an action for the nonpayment of the money, or to disaffirm the a- greemv-nt ab initio, by reason of the fraud, and bring an action for money had and received to his use. Ib, 6. But where a vendor was ex- onerated from the deliver}' of a slave then out of his possession, whom he had sold and puid for, and afterwards persuaded or enticed to abscond, so that the purchaser ne- ver got possession of him, no ac- tion can be maintained upon the contract of sale for a nondelivery, or to recover back the purchase money, as money had and receiv- ed by him to the use of the ven- dee. Either action could have been maintained, if it had been the vendor's duty to deliver the slave, and he had refused. The proper temedy here is a special action on the case for persuading or enticing the slave to abscond. Ib. 7- A promise by a debtor to his cre- ditor to pay his deb* to a third per- son, will not enable such third person to maintain an action of as- sumpsit in his own name for its re- covery. Owings'.s Ex'rs, v Owings, 484 8. Where a person pays money to another for the use of a third per- son, or where a person having mo- ney belonging to another, agrees with that other to pay it over to a third peraon, in both thsss cases 512 INDEX. actions of assumpsit may be brought in the names of the per- sons beneficially interested. Ib. 9. A promise to one to pay a sum of money to several other persons in equal portions, where it was not th intention uf the contracting parties that such other persons should receive or recover at law the entire sum, and then divide it among themselves, if the founda- tion of an action at all, it conferred a right to maintain a separate ac- tion for each part. Ib. See Declaration 2, 3, ATTACHMENT. 1. Where a deht has heen recovered by attachment in. a foreign covirt, the recovery is a protection to the debtor, as garnishee, against his original creditor. Taylctr W M'Neal v P helps, 492 2. In the absence of any proof- of fraud or collusion, the presumption is, that what was done under a fo- reign attachment, was rightly done, and that the claim of the attaching creditor was established to the sa- tisfaction, at least of the court, in vhich the judgment of condemna- tion was obtained. Ib. 3. The judgments of foreign courts of competent jurisdiction, when they c'pme incidentally in question as where they are relied upon by garnishees as a protection a- gainst the claims of their former creditors, have the force and effect of domestic judgments, and are conclusive. Ib. AUDITOR'S RETORT. See Exceptions 1. AUTHENTICATION. See Statute of Frauds 1, 2, 3, 4. AVERMENT. 1.. WliTe it need not be averred in a declaration in an action against an administrator in bis own right that he had assets in his hands of liis intestate sufficient to pay the plaintiff's demand. Giles, Jldm'r. of flncon, v Perry man, 164 See Declaration 1, 2, 4, 7, 8. BAIL. 2. A writ of sclre facias against, spe- cial bail, which does not recite the issue and return of a ca. a. ag-iinst ttie principal, is sufficient upon is- sue joined on the plea of nul tiel record Cappeau's Sail v Middle- ton &f Baker, 154 2. To such writ, the bail having pleaded the death of his principal before any ca. sa. returned, the plaintiff in his replication traversed that fact, and tendered an issue to the country. Its conclusion was technically right. An issue join- ed on such pleadings, is not an im- material one the whole matter in controversy being 1 decided by it. Ib. 3. The omission of the plaintiff in his replication to set out the ca. sa. and return, in the proceedings a- gainst hail, is mere informality in pleadings, bad only on demurrer, and cured by verdict. Ib* BANK. See Corporation. BARGAIN & SALE. See Consideration 1, 2, 3. Delivery 1. BARON & FEME. See Husband and Wife. BEQUEST, See Devise. BILL OF COMPLAINT. (See Court- of Chancery 2, 3,4, 5, C. BILL OF EXCEPTfONS. See Evidence 23. BILL OF EXCHANGE. 1. The drawer of a dishonoured billot" exchange, who neither at the time he drew it, nor when it was pre sented, had any funds in the hand, 1 * of the drawee, nor such expecta- tion of its payment as would in- duce a merchant of common pru- dence and ordinary regard for his commercial credit to draw a like bill, is not entitled to notice of such distionour. Cathell v Goodwin, 46S 2. Where the defendant drew, a bill of exchange in favour of the plain- tiff's wife, and thus authorised her, in express terms, to receive its :i mount the bill being presented by her, and payment refused, in an ac tion on the bill by the husband, the defendant cannot deny the wife's right to demand, its payment. Ib. 3. Whether or not the drawer of :\. bill of exchange had reasonable grounds to expect tliat the bill INDEX. 513 Would be honoured, (and the facts upon which that question arises are admitted or undeniable,) it is exclusively a matter of law to be pronounced by the court; but if the facts be controverted, or the proof be equivocal, or contradic- tory, then it becomes a mixed ques- tion, both of law and fact, in which case, the court hypothetically in- struct the jury as to the law, to be by them pronounced accordingly as they may find the facts. Ib. 4. Under the money counts the pl:iin- tift' may recover, by evidence of the defendant's dishonoured bill of exchange, drawn payable to the order of the plaintiff's wife the drawer, under the circumstances of the case, not being 1 entitled to no- tice of th^i nonpayment of his bill. Jb. See Promissory Note. BILL OF SALE. J. A bill of sale of a sheriff for chat- tels levied on and sold by him, is improper testimony in itself, how- ever it may be considered, accom- panied by proof of the sheriff's au- thority to sell the property it pro- fessed to convey. Sanderson's Ex'ra. v Marks, 252 BOND* See Contract. Itecita!. BREACHES. See Declaration 2. Pleading. CAUSE OF ACTION. 1. A receipt given of a sum of money borrowed, whereby the person bor- rowing undertook to return the money "when called on to do so," creates a cause of action from its date, bearing interest, and against which the act of limitations begins to run, from that time. Hawaii's Ex'rs. v Magruder, 439 See Action &. Action on the Case. CHANCERY. See Court of Chancery. CHILDREN St GRANDCHILDREN See Distributee & Distribution. CHOSE IN ACTION. See Husband & Wife. VOL. I. 65 COLLATERAL RELATIONS. See Distributee &. Distribution. COMMISSION & CQMMISSSION- KKS. 1. The power conferred on a com- missioner to take testimony is strict- ly personal. Especial confidence is presumed to be reposed in the per- son appointed, and he cannot dele- gate his authority. Cappeau's Bail v Middleton ? Baker, 154 2. If the government of the place where a commission has issued to take testimony, will not permit it to be executed, the court here will issue Letters Rogalory for the pur- pose of obtaining- tesmony. Ib. 157', ("note.J COMMISSIONS. See Administration 1- Court of Chancery 7. Trust . Trustees 15. COMMON RECOVERY. See Estate Tail I . COMPETENT WITNESS & EVI- DENCE. See Corporation 1, 2. Witness 2. COMPOUND INTEREST. See Trust Si Trustees 13 CONSIDERATION. 1. Marriage cannot be given in evi- dence as the consideration of a deed of bargain and sale expressed to be made for a money considera- tion. Bet Is, et ux. v The Union Sank of Maryland, 175 2. The greatest extent to which the authorities have gone, has been to allow an additional consideration to be proved, which is not repug- nant to the one mentioned in the deed; but where a deed is impeach- ed for fraud, the party to whom the fraud is imputed, will not be per- mitted to prove any other conside- ration in support of (he deed. Ib. 3. Ante-nuptial settlements made in consideration of marriage, are good, even though the party be then in- debted. Ib, CONSTRUCTION. 1. A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party boand by any construction which he may 514 INDEX. have put upon the instrument. jRinggold v Minggold, 74 See Contract. Descent. Devise. Limitation of Actions. Statute of Frauds. CONTRACT. 1. In construing a bond the court must look to the intention of the parties at the time it was executed, and the contract must be expound- ed as the law was, when the Con- tract was made. Union Bank of Maryland v llidgely, 324 2. Where an act of incorporation, under which a bond was taken 1o secure the good conduct of one of the officers of the corporation, was limited in its duration to a certain period, the bond must hnve the same limitation; because the par- ties, looking to that act, it would seem to be very clear that no re- sponsibility was contemplated be- yond the period of its specified ex- istence. The extension of the char- ter beyond the period of its first limitation by legislative authority, does not enter into the contract, and cannot enlarge it. lb. 3. On the 25th of January 1817, D, agreed with VV, under seal, to de- liver to him or order at Z, 250 bar- rels of flour, not less than one- third of which to pass as fine quali- ty, the remaining two-thirds of su- perfine, to be at said place by the 1st of March then next, to be lined and in good shipping order; for which flour, on its delivery as a- bove, W bound himself to pay, &c. In an action of covenant on this contract the breach assigned being that the flour when delivered was sour, common, inferior, and of bad quality, and not in good shipping order, and would not and did not pass inspection as fine or superfine flour Held, that the inspection was no part of the contract, as it re- lated to the time and place of de- livery, but only the evidence or test by which it was agreed the quality of the flour should be as- certained; that the moment the stipulated time for the delivery of the ffour had passed, the contract was either performed or broken, and it was only necessary to carry the flour to a place for inspection, to furnish eyidenQe of its quality; and that the difference of price at Z, at the time stipulated for its de- livery, between the flour delivered and that contracted for, was the measure of the plaintiff's damages. Williamson v Dillon, 444 4. In an action on a contract to de- liver a specific article at a particu- lar time and place, to be paid for at the time of the delivery, the measure of damages is the same, whether the action be brought for a nondelivery, or a delivery of a different quality from that con- tracted for. The value of such ar* tide at the time and place of de- livery, is the true measure; unless where the contract showed it was for a particular purpose, and speci- al damages were laid in the declara- tion. lb. 5. In proving the relative prices of different qualities of flour at Z, in 1817, other testimony is admissible than direct positive proof from a witness who knew the value at that place. In the absence of such po- sitive proof the jury may infer such value, from proof of the price of each kind of flour in 1817, at other places in the neighbourliod of Z, and at N, a port to which flour was commonly sent from Z, for inspec- tion and sale; and this latter species of evidence, which is admissible for the above purpose, is not se- condary, though of a less conclusive character than direct proof. lb. 6- A court cannot be aided in the construction of an agreement by the acts which the parties may have done under it, nor is a party bound by any construction which he may have put upon the instrument. Ringgold v Minggold, 74 7. The owners of merchandize or other property, may sue in their own names on contracts of sale made by their agents, to whom ex- press promises to pay have been made, and with whom the vendees dealt as sole owners of the proper- ty, having no knowledge of their principals. So also where one part owner sells, as his own, the pro- perty of his firm, all the partners may sue. Higdon, et ux. t> Thomas* 15.7 See Agreement. Promissory Note 1, 3. Statute of Frauds 1, 2, 3, 4, Usage 2, INDEX. 515 CONVEYANCE. 1. A receipt for the purchase money, in a deed of conveyance of land, is only prima facie evidence of its payment. Higdon, et ux. v Tlio- m(m, 139 2. A tract of land may acquire, by reputation, a name different from that which it bears in the grant, and may pass by such acquired name Wall v Forbes, 441 See Consideration 1, 2, 3. Delivery 1. CORPO1JATION. 1. It is a general .rule of evidence, that in a suit brought by an inror- poraU d bunk, one who is a stock- holder and interested in the event of the suit is not a competent wit- ness in behalf of the institution: but that rule is not without excep- tion as where an interested cor- porator is called upon to prove himself either to be or to have been the depositary of the muni- ments of his corporation Union Sank of Maryland v Ridgcly, 324 2. - - An interested corporator, however, is not a competent wit- ness to prove that a hook continued to be one of the muniments of his corporation after he had ceased to be the depositary thereof. Ib. 3. The adoption of a code of by- laws by i corporation need not ne- cessarily be by writing, but may be proved as well by t/ie acts and uni- form course of proceedings of such corporation, as by an entry or me- morandum in writing. Ib. 4. Where the plaintiffs in their re- plication set out a code of by-laws i>f their corporation, which pre- scribe the duties of an officer of the corporation, and then assigns as a breach a violation of duties so prescribed, on which breach issue is tendered by the defendant and joined in by the plaintiffs, such by-laws re virtually admitted by the defendant in his pleadings. Jb. 5. Whfre the defendant pleaded that he signed tin- supposed writing ob- liga'ory, upon which the action was brought, at the request of the principal obligor therein, and as his surety, and returned the same to him to be by him submitted to the obligees (a corporation,) for their approbation and acceptance; and if it should be approved and accepted by them, then it was to be considered and delivered as the act and deed of the defendant; and that it never was approved by the said obligees by any act in their corporate capacity, and so it was not his deed Held, that in the absence of all evidence on the part of the defendant, the possession and production of the instrument of writing by the obligees was suf- ficient prima facie evidence of the delivery and acceptance, to entitle them to a verdict, on the issue joined on such plea. Ib. 6. It seems to have been formerly held, that a corporation aggregate could only act by its common seal; could do nothing without deed} but that doctrine is no where sanc- tioned as a universal proposition. Ib. 7* The acts of corporations may now be evidenced by writing without seal. Jb. 8. The assent and acts of corpora- tions, like those of individuals, not reduced to writing, may be infer- red from other facts and circum- stances, without a violation of any known rule of evidence. Ib. 9. A corporation may be bound by the acts of its duly authorised a- gent, although such acts are not reduced to writing. Ib. 10. Where the charter of a bank re- quired its cashier to give bond, with two or more sureties, to the satisfaction of the president and directors, and a bond, executed by the cashier, and others, as his sure- ties, reciting his appointment as cashier, wus found deposited among the archives. nnd valuable original papers and documents of the bank, in an iron chest in the banking house of the corporation, and the cashier had continued to act in that capacity for several years after the date of the bond, without any reappointment. In an action oa the bond by the corporation Held, that in the absence of all tes- timony respecting the execution of the bond, the jury ought to be permitted to infer that it was duly executed and delivered by the de- fendant and accepted by Ihe plain- tifl's, which acceptance necessarily included the approbation of the board of directors, or thrir satis- faction with the sureties, and wa,. 516 INDEX. Jl. Where the pleadings in a cause put in issue the facts that certain false and deceptions entries were made in the books of a banking corporation by its clerks, with the connivance of the cashier, on proof that the books were kept by the clerks of the bank, and the entries were in their handwriting, the books are evidence to show what entries were in them, which can only be done by their production, and are proper to lay a foundation for other testimony to show fraud, malconduct, neglect, or violation of duty by the cashier. Ib. 12. Where by the charter of a bank the directors were to be chosen an- nually, and they "for the time be- ing, have power to appoint a ca- shier, and such other officers under them, as may be necessary for ex- ecuting the business of said cor- poration," a cashier so appointed is an officer of the corporation, the duration of whose office, in the absence of an express limitatoin, s limited only by the duration of ihe charter, subject to the removal tof the incumbent by the directors as occasion might require; and is not necessarily an annual officer. Ib. 13. Where an act of incorporation, under which a bond was taken to secure the good conduct of one of the officers of the corporation, was limited in its duration to a certain period, the bond must have the same limitation; because the par- ties looking to that act, it would seem to be very clear that no re- sponsibility was contemplated be- yond the period of its specified existence. The extension of the charter beyond the period of its first limitation by legislative au- thority, does not enter into the con- tract and cannot enlarge it. Ib, COSTS. 1. Where the chancellor's decree was entirely reformed in the ap- pellate court, each party was de- creed, in a case of cross apoeals, to pay his own costs in that court. S. & T. Ringgold v M. Ringgold, etal. 11 2. The court of appeals will not grant a rule on an appellant who has removed out of the state since the appeal, to give security for the costs of suit. Berry v Griffith, 440 COURT. I, A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party bound by any construction which, he may have put upon the instru* ment. Ringgold v Ringgold, 74 Sec Law &. Facts. COURT OF APPEALS. 1. Where the decree of the court of chancery was entirely reformed in the court of appeals, each party was decreed, in a case of cross ap- peals, to pay his own costs in that court. 6'. &f T. Minggold v M. Minggold, et al. 1 1 2. The auditor's report may be ex- cepted to in the court of appeals, and the whole accounts gone into, whether general or special excep- tions, or no exceptions had been taken in the court of chancery. Ib. 67 3. Where the appellate court had re- versed a judgment and awarded a procedendo, and it afterwards, dur- ing the same term, appeared that there was a material mistake in the record upon which they acted, they struck out the judgment, &c. and ordered a writ of diminution. Raborg v Sank of Columbia, 239 4. The court of appeals will not grant a rule on an appellant who has removed out of the state since the appeal, to give security for the costs of suit. Berry v Griffith, 440 See Appeal. COURT OF CHANCERY. 1, As to the power, authority, re- sponsibility, &c. of conventional trustees See TRUST & TRUSTEES 1 to 16, and S & T. Ringgold v M. Ringgold, et al. 11 2. A court of equity must always de- cree upon the allegations in the bill of the complainant, and it is not justified in going beyond them. As where he relies upon trusts in certain deeds, and complains of a violation of those alone, though the facts admitted by the defen- dants disclose the existence of other trusts, for which they are re- sponsible to the complainant/ yet that court cannot decree for such other rights they must be reserv- ed for future consideration. In order, however, to do justice be- tween the parties, where the trus- INDEX. 517 tees were bound to collect money and pay debts, the court will infer, in the absence of express proof, that the debts paid by them, after the receipt of money from the trusts not charged in the bill, were in fact paid out of such re- ceipts. Ib. 3- It is a general rule, that an answer responsive to the bill of complaint, is evidence for the respondent; but the answer of a defendant, when it asserts a right affirmatively, in op- position to the plaintiff's demand, is not evidence. Ib. 4. An answer will not support a mat- ter set up in avoidance or dis- charge, where the matter of avoid- ance is a distinct fact; in such a case, the defence must be proved. Ib. 5. On a general bill to account, the answer is no evidence of disburse- ments; such a bill is nothing more than a demand on the defendant, to show his receipts, and the legal sufficiency of his expenditures. Ib. 6. In all cases, where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if in his answer the liability is once admitted, there can be no es- cape from it, but by proof; though every thing which he says with re- gard to the creation of that liabili- ty, must be taken together. Ib. 7. By an equitable construction of, and by analogy to the statutes of this state, allowing commissions to executors, guardians, and trustees, under judicial sales, commissions ipay be allowed to conventional trustees, although there was no agreement between the parties to that effect. Ib. 8. JLandi. devised to be sold are there- by turued into money, and con- sidered in equity as personal estate. A wife being entitled to the pro- ceeds of such lands, dying after a sale of them, her husband surviv- ing, is entiiled to the proceeds thereof. Hurlt v Fisher, 88 0. C &. T drew a bill in favour of M, on U &. B, partners in trade, which they accepted. M sued D &. B at law on their acceptance, and pend- ing the suit, D died. Judgment being had against B, he being in- solvent obtained a discharge under the insolvent laws. P administer- ed on D's estate, and received as- sets from his separate property to a large amount, though insufficient to pay D's individual debts, and also received some of the partner- ship funds 'I he judgment not being paid, snd the partnership funds being insufficient to p.i\ its debts, M filed a hill in equity a- gainst D's administrator, claiming to be paid out of the separate us- sets, au equal proportion with D's separate creditors I/eld, that he wasnot entitled to recover. M'Cul- loh v Dashiell'a Jldm'r. 96 10. Joint creditors, in equity, r:.n only look to the surplus of the se- parate estate, afterpayment of the separate debts. Ib. 11. Separate creditors, in equity, can only seek indemnity from the sur- plus of the joint fund, after the satisfaction of the joint creditors. Jb. 12. Where the claims of joint credi- tors do not corne into conflict with those of the separate creditors, but only with the interests of the re- presentatives of the deceased part- ner, equity will decree to joint creditors a satisfaction ot' their claims, by considering them, as they are considered at law, both joint and several. lb~ 13. At law the joint creditors may pursue both the joint and separate estate to the extent of each, for the satisfaction of their joint de- mands, without restriction from a court of equity; yet when by the death of one of the parties, the le- gal right survives against the sur- viving partner, and is extinguished against the deceased partner, that court will give to the separate credi- tors all the advantages thus by ac- cident thrown upon them. Jb. 14. The assets of insolvents are dis- tributable according to equity. Ib. 15. Since the act of 1786, ch. 45, (to direct descents,) estates tail gene- ral, created since its passage, are converted into estates in fee sim- ple, and are subject to be sold for the payment of debts, in the same manner as are estr.tes in fte. New- ton, ft al. v GHJj'fk, et al. Ill 16. Whoever enters upon the estate of an infant, is considered in equi- ty as entering as his guardian; and after the infant comes of age, he may by bill in chancery recover the rents and profits. If a person so entering shall continue the posses- .518 INDEX. sion after the infant comes of age, chancery will decree an account against him as guardian, and carry on such account after the infancy is determined. Drury v Conner, 220 37. One who never occupied an es- tate, nor derived any advantage from it, but merely rented it out, and collected and paid over the rent as it came into his hands, as a friend or connexion of another, for whose use he received the rent, and to whom he was bound to pay it over as agent, is not responsible in equity, for mcsne profits, to the owner of such estate. Ib. 18. It is true, as a general position, that chancery will not entertain a bill, where there is a full and com- plete remedy at law, and no ground is shown for going into equity; and ordinarily a bill for mesne profits, after recovery in ejectment, show- Ing no obstacle at law, and stating no ground of equitable relief, would on plea or demurrer, and perhaps at the final hearing without either, under the practice in this state, be dismissed, the*e being an adequate remedy at law. Ib. 19. The auditor's report may be ex- cepted to in the appellate court, and the whole accounts gone into, \rhether general or special, or no exceptions had been taken to it. in the court of chancery - Per Bu- chanan, Ch. J. S.&T. Ilinggold v M. ttinggold, et al 67 20- In equity money directed to be laid out in land, will before invest- ment, be considered as land; and land directed to be sold and con- verted into money, will, before a sale, be considered as money, and pass as such. Leadenham's Ex'r. v Nicholson, et al. 267 il. On an appeal from chancery, the appellate court decrees only in re- lation to the rights of those who are parties to the appeal. Ib. 22. The lands of which G F died seized, on the application of his lieirs and representatives, were sold under an order of the court of chancery, by a trustee appoint- ed for that purpose, to J & C B, and the sale was ratified. The purchasers, being creditors of J F, one of the heirs, filed a petition setting forth their claim, the death of J f , that his children, who were minors, resided out of the state, and praying an order of publica- tion against them, and payment of the debt due to them. The peti- tion did not state that the person- al estate of J F was insufficient to pay his debts. The chancellor, without granting an order of pub- lication, dismissed the petition. On appeal, it was held, that creditors may, by way of petition, instead of pursuing the accustomed course of an original bill, affect funds under the control of the court of chan- cery upon the same terms that they might by bill; and that noth with- standing the defect in the petition in this case, the chancellor erred in deciding the merits of the peti- tion without publication, or with- out an answer, and without selling it down for hearing; as the right existed, the petition might have been amended, and the defect cured, if the proceedings had pro- ceeded to a hearing. And to ena- ble the petitioners to subject the funds in question to the payment of debts, they must show, either that no personal fund existed ap- plicable to the extinguishment of their claim, or that they are insuf- ficient for that purpose; and must, in addition, establish their claim in the customary method. J. W C. ^Baltzell v Fuss, et al 504 23. The acts of assembly of 1785, ch. 72, and 1794, ch. 60, s. 2, are in part maferia, and where proceed- ings are had under the one law or the other, to sell real property for the payment of debts, evidence of an insufficiency of assets will be required. 76. See Husband & Wife 6, 7. Trust & Trustees 17, 18, 19. COVENANT. See Warrant &. Hesurvey. CREDITOR. See Joint &. Separate Creditors. CUSTOM. See Promissory Note 1. Usage. DAMAGES. See Contract 3, 4, 5. DATE. See Delivery 1. INDEX. 519 DAY. See Pleading' 18, iy. Trespass 1. DAYS OF GRACE. See Promissory Note 1, o. DEBTOR 8c CREDITOR. See Assu.mpsit. Attachment. Descents 1, 2,.3. Joint &. Separate Creditors.* DECLARATION. 1. After verdict in an action of as- numpsit by an administrator, a de- fective allegation in the declara- tion of the promise to the admini- strator, and the death of the intes- tate, and an omission to make pro- fert of the letters of administration, cannot be taken advantage of; though they might have furnished good causes of demurrer. Vander- sutitft v Washmehi's Jldm'r 4 2. In an action of ussumpsif, brought by husband and wife, the declara- tion counted upon a contract for the sale of the wife's land recited in the bond for the conveyance of the land. It averred that the defendant was put in possession of the land on the day of making the contract, and afterwards ac- cepted from the plaintiff* a suffi- cient deed, conveying to him the land in fee simple. It then assign- ed as a breach the nonpayment of the four last instalments mention- ed in the contract, and concluded to the damage of the plaintiffs, 8ic. Higdon, et ux. v Thomas, 159 3. A declaration in ussumpait, which contains a count for matters and articles properly chargeable in ac- count, as appears by a particular account filed no account being filed? and another count for special services, which did not state an as- sumption of any particular sum, will not authorise a recovery. J. & P Turner n Jenkins, et al. 161 4. Where a declaration sets forth a claim or demand of the plaintiff against the intesUte of the defen- dant, and the intestate's promise to pay it a reference of such de- mand by his administrator, (the de- fendant,) and the plaintiff, to arbi- trators an award, in pursuance of such reference, for a specific sum in favour of the plaintiff a pro- mise by the defendant, as admini- strator, to pay it, and charges a breach in the nonpayment of that sum, it contains matter enough, in, an action against the defendant in his own rij estate of the deceased, it will suf- fice. Ib. 8. A declaration vicious on account of an averment obscurely made, is not such a fatal objection us will reverse a judgment. Ib. 9. The declaration in replevin should not include any property not taken under the writ of replevin. San- derson's Ex'rs. v Marks, 252 See Contract 4. Promissory Note 2. DECLARATIONS. See Evidence 10, 22, 23, 24, 25. Limitation of Action. DEED. See Bargain and Sale. Conveyance. Delivery 1. DELIVERY. 1. Asa general principle of lawr, de- livery is essential to the legal ex- istence and validity of a deed; but our legislative enactment declares a deed, recorded within the time 520 INDEX, prescribed by law, to be efficient and operative from the time of its date. Betty, et ux. v The Uiiion Sank of Maryland, 175 See Escrow. Gift 1. DEMAND. 1. An instrument of writing' for the payment of money on demand, cre- ates a cause of action from its date, bearing interest, and against which the act of limitations begins to run from that time. Darnall'a Ex'rs. v Magruder, 439 DEMURRER. See Declaration 1. DEPOSIT. See Assumpsit 2. DESCENT?. 1. Before the act of 1786, ch. 45, (to direct descents,) a devise of land by A to^iis son J, and his heirs, and othc-Handtohisson G.and his heirs; and in case either of them "sfiou/d rtecfcfc, havins; no lawful issue, or heirs of his body" then the surviv- ing son "to have his deceased bro- ri.i r's part of the land," to him and his heirs; and in case both sons tl sh(nt!d decease, leaving no lawful fit'rx of ihe'r bodies," then all the aforesai;) lands unto the testator's three daughters, S, S & N, to be equally divided between them, would have vested in J and G each, estates tail general, in the lands respectively devised to them, with cross remainders in tail general, re- fnaincler to S, S &. N, for life. But b3 r the operation of that act, the devise being made in 1792, J and G took virtually estates in fee in the lands devised to them re- spectively; and on the death of G, without issue and intestate, J, and S, S . N, surviving him, J took by descent from him, one-fourth of his estate; and J also dying with- out issue, and intestate, that one- fourth, with the whole of the es- tate devised to him by his father, descended to his three sisters, S, S & N, as his heirs at Hw. New- ton, et al. v Griffith, et al. Ill 2. On a bill filed against S, S 8c N, as heirs at law of J Held, that the land thus descended from J, was subject to be sold for the pay- ment of his debts. /6. 3. Before the act of 1786, ch. 45, es^ tates tail were not liable for debte contracted by tenants in tail; but by tltat act, ^states tail general, created since its passage, were vir- tually abolished, and converted in- to estates in fee simple, and have now all the incidents of lands held in fee they are descendible, trans- ferrable and devisable, and subject to be sold for the payment of debts, as estates in fee. I'l. 4. Estates tail general, divided, un* der the act of 1786, ch 45, among heirs, taken by election, or sld by the commissioners^ are held in fee simple. Ib. 5. By the act of 3786, c/*.45, lands held in fee simple, and fee tail ge- neral created since its commence- ment, descend first to the child or children of the intestate, and their descendants, if any; and if no chil- dren or descendants, to collaterals indefinitely. Ib. 6. The legislature having a risht to prohibit the 'creation of estates taif, must have a right to direct in what manner lands so held by subse- quent creation, should descend. Ib. 7. A dying intestate means a dying without making a valid and opera- tive disposition by will. Jo. 8. Estates tail general, created be- fore the act of 1786, and estate* tail special, are excepted from the operation of that act. 2&- See Husband and Wife 4. DESCRIPTION. See Ejectment 3, 4. Fieri Facias 1. DEVISE. 1. The proceeds of lands' devised ttf be sold are turned into money, and considered in equity as personal es- tate. Hurtt v Fisher, 88 2. Before the act of 1786, ch. 45, (to direct descents,) a devise of land by A to his son J, and his heirs, and other land to his son G, and his heirs; and in case either of them 'should decease, having no lawful issue or heirs of his bodt/, then the surviving son to have his deceased brother's part of the land," to him and his heirs; and in case both sons "should decease leaving no lawful heirs of their bodies," then all the aforesaid lands unto the testator's three daughters, S, S & N, to be equally divided between them, INDEX. Would have vested in J and G each, estates tail general in the lands re- spectively devised to them, with cross remainders in tail general, remainder to S, S & N, for life. Hut by the operation of that act, the devise being made in 1792, J and G took virtually estates in fee in the lands devised to them re- spectively; and on the* death of G, without issue ami intestate, J, and S, S and N, surviving him, J took by descent from him one-fourth of his estate; and J also dying 1 with- out issue and intestate, that one- fourth, with the whole of the es- tate devised to him by his father, f descended to 1m three sisters S, S and N, as his heirs at law. Hew- fon, ct al. v Griffith, et al. Ill 3. The words "without issue" in a will, when applied to dispositions of real estate, ex vi termini, mean an indefinite failure of issue, if there be nothing in the will re- stricting it to a failure at the time of the death of the first devisee, or to some other time or event. Ib. 4. To have no issue to die having no isue and to die without issue, are technically and judicially con- vertible terms Ib. 5. The words leaving, having, and without, in devises as "if he shall die without leaving any issue"-.- "without having issue," or "with- out issue," have acquired a tech- nical judicial sense, and when ap- plied to real estate, mean an irt- definite failure' of issue. Ib. 6. In dispositions of personal pra- perty, the courts generally incline to the construing a limitation after a dying without issue, to mean a dying without issue at the death of the first legatee, in orc'er to sup- port, if they can, the limitation over; yet in relation to real estate, the construction is generally other- wise. Ib. 7. The circumstance of a limitation over, being to a survivor, and his heirs, or only of a life estate, to a person in essc, has not the effect, in dispositions of real estate, in ei- ther case, to restrict the establish- ed legal meaning of the words leaving no lawful heirs of their bodies," to a failure at the death of the first later, or survivor. Ib' S. If there be a devise to one gene- rally of freehold and personal es- tates without any words of limita- TOL. I. 6G tion, he will take an estate for life only, in the freehold, but the per- sonal estate absolutely. Ib. 9. Since the act of 1786, ch 45, es- tates tail general, created since its passage, are devisable in the same manner as estates in fee simple Ib. 10. Neither a devise of land, nor a legacy of a less amount than the sum due to the devisee or legatee, is considered in law a satisfaction of a pecuniary debt. Owings's Ex'rs. v Owings, 484 DIUECT1ON OF THE COURT. See Law and Facts. DISMISSAL; See Appeal 4. DISTRIBUTEE & DIStRlBtf- TIOX. 1. An intestate had several brothers and sisters, who died before him, leaving children and grandchil- dren; and one brother who surviv- ed him, but who died before distri- bution was made of the intestate's estate. In the distribution of the intestate's personal estate, it was decreed, that the children of his sister, and the children of each of his brothers, who died before him, should receive the share to which such sister or brother, if she or he had survived the intestate, would have been entitled, and to the exclu- sion of any grandchildren of such sister or brother of the intestate such graridchildren being the chil- dren of a son or daughter of the said sister or brother of the intes- tate, who died before him. And that the share of the brother who survived the inlestato, is payable to the executor or administrator of such brother. Duvall, et ux. v Harwood's Miners, 474 2. An intestate died without descen- dants a sister, and the children and grandchildren of several de- ceased brothers and sisters surviv- ing him. Of one of the brothers no child was alive at the death of. the intestate, but several of the grand- children of that brother were then living, the plaintiff being one . Held, that he was not entitled to any part of the intestate's personal estate. Ib. 476, (nott.) See Insolvent Debtor 1- Joint and Separate Creditors. INDEX, DOWER. See Alien 1. - Feme Covert 1, 2. EJECTMENT. 1. The lessor of the plaintiff in e- jectment died pending the action^ and his heirs at law were made par- ties in his place, without objection, and the cause continued several terms, and the plots amended Held, that it was not competent for the defendant to defeat the action, by giving evidence that one of the heirs was an infant when she was made a party; and, that evidence that she was an infant at the time of the trial, would not entitle the ^defendant to a verdict against the other heirs who were of full age. James, et al. Lessee, v Boyd, 1 J2. In an action of ejectment, the plaintiff obtained judgment against the casual ejector, and possession by writ, under that judgment. At the second term thereafter, the land- lord of one of the tenants in pos- session, moved the court to set a- side the judgment, &c. A rule was granted for the plaintiff to show cause, &.c. At the next term the court set aside the judgment, awarded restitution as prayed, per- mitted the landlord to appear, or- dered the action to be reinstated on the docket, and regular continu- ances to be entered therein. At this stage of the proceedings, the plaintiff moved the court for a re- consideration, and to set aside the order for restitution, as unduly ob- tained. This being refused, the plaintiff appealed Held, that the setting aside a judgment against a casual ejector, on motion of the land- lord of the tenant in possession, a- warding restitution of the premis- es, and ordering the action to be tried, is but an interlocutory pro- ceeding, from which an appeal will not lie; and the refusal of the coun- ty court to reconsider such pro- ceedings, does not alter the case. Gover, et al Lessee, v Cooky, 7 2. There must be such a description of the land claimed in an action of ejectment, as will enable the sheriff to deliver possession after judg- ment. Fenwick v Floyd's Lessee, 172 &< A declaration in ^jectment claiaK ing 251 acres, part of a tract of land called, Sec. without any de- scription of the part claimed, and a writ of possession in conformity, are both defective. Ib. 5 In an action of ejectment by a pur- chaser under a sheriff's sale, a- gainst the debtor, who refused to give up the possession of the land, it is incumbent on the plaintiff to produce the judgment, and the writ of fieri facias, and to prove the sale of the land, which may be done either by a deed from the sheriff, or a return of the fieri fa- cias. Tlie> are sufficient to entitle him to recover. Ib. 6. In the absence of a deed from the sheriff', and his return lo the fieri facias, a memorandum, in writing, of the sale, must be pro- duced, to take the case out of the statute of frauds. Ib. 7 . A sheriff's return to a fieri facias, which states a levy on "pari of a tract of land called," &c. is void for uncertainty cannot be set up by matter de hors the return, and a sale under it passes no title. But a levy on "a tract of land called," &c. under a fieri facias against a person who was seized of a part of such tract, and a sale under it, will pass his interest to the purcha- ser. Thomas's Lessee v Turvey, 435 See Witness 2. ELECTION. 1. If one man takes another's mo-' ney to do a thing, and he refuses to do it, it is a fraud; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the nonpay- ment of the money, or to disaffirm the agreement qb initio, by reason of the fraud, and bring an action for money had and received. Mur~ phy v Barron, 258 ENTICING. See Slaves 1. EQUITY. See Court of Chancery. ESCROW. See Pleading 14, 15, 16, 17. ESTATE FOR LIFEi Sec Devise 2, 7, 8. INDEX. 523 ESTATE TAIL. 1. By tlie act of 1782, ck. 23, the an- cient mode of docking estates tail, hy common recovery, was abolish- ed, and any person seized of any estate tail in possession, remainder or reversion, may convey the same in the same manner and form that a tenant in fee may. Newton, et al. v Griffith, et al. ' 111 f$et Descents 1, 3, 4, 5, 6, 8. Devise 2, 6, 9. EVICTION. 1. Where the extent and limits of property leased are not exactly de- lined by the contract under which a tenant took possession, and in an action to recover the rent, the tenant relied upon an eviction of part of the demised premises by a third person claiming 1 under his landlord, as a bar to its payment, the jury should look to all the facts in evidence, and from iliem deter- mine the limits of the tenant's lease, and whether there was an eviction or not. M'Elderry, et al. v Flan- nagan's Adm'r. 308 EVIDENCE. 1. In ejectment the lessor of the plaintiff died pending- the action, and his heirs at law were made par- ties in his place, without objection, and the cause continued several terms, and the plots were amend- ed Held, that it was not compe- tent for the defendant to defeat the action by giving evidence that one of the heirs was aa infant when she was made a party; and, that evi- . dence that she was an infant at the time of the trial, would not entitle the defendant to a verdict against the other heirs who were of full age. James et al. Lessee v Doyd, 1 2. A receipt for the purchase money, in a deed for the conveyance of land, is only prima facie evidence of its payment. Higdon, et ux. v Thomas, 139 3. If one party gives in evidence a part of a conversation between the other party arid the witness, it is competent for such other party to extract from the witness the whole of that conversation. J. & P. Tur- ner v Jenkins, et al. 161 4. The return of a sheriff to a writ f ft- f a - s "owing a levy on part of a tract of land, without, any descrip- tion of such part, is defective, and a sale under it passes no title, Femvick v Floyd's Lessee, 172 Thomas's Lessee t> Turvey, 435 5. In an action of ejectment by a purchaser under a sheriff's sale, a- gainst the debtor, who refused to give up the possession of the land, it is incumbent on the plaintiff to produce in evidence the judgment, and the writ of fi. fa. and to prove the sale of the land, which may be done, either by a deed from the sheriff, or a return of the fi. fit. They are sufficient to entitle him to recover. Fenwick v Floyd's Les- see, 172 6. In the absence of a deed from the sheriff, and his return to the fi. fa. a memorandum, in writing, of the sale, must be produced, to take the case out of the statute of . fronds. Jb. 7. Marriage cannot be given in evi- dence as the consideration of a deed of bargain and sale expressed, to be made for a money considera- tion only . Belts, et ux. v The Union Bank of Maryland, 1 75 8. The greatest extent to which the authorities have gone, has been to allow an additional consideration to be proved, which is not repug- nant to the one mentioned in the deed; but where a deed is impeach- ed for fraud, the party to whom the fraud is imputed, will not be per- mitted to prove any other conside- ration in support of the deed. Jb. 9. A bill of sale of a sheriff for chat- tels levied on and sold by him, in improper testimony in itself, how- ever it may be considered, aceom panied by proof of the sheriff's au- thority to sell the property it pro- fessed to convey. Sanderson's Ex'rs. v Marks, 252 10. All the testimony offered by the plaintiff, who sued as executor, be- ing rejected by the court as in- competent, and the defendant hav- ing given in evidence declarations of the testator, tending to prove the plaintiff's ctaim, it is a proper case for the jury to consider and decide, and the court have no right to instruct the jury that the plain- tiff was not entitled to recover. Jb. 11. The jury alone are competent to decide on facts of which contradic- tory evidence may be offered. Be- fore the court can legally give an instruction to the jury, OIK the pray- er of one of the parties, they must 524 INDEX. admit the truth of the testimony offered by the other, and that also offered by the party asking the in- struction which may operatt in his opponent's favour, and the exist- ence of all material facts, reasona- bly . deducible therefrom, even though contradicted in every par- ticular by the testimony of him who seeks the instruction. Upon no other principle can the case be withdrawn from the. consideration pf the jury. M'Elderry, ct al. v Flannagan's Jld/n'r. 308 12. It is a general rule of evidence, that in a suit brought by an incor- porated bank, one who is a stock- fiolder and interested in the event of the suit, is not a competent wit- ness in behalf of the institution; but that rule is not without excep- tion as where an interested cor- porator is called upon to prove himself either to be or to have been the depositary of the muni- ments of his corporation Union Sank of Mary/and v Ridgcly, 324 13. An interested corporator, how- ever, is not a competent witness to prove that a hook continued to be one of the muniments of his corporation after Ive had ceased to be the depositary thereof. Ib. J-t. The adoption of a code of by- laws by a corporation need not ne- cessarily be by writing, but may be proved as well by the acts and uni- form course of proceedings of such corporation, as by an entry or me- morandum in writing. Ib. 15. Under an issue joined upon a plea of general non est factum, the defendant may give in evidence any thing which goes to show the instrument of writing was original- ly void at common law as lunacy, fraud, coverture, &c. or that it had become void subsequent tc its ex- ecution as by erasure, alterations, &c. for that plea puts in issue, as veil its continuance as a deed, as Us execution. Ib. 16. The defendant may give in evi- dence, under the plea of general yum est factum, that the instrument of writing was delivered as an es- crow, on a condition not perform- ed. Ib. 17. Where the delivtry of a deed as an escrow is pleaded, the issue is upon that special matter, and the proof rests upon the defendant; and if there be no proof on the part of the defendant, the posses- sion of the instrument by the plain* liff, is prirna fade evidence of the delivery as a deed, ami is sufficient to sustain the issue on his part. Ib. 18. The acts of corporations may now be evidenced by writing without seal. Ib. 19. The assent and acts of corpora- tions, like those of individuals, not reduced to writing, may be infer- red from other facts and circum- stances, without a violation of any known rule of evidence. Ib. 20. Where the pleadings in a cause put in issue the facts that certain false and deceptious entries were made in the books of a banking 1 corporation by its clerks, with the connivance of the cashier, on proof that such books were kept by the clerks of the bank, and such entries were in their handwriting, the books are evidence to show what entries were in them, which can only be done by their production, and are proper to lay a foundation for other testimony to show fraud, malconduct, neglect, or violation of duty by the cashier. Ib. 21. As a general rule, a person who has neither been examined upon, nor attended a survey of lands made by order of court, is not a compe- tent witness to give evidence at the trial of the cause in relation to the locations of the lands made upon the plots. Wall v Forbes, 441 22. In proving the relative prices of different qualities of flour at Z, in 1817, other testimony is admissible than direct positive proof from a witness who knew the value at that place. In the absence of such posi- tive proof the jury may infer the value, from proof of the price of each kind of flour in 1817, at other places in the neighbourhood of Z, and at N, a port to which flour was commonly sent from Z, for inspec- tion and sale; and this latter species of evidence, which is admissible for the above purpose, is not se- condary, though of a less conclu- sive character than direct proof. Williamson v Dillon, 444 23. Where it was doubtful, from the manner in which a bill of excep- tions was drawn whether the whole testimony of a witness was hear- say, part of it being unquestiona- bly so, the appellate court made a comparison of the several parts of INDEX. 525 Uie testimony, and determined the whole to be hearsay, and therefore incompetent. Jb, 24. Information received by one part- ner (the witness) from his copart- ner, of the price of merchandize purchased by him at Z, for which the witness knew that his house at 13, where he resided, paid at the price mentioned, is but hearsay evidence of the price of such mer- chandize at Z. Jb. '25. Where a witness declared "that he was called on in the spring of the year 1817, to state the differ- ence usually allowed on the sale of Hour between fine, superfine, ftc. that he (hen stated the difference \vas as follows," &c. Held, that this might be true, and yet the wit- ness have no knowledge of the facts his declaration being, that he made the statement, and not that it was true. Such testimony is not admissible evidence. Ik, See Answer in Chancery 1, 2, 3, 4. Assets 2. Attachment 1. Lill of Exchange 1, 2, 3, 4. Ju-Jgment 2, 3. Law &. Facts 4. Limitation of Actions. Marriage. J'rocedendo 1. EXCEPTIONS. 1. The report of the auditor may be cxcepted to in the appellate court, wnd the whole accounts gone into, whether general or special excep- tions, or no exceptions, had been taken in the court of chancery Per Buchanan, Cli. J. S. & T. Ringgold v M. Itinggold, et al. 67 EXECUTION. See Fieri Facias. EXECUTORS & ADMINISTRA. TORS. 1. An executor empowered to sell lands by last v.iii, having sold theiA in 1814, and put the purchaser in possession, it was his duty, if the sale was for cash, payment being refused, to have sued; if on credit, lie ought, within a reasonable time, to have obtained bond and securi- ty for the purchase money; and at all events should have retained pos- session of the land until the neces- sary security was given. Omitting to sue at law until 1819, he was prima facie guilty of gross negli- gence, and responsible, as a trus- tee would be, lor the proceeds of the lands from the time of the sale, deducting his reasonable expenses and commissions. Uurtt v Fisher, 68 2. Where a declaration in assump&it sets forth a claim or demand of the plaintiff' against the intestate of the drfendftnt; ;;nd the intestate's pro- mise to pay it a reference of such, demand by his administrator, (the defendant,) and the plaintiff, to ar- bitrators an award, in pursuance of such reference, for a specific sum in favour of the piaiutif! a pro- mise by the defendant, as admini- strator, to pay it, and charges a breach in the nonpayment of that sum, it contains matter enough, in :ui action against the defendant in his own right, to warrant a judg- ment against him in his character of administrator. The plaintiff" is under no necessity to aver assets in the hands of the defendant, as ad- ministrator, sufficient to pay his debt. Giles JLdm'r. of Bacon v Per- ry man, 1 64 3. This peculiar mode of de- claring- originated in a plan to pre- vent the act of limitations from burring, and proceeds upon the ground, that it neither pledges the personal responsibility of the administrator after verdict, nor de- prives him of any defence he could have had, if he had been charged with an ussumpsit by his intestate; and with these qualifications, it will be received and adopted. lb. 4. No form of words is necessary to be used in an avcrnn-nt that the de- fendant is administrator. If enough is said so as to amount to an allega- tion, that the defendant administer- ed on the estate of the deceased, it will suffice. Jb. 5. An administrator who relies on the general issue plea, after ver- dict, and judgment thereon, has admitted assets to pay the claim against him. Jb. See Declaration 1. f Distributee & Distribution 1. * Orphans Court 1. Verdict 1. FACTS. Sec Law & Facts. INDEX. PEE SIMPLE. See Descents 1, 3, 4, 5. Devise 2, 9. FEME COVERT. 1. By the common law a feme covert, being an alien, is not entitled to be endowed, nor to inherit. Euchanan v Deshon, el al. 280 2. The act of 1813, ch. 100, does not authorise the endowment of a fe- male alien, who during her rover ture never resided in the United States. lb. See Husband & Wife. FIERI FACIAS. 1. The return of a sheriff to a writ of fi fa. showing a levy on part of a tract of land, without any descrip- tion of such part, is defective, and a sale under it passes no title. Fenwick v Floyd's Lessee, 172 Thomas's I&ssee v Turvey, 435 2. Joint property in the possession of one of the owners, may be seized and sold under & fieri facias against him only; and the purchaser's right will be complete to the extent of the interest of him against whom the execution issued, and ne may hold accordingly. M'L'lderry, etal. v Flannagan, 308 3. Where F, a ship-carpenter, con- tracted with C to build a vessel for him, which C was to pay for as the work advanced, and furnish all the materials and labour, except what appertained to the ship-carpenter's work, the vsssel being in the pos- session of F, not entirely paid for, and nearly finished held, that F had an interest in the vessel to the extent of the carpenter's work not paid for, liable to seizure and sale on process for the recovery of debts. Ib. 4. A sheriff's return to & fieri facias, which states a levy on "part of a tract of land called," &c. is void for uncertainty cannot be set up by matter de hors the return, and A sale under it passes no title. Thomas's Lessee v Turvey, 435 .5. But a levy on "a tract of land called," &.c. under a fieri flfc das against a person who was seiz- ed of a part of such tract, and a sale under it, will pass his interest to the purchaser. lb. See Ejectment 3, 4. v k - - Evidence 5, 6 FOREIGN ATTACHMENT. See Attachment. FOREIGN JUDGMENT. See Judgment 2, 3. FRAUD. 1. If one man takes another's mo- ney to do a thing, and he re- fuses to do it, it is a fraud; and it is at the election of the party in- jured, either to affirm the agree- ment by bringing an action for the nonpayment of the money, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and re- ceived to his use. Murphey v Bar- ron, 258 See Consideration 2. FRAUDS, (STATUTE OF) See Statute of Frauds. GARNISHEE. See Attachment. GENERAL REPUTATION. See Reputation. GIFT. 1. If a father, as natural guardian of his child, was in possession of a slave at the time of a gift of the slave by the owner to the child, it was such a possession as was re- quireu by the act of 1763, ch. 13, s. 3, to make it a valid gift, and passed the property without any further delay by the donor. San- derson's Ex'rs v Marks, 252 GRACE. See Days of Grace. GRANT. See Name 1 . GRANDCHILDREN. See Distributee & Distribution. GUARDIAN. See Court of Chancery 16, 17. Natural Guardian. HEARSAY EVIDENCE. See Evidence 22, 23, 24, 25 1 . HEIRS. SjeJDescentS 1, 2, 4". INDEX. 527 *Jfet Ejectment 1 . Evidence 1. HUSBAND AND WIFE. 1. A wife being entitled to the pro- ceeds of lands devised to be sold, dying after a sale of them, her hus- band surviving 1 is entitled to the proceeds thereof. Hurtt v Fisher, 88 2. The consideration of an agree- ment being for the sale of the wife's land, in the absence of an express promise, the law will raise one to the husband and wife, on which the husband may sue either in his own name, or in the names of himself and wife; and in such case, even if there was an express promise to the husband, the wife might be joined as plaintiff. Hig- dtm, et ux. v Thomas, 139 3. But a feme covert cannot be join- ed in an action to recover the price of property sold by her, and which belonged to her before coverture, or for the value of services by her personally rendered, unless th'ere be an express promise of payment to her. The distinction arises from rights which pass to the husband absolutely, and those which sur- vive to the wife, and over which he has no power of transfer but by the consent and co-operation of the wife. M' 4. The lands of an intestate, being incapable of a beneficial division, on the petition of his heirs, and by the order of the court of chan- cery, were sold, and the sale rati- fied. After this ratification/ and as to part of the proceeds prior to any order or decree adjudging who was entitled thereto, one of the heirs, a married woman, died. Her husband, who survived her, and who was a party to the petition, also died Held, that the husband's representatives were not entitled to the wife's portion of that part of the proceeds of her father's estate, respecting which no order or de- cree of distribution had been pass- ed at the time of the husband's death, but that it belonged to her personal representatives. Leaden- ham's Ex'r. v Nicholson, et al, 267 5. The representatives of a husband who survived his wife, are entitled to the chases in action of the wife, where the husband had either re- duced th,em into possession, or ob- tained judgment for them at law or in equity, either in his own fa* vour or of himself and wife. Ib. 6. An agreement between a man and his intended wife, in consideratiou of marriage, (which had none of" the legal attributes of a marriage settlement, so as to overreach the claims of creditors,) to secure to her, for her own use, an annuity for life, may, after the marriage, and the death of the husband, be enforced by the wife against his representatives; and his estate be- ing insufficient to pay his debts, she will be treated as a general cre- ditor to the extent of her claims under the agreement, and her di- vidend so invested as to produce as much of the annuity as practicable. But where the widow having claim- ed payment only of her annuity from the time of the death of her husband, her dividend was estimat- ed npon its arrearages, from that time to the sale of his estate, and the interest which had accrued thereon. Buchanan v Deshon, et al. 280 7. Under the above agreement,. the children of the marriage, suc- ceeding to the rights of the wife, the dividend of the estate of the husband, invested for the benefit of the mother, will, after her death, b<5 divided equally among the chil- dren, and their proper representa- tives. /&, See Bill of Exchange 2, 4. I J IMPLIED ASSUMI'SIT. See Agreement 1. Assumpsit 3. Husband and Wife 2. INCOMPETENT EVIDENCE & WITNESS. See Evidence 12, 13, 21, 23, 25. Witness. INFANT. See Conrt of Chancery 16, Ejectment 1. INSOLVENT DEBTOR. 1. The assets of insolvents are disr tributable according to equity. M'Culloh v Daehidl's Aftn'r . 9& Set Appeal 5. f NDEX, INSURANCE. 1. The strictness and nicety which have been wisely adopted in the trial of questions arising on poli- cies of marine insurance, are not, to their full extent, applicable to the policies, of fire insurance asso- ciations, formed for the individual accommodation and security of its members the risk being assumed on the knowledge acquired by an actual examination made by the of- ficers of the company, and not on the representations coming from the assured. Jolly's Jldm'rs. v Hal- timore Equitable Society, &c. 295 2. Such an' association cannot be viewed as involving in it a mu- tual relinquishment of the right of exercising those ordinary necessa- ry acts of ownership over their houses, which have been usually exercised by the owners of such property; and, consequently, the insured is authorised to make any necessary repairs in the mode com- monly pursued on such occasions. But if by gross negligence or mis- conduct of the workmen employ- ed, a loss by fire ensue; or if alte- rations be made in ihe subject in- sured materially enhancing the risk, and not necessary to the en- joyment of the premises insured; or which, according to usage and custom, were not the result of the exercise, of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of the in- surance, and a loss by fire is there- by produced, then are the under- writers released from all liability to indemnify for sudh loss. Ib. 3., In the absence of any con- tract, or established rule of law, determining what repairs or altera- tions the insured was authorised to make; or whether, if authorised, they were made in the usual way, the jury is the proper tribunal to decide those questions. Ib. 4. Alterations and additions to houses insured against fire, do not per se, change the risk; they remain sub- ject to the same perils, although their degree may be increased or diminished; and the jury is the proper tribunal to decide whether the risk has been increased. Ib. INTEREST. See Cause of Action 1. See Trust & Trustees 9, 10, 11, 12, 13, 14. INTESTATE. 1. A dying intestate, means a dying without making i valid and opera- tive disposition by will. Newton, et al. v Griffith, et al. 11 L 2. In the distribution of the person- al estate of an intestate, who died leaving no descendants, but leav- ing a brother, and the children and grandchildren of a deceased sister and brother, it was held, that the grandchildren, (being the children of a son or daughter of the de- ceased sister or brother of the in- testate who died before him,) were not entitled to any portion of the estate. Duvall, et ux- v Har- wood's Mm* rs. 474 3. The share of a brother who survived the intestate, but who died before the distribution of the intestate's estate, is payable to the executor or administrator of such brother. lit. JOINT & SEPARATE CREDI- TORS. 1. C & T drew a bill in favour of M, on 1) & Bi, partners in trade, which they accepted. M sued D & B at law on their acceptance, and pend- ing the suit U died. Judgment was had against B, and he being insolvent obtained a discharge un- der the insolvent laws. P adminis- tered on D's estate, and received rvs-iets from his separate property to a large amount, though insuffi- cient to pay D's individual debts, and also received some of the part- nership funds. The judgment not being paid, and the partnership funds being insufficient to pay its debts, M filed a bill in equity a- gainst D's administrator, claiming' to be paid out of the separate as- sets, an equal proportion with D's separate creditors Held, that he was not entitled to recover. M'Cul- loh v DashieWs Jldm'r. ' 96 2. Joint creditors, in equity, can on- ly look to the surplus of the sepa- rate estate, after the payment of the separate debts. Ib. 3. Separate creditors, in equity, can only seek indemnity from the sur- plus of the joint fund, after the satisfaction of the joint creditors. Ib. INDEX. 529 4. Where the claims of joint credi- tors do not come into conflict with those of the separate creditors, but only with the interests of the re- presentatives of the deceased part- ner, equity will decree to joint creditors a satisfaction of their claims, by considering them, as they are considered at law, both joint and several. Ib. 5. At lu\v the joint creditors may pursue both tiie joint and separate estate, to the extent of each, for the satisfaction of their joint de- mands, without restriction from a court of equity; yet when by tho death of one of- the parties, the legal right survives against the sur- viving partner, and 'n extinguished against the deceased partner, thut court will give to the separate cre- ditors all the advantages thus by accident thrown upon them. 7i. JOINT & SEPARATE DEDT5 Si frc Fieri Facias 2. - Joint Si Separate Creditors. JOINT &. SEPARATE ESTATE. iVee Joint &; Separate Creditors, JOINT OWN Ell. See Fieri Facias 2. - Partners Ss Partnership -. - Replevin 3. ISSUE. See Devise 2, 3, 4, 5, 6. ISSUES. Scs Pleading;. JUDGMENT. 1. In an action on a promissory not?, drawn in favour of C 8t 1>, and en- dorsed by R in their names, to P, the writ was against II 9 15. In an action on a promissory note payable four months after date, Mic defendant pleaded non assurapxit infra Ires annos, to which the plain- tiff replied, that he at the time of making the promise, was beyond seas and without the jurisdiction of the court, and so remained and continued, &c. and the defendant demurred judgment was render- ed for the plaintiff, as that mod* of pleading the *ct of limitation^ in, this case was defective. Murdoch v Winter's Jidm'r 471 16. The act of limitations begins to operate as a bar from the time the cause of action arises, and not from the time of making the promise. Ib. LIMITATION OF ESTATE. See Devise 2, 3, 4, 5, 6, 7, 8. JAK MARRIAGE. 1. Marriage cannot be given in evi- dence as the consideration of a deed of bargain and sale expressed to be made for a money considera- tion. Bells, et ux. v The Union Hunk of Maryland, 175 2. Ante-nuptial settlements, made in consideration of marriage, are good, even though the party be then in- debted. Ib. See Husband & Wife. MEASURE OF DAMAGE. Hee Contract 3, 4, 5. MECHANICS. See Lien 1. MESNE PROFITS. See Court of Chancery 17, 18, See. Infant. MINORS. MIXTURE OF PROPERTY. 1. In the case of a mixture of proper- ty, from necessity the full value is given to the innocent party & & T. Jiinggold v M. Ringgold, ct al, 1 1 MONEY. Set Land 1, 2. 532 INDEX. MONEY HAD & RECEIVED. 1. The action for money had and re- ceived, is an equitable action, and equally as remedial in its effects as a bill iu equity. Murphy v Bar- ron, 258 2. If one man takes another's mo- ney to do a thing, and he refuses to do it, it is a fraud; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the nonpay- ment of the money, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use. II. 3. But where a vendor was ex- onerated from the delivery of a slave, then out of his possession, whom he had sold, and been paid for, and afterwards persuaded or enticed to abscond, so that the pur- chaser never got possession of him, no action can be maintained upon the contract of sale for a nonde- livery, or to recover back the pur- chase money, as money had and received by him to the use of the vendee. Either could have been maintained, if it had been the ven- dor's duty to deliver thf slave, and he had refused. The proper reme- dy here is a special action on the case for persuading or enticing the slave to abscond, Jb. XT NAME. 1. A tract of land may acquire, by reputation, a name different from that which it bears in the patent, and may pass by such acquired name. Wall v Forbes, 441 NATURAL GUARDIAN. See Gift 1. NEGLIGENCE. See Trust & Trustee 7, 12, 17, 18, 19. NEGROES &. SLAVES. See Slaves. NEW PARTIES. Sec Ejectment 1. NON EST FACTUM. See Pleading 4, S, 8, 10, 11, 12, 14. NOTICE. &e Bill of Exchange 1, 4. See Landlord Si Tenant 1. Usage. OFFICE FOUND. See Alien. ORPHANS COURT. 1. The orphans court, at July lerni, 1824, on the petition of J S, or- dered the register to grant him let- ters of administration on the estate of R S, on liis giving bond, with security. On the 13th of Septem- ber 1824, in the recess of the court, letters were accordingly grunted. On the 14th of the same month and year, still in the recess of the court, W S, the only surviving brother of the deceased, by his petition, objected to letters so granted, ex- cepted to such appointment, and prayed an appeal, which was grant- ed by the court on the 13th of Oc- tober 1824. The court of appeals dismissed the appeal. Se&ell v Sewell's Jldinr. 1). B. N. 9 2. By the act of 1818, ck. 204, ap- peals from the orders and decisions of the orphans courts, must be made within thirty days after such order or decision. Iti PAROL EVIDENCE. See Corporation 3. Evidence. PARTIES. See Appeal 6. Court of Chancery 21. Ejectment 1. PARTNERS & PARTNERSHIP. 1. C & T drew a bill in favour of M, on D &. B, partners in trade, which they accepted. M sued D Si B at Jaw on their acceptance, and pend- ing the suit D died. Judgment was had against P,and he being insolvent obtained a discharge un- der the insolvent laws. P admi- nistered on D's estate, and receiv. cd assets from his separate proper- ty to a large amount, though insuf- ficient to pay D's individual debts,- he also received some of the part- nership funds. The judgment not being paid, and the partnership funds being insufficient to pa}' its debts, M filed a bill in equity a. INDEX. 533 gainst D's administrator, claiming 1 lo be paid out of the separate as- sets, an equal proportion \vilh D's separate creditors Held, tliat lie was entitled to recover. M'Cul- lok v Das/iicll's .Mm'r. % ~. Where one part-owner sells, as his own, the property of his firm, all the partners may sue. 1/igdoii, >t ux. v Thomas, 153 SVc Court of Chancery 10, 11, 12, 13. Fieri Facias 2. Joint and Separate Creditors 2, -", 4, 5. PAHTNERSHIP FUNDS. *>'(' Joint and Separate Creditors. Partners and Partnership. PKHSOXAL ESTATE. jSce Lands 1. PHYSICIAN. -Set- Assumpsit 2. PLEADING. 1. A writ of scire facias against ape.- rial bail, which does not recite the issue and return of a ca. sa. against the principal, is sufficient upon is- sue joined on the plea of mil ticl recur d. Cappeau's Bail, v Midtllc- tun &? Baker t 1 54 2. To such writ, the bail having pleaded the death of his principal before any ca. sa. returned, the plaintiff, in his replication, travers- ed that fact, and tendered an is.sue to the country. Its conclusion was technically right. An issue join- ed on such pleadings, is not an im- material one the whole matter in controversy being decided bv it. Ib. 3. The omission of the plaintiff in his- replication to set out the ca. sa. and return, in proceedings against bail, is mere informality in plead- ing bad only on demurrer, but cured by verdict, fb. ], A plea of special non est ftic/um is a general issue plea, and like other general issue pleas need not be pleaded before the rule day, but may be received when the cause is called up for trial. Union Bank of Maryland v Jlidifdi/, 324 S. Whatever apparent inconsistency there maybe between the pleas of general performance and non est faclum, it is the settled practice under ihc statiUe, 4 .2;w, ch. 16, to receive them; for defendants are not confined to picas strictly con- sistent. //.. 6 The only pleas now disallowed, on the mere ground of inconsisten- cy, are the general issue, and ten- der; and the reason is, that one gc>s to deny the existence of any, while the other admits some cause of action. Ib. 7. Where the plaintiffs in their re- plication set out a code of by-laws of their corporation, which pre- scribe the duties of an officer of the corporation, and then assigns as a breach, a violation of duties so prescribed, on which breach issue is tendered by the defendant, and joined by the plaintiffs, such b) - laws are virtually admitted by the defendant in his pleadings Jb. 8. It is a general principle of plead- ing, that where a plea produces a direct affirmative and negative by denying the allegation in the de- claration, it should conclude to the country, whether the affirmative of the issue is held by the plaintiff or defendant; and that the proof of the affirmative rests on him who asserts it. Hi. 9. AVhen new matter is introduced on either side, the ple:*ding ought to conclude with a verification. Jb, 10. In the application of the above rules, the plea of general 'nun est factum in an action of debt on a bond, which by denying the allegation in the declaration that it is the writing obligatory of the defendant, makes the issue be- tween the parties concludes to the country, mid throws the whole proof of the execution of the bond, including the delivery, upon the plaintiff, who in that case asser* the affirmative. Ib. 11. Under an issue joined upon a. plea of general non est factum, the defendant may give in evidence any- thing which goes to show that the instrument of writing was original- ly void at common law aslunac\, fraud, coverture, &.c. or that it h;; Se& Evidence 6. 538 INDEX. SURETY. 3. A surety in a replevin bond is not a competent witness f..r the plain- tiff in replevin. Sanderson's Ex'r.i. v Marks, 252 See Corporation. TENANT. See Landlord &. Tenant. TRESPASS. 1. The day laid in pleadings is fre- quently not material as in tres- pass, where the injury charged may be proved to have been com- mitted on a day before or after the time stated in the declaration; pro- vided it appears to have been be- fore the action was brought Union Bank of Maryland v Midgely, 324 TRUST & TRUSTEE. 1. Trustees empowered by deed to sell real estate, and with the pro- ceeds pay debts and make invest- ments in stock, are not authorised to exchange the trust property for other real property. By making such exchange, though with the best intentions, they are responsi- ble for the full value of the pro- perty parted with & ? T. Ring- gold v M. Ringgold, et al. 1 1 2. The policy of the law requires that the relation of trustee and cestui gue trust, should be guarded with vigilance, and contracts between them scrutinized, that no injustice should be done to the cestui que trust. Jb. 8- Where a cestui que trust has un- dertaken to indemnify his trustee, a court of equity ought to be satis- fied that he was free to act as a rational, intelligent man, not go- verned by considerations growing out of a dependent condition; otherwise the indemnities will be . disregarded. lb. 4. Where a trustee disposes of the title to lands, in violation of his duty, and the court has no other possible means of reinstating the cestui que trust, the trustee is re- sponsible for the utmost value of the property disposed of; yet when the value of the property can be clearly ascertained, that must be the measure of the indemnity. lb. 5. In the case of a mixture or confu- sion of property, from necessity the full value is given to the inno- cent party. lb. 6. A sale by one trustee to his co^ trustee, is illegal. lb. 7. Where it was the duty of trustees to collect purchase money, and in- vest it, some of the trust estate being sold to T, a co-trustee, and S, another trustee, made no effort, at any period during the existence of the trust, to oblige his co-trus- tee to pay for his purchase, but suffered ii to lie in the hands of T, when he, S, knew that the trust vas abused, in consequence of a failure on T's part to apply the a- mount of the purchase money ac- cording to the trust they are both responsible. lb. 8. Where S and T sold personal pro- perty, with the assent of its owner, took bonds in their own names from the purchasers, collected a part of the purchase money, proffered themselves ready to account for such sales, made a return thereof as trustees, a court of equity will in- fer some conventional arrangement between the parties in the nature of a trust, which may be unforced in that court lb. 9. Where one trustee purchases a p:\rt of the trust estate, for which he was to pay at a stipulated period, and his co-trustee, under the cir- cumstances, being jointly respon- sible with him for the principal, there is, of course, a joint respon- sibility for the interest. lb. 10- Co-trustees are bound to know the receipts, and watch over the conduct, of each other. Where one trustee received trust funds ap- plicable *o outstanding debts which lie did not pay; nor did he keep such funds separated from the mass of his estate, a co-trustee, who from his situation must know of such receipts, yet makes no effort to obtain them, or have them ap- plied, is jointly chargeable for in- terest with his associate lb. 11. Where trustee?, transcending their powers, make investments in unproductive property, they are chargeable with interest. lb. 12. Where property is conveyed to trustees, to be sold for the payment of debts, and the surplus to be in- vested in stocks to produce in- terest, which interest is specifically appropriated by the terms of the conveyance, and the proceeds of INDEX. 539 such estate being in hand, it was the imperative duty of the trustees to have invested, unless a portion, or the whole, had been demanded by acknowledged debts? but where hopes were entertained by the trus- tees that a claim, then depending in chancery, would be perpetually enjoined, it having been litigated for several years, and no reasona- ble expectation of a speedy close, they were not justified in laying by the money, and waiting the event of a protracted chancery suit. In such a case, the trustees were gross- ly negligent, and must pay inte- rest . Ib. 33. Compound interest will be al- iowed where a trustee is directed to invest funds, and to reinvest the dividends; or where the trust di- rects an accumulation, and the trus- tee haa used the funds. Yet the ground of this allowance is the actual or presumed gain of the trustee by the use of the funds; and where the circumstances for- bid the presumption of gain by the trustee, it will not be allowed. Ib. 14. To trustees who have invested, or made efforts to invest, trust funds, a rest of six months on their receipts, without interest, will be allowed as- a reasonable time with- in which to invest; but where they manifested no disposition to make such application of their receipts, as the trust contemplated, no such rest is allowed. Ib. 35. By sin equitable construction of, and by analogy to the statutes of this state, allowing commissions to executors, guardians, and trustees, under judicial sales, commissions may be allowed to conventional trustees, though there was no a- greement between the parties to that efiect. Ib. 16. Whether or not one co-trustee can be a witness for his co-trustee in an action against both? Quere. Ib. 17. An executor empowered by will to sell lands, having sold them in 1814, and put the purchaser in pos- session, it was his duty, if the sale was for casli t payment being re- fused, to have sued; if on credit, he ought, within a reasonable time, to have obtained bond and security for the purchase money; and at all events should have retained pos- session of the lands until the neces. sary security was given. Omitting to sue at law until 1819, he was prima facie guilty of gross negli- gence, and responsible, as a trus- tee would be, for the proceeds of the lands from the time of the sale, deducting his reasonable expenses? and commission. Hurtt v Fisher, 88 18. A trustee, with power to sell, and having sold lands, being in- formed that a deed was required by the purchaser, to whom he had sold and given possession, and that the purchase money would be paid when the deed was executed, doubting his right to execute a deed, yet not obtaining a decree, ratifying his sp.le for four years, is bound to show the circumstances beyond his control, to justisy this delay Ib. 19. A trustee is responsible for money lost by his gross negligence. Ib. See Assumpsit 2. USAGE. 1. A usage of universal prevalence becomes a part of the existing law, and is to b<-. noticed ex officio by the courts of justice; but a particular usage has a circumscribed and limit- ed application, and must be sup- ported by proof. Where it is well established, it is obligatory on the objects of its operation as the gene- ral law. The Sank of Columbia v Fitzhugh, 239 2. Usage enters into contracts be- comes a part of them, and must be regarded in their interpretation. Ib. 3. Special usages control and govern the general law repugnant to them. Ib. See Custom. USURY. See Promissory Note 4, 5, 6. VARIANCE. 1. By the statutes of 21 Jac. I, ch. 13, 5 Geo. I, ch. 13, and our act of as- sembly of 1809, ch. 153, a variance between the writ and declaration is cured after verdict. Giles, Jidm'r. of Bacon, v Perry man, 164. VENDOR & VENDEE. See Contract 7. Principal & Agent 1. 540 VERDICT, ] . After verdict in an action of as- sumpsit by an administrator, a de- fective allegation in the declara- tion of the promise to the admini- strator, and the death of the intes- tate, and an omission to make pro- fert of the letters of administration, cannot be taken advantage of; though they might have furnished good causes of demurrer. Van- dersmitkv Washmcin'sJldm'r. 4 See Variance 1. w WARRANT OF RESURVEY. 1. In an action of covenant, where the plaintiff sued out a warrant of resurvey, and plots were returned, to establish his claim he cannot examine a witness as to the loca- tion of the lands on the plots, who was neither upon nor attended the survey. Wall v Forbes, 441 A.lien. WIDOW. See Feme Covert. Husband &. Wife. WILL. See Devise. Intestate 1. WITNESS. 1. Whether or not one co-trustee can be a witness for his co-trustee in an action against both? Quere. S. & T. Ringgold v M. Ringgold, et ul. 11 2. As a general rule, a person who has neither been examinee' upon, nor attended a survey of lands made under a wsrrant of resurvey issued by order of court, is not a competent witness to give evi- dence at the trial of the cause in relation to the locations made upou the plots. Wall v Forbes, 441 See Corporation 1, 2. Evidence 22, .23, 24, 25. WRIT OF ERROR. See Appeal. oe TUB PIKST VOLTJJMF* 001211829