UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library \'\ ? REPORTS OF CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF MARYLAND. BY RICHARD W. GILL, Attorney at Law, un JOHN JOHNSON, Ckrk of the Court of Appeals. CONTAINING OASES IN 1829. iffaltftnorn PUBLISHED BY FIELDING LUCAS, LUCAS AND DEAVER, PRINT. 1830. X U\ >*. . NAMES 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. STEVENSON ARCHER, do. Hon. THOMAS BEALE DORSEY, do. OF THE COURT OF CHANCERY. Hon. THEODORICK BLAND, Chancellor. OF THE COUNTY COURTS. FIRST JUDICIAL DISTRICT St. JMbrj/'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 Ceci/, Kent, Qween Anne's and Talbot Counties. Hon. RICHARD TILGHMAN EARLE, Chief Judge. Hon. LEMUEL PURNELL, Associate Judge. Hon. PHILEMON B. HOPPER, do. THIRD JUDICIAL DISTRICT Culvert, Anne Arundel and Montgomery Counties. Hon. THOMAS BEALE DORSEY, Chief Judge. Hon. CHARLES J. KILGOUR, Associate Judge. Hon. THOMAS H. WILKINSON, do. FOURTH JUDICIAL DISTRICT Caroline, Dorchester, Somerset and Worcester Counties. Hon. WILLIAM BOND MARTIN, Chief Judge. Hon. ARA SPENCE, Associate Judge. Hon. WILLIAM TINGLE, do. FIFTH JUDICIAL DISTRICT Frederick, Washington and JUlegany Counties. Hon. JOHN BUCHANAN, Chief Judge. Hon. ABRAHAM SHRIVER, Associate Judge. Hon. THOMAS BUCHANAN, do. SIXTH JUDICIAL DISTRICT Baltimore and Ilarford Counties. Hon. STEVENSON ARCHER, Chief Judge. Hon. CHARLES W. HANSON, Associate Judge. Hon. THOMAS KELL, do. OF BALTIMORE CITY COURT. Hon. NICHOLAS BRICE, Chief Judge. Hon. WILLIAM M'MECHEN, Associate Judge. Hon. ALEXANDER NISBET, do. ATTORNEY GENERAL. ROGER B. TANEY, Esquire. NAMES OF THE CASES REPORTED IN THIS VOLUME. 427 Aldridge and Higdon vs. Turner, ** Annan and State, use of Oyster, - 324 Barney, et MX. vs. Coale, et we. Belmear and Clark, Bowie, use of Ladd, et at. vs. Duvall, - Burch, et al. vs. Scott, - - Carnan and Williamson, - Chamberlain vs. The State, use of Keller, Chappellear's Ex'rsrs. Harrison, - Clarke vs. Belmear, - Coale, etux.vs. Barney, etux. .... Crane vs. Meginnis, Danels vs. Taggart's Adm'r, - Donnell and Pawson's Adm'rs, Donnell vs. Pawson's Adm'rs, Dorsey and Edelen and Dorsey, - Dugan vs. The Mayor and City Council of Baltimore, Duvall and Bowie, use of Ladd, etal. - Dyer vs. Dorsey and Edelen, Edwards and Union Bank of Maryland, Egerton, et al. vs. Reilly, et ux. - -385 Egerton, Ann, and Turner, Adm'r of Wilder, - Egerton and Same, ... 434 Gambrill and Warfield, - . . 503 Giraud's Lessee vs. Hughes, et al. - - - " ' Go wan vs. Sumwalt, .----- Hagthorp, t we. et al. vs. Hook's^ Adm'rs, Halkewtone's Ex'r vs. Hawkins, - - r Harrison and Chappellear's Ex'rs, 477 Hawkins and Halkerstone's Ex'r, - Hays vs. Richardson, - .... - J Hook's Adm'rs and Hagthorp, et we. et al. - 27 vi CONTENTS. Hoskins vs. Rhodes, ---.-.- 266 Hughes, d al. and Giraud's Lessee, - - 249 Hughes 's Adm'r ta. Mayor and City Council of Baltimore, - 480 Kiersted vs. The State, use of Costello, ... 231 Mactier and Wirgtnan's Adm'rs, - - - - -150 Mayor and City Council of Baltimore vs. Hughes's Adm'r, - - 480 Mayor and City Council of Baltimore and Dugan, ... 499 Meginnis and Crane, - - . . - - -463 Miller, Ex'r of Beard vs. Negro Charles, - - 390 Morrow ts. The State, use of Israel, - - - 231 Negro Charles and Miller, Ex'r of Beard, - - . 390 Pawson's Adm'rs vs. Donnell, - - - - . 1 Pawson's Adm'rs ate. Donnell, ...... 1 Poor, et ux. et al. and Tiernan, .... 216 Reilly, et ux. and Egcrton, ct al. - - - - - 385 Rhodes and Hoskins, ...... 266 Richardson and Hays, - - - - - -366 Scott, et al. and Burch, .... 393 State, use of Costello and Kiersted, - - 231 State, use of Israel and Morrow, - - - - 231 State, use of Keiler and Chamberlain, .... 231 State, use of Oyster vs. Annan, ..... 450 Sumwalt and Gowan, ------- 511 Taggart's Adm'r and Danels, - - 311 Tiernan vs. Poor, et we. et aL - - - - - -216 Turner and Aldridge and Higdon, - - - 427 Turner, Adm'r of Wilder ts. Ann Egerton, - - - 430 Same vs. Egerton, - ... 434 Union Bank of Maryland vs. Edwards, .... 346 Warfield vs. Gambrill, - 503 Williamson vs. Car nan, - - - - -184 Wirgman's Adm'r vs. Mactier, ..... 150 COURT OF APPEALS OF MARYLAND. PAWSON'S Adm'rs vs. DONNELL. DONNELL vs. PAWSON'S Adm'rs. It is the unquestionable and exclusive right of the Jury to decide on facts, of the existence of which, contradictory testimony is adduced. The owner of a ship and cargo has the uncontrolled power of breaking up, or changing the voyage. The principles which should govern such cases, in the absence of all commer- cial usage on th6 subject, and by which the effect of its action on the con- tract of the ship master or supercargo with the ship owner, is to be deter- mined, are 1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity. 2. If by the change of the voyage, the captain or surpercargo be necessarily discharged from the performance of all the duties, for which a remunera- tion has been stipulated, his claim to such remuneration is thereby extin- r ,guishecl. 3. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just on comparing the services rendered, with those which remain unperformed. For the in- terpolated part of the voyage, the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage aa changed, been entered into between them. To all the customary emolu- ments of a captain, or supercargo, on such a voyage, are those officers re- spectively entitled. A ship master, who was also the supercargo, was directed to proceed with his ship to several ports ; his compensation, in addition to monthly wages, VOL.I 1. 2 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donnell. Donncll vs. Pawson's Adin'rs. 1829. was a sum certain, with a privilege of bringing home a specified quantity of merchandize from one of such ports. After a part performance of the voyage, the ship owner changed its direction, and shortened it ; so that the port at which the privilege might have been exercised, was not visited by the ship ; before the termination of the voyage, the ship master died. HELD that the privilege was so inseparably connected with the vessel's des- tination to the particular port, at which it was to have been exercised, that upon its ceasing to be one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to be paid the captain had relation to the voyage as originally contemplated, and was therefore subject to abatement, in the discretion of the Jury. First, for the altera- tion of the voyage, if they believed, that the ship master's labour and respon- sibility were thereby lightened ; and, secondly, for that portion of his con- templated services, which were lost by hia death. The misconduct of a captain or supercargo, which produces neither injury nor inconvenience to his employer, forms no defence to the payment of his wages. The consignees selected by a ship master or supercargo in a foreign port, ac- cording to the usual course of trade, and in good faith, are so far the agents of the owners of the ship and cargo, that upon the death of the captain or supercargo, his representatives are not responsible for the consequences of the neglect or misconduct of such consignees, in the execution of their agency after his death not imputable to instructions given in the life of such captain or supercargo. A shipment of merchandize, whose exportation is prohibited, made by a super- cargo for account of his principal, is at his own risk, and if seized and con- demned at the place of exportation, the supercargo must bear the loss. The acceptance by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such a ratification of the acts of those agents, as would throw a loss arising from the seizure of merchan- dize exported against the laws of the port of shipment by them, for his account, upon such ship owner. These were CROSS APPEALS from Baltimore County CbHrt, from a judgment rendered in an action of Jlssumpsit in favour of the plaintiffs, (the appellants in the first and appellee in the second of these appeals) against the defendant (the appellee in the first and appellant in the second of these appeals.) The declaration contained two counts One for work and labour, &c. goods, &c. sold and delivered, money lent, and for money had and received; and the other on an insimul computassentj between the defendant and the plaintiff's intestate. The defen- dant pleaded non assumpiit, and issue was joined. It was OF MARYLAND. Pawson's Adm'rsiw. Donnell. Donnell vs. Pawson's Adm'rs 1829. agreed between the parties, "that the defendant may give in evidence under his plea, any items of account which he may have in bar of the plaintiff's claim, and which he might legally set off, or give in evidence, had he filed an account in bar or given regular notice of set off" Also, "that all errors in the pleadings be mutually released, and that each party shall be at liberty to give any special matter in evidence under the issue joined." Also, "that by the shipping articles entered into in relation to the voyage referred to in this case, John C. Pawson was to receive the sum of sixty dollars per month, as captain of the ship Chesapeake; and that the sum of $2000, also refer- red to in these proceedings, was a compensation agreed to be paid to him, as stated in the letter of instructions, dated the 18th of November, 1819." 1 . At the trial of this cause, the plaintiffs read in evidence, by consent, the following letters of instructions : the first dated Baltimore the 18th of November, 1819, from the defendant to the plaintiffs' intestate, John C. Pawson, viz : " With my ship, Chesapeake, of which you are commander, you will proceed with all possible despatch, to the port of London. On your arrival, you will deliver my letters to John Ilorstman, Esq. to whom your ship and cargo are consigned. In the discharge of the cargo lose no time, and be careful to have it delivered in good order. It may be advisable, that immediately on arrival, you will engage sufficient ballast for your ship, and in every other respect provide what may be necessary to perform a long voyage. When so prepared, apply to Mr. Horstman, who will deliver you, on my account, eight thousand doubloons, which you will endeavour to ship on board without the knowledge of your crew. If they are under a belief that you have no specie, less danger may be appre- hended from them; but I recommend to you never to be off your guard. With the ship, and the coin on board, you will proceed to the port of Coquimbo, in Chili, for the purpose of loading entirely with copper, and with it proceed to Canton; there dispose of it, and with the proceeds, load your ship agreeably to the list I have furnished, and return with the same 4 CASES IN THE COURT OF APPEALS Pawon's Adm'rs vs. Donncll. Donnell rs. Pawson's Adm'rs 1829. direct to me here. On your arrival from London at Coquim- bo, you must not let it be known the quantity of copper you want, nor of your having only doubloons to purchase it. In the purchase of the copper, if made known how much you wanted, the price would be raised on you, and in relation to the doubloons, if it should be known that you have nothing else to purchase with, it might have the effect of reducing their value. There can be no doubt, from the best information I have, that they will bring $17J, and may exceed that by re- ceiving for them the coined dollars under the present govern- ment there. All these points you must attend to. If you have the means of completing the purchase, you must put on board at least 12,200 quintals. It may be necessary to apprise you, that much benefit may accrue by your attending and making the proper arrangements for receiving and weighing the copper. I suppose it to be useless to mention the necessity of discharging from the ship every pound of ballast, or useless matter on board of her, before you take the copper on board, because every pound so discharged, enables you to put in place thereof a pound of copper. Since writing the above, on examining let- ters from Chili, dated in January last, it appears there is a pa- per currency, depreciated in its value this being the case, and that this depreciated paper is payable and receivable for the products of the country, I say, if this is the case, much benefit might be made by selling the doubloons for the paper money ; but you might find that with the coin you could even do better to purchase, and pay in it, than to first sell your coin for the de- preciated currency, and to purchase and pay with it. In all these points, you are to make your estimates and calculations. About two years since, I sent my schooner Midas, Capt. Dick- inson, with Edward M'Clure, supercargo, who loaded the schooner at Coquimbo, with copper, and despatched her to me. JW'Clure remained at Valparaiso, to dispose of a part of the outward cargo then unsold, and close the entire business of the voyage. He would certainly be there until the month of Sep- tember, and he may still be at Valparaiso on your arrival at Co- quimbo. Should you see him, and he has any funds of mine, or OF MARYLAND. Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorise and empower you to receive and carry it with you, either in copper or Spanish dollars, of the old coin. Mr. Richard R. Boughan, residing at Valparaiso, will give you every information in relation to the affairs of M'-Clure, should he have left that country before you arrive. Boughan ought to have property of mine in his hands from a former transaction, which I authorise you to receive from him also. Boughan may be able to give you useful information. Be particular in the purchase of every article in Canton, to have them of the very best quality, and more particularly that the teas are so. To prevent misunderstanding, I deem it necessary to state your compensation to be two thousand dollars, payable on your re- turn, with a privilege from Canton, not to exceed twenty-five tons, but it is to be understood that you are not to put any cop- per or heavy article on board at Chili, as my views are that you completely load her there with copper, and that only for my ac- count. After my property and your privilege are on board, and the ship should not be full, if freight offers deliverable here, you will accept it. " Should you fail in procuring copper at Chili, you will pro- ceed in the ship with the doubloons direct to Batavia, where they are rated as high as in Chili, and witli them purchase an entire cargo of coffee, which will require with proper storage from 8,500 to 9,000 picols. This quantity was brought in her by Captain Munn, but she was full in every part. Do not pur- chase a picol of sugar; and should your funds prove insufficient to fill her, I authorise you to draw bills for my account on Messrs. Baring, Brothers Sf Co. of London, or on Messrs. Hope Sf Co. of Amsterdam. When you complete your business in Batavia, you will proceed from thence direct to this port. In stating your privilege, it is to be understood the twenty-five tons are measurement, and if in weighty articles, twenty-five thousand pounds. The other dated Baltimore, the 26th December, 1819, from the defendant to the plaintiff's intestate, viz : 6 CASES IN THE COURT OF APPEALS Pawsou's Adm'rs vs. Donncll. Donncll cs. Pawson's Adm'rs 1829. " I tliink it is probable you arc this day in London, notwith- standing I have concluded to address you, and to take the chance of its reaching you before you depart from thence. The object is to state to you, that from mature reflection, sup- ported by various calculations, resulting in a conviction that the voyage will tum out to better advantage by returning direct from the coast of Chili to Baltimore with copper, than to pro- ceed with it from thence to Canton, as originally intended. I need not remark to you the great difficulty and delay (and with- out an adequate profit) of realizing a Canton cargo in this mar- ket It is not to be accomplished, and I would consequently be compelled to send it from hence to Europe, where no gain can be calculated upon. I therefore revoke and countermand the orders I gave to you to proceed from Chili to Canton, and now substitute that you will return with the ship and cargo of cop- per direct from the coast of Chili to Baltimore. As relates to the investment and disposal of your own funds, you must use your own discretion by investing it in copper or any thing else, and bringing it with you in the ship the copper may (as I hope it will) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from thence to Samarang, in the Island of Java, and there invest my funds and your own in coffee, (no other article of the produce of the Island will answer) and proceed from thence direct to Bal- timore. The government of Batavia may object to your load- ing at Samarang, being an out port, but you must use every means in your power to obtain from the government a permis- sion, as you will be able to put on board coffee at Samarang, two or three dollars pr. picol less than at Batavia." The plaintiffs also offered in evidence that the ship Chesa- peake, at the date of the said letter, and before, was owned by Donnell, who continued to be the owner of the said ship during the voyage hereinafter mentioned, and until and after her re- turn to Baltimore, as hereinafter stated that Pawson, now de- ceased, was master and supercargo of the said ship, at the date OF MARYLAND. Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. of the said letter, and so continued until his death at Coquimbo, as hereinafter mentioned. That the said vessel sailed on the said voyage from the port of Baltimore, November 19th, 1819, and arrived at London January 25th, 1820. That she sailed on the 4th day of May, 1820, from London for Coquimbo, and ar- rived there on the 15th of August, 1820, and sailed from Co- quimbo for Guasco in January 19, 1821, arrived at Guasco January 21, 1821, and continued there until January 29, 1821, when she sailed for Baltimore. That, after being out only six hours, the ship sprung aleak, and put back to Guasco, where she remained until February 7, 1821, when she sailed for CoquimbOj and remained there until July 9, 1821, when she sailed for Val- paraiso, where she arrived on the 12th July, 1821, and remain- ed there until the 1 9th of that month, when she sailed for Bal- timore, where she arrived October 1, 1821. ThatPawson died at Coquimbo, December 4th, 1820, when the mate, Thomas Jl. Lane, took charge of the ship, and continued master and com- mander until she returned to Baltimore, as above stated. The plaintiffs' then offered and read in evidence, the follow- ing letters and papers, which were admitted to be in the hand- writing of the respective parties thereto, viz : A letter from the plaintiffs' intestate to the defendant, dated London, the 7th of February, 1820. " After a very long and fatiguing passage, I arrived in the river on the 23d ult. without any material damage In conse- quence of our ship's heavy draught of water, we were delayed several days in getting up. We are now about two thirds dis- charged, and proceeding with all possible despatch. As the ship wants caulking in the bends and upperworks, and a new beam in her (one of them being broken entirely off) I have con- cluded to put her into a dry dock where it can be done with more despatch and facility, and will not increase the expense above 5, and it will afford a cheap opportunity to examine her bottom, as the copper may have been injured when she lost her rudder. I am sorry to find that doubloons cannot be got at the price you contemplated, and that the quantity cannot be procured in London they have only yet got about one third of 8 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll us. Pawson's Adm'ra. 1829. the number wanted, but have no doubt they can be obtained from France and Holland, they, by the last accounts from Paris, are quoted lower than they cost here, from which circumstance Mr. Horstman thinks they are plenty there the price here is 75 1 -6 per oz. " I have had the pleasure to receive your letter of the 26th December, in which you are pleased to alter the original inten- tion of the voyage, which will be cheerfully and strictly attend- ed to, and if on my arrival at Chili, I should find it necessary to proceed to the island of Java, no exertions shall be wanting to have your wishes fulfilled in getting the cargo of coffee only at Samarang" Another letter from the plaintiffs' intestate to the defendant, dated London, the 27th of April, 1820. "On the 24th inst. Mr. Horstman addressed a letter to me, stating that in consequence of the advanced price of doubloons, and the probability that the flour would not produce so great a sum as you calculated on, the funds you had provided him with, would not be sufficient to fulfil your order in the purchase of the eight thousand doubloons which I am directed to receive from him, and requested me to state in writing what I thought best to be done In answer to which I wrote him that in my opinion had you foreseen or supposed any deficiency such as above mentioned, you would not have ordered a less quantity of doubloons but would have made the requisite provision to ob- tain the full quantity of eight thousand. I was the further con- firmed in this opinion by reflecting that your only object in send- ing the ship to London was to obtain the doubloons, and to be disappointed therein would frustrate the ultimate object of the voyage you had in view. I was, therefore, clearly of the opin- ion that you would expect him to supply the deficiency (which was about 950 doubloons) so that your ship might proceed with- out further delay. With this answer he was satisfied, and con- tinued the purchase, and has now ready 7650 doubloons, leav- ing a deficiency of 350, which he thinks can be obtained in one or two days. Under these circumstances, we have fixed on the first day of May for the departure of the ship, with determina- OF MARYLAND. Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. tion of taking what may then be deficient, in dollars, rather than incur further expense by delay. In consequence of the scarcity of doubloons, I have thought it adviseable to invest my own funds in merchandize, in hopes that it may do as well, and because I would not interfere in any manner with your busi- ness, I therefore request that you will effect insurance from hence to Coquimbo, on the following merchandize and amount : 1 bale 8 cases British piece goods," &c. the whole amounting, with commission, &c. to 1115 13 3. " I shall send copies of the invoices to my family, in case they should be necessary. The circumstance of the crew nearly all running away, after I had paid them the month's advance they were to receive here, and my being obliged to advance others two months' pay, this long and unavoidable detention, and the great necessities of the ship in sails, cables, &c. which was in- dispensable for the voyage, has added greatly to the disburse- ments, the bills of which Mr. Horstman will forward to you ; but being now supplied, I shall be careful to keep the expenses for the remainder. of the voyage, as low as possible, which I trust will appear to your satisfaction in the event." A letter from Horstman to the plaintiffs' intestate, dated Lon- don, the 24th of April, 1820. " You have been verbally acquainted by me of the difficul- ties which have arisen since Mr. John Donnell despatched the Chesapeake to my address with a cargo of flour, and with or- der to invest the proceeds, and a credit of 21, 000, on Messrs. Varkevessar, Derrapool 8f Brown, of Rotterdam, in the purchase of 8000 doubloons. "You are aware that the literal execution of this order has become impossible by circumstances. You know that of the flour I have only been able to sell about 700 bbls. and that the remainder remains on my hands that I cannot, for the present, sell it, and that the ultimate proceeds of the 4721 bbls. is uncer- tain. You have been eye-witness of the impossibility of getting the doubloons otherwise than gradually, and this part of the bu- siness has only lately taken a turn by the unexpected arrival of about 1 600 doubloons from the Mediterranean, and think the re- VOL. I. 2. 10 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Pawson'a Adm'rs. 1829. maiuder, (about 900) or very near, may now be had. But the 21,000, and the amount of the 700 bbls. which are sold, are not, by far, sufficient for the draft of Mr. Donnell for 1160, to your order, together with the ship's expenses, and the cost of the 8000 doubloons ; and if you judge that, under all the cir- cumstances of the case, it is necessary for Mr. DonnelVs inter- est that the deficiency be supplied by me to make up the 8000 doubloons, I am ready to do so, in order to get the vessel away immediately, and to furthering Mr. DonnelPs -ulterior views in this affair. You will therefore please to say, in writing, what you deem to be for Mr. DonnelVs interest, and what you wish me to do." A letter from the plaintiffs' intestate to Horstman, dated Lon- don the 24th of April, 1820. " Understanding from you that there is a deficiency in the means Mr. Donnell has placed in your hands, in order to supply the eight thousand doubloons, I am directed by him to receive from you, which deficiency, it appears, arises from the doub- loons being at a more advanced price than he had contempla- ted, and from the probability that the Chesapeake^ cargo of flour, which you hold for sale on his account, not producing so great a sum as he calculated on, I have to state to you, as my decided opinion, that had Mr. Donnell foreseen or supposed any deficiency, such as above mentioned, he would not have ordered a less quantity of doubloons, but would have made the requisite provision by enlarging the means he has placed at your disposal, so as to supply the full quantity of eight thous- and doubloons. I am the further confirmed in this opinion, by the knowledge that the grand object of the voyage he has in view for the Chesapeake, depends entirely on obtaining the re- quisite funds in London, (say the eight thousand doubloons) to accomplish which was Mr. DonnelVs only object in sending the ship to London. I am therefore clearly of opinion, that Mr. Donnell will not only expect, but esteem it a favor, that you supply that deficiency for his account as soon as possible, so that his ship may, without further delay, proceed on her OF MARYLAND. 11 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. voyage, and I am confident he will hold himself responsible for the transaction." A letter from the plaintiffs' intestate to the defendant, dated London the 27th of April, 1820. " I am happy to inform you, that after a very long and tedious delay, Mr. Horstman has at length nearly completed your order for the doubloons, having now already purchased 7650. We have fixed the first day of May for the departure of the ship, and if the remainder of the doubloons cannot be purchased in time, we have determined, rather than incur any further delay, to take the amount in dollars. [This letter then incorporates a copy of the previous letter of same date.] " May 3d. Since writing the above, we have completed the quantity, and shall proceed on board to-morrow morning. There is a ship just arrived from Chili, by which I learn indi- rectly, there is a great probability of our accomplishing our ob- ject there. Mr. Horstman will transmit to you the duplicates of the bills for the ship's outfits, which, together with the en- closed, (which accounts for the cash received from him,) will shew the whole amount. I have one passenger, who has paid 100, one half of which I have paid for stores, and divided the other between myself and the ship, which you will find credited on the enclosed." Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo the 1 5th of August, 1 820. "I arrived here on the 13th inst. after a passage of ninety- three days, all well. I have not yet been able to collect suffi- cient information to act decisively with respect to loading, and shall not determine until I have heard from St. Jago and Valpa- raiso, whither 1 have written to Mr. Boughan, and Mr. M'-Clure, (who I understand is yet in this country,) for that purpose ; the information I get here is, that about 6000 quintals of copper may be got immediately here, and at Gwctsco, a port a little way to the northward of this, and that 1 could complete the quantity as far as my funds would go, in the course of three months-, the price is said to be somewhat lower than hitherto, 12 CASES IN THE COURT OF APPEALS Pawson'3 Adm'rs vs. Donncll. Donnell vs. Pawson's Adm'rs. 1829. and I think may be bought for $12, and will stand on board at about $14, or $14J, with the duties paid. I believe, however, that something may be done to save a part of the duties; the doubloons are worth $17J as you supposed, and 8000 amount to $138,000, which Avill put on board at the above price, up- wards of 9600 quintals, or 998,400 Ibs. and valuing that quan- tity at 20 cents, and the doubloons at cost, I am of the opinion will yield a better result than continuing the voyage to Batavia; but as there is no ship here wanting copper, I shall not com- mence the purchase until I make myself better acquainted on the subject, and until I am certain of getting the whole quantity. With respect to the depreciated paper currency you mention in your instructions to me, I find it only receivable by the govern- ment in payment for duties, and only for half the amount, they requiring the other half in cash: it may be bought at a discount of twenty per cent, which advantage I shall not neglect to avail myself of. I have not yet learned any thing concerning the state of your business here, under the superintendence of Messrs. Boughan and M'Clure, but shall take the earliest op- portunity of forwarding to you whatever I may learn on the subject." Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo, August 24, 1820. "Since writing you on the 15th inst. stating that 6000 quin- tals of copper might be immediately secured; and our whole cargo contracted to be delivered in three months, I have con- cluded to load here, and hope that it may meet your views and approbation. So large a quantity of copper as I want, cannot ever be procured here at once, and from what I learn from the best authority, there has never been a more favourable oppor- tunity than the present, for obtaining so large a quantity. 1 have therefore thought it most prudent, and have accordingly se- cured the 6000 quintals at $12, and have every prospect of get- ting the balance at the same price, and in the time above men- tioned. The copper, at this price, will stand, on board, duties paid, at $14, 14J 100. The value of the doubloons are $17J, and with the funds I have, will put on board upwards of 9600 OF MARYLAND. 13 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson'a Adm'rs. 1829. quintals. Mr. Boughan writes me that he has not made any collections for your account, and indeed, says there is very little probability of his ever doing so. He has instituted a law suit against the debtor, who he says is so poor that he does not expect any thing from him, even if he is cast ; he speaks also, of great difficulties he has had in ascertaining the amount of the debt, in consequence of some necessary books or papers having been destroyed in the revolutionary wars of this country. Upon the whole, there is very little prospect of getting any thing from him. I have not yet received any communication from Mr. Jfcf'CZwre, (who is married at Santiago) but Mr. Boughan informs me that he believes Mr. M'-Clure holds some government paper for your account, and if this intelligence is confirmed, my purchasing copper here offers a favourable op- portunity of making use of it to advantage, as it is at twenty per cent, discount, but will be received at par by the govern- ment, in payment for half the amount of duties, but the other half must be paid in cash this arrangement will also increase the quantity of copper, if effected. In my former letter, I informed you that the government here had issued orders that have a direct tendency to encourage desertion of seamen from our ships, in consequence of which I have shared the fate of several others by losing sixteen of my crew, which entirely disables me from proceeding in the discharge and loading my ship they are now on board one of their brigs of war, and unless captain Dowries arrives here this evening, as we expect he will, they will succeed in carrying them off. I think, however, that if captain Dowries should not arrive time enough to prevent this diabolical proceeding, that he will no doubt give me a crew from the frigate." "Account sales of sundries made by Edwards fy Stewart to the government of Chili, for account of captain John C. Pawson, ship Chesapeake. August 25, 1820. 45 coils cord- age, weighing 1 13 qrs. 87 Ibs. a $20, f 2277 3| and one day and night glass, $30, amounting in the whole, after deducting $92 02 for commissions, to $2215 01 1." 14 Pawson's Adm'rs rs. Dunncll. Donnell vs. Pawson's Adm'rs. 1829. A letter from the plaintiffs' intestate to Lemuel Goddard, da- ted Coquimbo, the 25th of August, 1820. " Above you have the account sales of the cordage you ship- ped on board the Clicsapeake, which you will perceive I have obtained a good price for. I also sold the spy glass, but the foul air extractor and the compasses yet remain on hand, without any probability of selling them, and if I am obliged to take them to the United States, shall deliver them to your order there. My principal object in addressing you now, is to give you an opportunity to make insurance on the amount of your interest in the above transaction. This I think the more advisable, be- cause a chance now offers for conveyance to England, and it is quite uncertain if I shall have an opportunity to write to the United States for insurance. Our interest, as per agreement, stands thus: Nett amount of sales, $221 5 01 1. Deduct cost and charges per invoice, $1232 01 leaving $983 00 One half of which is $496 04|. Which added to the original costs and charges, $1232 01, makes $1728 05J. " Which sum, say $1728 05 J, I leave you to get insured from hence direct to Baltimore, where, on the safe arrival of the funds, I hold myself responsible to pay said amount to your order. It was a mere chance I was enabled to get so good a price for the cordage. The fleet from Valparaiso on the way to attack Lima, put in here, and was very much in want of it, or I fear we should have a poor account of it, and I would advise you not to let our present success induce you to ship any quan- tity of cordage to this country, as the probability is, it would not sell." A letter from the plaintiffs' intestate to Edwards ty Stewart, dated at Coquimbo the 19th of August, 1820. " In consequence of the representations made by you, that six thousand quintals of copper might be immediately bought at $12 per quintal, and your decided opinion that the balance of my cargo may be contracted for at the same price, to be deliv- ered on the first of November, I have determined to load my ship here, and hereby authorise you to purchase the 6000 quin- tals, and secure the remainder, amounting to between three and OF MARYLAND. 15 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. four thousand quintals with all possible despatch, on the terms above mentioned, or lower if possible. In making these con- tracts, I would recommend your particular attention to have them only with men in whom you have perfect confidence, both as to the quality of the copper and to the punctuality of the delivery. It is understood that you secure to me the just and true perform- ance of the said contracts, so that I shall not meet with material delay to my ship. It is also agreed that you are to receive two and a half per cent, commission, and one per cent, storage, amounting to three and a half per cent, on the amount of the purchase. I must also request your particular care and atten- tion to secure every advantage that can be obtained in weigh- ing the copper and in paying the charges and duties. It is also understood that you are not to purchase copper for any other order, until my cargo is completed. "Understand that the two and a half per cent, is on the amount of the invoice, and the one per cent, on the amount of the copper at first cost, exclusive of duties and other charges." A letter from Edwards fy Stewart to the plaintiffs' intestate, dated Coquimbo the 4th of September, 1 820. " We have received your letter of this date, in which you request our purchasing for your account from 9 to 10,000 quin- tals of copper, at or under $12 per quintal. Agreeably to ver- bal information given jou by us, that we thought 6000 quintals might be secured much before the time limited, we have now the pleasure of confirming it by enclosing you herewith, our ob- ligation at sight, for said amount, say six thousand quintals cop- per, which you may dispose of when you judge most proper. As regards the residue of your order, although we cannot come under an obligation for its purchase, yet we think our success will be almost certain from information we have, and a pledge we make you on itot purchasing on any other order until yours' is completed on this point we can say no more. We accept the commissions as stated by you, two and one half per cent, on cost] and charges, and one per cent, on storage on the amount of the purchase of the copper. All contracts made by us come under our responsibility, not only as to the faithful 16 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donnell vs. Pawson's Admr's. 1829. delivery, but likewise as to the quantity of the copper. All copper received is weighed by us in person, and every regard is paid to this branch that the interest of the concern requires." A letter from the plaintiffs' intestate to the defendant, dated Coquimbo, the 4th of September, 1820. " I have to inform you that your business remains nearly in the same state as when I wrote you on the 24th ult. viz. that I have purchased 6000 quintals of copper, and shall have the re- mainder, amounting to between three and four thousand quintals, ready by the first of November, at $12 per quintal, which, with the duties and shipping charges paid, will stand on board at about $14 more or less. In this transaction I was determin- ed by reflecting that a pound of copper at that price, would nett in the United States, as much profit, and with more cer- tainty, than a pound of coffee, and that the additional expense of pursuing the voyage further would be saved, and I trust that this view of the subject will meet your approbation. I have not yet received any communication from Mr. M i Clure re- specting your property in his hands, nor can I give you any certain information, except that I have understood that he had invested the government paper which he held in silks, a part of which he sent down the coast for sale, and the remainder he had deposited in this place, but has recently ordered them somewhere else. I shall use my best endeavours to have a settlement with him, if possible, but I think there is no chance whatever, of getting any thing from Mr. Boughan. I am yet without a crew: in consequence of the Macedonian having a long passage from Valparaiso to this place, Cochrane had time to carry off the men, and captain Dowries would not supply me from the frigate, as he thought there was a probability of his having some trouble witb Cochrane, if he should attempt to obstruct his entrance into Lima. He~ > 'has taken a list of the deserters, and intends to demand them. Understanding that there are plenty of seamen in Valparaiso, I have written to the consul there, requesting him to procure me a crew, and send them down by the first opportunity, so that I am in hopes of soon being able to proceed with loading, and shall use every OP MARYLAND. 17 Pawson's Adm'rsrs. Donnell. Donnell vs. Pawson's Adm'rs 1829. exertion for despatch in my power. As I may possibly not have another opportunity direct to the United States shortly, I would thank you when you make insurance on the ship and cargo, also to insure for my account, the same sum which you did me favour to insure from London here. I think it prohahle it will be shipped in silver bullion and copper. As it is necessary to have some light and bulky article to stow with the copper, in order to raise it in the hold as much as possible, I have pur- chased for that purpose a few hundred hides, and shall increase the quantity to one thousand, if they can be obtained they cost from 9 to 12 rials per hide, and will average about 28 Ibs. It is usual to purchase wood for this purpose, which is attended with considerable expense and trouble, and is afterwards worth nothing, while the hides at the above price will pay a good freight. I have employed Messrs. Edwards ^ Stewart, of this place, as agents to purchase the Chesapeake? s cargo, of whose integrity and honesty as merchants, I made myself perfectly satisfied of before I engaged with them; their influence with the governor and collector here is very great, from which cir- cumstance I expect great advantages in the payment of the du- ties, and I have a good prospect of getting through my business without trouble or delay. " Since writing the above, I have received a letter from Mr. JW-Clure; he says he has on hand a quantity of silks, which, with the discount on government paper, (with which I under- stood he paid for them) cost about $5000, and a few other ar- ticles which would raise the amount to 1000 more ; he has also from 2000 to $2500 in cash, which he promises to put imme- diately at my disposal ; he also offers to make an immediate sale of the silks, &c. for cash and close the concern, if I will au- thorise him to do so, but it is his opinion, that to force a sale of the silks, &c. for that purpose would be attended with a loss of at least one half, and as I am only empowered by you to re- ceive whatever he may give Die, I must leave him to exercise his own discretion with respect to selling the silks, &c. but strongly recommend him to effect a settlement, if possible, VOL. I 3. 18 CASES IN THE COURT OF APPEALS Pawson's Atlm'rs vs. Donnell. Donnell vs. Pawson's Adra'rs. 1829. while the Cliesapcake remains here, as I am convinced you are anxious to have it closed. Another letter from the plaintiffs' intestate to the defendant, dated Coquimbo the 4th of November, 1820. " By the Two Catliarines I informed you that I had commen- ced the purchase of the Cliesapeake's cargo of copper, at $ 12 per quintal, which will cost on board, duties paid, about $14|, depending considerably on the amount of that saved by the ar- rangement with the collector here, and a gain of from five to seven per cent, on the amount of the duties, by paying part of them with the government paper, which is at a discount, though so uncertain that it is dangerous to purchase.it until the moment it is to be paid into the custom bouse. There is now purchas- ed for your account 9500 quintals, nearly 7000 of which is on board, and the remainder in Guasco, whither I shall proceed and take it in as soon as I get my crew from Valparaiso, which I am daily in expectation of, and hope, in about a month more, to be on my passage for Baltimore. We have received ac- counts here stating that the United States had proceeded to take possession of the Floridas, and had acknowledged the in- dependence of this country and Bvenos Jlyres. If so, I think it quite likely that a war with Spain must ensue, and of course render me liable to capture on the homeward passage, by pri- vateers under Spanish colors. Of the truth of this I hope soon to be informed, and if it is the case, I shall endeavour to sail home in company with the Macedonian, which ship is shortly expected here from Lima, and is to proceed immediately home. I have received from Mr. J\TClure the sum of $5500 on your account, to obtain which, he informs me, he sold the greater part of the silks, which in a former letter I mentioned he held at a great loss ; he writes me also, that he intends, if possible, to sell the remainder and close the business, though I cannot inform you to what amount he still holds. I wrote him a few days ago to in- form him that I expected to sail shortly, that he might make his arrangements accordingly. I have got nothing from Mr. Boughan, nor do I think there is any probability that I shall. He writes me that he is paying every attention to the suit he has instituted OF MARYLAND. 19 Pawson's Adm'rs vs. Donnell. Donncil vs. Pawson's Adtn'rs 1829. against the consignee of the Melanthro, and has great hopes, from the strong vouchers he has presented, of gaining the cause, but if he does, he has no hopes of recovering any money from the circumstance of the consignee being very poor. With re- spect to loading the ship, I have paid every attention to have the copper of the best quality, and stowed in the safest manner, but I think it altogether unsafe to put more than 9500 to 10,000 quintals on board, as it is a very laborious cargo from its dead weight and small balk, and the ship begins now to shew her age. I have purchased about 600 hides, which cost from nine to twelve rials each, to stow with it, for the purpose of raising the weight and increasing the bulk. I shall, however, be guided by my judgment as the ship comes down in the water, and if possible, bring the whole of your funds in copper. If there should be any surplus funds, which will not be more than the $5500 received from Mr. JlTCZwre, I shall bring it in Plata Pina, or silver in bars, the former at g7 56-100, and the latter $7 81-100 per mark of 8 ozs. In my former letters I requested you to insure for my account the sum of $5000. I now have to request you will insure $1000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds in silver. I send this across the cordilleras, but I understand there is very little hopes of your receiving it, as the communication is very much interrupt- ed by banditti." A letter from Horstman to one of the plaintiffs, dated Lon- don the 29th of July, 1822. " I have to acknowledge your letter of the 1 8th May, in which you request to be furnished with a copy of the account between the late Captain Pawson and myself, and such docu- ments as would enable you to come to a settlement, as acting administrator, with Mr. Donnell. In reply I beg to state, that I had not any account running with Captain Pawson, as he act- ed entirely himself; but on reference to my books, I find the following items were paid by me, and repaid by Captain Paio- son, the 19th April, 1820, viz: Barry, for charts, &c. amounting to 20 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donncll. Donnell rs. Pawson's Adm'rs 1829. 69 1 2, which were the only pecuniary transactions with him direct. " In regard lo the bills of disbursements of the ship Chesa- peake^ which you mention were never received by Mr. Don- nell, I find that I sent to Mr. Donnell, on the 1 3th of May, 1820, the following, viz : One letter, 13th May, witb/account of disbursements of the Chesapeake, 2219 13, and a list of the vouchers ; one parcel, containing the vouchers, (original accounts) one letter from Captain Pawson to Mr. Donnell two letters from Captain Pawson to different persons, (I think Captain Hamilton and Mrs. Pawson.) These were sent to Liv- erpool for the purpose of being forwarded, and I find by letter from Liverpool that were sent per the Mary, which sailed the 15th of May, with the exception of one addressed to Mr. Don- nell, which were sent per the Jlnna Maria, (the latter is pre- sumed to be the one containing the vouchers.) From Mr. Don- nell I have received no other letter than of the 1 8th of Novem- ber, 1819, brought by Captain Pawson, and 26th of December, 1819, enclosing a letter for Captain Pawson, Captain Pawson had a bill on me, drawn by Mr. Donnell, for 1165 9 1, at sixty days, which was due 30th of March 1819, and paid to him. I hope these details will answer your purpose." A letter from Edwards 8f Stewart to the defendant, dated Co- quimbo the 8th of December, 1820. " With sincere regret we have to inform you of the death of our much lamented friend, Captain John C. Pawson, who de- parted this life on the fourth of the present month ; to us it is particularly sensible, in consequence of his being, from the first of his attack, until his decease, in a state of torpidity, from the nature and violence of his disorder, which prevented our ma- king any arrangements with him in relation to his affairs at this place. We attribute, as the principal cause of Captain Paw- son's death, his extreme anxiety on the subject of his crew, the receiving of which he had placed great reliance by a ship which arrived a few days before his decease, from Valparaiso, to which place he had written to a mutual friend, to ship him a crew, having lost by desertion the day after his arrival at this OF MARYLAND. 21 Pawson's Adm'rs rs. Donnell. Donnell vs. Pawson's Adm'rs 1829. port. We were much disappointed at hearing that no men were to be found at Valparaiso, from the great enlistments made by the navy agent for the Chilian navy, which left us the only and very uncertain resource, of Captain Dowries supplying him with a quota sufficient for taking the ship home. Captain Dowries' arrival was at that time daily expected, but an arrival from the coast of Pern, where the Macedonian had gone, brought us sad intelligence of Captain Dowries not being able to visit this part of the coast for some months. This news created in Captain Pawson a very sensible change in his state of health, which had been delicate from his arrival, by great depression of spirits, which was accompanied by a fever, which changed into the gout, entered the stomach, and after being confined four days to his bed, yielded to his Maker the debt of nature, and trust he is enjoying, through the medium of our Saviour, happiness in that world, where, sooner or later, we are all to appear." Also the extract of a letter from Edwards Sf Stewart to the defendant, dated Coquimbo, January 19th, 1821. " We likewise enclose you herewith account sales of various merchandize brought by Captain Pawson from London. His accounts, bill of lading for two boxes of Chinchilla skins, to your consignment. We also enclose you the bills of the goods for your government. We confess we feel awkwardly situated from our perfect ignorance of Captain Pawson's business, and act only from conversations we^have had with Capt. Pawson, and from our judgment. We presume the property belonged to him which came in the ship, for the sale of which he has got credit. His intention was, as well as we can recollect, to in- vest the proceeds in 250 quintals of copper, provided the ship would load more than the 10,000 quintals, if on the contrary he intended taking only 150 quintals for his account, the Chinchilla skins charged him in his account, and the balance of his funds in silver, if to have been had. This we believe firmly were his views, and on which we should have acted, but fearing com- promising ourselves, we have considered it most prudent pass- ing the balance of his account to your credit, and leaving it to 22 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donncll. Donncll vs. Pawson's Adm'rs. 1829. your judgment to settle with his relations in the manner you think most equitable and just, founded on the above facts. We recollect Captain Pawson stating to us, that the cordage sold to the government was shipped on half profits by some manufacturer in England, and in order to throw light upon that part of his business, should you be addressed from Eng- land by the same, we have enclosed you separate sales of that article." Also, the extract of another letter from Edwards fy Stewart to the defendant, dated Gwasco, January 28th, 1821. " Enclosed you will receive a bill of lading for 900 pigs of copper, and thirty-six lumps of gold, as likewise another for seventy-four pigs of copper, and one large, and nines mall pigs of bar silver, and sixteen pieces of Pina silver, shipped the for- mer for your sole account, and the latter for account of the late Captain Pawson; by the invoices and account which we like- wise enclose you, you will perceive that the whole of your funds we have remitted to the best advantage, and we have only to beg you to call to mind, in case that every thing is not exactly correct, the disadvantages we have been under from the sudden death of Captain Pawson." Also, an extract from another letter from Edwards fy Stewart to the defendant, dated Coquimbo, March 9, 1821. " As we anticipated, the crew has deserted the ship, and has remaining on board only nine men from the Constellation. We hope to get the residue she may want to carry her home. The carpenter of the ship, from a pique he had against Captain Lane, and to revenge himself, gave information of the spot where your gold and Captain Pawson's silver were stowed on board, to the governor. This was done with so much secrecy by both par- ties, that we were not aware of the treachery, until the whole was in their possession. It was shipped in Guasco, and stow- ed by Captain Lane in the bread locker, under all the bread, without the knowledge of any one on board excepting the car- penter, in whom both he and Captain Pawson placed the most implicit confidence. The exportation of virgin silver and gold have been prohibited by the government under confiscation of OF MARYLAND. 23 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. the property if taken, and many severe penalties inflicted on the parties concerned. Captain Pawson intended shipping any small balance he might have in those articles, from their pay- ing better than any other remittance to America, from this, hard dollars being at 6 premium, and ounces at $>17J, so that in shipping either one or the other, you would have experienced a great loss. We are aware we took upon ourselves some re- sponsibility from not having had written instructions from Capt. Pawson to ship in these articles your balance, but were actua- ted for your interest, and knowing Captain Pawson would have acted in like manner. We fear the hopes of recovering this property are small, as the law is explicit and severe. We shall make the necessary representations, and send you copies by next opportunity." And another letter from Edwards &f Stewart to the defendant, dated Coquimbo, July 4, 1821. " We enclose you the proceedings of the confiscation of the silver and gold found on board the ship, which we are sorry to say was eventually lost, notwithstanding the exertions of Capt. Ridgely, Judge Prevost, special agent of the United States of America,^ and our representations. We are still in hopes that at a future period this property may be recovered, and with this view have thought proper to send you the documents to sub- stantiate any claim you may think proper to institute." The plaintiffs further offered in evidence, that if was the known custom of trade in Chili and at Coquimbo, to employ agents on shore in the business intrusted to Pawson,and that it was necessary to do so. And also offered in evidence, that the privilege to the captain of twenty-five tons, mentioned in the contract from Can- ton to Baltimore, was a valuable privilege, much more so than the like one from Coquimbo, and that it was, and is, the usage of trade for the captain, if he does not use his privilege himself, to let it out to others, and even to be paid for it by the owner, if the owner used it for his benefit. That the freight from Canton to Baltimore, at the time abovementioned, was from thirty to one hundred dollars per ton. The plaintiffs' further offered evi- dence, that it is the usage of trade, when a captain has such a 24 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Pawson's Adm'rs. 1829. privilege as is stated in the defendants' first letter of instruc- tions, to wit, of twenty-five tons from Canton to Baltimore, that this privilege is entitled to a preference even over the owner, in putting the same into the vessel, and that if the cap- tain dies in the course of the voyage, hi| privilege does not suc- ceed to the next captain, but survives to his representatives. The plaintiffs further offered in evidence, that on the arrival of the ship here, only 147 quintals of copper were delivered to the plaintiffs, as the share of the said Pawson ; and they read in evidence, the following order and account, which were admitted by consent "74 pigs copper, weighing 14,779 Ibs. of the estate of Captain Pawson, received per the ship Estlier, Captain Low, from Coquimbo" signed 29th October, 1821, by the defen- dant The plaintiffs also offered in evidence the following accounts : OF MARYLAND. 25 Pawson's Adm'ra vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. Dr. John C. Pawson (deceased) in account with John Donnell. Cr. To balance per settlement in London, Sterg. 3 10 11 Short credit allowed fir passengers from Lon- don, - 25 00 00 $120 87 By wages from 19th Nov. 1819, till 4th Dec. 1820, his decease at $eo, $750 oo Dividends drawn by J. D. on 16 shares Bank Stock, one li, one $2, 56 00 Transfer by Edwards 4> Stewart, of the balance due by them to Capt. Pawson, after his de- cease, (very impro- perly to me,) - - - $7,777 87 In which was included the proceeds of cord- age,! taken on board for account some per- son in London, to be deducted therefrom, 2,215 18 - - 5 562 69 Premium of Insurance to Maryland Office on $5166, a 4 p. ct. ' $307 89 Premium of Insurance to Patapsco Office on, $6000 a 2$ p. c. . 166 25 374 14 Common J pr. cent, on the sums insured, 55 83 - 429 97 Discounts paid on 16 shares Bank Stock, hypothecat. for 1200 in Nov. 1819, renewed each 60 days, say 14 renewals a 13 80. 179 30 Proportion of landing copper fromshipCAe- sapeake, and reship- ping on board the Esther, total 550,600 )bs. cost $2454 69, which on Capt. Paw* on 14779 will be 66 00 Freight paid the ship Esther from Coqvimbo to Baltimore on 14779 Ibs. at 24 cents per Ib. 369 47 Primage thereon, 6 p.c. 1847 Storage, storing, weigh- ing and delivering, 10 00 397 94 Amount invoice of cop. per and bullion ship- ped by Edwards 4- Stewart for account, 4,694 66 CronometercostSO/stff. 355 65 Day and night telescope of J. Allen, . - - 22 00 Horsbvrg Directory of Baud ; 2400 Amount saleS of said cordage as above, 2,215 18 After deducting there- from for freight from London to Coquimbo, being a belligerent port, and, an article contraband of war, which subjected my ship and property to confiscation, and an- nulled my insurance, the weight of cordage- asp, sales a$5, $569 37 Cost of lumps of gold, shipped as aremitance for proceeds of said cordage, being a prohi- bited article, and as seized cost, - - - 145284 Edwards Sf Stew- art commiss'n thereon, at 2^ p. cent. - - 36 32 Expenses incur- . red by claim- ing its restora- tion, - - . 44 16 2 102 69 401 55 Balance due by J. D. - - 18500 $6,481 18 $6,481 18 PJ. B. Captain Pawson took from my ship JViirtli Point He took from the JV*or(/t Point ( peake It is, therefore, nearly out of my pow by big papers, the articles he paid for, and s Chesapeake. 2 mos. interest on $165, $1 65 10 mos. do on 166 70, - - 8 25 6 mos. do on 17f)l, 43 10 such valuable articles as he fancied for the very article, when he left her, for the Chesa- jrto trace them But you can certainly show ich had, of course, a right to take from the J. Donnell, Interest calculated on bonds until due, se- cured by J. D. and for which he hue, in settlement, retained their amount in his hands the $53 to Le applied to paying the discount on J. C. Pawson's Ptock note at the Office Discount and Deposit, is to be re- newed by J. D. and with the $53, and the $55 now received, it is expected will pay the above discount, until his, J. C. P'a return. $53 00 Interest on 1200 for 18 mos. - - - 108 00 $5500 Received the above $55, which with the $53, interest until his bond fall due, is to be applied by me to the discount, on renewal of his stock note for hypothecated Bank Stock, 17th Nov. 1819. John Dtmntll. VOL. I. 4, 26 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Admr's 1829. " Sales by Harrison fy Sterctt, for account of the administra- tors of the late Captain J. C. Pawson," in December, 1821 and April and May, 1822, of 14,774 Ibs. of copper, amounting, de- ducting charges, &c. to $2,843 75. The plaintiffs further offered in evidence bills of lading, and invoice of the shipments at Coquimbo and Guasco, on the voy- age aforesaid. 1. Of 8000 Spanish doubloons shipped by Horst- man from London on the 4th of May, 1820, for the port of Coquimbo , to the order of Captain Pawson, on account of John Donnell. 2. Of 4219 pigs of copper, weighing 8076 quintals, &c. and 41 1 cow hides, by Edwards Sf Stewart from Coquim- bo , on the 19th of January, 1821, for account of John Don- nell. 3. Of two boxes and one bundle of Chinchilla skins, containing 456 1 dozen, being the property of the late Captain Pawson, and consigned to John Donnell for the benefit of whom it may concern, by Edwards Sf Stewart, from Coquimbo, on the 19th of January, 1821. 4. Of 74 pigs of copper, weighing 147 quintals, &c. one large and nine small pigs of bar silver, and sixteen pieces of Pina silver, weighing 304 marks, one ounce, shipped by Edwards fy Stewart from Guasco, on the 28th of January, 1821, to John Donnell 5. Of thirty-six lumps of gold, weighing 608 castellanos, five tomines, and 900 pigs copper, weighing 1795 quintals, ninety-five Ibs. shipped by Edwards Sf Stewart from Guasco, dated the 28th of January, 1821, consigned to defendant. "Invoice of copper and hides shipped by Edwards & Stew- art, on board the Jlin&rican ship CJiesapeake, Captain Thos. A. Lane, by order of the late Captain J. C. Pawson, bound for Baltimore,, in the United States of America, and consigned to John Donnel, Esq. merchant, of said place. 4219 pigs of copper, wg.8076qqs.l91bs.a!2ds. $96,914 02| 246 ox, and 41 1 cow hides, - 932 01 $97,846 03J Charges, duties, commission, &c. added, - - 19,259 08| $117,10604 OF MARYLAND. 27 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. "Invoice of copper and gold shipped in Gwasco,by Edwards fy Stewart, on board the American ship Chesapeake, Captain Thomas A. Lane, by order of the late Captain J". C. Pawson, bound for Baltimore, in the United States of North America, and consigned to John Donnell, Esq. of said place. 900 Pigs of Copper, wg. 1795 qqs. 951bs. at $12, $21,551 03 Storage 1 p. c. - - - - 215 04 $21,766 07i 20 round lumps of gold, wg. 172 cas- tellanos 7| tomines a 19 rs. 416 01 15 do do wg. 403 do 5| do a 19 rs. 958 05 1 do dowg. 32 do a!2|rs. 78 $23,21905| Charges, duties and commission, &c. added, 4,885 03| $28,105011 "Invoice of copper and silver shipped in Guasco, by Edwards fy Stewart on board the American ship Chesapeake, Captain Thomas A. Lane, bound for Baltimore, in the United States of America, by order of the late Captain J. C. Pawson, for ace. and risk of whom it may concern, and consigned to John Don- nell, Esq. merchant, of said place. 74 pigs of copper, wg. 147 qqls. 79,lbs. a $12, $1,773 04 Storage 1 p. c. 17 06 1 large and 9 small pigs silver, wg. 115 mks. 1 oz. a $8 p. mk. $921 00 16 pieces of pina silver wg. 189 mks. Ooz. 1488 03 -$2,409 03" Charges, duties and commission, &c. added, 493 07| $4,694 04 " Amount of money paid by Captain Pawson to the crew of the ship Chesapeake, which returned here from Coquimbo, $70 59." Signed by /. D. iS CASES IN THE COURT OF APPEALS Pawson's Adin'rs vs. Donncll. Donncll vs. Pawson's Adm'rs. 1829. And also proved that the voyage was in effect protracted by the determination to return immediately to Baltimore, and not go to Canton, as it was much more difficult to obtain a crew for the former voyage than the latter, and the ship was delayed for a long time, for the want of a crew to navigate her to Bal- timore. The defendant then offered and read in evidence the follow- ing letters, which were read by consent, and admitted to be in the hand writing of the respective parties thereto. The only letter which appears to have been offered in evidence by the defendant, is one from one of the plaintiff's to the de- fendant, dated Baltimore, 15th May, 1822. "From a minute investigation of the account you furnished, between yourself and the late Captain Pawson, and with a reference to sundry documents in my possession, I have made out the enclosed account. With respect to the $2,000 for compensation, it appears to have been regularly agreed upon between you and tJie deceased, as the privilege he was to have, each voyage, in your ships, consequently it is claimed as a right. The cordage transaction, in your account, is totally inadmissi- ble, the funds which arose from the sale of it, were laid out in bullion, (silver) which remains in Coquimbo under seizure, as your gold does, and as you are not known in the transaction at all, it of course remains for settlement between the owner in London and the executors of Captain Pawson. As to your charging freight on the cordage from London to Coquimbo, it seems strange indeed. Your ship was going in ballast, and Captain Pawson wrote to you that he would take merchandize, having found great difficulty in procuring the number of doub- loons you ordered from Mr. Hortsman. I find that in 1816, you permitted Captain Pawson to take goods from other persons to make up his privilege in the ship, and as, by his agreement with the owner of the cordage, he was interested in the sales, it became, of course, a part of his venture from thence. It appears that Captain Pawson allowed you 25 sterling in the account he furnished before he left London. Balance due to you 31011. 50 sterling he laid out for cabin stores. The $55 83 claimed as commission for effecting insurance, you OF MARYLAND. 29 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. never charged in any similar case. I have not ascertained whether the expenses charged on the copper, are customary or not. You'll observe, that Captain Pawson^s privilege in the ship was not taken by several thousand pounds weight, of course you will allow for the deficiency, as you have done before." Mr. John Donnell in account with the estate of the late Captain Dr. John C. Pawson. Cr. 1819. Nov. 18. To cash paid interest on 16 shares United States Bank Stock, hypothe- cated for $1200 p. your By balance due to you as per ac- count furnished by Captain Pawson, in Lundon, includ- ing JE25 sterling, your pro- portion of passage money, Cash on 16 shares United States bank stock, hypothecated for this amount, 18th Nov. 1819, Interest on do. from said pe- riod, until 15th Oct. 1821, Insurance in Maryland If Pa- tapsco Offices, per your ac- $16 75 1,200 00 137 44 374 14 4,694 56 4,352 97 in 774 so Interest on do. from said date until 15th Octo- Compensation in ship Chesapeake as per a- greement,see your let- ter of instructions, da- ted 18th Nov. 1319, and as a proof of its being customary, see 21 Oc- tober, 1817, when Mr. Nancarrow went su- percargo, $2000, and the 25th May, 1816, when Mr. Stith, went supercargo, $3000, - 2,000 00 Wages of Capt. Pawson, as per your account, - 750 00 Dividend received on 16 shares United States bank stock , as per your Amount of copper and bullion (silver) shipped by Edwards 4- Stewart, for account of Captain Pawson, see their and your account, - - - Balance in your hands on the 15th October, 1821, - - - - Amount transferred by Edwards Sf Stewart, of Cui/iiimlni. a balance due by them to Capt. Pawson; see your and their account, - - 7,777 87 Amount deducted out of seamen's wages, as per your account, To balance from oppo- site, $4,362 97 To interest on ditto until paid, Error* and E Excepted. Add the stock on the other side, for which there is no credit, r $1,<200 00 4,352 97 Ili-i claim then ia $ 5,653 97 Interest to Jan. 26, 1825, 1,084 03 Besides which he claimed loss of privilege, > - Drip Atones, Duty saved at Ovasco, Interest on $255 62-100, $6,637 00 255 52 13 60 14 66 49 73 $6,970 30 Hamilton, Graham, Actg Adm'r. Claim as set up in court, viz.'$6,552 97 Drip Htonos and duty saved, 48 06 Loss of Canton privilege, 3,050 00 $9,661 03 Interest from Oct. 15, 1821, 1,686 94 $10,337 97 30 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donnell vs. Pawson's Adin'rs 1829. "The defendant then ollered in evidence the following invoice of goods shipped at London, the 27th of April, 1820, and the account of the sales thereof, and the other accounts and papers hereinafter inserted, which were admitted by consent "1 bale, 8 cases British piece goods," &c. amounting to - 1062 10 8 Commission, brokerage, shipping, &c. 5 p. c. 53 2 7 1115 13 3" "Account sales of sundries made by Edwards ^ Stewart to the government of Chili, for account of Captain John C. Pawson, of the ship Cliesapeake, 1820 Agt. 25. 45 coils cordage, wg. 113 qqs. 87 Ibs. a 20 dlls. - - |2277 03| 1 day and night glass, - 30 00 $2307 03| Deduct commission 4 p.c. and spy glass, - 122 02 Nett proceeds of cordage, - - - $2185 01 Dr. /. C. Pawson's private ace. with Edwards fy Stewart, Cr. This account commenced on the 25th of August, 1820, and ended on the 18th of January, 1821. The amount of the debits, including charges for 756 dozen Chinchilla skins, and 10 marks, G] oz. silver, &c. - $2,250 07| Amount of credits including nett proceeds of sales herewith sent, $8070 1 1, - - - " - 10,028 06| Balance due, and this sum credited John Don- nell, Esq. $7,777 07 "Sales of sundry merchandize received by the ship Chesapeake, and sold by order and for account of Captain John C. Paw- son." The whole amount of sales, deducting charges, &c.$8070 1 3 J dated Coquimbo, and signed by Edwards fy Stewart, OF MARYLAND. 31 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. John Donnell, Esq. of Baltimore, in account current with Edwards Dr. fy Stewart. Cr. 1821. Jan. 19. To bill of disbursements of the ship Chesa- peake, at Coquimbo, per account here- with, - - - $2,508 032 Amount of invoice of 8076 qqs. 19 Ibs. of copper,shipped from this port in the ship Chesapeake, Captain Lane, as per account herewith, .... 117,106 04 Balance, 32,655 05 152,270 05J 18-20. Aug. 28. By our draught in favor of Capt. Brintnal on Captain Pawson, $28,309 03 Sep. 16. Cash received from do. 6,192 06 21. Letter of credit of Messrs. Lynch,Hill S[ Co. in favor of Capt. Pawson, - -.- 3,500 00 Oct. 26. 700 doubloons received at $17J 12,075 00 2000 do do do 34,500 00 1300 do do do 22,425 00 Received for 4 bbls. of salt beef, a 35 dlls. 140 00 Received for 4 water casks a 15, - - - - 60 00 Months' advance made to a sailor returned, 24 03 Cash received of him, 60 00 Nov. 27. 2000 doubloons a $17 J, 34,500 00 Draught of Ed. M' Clure favor J. C. Pawson, 2,000 00 1821. > Jan. 18. Cash received for 2 bbls. tar, a $10, .... 20 00 Do do 30 ggs. vine- gar, a 50 eta. ... 15 00 Discount on $6713,1 rrl. paid in the custom house in government paper, being this pro- portion allowed to be received in paper,the residue paid in cash, a 10 p. c. - - - - 671 02 Balance of Capt. Paw- son's acct. current, 7,777 07 $152,270 05J By balance, . - . $ 32,655 05 E. & 0. E. Coquimbo, Jan. 19, 1821. Edwards &f Stewart. John Donnell, Esq. of Baltimore, in account with Edwards Sf Dr. Stewart. Cr. To amount of invoice of copper and gold shipped in Guaseo, $28,105 01 ^ To amount of invoice of copper and silver, shipped on account of the late Captain Pawson, 4,694 4 To amount of bill for disburse- ment in Guaseo, 9l.05| $32,891 034 By balance of account current at Coi/uimbo, $32,655 05 By 10 per cent, discount, allow- ed on $1,777 paid in govern- ment paper on the invoice of $28,105, a l rs. 177 05* By do do on that of the late Captain Pawson, ... 14 04i_ By one months advance charged twice to Eugenia, merchant, 30 00 By charge for drip stones not re- ceived, -- 13 04 $32,891 03^ E. E. Guasco, Jan. 22, 1821. Edwards Sf Stewart. CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donnell r. Pawson'g Adm'rs. 1829. Disbursements of the American ship Chesapeake, in the port of Coquimbo, by order of Captain Lane, from the 16th Feb- ruary to 30th June, 1821, amounting, including commissions, to $1,654 02. Dated at Coquimbo the 3d of July, 1821, and signed by Edwards fy Stewart. Captain Lane, ship Chesapeake, in account with Edwards &f Dr. Stewart. Cr. To amount charge* on 2876 bars of copper, shipped on board the ship tether, $3,464 05$ Do do on 300 bars shipped on board ship Chesapeake, - - - 315 02 Amount of durtrursements of ship L'ktsapcakc, 1,655 02 $4,425 024 By 124 ban of copper, vrg. 304 qqs. 34 Ibs. a $14 4-100, sold to pay the expenses at the price of $12, and the duties, 44,271 04 An error in the calculation of commissions in the. invoice of copper shipped at Quasco, 100 00 Cash reed, for 639 Ibs. of bread a $6 50 0,2 j Balance - 3 03| $4,425 024 *' Amount of charges of 2100 bars of copper, discharged in this port, and 900 bars discharged in Guasco, from on board the American ship Chesapeake, Captain T. Jl. Lane, in order to ascertain the extent of injury, received on her passage from Guasco to Baltimore, of which bars of the same were reshipped by order of Captain Lane, on board the American ship Esther, Captain F. G. Low, bound for Baltimore, for account and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, of Baltimore," amounting to $2454 05J, dated at Co- quimbo, and signed by Edwards fy Stewart the 3d of July, 1821. This account included a commission on 2876 bars of copper, amounting to $1651 06. " Account of charges of 300 bars of copper that were dis- charged from on board the American ship Chesapeake, in order to ascertain the extent of injury received on her passage from Guasco to Baltimore, and reshipped. by order of Captain T. A. Lane, of said ship, for account and risk of whom it may con- cern, and consigned to John Donnell, Esq. merchant, Balti- more," amounting to 8315 2J, including commission on 300 bars of copper, amounting to $1 79 04J. Dated and signed as above. a Disbursements of the American ship Chesapeake, Captain John C. Pawson, at the port of Coquimbo, by Edwards fy Stewart, OF MARYLAND. 33 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs 1829. amounting, including commission, to 82,508 03f , dated the 19th of January, and signed by Edwards <$ Stewart. An invoice of goods, &c. shipped by Edwards fy Stewart, by order of Captain Lane, on board the Esther, whereof F. G. Low is master, bound to Baltimore, viz : 2876 bars of copper, weighing 5505 quintals, 98 pounds Spanish weight, being part of the original cargo of the ship Chesapeake, and shipped for account of whom it may concern, unto John Donnell, he paying freight, &c. Dated Coquimbo, 3d of July, 1821. Also, the check of the defendant on the Office of Discount and Deposit, in favour of the owners of the ship Esther, for gl 4,453 20. To dispense with a commission to take testimony the plaintiffs admitted, 1 st. The transaction of cordage from London to Co- quimbo, according to the account of sales of the cordage. 2. That the cordage was for the joint account of Pawson and God- dard. 3. That gold and silver bullion are prohibited articles of exportation at Chili. 4. The parties agreed that all letters and accounts of sales and accounts current, from Edwards fy Stewart, may be read on both sides. The defendant also offered in evidence, that the usual freight from London to Coquimbo, was fifty dollars per ton. The plaintiffs then offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account. The defendant offered in evidence, that there was no usage as above stated, and that the captain was liable for freight to his owner like any other person, if the owner chose to exact it. 1st. EXCEPTION. The defendant then prayed the opinion of the court to the jury, that upon the evidence above stated, the defendant is entitled to set off, in this case, the freight on the goods and merchandize, shipped by Captain Pawson, on his own account, from London to Coquimbo; which opinion the court [ARCHER, Ch. J.*and WARD, A. J.| refused to give, but were of opinion, and so directed the jury, that the defendant is entitled to set off the said freight, unless the plaintiffs can shew by testi- VOL.I 5. 34 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donnell vs. Pawson's Adm'rs 1829. mony, that there was a known and established usage that the captain, under the above circumstances, was not chargeable with freight, and that the said usage was so well known and established, that it must be supposed to have entered into the contemplation of the parties at the time they originally made the contract first herein before stated. The defendant excepted. 2. EXCEPTION. The defendant then prayed the court to in- struct the jury, that according to the contract of the parties, as set forth in the correspondence exhibited in the first bill of ex- ceptions, the voyage as originally projected, to wit, from Balti- more to London, thence to Coquimbo, thence to Canton, and thence home to Baltimore, having been altered by the direction of the defendant, and the consent of Captain Pawson, so as to strike out the trip from Coquimbo to Canton, and give the ship a destination direct from Coquimbo home to Baltimore, the pri- vilege originally stipulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bring- ing home his funds in copper from Coquimbo, and that, conse- quently, the plaintiffs are not entitled to any compensation for the alleged loss of the privilege of bringing home the twenty- five tons from Canton. Which instruction the court refused to give, but gave the following opinion and direction to the jury : The court are of opinion and so direct the jury, that the plaintiffs are entitled to recover an equivalent for the loss they may prove their intestate to have sustained, by being deprived of his privilege from Canton or Batavia to the United States, in consequence of the change made by the defendant in the desti- nation of the vessel, unless the jury should be satisfied from the evidence, that the plaintiffs' intestate did, with a knowledge of his legal rights, waive the benefit of the privilege accorded to him at the commencement of the voyage, and did accept in lieu thereof a privilege from Coquimbo to Baltimore. The court further instruct the jury, that if they believe from the evi- dence that the plaintiffs' intestate shipped goods from London to Chili, on board the defendant's vessel, that the defendant is entitled to a credit for the freight thereof, unless the jury shall OF MARYLAND. 35 Pawson's Adm'ra vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. believe that there existed a definite general and well known usage, at the time of the commencement of the voyage, that freight, under the circumstance of this case, should not be charged by parties standing in the relation of the defendant to the plaintiffs' intestate. And further, unless the jury believe there was such a waiver and acceptance as is stated in the first part of this direction, on the part of the plaintiffs' intestate, that then the defendant is entitled to a reasonable freight for such articles as were shipped on account of, or which belonged to plaintiffs' intestate, from Chili to the United States. The de- fendant excepted. 3. EXCEPTION. The defendant further prayed the court to instruct the jury, that if they believe that the contract made between the plaintiffs' intestate and defendant, was an entire contract for 82000, for the faithful performance of the duties of supercargo by Pawson, and a strict conformity to the in- structions he should receive, that then the violation of his duty as supercargo by a departure from his instructions in taking on freight, prohibited articles, thereby putting the ship and the owner's interest therein, in jeopardy, was such an infringement of the entire contract, as took away from the plaintiff any right to demand the fulfilment of the same on the part of the defen- dant Which opinion and direction the court refused to give. The defendant excepted. 4. EXCEPTION. The defendant then prayed the court fur- ther to instruct the jury, that according to the contract of the parties as set forth in the correspondence exhibited in the first bill of exceptions, the compensation of $2000 stipulated to be paid to Captain Pawson, as supercargo, had relation to the ori- ginal voyage from Baltimore to London, thence to Coquimbo, thence to Canton, and thence home to Baltimore ; and that the voyage having been shortened by striking out the trip to Canton, and making the destination of the vessel direct from Coquimbo to Baltimore, and Captain Pawson having, moreover, died at Coquimbo, in the course of the voyage, before he had comple- ted the investment of the defendant's funds, that compensation is subject to abatement in the discretion of the jury on two 36 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll rs. Pawson's Adm'rs. 1829. grounds First, for the alteration of the voyage, if the jury shall be of the opinion that the labour and responsibility of Captain Paieson were thereby lightened Second, for that por- tion of the contemplated services of Captain Pawson, which were lost to the defendant by his death at Coquimbo. Which instruction tlie court refused to give, but were of opinion, and so directed the jury, that if they believed the evidence in the cause, the plaintiffs were entitled to recover of defendant a rateable proportion of the sum of $2060, which proportion the jury should ascertain by computing the time from the com- mencement of the voyage to Captain Pawson's death, and from his death until the duties of supercargo were completed by the signature of the bill of lading, for the homeward voyage, and that the jury may allow him as supercargo such portion of the said sum as they may deem him entitled to, for acting in said capacity, up to the time of his death, at Coquimbo, according to the rule above stated. The defendant excepted. 5. EXCEPTION. The defendant then prayed the court to in- struct the jury, that, according to the contract of the parties as set forth in the correspondence exhibited in the first bill of ex- ceptions, the compensation of $2000, stipulated to be paid to- Captain Pawson, as supercargo, on the voyage originally pro- jected, to wit, from Baltimore to London, thence to Coquimbo, thence to Canton, thence home to Baltimore, was one entire compensation to be paid for one entire service, on the return of Captain Paicson to Baltimore, and not subject to be apportioned by a part performance of the service, unless Captain Paicson had been prevented by the defendant from performing the resi- due thereof that the voyage having been altered by the con- sent of the parties (as appears by said correspondence) by stri- king out that part of it which related to the trip to Canton, and directing the destination of the ship from Coquimbo to Balti- more, without saying any thing of the aforesaid compensation to Captain Pawson, as supercargo, that stipulation attached upon the new voyage, precisely in the same manner in which it had been attached to the original voyage, that is to say, that it was one entire compensation for one entire service, not subject OF MARYLAND. 37 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. to be apportioned by a part performance of the service, and that consequently, the death of Captain Pawson at Coquimbo, in the progress of the voyage, and before the complete perform- ance of the service, put an end to all claim on the part of the plaintiffs, to any part of the $2000. Which opinion and direc- tion the court refused to give. The defendant excepted. 6. EXCEPTION. The defendant then prayed the court to in- struct the jury, that in estimating the value of the privilege of twenty-five tons from Canton to Baltimore, which, according to the opinion expressed in the first bill of exceptions, the plain- tiffs are entitled to claim in this action ; if it was not relinquish- ed and exchanged by Captain Pawson, by the privilege from Coquimbo, the jury should consider that privilege as having been subject to the contingency of the safe arrival of the ship at Canton, and the continuance of Captain Pawson's life, and that either the destruction of the ship or the death of Captain Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representatives on account of this privilege. Which instruction the court refused to give, and in- structed the jury that these contingencies ought not to enter into their calculation. The defendant excepted. 7. EXCEPTION. And the defendant further prayed the court to direct the jury, that the plaintiffs are not entitled to recover the said sum of $2000, nor any part thereof, under the evi- dence given in this cause. Which opinion and direction the court refused to give. The defendant excepted. 8. EXCEPTION. The defendant also prayed the court to di- rect the jury, that if the jury believe that Captain Pawson had actually purchased before his death, a sufficient quantity of cop- per, which, with the other property, purchased by Captain Paw- son for account of the defendant, and afterwards put on board, was sufficient to exhaust the funds of the defendant confided by him to Pawson, that then the plaintiffs are not entitled to reco- ver the compensation of f 2000, mentioned in the letters of in- struction of the defendant, unless the defendant received on board his ship a sufficient quantity of copper to exhaust his 38 CASES IN THE COURT OF APPEALS Pawson's Adm'rs r. Donnell. Donnell vs. Pawson's Adm'rs. 182?. said funds. Which opinion and instruction the court refused to give. The defendant excepted. 9. EXCEPTION. The defendant further prayed the court to instruct the jury, that there is no evidence in the cause from which they can infer that Captain Pawson consented to the change of the original voyage from Coquimbo to Canton, and from Canton to the United States, and waived his privilege from Canton to the United States, through ignorance of his legal rights, the presumption of law being that, if he had full knowledge of the facts, he had full knowledge of his legal rights growing out of those facts. Which opinion and instruc- tion the court refused to give. The defendant excepted. 10. EXCEPTION. In addition to the evidence stated in the preceding bills of exceptions, the plaintiffs offered in evidence, that the gold which was seized at Guasco, was purchased after the death of Pawson, and after all the copper which the said ship would bear, was actually purchased and loaded on board the said ship, and that the same was purchased with the very doubloons brought by Pawson for, and on account of Donnell, from England, and which remained in possession of Edwards & Stewart, at the time of Pawson's death ; and that the said gold was actually purchased by, and under the advice of Thomas A. Lane, acting as the captain which said Lane was the mate of the ship, and succeeded to the command on the death of Pawson that in the said proceeding Lane had no other author- ity from Donnell to act as his agent than what was derived from his succeeding Pawson as captain of the ship, and was acting under the instructions of Donnell to Pawson beforemen- tioned. The plaintiffs then prayed the opinion of the court to the jury, that if the jury find from the evidence, that the gold which was seized and lost at Guasco, after the death of Pawson, was purchased by Edwards &f Stewart after Pawson's death, with the separate funds of Donnell, and on his account, and shipped accordingly, without any power or authority from Pawson to do so, that then the defendant is not entitled to set off the value or cost of the gold against the claim of the plaintiffs in this suit. OF MARYLAND. 39 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. Which opinion the court refused to give. The plaintiffs ex- cepted. 11. EXCEPTION. The defendant further prayed the court to instruct the jury, that, according to the orders of the defen- dant, assented to by Captain Pawson, as set forth in the corres- pondence exhibited in the first bill of exceptions, it was the duty of the said Pawson, as the supercargo and agent of the defendant, to invest all of the defendant's funds in copper at Chili, if cop- per could be had, and to bring the same home, and deliver it to the defendant in Baltimore; and if, in these circumstances, Paw- son holding both the defendant's funds, and his own, after hav- ing purchased and put on board the ship Chesapeake, copper equal to the amount of the defendant's funds, thought proper, for any reason, to make an investment in gold or silver, and did, during his life, make such investment ; or, if his agents, Edwards fy Stewart, succeeding to the possession of those joint funds, did, after copper had been purchased and put on board equal to the amount of defendant's funds, make any such invest- ment in gold or silver, and if such gold and silver was after- wards seized by the government of Chili, and confiscated, as having been attempted to be exported, contrary to the laws of the country, that the loss must be borne by Pawson and his re- presentatives, and cannot be thrown on the defendant. Which opinion and instruction the court gave. The plaintiffs excepted. 12. EXCEPTION. The defendant further prayed the court to instruct the jury, that if, upon the whole evidence in the case, they shall be of opinion, that copper was brought home, equal to the whole amount of the funds of the defendant, and equal to Person's privilege in copper, (as he was willing to accept it) that the plaintiffs are not entitled to recover of the defendant, the amount of any gold or silver which Pawson or his agents, Ed- wards fy Stewart , may have put on board the Chesapeake, of their own accord, and without the knowledge, consent, or orders of the defendant, and which may have been afterwards seized by the government of Chili, and confiscated, as having been at- tempted to be exported, contrary to the laws of the land and that the defendant's having received from Captain Lane, the 40 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donncll. Dnnnell vs. Pawson's Adm'rs. 1829. successor of Captain Pawson, in tho command of the Chesa- peake, the letters and invoices sent to him by Edwards fy Stewart, is not, under the circumstances of the case, such a ratification of the act of purchasing and putting on board such gold and silver, as to throw the loss of it upon the defendant, and to authorize the plaintiffs to recover it from him in this action. Which opinion and instruction the court gave. The plaintiffs excepted. Verdict and Judgment for the Plaintiffs for the sum of $5510 43. From which judgment both parties, the plaintiff's and defendant, appealed to this Court. The cause on both appeals was argued before BUCHANAN, Ch. J., and STEPHEN and DORSEY, J. Williams, (District Attorney of U. S.) for Pawson's adminis- trators, the appellants in the first appeal, contended in argument on the three bills of exceptions taken on the part of the plain- tiffs below, viz: the 10th, 1 1th, and 12th bills of exceptions. 1. That the gold, which was seized at Guasco, and there condemned, having been purchased by Edwards fy Stewart, after the death of Pawson, without his authority, but with the ad- vice of his successor, Captain Lane, and with the money of the defendant, ought not to be charged to Pawson, nor the cost thereof deducted out of his funds. 2. That Pawson ought not to bear the loss of the gold, pur- chased, seized and condemned as aforesaid. 1st. Because he was not bound to invest all the defendant's money in copper, to the exclusion of his own funds. 2d. Because he did not purchase any gold in his lifetime; and, 3d. Because Edwards $f Stewart were not his agents, after his death, so far as regarded the de- fendant's funds, but were in that respect, the defendant's agents. 3. That Edwards <$ Stewart, being, after Pawson's death, only his agents, or the agents of his representatives, for the funds of Pawson in their hands, and being the agents of the de- fendant, for the funds-of his in their hands, and Pawson having a co-equal right with the defendant to have his funds invested in copper; and the said agents having actually invested a part of the defendant's funds in gold, and none of Pawson's in that arti- OF MARYLAND. 41 Pawson's Adm'rs vs. Donnell. Donnell us. Pawson's Adm'rs. 1829. cle, the loss of the gold is the defendant's, and not Pawson's re- presentatives. On the second point he referred to 2 Liv. on Agency, 298. 1 Liv. on Agency, 261 to 278. Taylor vs. Plwnmer, 3 Maule and Selw. 562- 2 Liv. on Agency, 281. C. C. Harper for Donnell, the appellee in the first, and the appellant in the second appeal, stated that for the appellant in the second appeal, it would be contended, 1 . That no usage can, in such a case, be permitted to be en- grafted upon, or to control a written and express contract so plainly and unambiguously set out. This point arises under the first, and a part of the second bills of exceptions. 2. That the privilege from Canton depended entirely upon the voyage to Canton, which was within the control of the de- fendant below, as owner of the ship ; that this privilege was ex- pressly waived by Pawson for an equivalent, with knowledge of his legal rights ; and that, with knowledge of the facts, ignor- ance of his legal rights was no excuse. This point embraces a part of the second bill of exceptions. 3. That Pawson's acceptance or non-acceptance of the new voyage, and substituted privilege, was a question of law, and that the court ought to have construed the writings under which the question of acceptance arose, and not have left it to the jury. This point embraces also a part of the second bill of exceptions. 4. That the record affords no evidence of any ignorance of his legal rights, and that the court ought so to have directed the jury, as prayed in the ninth bill of exceptions, and erred in re- fusing such direction. This point embraces the ninth bill of ex- ceptions. 5. That the $2000 agreed to be paid as compensation to Paw- son, depended on the performance of the entire voyage, and on his return to Baltimore, which were conditions precedent. This point embraces the third, fifth, and seventh bills of exceptions. VOL. I. 6. 42 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Pawson's Adm'rs 1829. 6. That if the whole $2000 cannot be recovered, there can- not be an apportionment, and no part of it can be recovered. This point embraces the same bills of exceptions in part. 7. That Patrson, by departing from the instructions of the defendant, (the owner of the ship he commanded, and in whose employ he was) and by his other misconduct, as detailed in the record, lost his right to demand the compensation of $2000, or any part thereof. This point embraces the same bills of excep- tions in par 8. That the court below having pronounced an opinion that there could be an apportionment of the compensation of $2000, they erred in directing the jury not to allow any abatement by reason of the shortening of the voyage, or the death of Pawson r and they also erred in fixing the " date of the signature of the bill of lading for the homeward voyage," as the period at which his duties as supercargo, were completed. This point embra- ces the fourth bill of exceptions. 9. That if the privilege from Canton did not depend entire- ly on the voyage to Canton taking place, and the defendant was liable to Paicson for the loss of the original voyage and privilege surrendered by him " under a mistake of his legal rights," then the jury, in estimating the value of the privilege so surrender- ed, ought to have taken into their calculation the possible death of Pawson, or the possible loss of the ship before she reached Canton, and the court below erred in refusing such direction to the jury as prayed by the defendant in the sixth bill of excep- tions. 10. That if Paicson had actually purchased, before his death, an amount of copper, which, with the other property purchased for the defendant, and put on board, was sufficient to exhaust the funds of the defendant, confided to Paicson by him, that then the plaintiffs below were not entitled to recover the $2000, unless the defendant received on board his ship, a sufficient quantity of copper to exhaust his funds, and the court below erred in not so directing the jury, as prayed for by the defen- dant below, as stated in the eighth bill of exceptions. Undei this point, the defendant (now appellant) contends, that Pawso* OF MARYLAND. 43 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. was special agent for the purchase of copper; that if he was general agent, he violated his duty by not using a sound discre- tion ; that Edwards fy Stewart were his agents ; and that the gold and silver belonged to him. 11. The appellant will also contend, under the eighth bill of exceptions. 1st. That independent of the hypothetical assump- tion in the prayer upon which this exception is founded, the fact that a surplus of copper (over and above all the defendant's funds, and over and above the 147 quintals delivered to Paw- son) remained in the ship, is proved by the evidence in the re- cord. 2d. That the ship was sent, and Pawson employed for a special purpose ; that she was not a general ship, and therefore Pawson could not take in goods for other persons, or interfere with the owner's arrangements, and thereby throw a loss upon the owner. 3d. That if he could so use the ship as to bind his owner to third persons, the owner might set off the compensa- tion of $2000 against such loss. On the second point he cited 1 Liv. on Agency , 150, 151. Doct. and Stud. ch. 26, page, 79; ch. 46, page, 253. Lowry vs. Bourdieu, Dougl. 471, (455.) Lammott vs. Bowly, 6 Harr. 8f Johns. 520. On the fifth point. Portage vs. Cole, 1 Saund. 320 (note 4.) Furnival vs. Crew, 9 Mod. 455, 459. On the sixth point, Cutter vs. Powell, 6 T. R. 320. Cook vs. Jennings, 7 T.R. 381. On the tenth point, East India- Company vs. Hensley, I Esp. Rep. 111. Fenn vs. Harrison, 3 T. R. 757. G-tbson vs. Colt, 7 Johns. Rep. 393. Prince vs. Clark, 8 Serg. fy Low, 54. Esp. Etid. 64. 1 Com. on Cont. 237. 2 Liv. on Agency, 298. R. B. Magruder on the same side. On the first point he cited Path, on Mar. Cont. 13, 14, 32, 135. Mbott on Ship- ping, 1 37, (1 1 9) 557. 3 Stark. Evid. 998, 1036. On the third point, Macbeath vs. Haldimand, 1 T. 72.180, 182 Ferris vs. Walsh, 5 Harr. fy Johns. 308. On the fourth point, Key's Exr. vs. Parnham, 6 Harr. fy Johns. 418. Davis vs. Davis, et al 7, Harr. fy Johns. 36. 44 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donnell. Donncll rs. Pawson's Adm'rs. 1829. On the seventh point, Abbott \ 83. Montgomery vs. IWutrton, 2 Peters' Mm. Rep. 401. 1 Com. on Cont. 221, 222, 225, 230, 235. Robinson vs. Ilimlman, 3 Esp. Rep. 235. On the eighth point, Abbott 482. On the ninth point, Pothicr 1 35. On the ekventh point, Jlbbott 119, 1 Com. on Cont. 221, 222. Campbell vs. Thompson, 2 Serg. fy Low, 481, (1 Stark. Rep. 490.) Locte s. Smi* A, 10 /o/ins. #ep. 250. The act of 1785, ch. 46 and 47. Clarke vs. Magruder, 2 Hair, fy Johns. 77. iMcFadon vs. Baltimore Insurance Company, 4 Harr. fy Johns. 45. Williams, (District Attorney of the U. S.) in reply to the ar- gument of the counsel of Donnell, on the bills of exceptions ta- ken by him, and which constitute the subject of the second ap- peal, on ibe first bill of exceptions, he cited 3 Stark. Evid. 1038. 2 Stark. Evid. 453, 454, 447, 452. Birch vs. Depeyster, 2 Serg. fy Low. 359. (1 Stark. Rep. 210.) Senior vs. Armitage, 3 Serg. Sf Low, 71. Cutter vs. Powell, 6 T. R. 320. Zagary vs. Fur- nell, 2 Camb. 240. Renner vs. Bank of Columbia, 9 Wheat. 582. Jackson vs. The Union Bank of Maryland, 6 Harr. fy Johnson, 146. Bank of Columbia vs. Magnifier's Jldmx. Ibid. 172, 180. Phill. on Ins. 18. Park, 589, 630. Marsh. 226, 259, 270, 365, 375, 707. Troll vs. Wood, 1. Gall. Rep. 444. Winter vs. Brockwell, 8 East. 308. On the eighth bill of exceptions, Peafce's Evid. (JVorns's Ed.} 416. Winchester vs. Hackky, 2 Crunch 342. 2 Stark. Evid, 642, 643. Farmsworthvs. Garrard, I Campb. 38. On the third bill of exceptions, 1 vol. Laws of U. S. 272. On the fourth bill of exceptions, Etting vs. Bank of United States, 11 Wheat. 75. 1 Liv. en Agency, 69 to 180. 2 Liv. on Agency 214, 215. Kendrickvs. Delafald, 2 Cain's Rep. 67, 72. The United Insurance Company vs. Scott and Seaman, 1 Johns. Rep. Ill, 115. Jlbbott 270. Thorne vs. White, I Peters. Mm. Rep. 176 (note.) Rice vs. The Polly and Kitty, 2 Peters Mm. Rep. 420. OF MARYLAND. 45 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. On the fifth bill of exceptions, Cutter vs. Powell, 6 T. R. 320. Abbott, 427. Hart vs. The ship Littlejohn, 1 Peters Adm. Rep. 115, 118, 119, 121. Pothier 116, 117, 118. Pordage vs. Cole, 1 Saund. 320 (note 4.) Campbell vs. Jones., 6 T. R. 570. 2 Stark. Evid. 642. 1 Pow. on Cont. 267. On the second bill of exceptions, Laidlaw vs. Organ, 2 Wheat. 178, 183, 195. Etting vs. Bank of United States, 1.1 Wheat. 75. 1 Liv. on Jig. 71. M'lntyre vs. Bowne, 1 Johns. Rep. 238, 259. Lammott vs. Bowly, 6 Harr. # Jo/ins. 522, 524. On the ninth bill of exceptions, Lammott vs. Bowly, 6 Harr. fy Johns. 522, 524, 1 Stark. Evid. 399. Etting vs. Bank of United States, 11 Wheat. 76. On the sixth bill of exceptions, Etting vs. Bank of United States, 1 1 Wheat. 75, Abbott, 489, 434. Val. Com. tit. 4 art. 3, 2 Bro. C. 8f A. L. 533. Pothier 120, 126. Nap. Code, art. 250. Morrison vs. Galloway, 2 Harr. fy Johns. 461 to 468. Sigard vs. Roberts, 3 Esp. .Rep. 71. Knight vs. Crockford, 1 Esp. Rep. 192, 193. Campbell vs. Jones, 6 T. 12. 570. Hoyt vs. Wildfire, 3 Johns. Rep. 518. Sullivan vs. Morgan, 11 Johns. Rep. 66. The causes were then postponed, and by agreement, written arguments of the counsel were to be submitted to the court ; and the following were accordingly submitted. Taney, (Attorney General) for Pawscni's administrators. In the case now under discussion, (the one in which Donnell is appellant,) it will be found that there are three subjects in con- troversy between the parties. 1. Is Donnell entitled to charge freight on the goods of Pawson, shipped " on his own account" from London to Co- quimbo ? 2. Are Pawson's administrators entitled to recover any part of the f 2000, mentioned in DonnelVs letter of November 1 8, 1819? And if they are entitled to recover a part, what pro- portion are they entitled to recover, and by what rule is that proportion to be ascertained ? 46 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Admr's. 1829. 3. Are the administrators of Pawson entitled to recover com- pensation for the privilege of twenty-live tons, from Canton to Baltimore, stipulated in DonneWs letter of November 18, 1819, and of which Pawson was deprived by the act of Donnell, in changing the voyage originally contemplated ? The defendant below has brought up nine exceptions, and each of them will be found to relate to one of the items above- mentioned, and to involve some of the questions [there stated. Instead, therefore, of taking up the exceptions, in the order in which they are set forth in the record, they will be classed and considered in this discussion, according to the above arrange- ment. First point. Is Donnell entitled to charge freight on the goods and merchandize shipped by Pawson, on his own account, from London to Coquimbo. This question is presented by the prayer of the defendant, and the opinion of the court in the 1st exception. The same principle is again decided in the 2d exception. The whole course and objects of the voyage contemplated, when the vessel sailed from Baltimore, are detailed in the let- ter of Donnell, of November 18, 181 9, and the alterations after- ward smade, will be found in his letter of December 26, 1819. According to both letters, the ship was to proceed in ballast from London to Chili. The amount of goods shipped by Paw- ton, and his motives for this shipment, will be found in his let- ter. "In consequence," says Pawson, "of the scarcity of doubloons, I have thought it adviseable to invest my own funds in merchandize, in hope that it may do as well, and because I would not interfere in any manner with your business." See also his letter of April 27, 1826. It is admitted, that the contract between Donnell and Paw- ton was in writing, but the whole of the written contract is not before the court. It was contained in part in the shipping arti- cles, and in part in the letters of Donnell before referred to. In the admissions, the monthly pay of Pawson as stipulated in the shipping articles, is stated : but what else is contained in that paper does not appear. It belonged to the ship, and on her re- OF MARYLAND. 47 Pawson's Adm'rs vs. Donnell. Donnell us. Pawson's Adm'rs. 1829. turn to Baltimore, must, with the other papers of the vessel, have fallen into the hands of Donnell. It is not suggested in the record, that this document has been lost or mislaid. Why it was kept hack, is not explained, nor is it necessary now to inquire. But while Donnell withholds the paper, and gives no proof of its contents, he cannot he allowed to say that the usage relied on hy the plaintiffs, is contrary to, or inconsistent with other provisions contained in the agreement. So far as the contents of the writings are before the court, they are silent as to the privilege claimed under the usage, and certainly contain no stipulation in opposition to it, or inconsistent with it. They do not say that Captain Pawson may, or that he maj not ship goods on his own account from London to Coquimbo. And if goods should be shipped by him, they do not say whether he shall, or shall not pay freight. The contract, as we are allowed to see it, is silent on this subject. The writing being silent in relation to the right in question, the first enquiry is, can the known and established usage of trade, annex to this contract as incident to it, a right in the cap- tain to ship the goods herein before mentioned, free from freight? This inquiry involves two questions. First, can the known and established usage of trade give to either of these parties a right, not stipulated in the writing ? Secondly, if usage may give such a right, is the usage in question a reasonable usage, or is it unreasonable, and therefore illegal and void? Upon the first of these questions the appellees insist, that in a commercial contract, custom and usage may superadd a right to either of the parties, concerning which the written contract between them is silent. This principal of law is a familiar one, and the authorities to maintain it numerous and undisputed. The court are referred to a few of them, where the principle is clearly and distinctly set forth. 3 Stark. Ev. 1038. Bank of Columbia vs. Magruder, 6 Harr. Sf Johns. 180. Renner vs. Bank of Columbia, 9 Wheat. 581. The rule, and the reason of the rule, is so well stated in Stark. Ev. 1038, that the passage is transcribed for the court "In many instances extrinsic evidence of custom and usage is 48 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Adm'rs. 1829. admissible for the purpose of annexing incidents to the terms of a written instrument concerning which the instrument is silent. The principle upon which such evidence is admissible, seems to be a reasonable presumption that the parties did not express the whole of their intention, but meant to be guided by custom as to such particulars as are generally known to be annexed by custom and usage to similar dealings. It is evident that in com- mercial affairs, and all the other usual and common transactions of life, it would be attended with great inconvenience that the well-known ordinary practice and usage on the subject should not be tacitly annexed, by virtue of such a presumption, to the terms of a contract, and that the parties should either be de- prived of the certainty and advantage, to be derived from the known course of dealing, or be placed under the necessity of laboriously specifying in their contracts by what particular usages they meant to be bound." Indeed even in the case of a sealed instrument, in which parol evidence is much more reluctantly admitted, than in the cases of commercial contracts, usage may be given in evidence to superadd a right not granted by the terms of the deed itself, and about which the deed is silent. Wiglcsworth vs. Dallison, Doug. 196, 197. This case was that of a lease by deed; and usage was received in evidence, and permitted to engraft on it an additional right to the tenant, not mentioned in the deed. It was a right which by the force of usage grew out of the re- lation of landlord and tenant, and was a consequence of that relation which the deed had created. So here usage may en- graft on the contract an additional right to the captain not men- tioned in the written instruments, but which by the force of usage grows out of the relation of owner and captain, and is a consequence of that relation. In the language in 3 Stark. Ev. 1038, before quoted, it is annexed as an incident to the terms of the contract. The same principle is recognized in Senior vs. Jlrmitage, 3 Serg. fy Low, 71, 72, where Baron Thompson says, "that as to the special agreement in order to control the custom, it must be of such a nature, that it operated upon and prevented in OP MARYLAND. 49 Pawson's Adtn'rs vs. Donnell. Donneil vs. Pawson'a Adm'rs. 1829. express terms the custom from attaching." But it is said on be- haJf of the appellant, (and much stress seems to be laid on the circumstance,) that the written contract in this case is " express," and is " plainly and unambiguously" set out. And it is insisted, that evidence of usage is admissible in those cases only, where the written contract is ambiguous and doubtful in its terms. It would be a sufficient answer to this argument to say, that it cannot be predicated of this contract, that it is plainly and un- ambiguously set out in the writing. It has been already re- marked, that the whole written contract is not before the * court; that the shipping articles, a very material, and in this point, the most material part of the contract are not produced. They must be presumed to be in the possession of Donnell, and surely while he withholds the writing itself, he can hardly be permitted to rely on the clearness and perspicuity of its lan- guage, in order to bar the claim of the plaintiffs. It is suggest- ed indeed in the argument, that the shipping articles were in the usual printed form, and Mb. on Ship. 557, has been refer- red to by the counsel for the appellant, to prove that the lan- guage of the usual printed form of shipping articles is express, plain and unambiguous. It need only be answered, that there is no proof to support the suggestion. The shipping articles may have been in the usual printed form; but there is no proof of it. No argument, therefore, can be founded on the assump- tion of that fact. But let us waive this objection to the argu- ment of the appellants and concede, argumenti gratia, that the shipping articles were in the usual printed form. The language then is plain and unambiguous : the instrument is silent as to the privilege in question. More than this, the appellant can hardly demand in behalf of the written contract. It is denied that the power of usage to annex a new incident to a contract, and to give a right not mentioned in the contract to one of the parties, is in any degree dependent on the perspicuity, or on the ambi- guity of the language used in the writing. It depends on the silence of the written contract, in relation to the incidental right claimed. The writing may be express, plain and unam- biguous, in all the stipulations contained in it, and yet an addi- VOL. I 7. 60 CASES IN THE COURT OF APPEALS Pawsoii's Adm'rs vs. Donncll. Donnell vs. Pawsou's Adm'rs. 1829. tional right may be superadded by the force of usage, concern- ing which the contract is silent. In the case of WiggfawBttk vs. Dallison, in Doug. 196, 197, the deed was plain and unambiguous in all of its provisions, yet usage superadded an additional right to the tenant, beyond those granted by the deed. And the same principle is also clearly set forth in 3 Stark. Ev. 1038; and 3 Scrg. # Lowb. 71, 72, before referred to, and made to depend on tla sikncc of s. Donnell. Donnell vs. Pawson's Adm'rs 1829. But putting aside any supposed understanding between the parties, we come to the question of law proposed to be raised on this exception. And we maintain, that inasmuch as Paicson was ready and willing to have performed the service originally agreed on, and was prevented from doing so by the orders of Donnelly he is entitled to recover from Donnell the whole com- pensation originally contracted to be given. This principle, how- ever, is involved in the questions relating to the Canton privilege. Third Point. Are the administrators of Pawson entitled to recover compensation for the privilege of twenty-five tons, from Canton to Baltimore, stipulated in DonneWs letter of November 18, 1819, and of which Pawson was deprived by the act of Donnell, in changing the voyage originally contemplated ? The only remaining subject of controversy between the par- ties is the privilege of twenty-five tons from Canton to Balti- more, stipulated in DonnelPs letter of November 18, 1819. The questions on this part of the dispute arise out of the 2d, 6th and 9th exceptions. The points presented by the other exceptions have been already disposed of. In the second exception, as in some of the others hereinbefore examined, it will be found that the appellant called on the court to decide a question which properly belonged to the jury ; and that the court were on that account right in refusing the prayer, if it had even been open to no other objection. In this exception, the appellant in his prayer in the first place assumes as a fact, that the voyage Kad been " altered by the direction of the defendant and the cpnsent of Captain Paicson," and prays the court to instruct the jury that "the privilege stip- ulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bringing home his funds in copper from Coquimbo." Now there is no paper by which Pawson is supposed to have relinquished his privilege to Canton, and exchanged it for a privilege to bring copper from Coquimbo. There is no paper the words of which are supposed to imply such relinquishment 78 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Dunncll. Donnell vs. Pawson's Adra'rs. 1829. or exchange. The relinquishment and exchange is inferred in the argument, from the correspondence and the acts of the parlies. If he has relinquished and exchanged in the manner supposed, he has not done it in writing. It is not contended that it is done in any one of the letters or papers contained in the record. And if it is supposed to be a parol relinquishment and exchange, to be inferred from the whole correspondence and the acts of the parties taken together, then surely the question, whether there was such a parol relinquishment and exchange, must be for the jury and not for the court. Laidlaw vs. Organ, 2 Wlieat. 183. Ettingvs. Bank of tJie United Slates, 11 Wheat. 75. Both of these cases are believed to be fully in point, and to show that the court were right in refusing the prayer made by the appellant. The two cases, relied upon by the appellant to prove that this is a question for the court, will be found to be distinguish- able from the case before the court, and the cases in Wheaton. In Macheath vs. Haldimand, I T. R. 172, 180, the question was, whether the party who purchased for the government had made himself personally answerable. And this depended on the words of his written contracts; that is, on his letters, orders, &c. It was a question upon the interpretation of the written words, and therefore belonged to the court. In Ferris vs. Walsh, 5 Harr. fy Johns. 308, it was also a question upon the construction of the written instruments taken together : did the written words amount to a guaranty ? Was such the true meaning and construction of the words in the in- struments of writing? These questions without doubt be. longed to the court, whose office it is to expound written in- struments. But the question here is a different one. It is not a question, what is the true meaning and construction of any or all of the letters. It is an attempt to infer from the correspondence a waiver and exchange, which the words of the letters do not imply. It is an attempt to infer another fact from the facts proved. The case of Etting vs. Bank of the United States, 1 1 Wheat. 75, is precisely like it OF MARYLAND. Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. If indeed Pawson had voluntarily relinquished the Canton privilege, or exchanged it for one from Coquimbo, nobody would contend that he was entitled to damages for the loss of a privilege which he had thus voluntarily released, or had ex- changed for another. But we insist that he neither relinquished nor exchanged it. The appellant replies to us, that the voyage was altered by the consent of Pawson, and that by such con- sent did he relinquish the privilege from Canton, and exchange it for one from Coquimbo. To this we answer, 1st, that whether Pawson did or did not consent to the alteration is surely a matter of fact, and not a matter of law, and the court cannot assume the fact. He might have written and acted in the manner he did write and act, because he supposed he was bound to obey the owner and had no right to refuse. And he was undoubtedly bound to obey; and his obedience to the orders of Donnell cannot therefore be evidence of a waiver of his rights. At all events, his obedience is not conclusive evi- dence of such waiver, as is assumed by the appellant in this prayer. In the second place, if the consent of Pawson was admitted, it does not follow as a conclusion of law, that by such consent he relinquished the privilege from Canton, and exchanged it for a privilege from Coquimbo. The jury might indeed infer such relinquishment and exchange, from the fact of consent, but it would be an inference of fact and not of law. It would be a matter for the jury to decide, and not for the court. For the consent to the alteration might be given, reserv- ing the right to demand compensation/on account of the Canton privilege. The consent, and the right to compensation for the privilege might exist together. They are not inconsistent with one another. The relinquishment and exchange of the Canton privilege could not therefore be the legal consequence of Paw- son's consent to alter the voyage. And upon either of the grounds above mentioned the court were right in refusing the prayer contained in this exception. After refusing the prayer made by the appellant, the court proceeded to instruct the jury in the manner bet forth in the 80 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Adra'rs. 1829. same exception. The propriety of that instruction remains -to be examined. In this direction the court leave it to the jury to say, whether Paicson did or did not waive the benefit of the privilege from Canton. We have already endeavoured to show that the ques- tion, whether he did or did not waive it was a question of fact for the jury, and not a question of law for the court It is un- necessary to repeat the arguments already offered on this head. We think we may safely conclude that the appellant was wrong in treating it as a matter of law, and the court right in dealing with it as a matter of fact. But the court have gone further in their direction, and they say that if Paicson did waive the privilege from Canton, yet unless he did so with a knowledge of his legal rights, he is still entitled to recover an equivalent for the privilege lost. It is said by the appellant that no one can avail himself of the plea of ignorance of the law, and that if Pawson waived his privi- lege he is bound by it, and cannot allege that he did it under a mistake as to the law. The case of Lammot vs. Bowly, 6 Harr. fy Johns. 500, is a complete answer to this objection, and so fully sustains the opinion of the court that it supersedes all ar- gument, and saves us the necessity of producing and examining the mass of authorities on this subject. In that case, the court lay down the rule in the following words: " It is not intended to say that the plea of ignorantia juris would in all instances be available in civil cases, (in criminal it never can be,) because some legal propositions are so plain and familiar even to ordina- ry minds, that it would be doing violence to probability to impute ignorance in such cases ; but it is only meant to say, that where the legal principle is confessedly doubtful, and one about which ignorance may well be supposed to exist, a person acting under a misapprehension of the law, in such a case, shall not forfeit any of his legal rights by reason of such mistake." The 9th exception is immediately connected with this sub- ject, and the proposition contained in it appears to have been brought before the court, in consequence of the opinion set forth in the 3d exception. OF MARYLAND. 8l Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. In the prayer in the 9th exception, the court are called upon to assume that Pawson " consented to the change of the original voyage" and "waived his privilege from Canton." Now it was not admitted, as we have already shewn, that Pawson consent- ed to the change of the original voyage ; and it was not admit* ted that he waived his privilege from Canton. Both of these matters were matters of fact, and both of them were in contra* versy between the parties. And the court were right in refus* ing the prayer upon this ground, even if there had been no other objection to it, But if these questions of fact had, by the prayer, been left to the jury, still there would have been no error in this opinion of the court, and it was properly left to the jury to say whether, if Pawson had consented to the change of the voyage, and had waived his privilege to Canton, he had done so in ignorance of his legal rights. For the privilege from Canton is proved to have been a much more valuable one, than the privilege from Coquimbo. Pawson was a sea captain, toiling in his profession, Donnell is proved by the record to have been a merchant of great wealth. And it can hardly be imagined, that Pawson would have exchanged the privilege from Canton for one of in- ferior value, unless he was induced to do it by the ignorance of his legal rights. No other motive is assigned by the appellant, and it will scarcely be said that a man, trusted by Donnell with the execution of this great scheme of commercial adventure, could be ignorant of the relative value of the privilege from Canton, compared with a like one /from Coauimbo. It is not necessary however for us to show, fhat there was sufficient evi- dence to prove his ignorance of the law. It is enough for us, that there was evidence tending to prove it. "Where there is any legal admissible evidence tending to prove the issue, the effect of that evidence is solely for the consideration, of the jury." 1 Stark. Ev. 399, 400. In the case of Etting vs. Bank of the United States, 11 Wheat. 50, the chief justice in deliver- ing the opinion of the court says, " If the testimony be examin- ed, it will, we think, appear that the counsel for the plaintiff has not asked the court to give its opinion on any inferences of fact, which it was not at leaet possibkfor tlie jury to draw from VOL. I 11. 82 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Pawson's Adm'rs. the evidence. Tlic knowledge of the Bank is not questioned. The ignorance of Etting migiti be inferred from the absence of all testimony, proving his knowledge that any fraud had been prac- tised by Mr. /l/'Cu//o/i." It was surely possible for the jury, from the facts above referred to, and the situation of the parties, to infer that if Pawson had waived his privilege from Canton, that he had done it in ignorance of his legal rights. Indeed we might safely call on the jury to infer the ignorance of Pawson, from the absence of all evidence proving his knowledge. For the counsel for the appellant will not say that the legal rights of Pawson were plain and familiar ; if they were plain and famil- iar, there would be no difference of opinion on the subject, be- tween the County Court and the learned counsel for Donnell. Yet this difference of opinion is manifested by the 6th exception. And on a point of law, where either the County Court or the learned counsel for the appellant are in error, and that too after the most mature consideration, it would be doing violence to probability, to impute knowledge to Pawson. In such a case, his ignorance ought to be inferred, or at all events might possibly be inferred by the jury, from the absence of all proof or pro- bability of knowledge. The appellant has relied on Keys vs. Parnham, 6 Harr. $ Johns. 418, and on the case Davis vs. Davis, 7 Harr. fy Johns. 36, to shew that the court may direct the jury on the sufficien- cy or insufficiency of evidence to establish a fact. The present case does not require us to enter on a full discussion of this principle. There is no question about the sufficiency of evi- dence presented by any of the prayers in the record, and this court therefore are not called on to decide it. And besides we are very willing to leave it to the court to say, whether the evidence of Pawson's ignorance of the law is too slight and trilling to be left to the jury. The 6th exception is the only one which remains to be exam- ined. Was the privilege from Canton subject to the two contin- gencies mentioned in the prayer, and liable to be lost upon the happening of either of them ? It appears in the evidence, that by the usage of trade, if the captain died, the privilege in ques- OF MARYLAND. 83 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. tion, survived to his representatives, and did not go to the cap- tain who succeeded to the command of the vessel. There is no evidence of any contrary usage. The court could not, in opposition to such proved and undisputed usage of trade, say that " the death of Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representa- tives on account of this privilege ;" and could not therefore give the direction prayed for. It has been said in the argument, that it does not appear that the privilege from Canton belonged to Pawson as Captain, and that it might have belonged to him as supercargo. If any doubt could be raised on this subject, we do not perceive that it would materially affect the argument. But the testimony puts it beyond doubt, that the privilege in question was a captain's privilege, and not a supercargo's. And the appellant in his prayer treats it as a captain's privilege, which he supposes was contingent on the death not of supercar- go Pawson, but of Captain Pawson. Neither should the other contingency, mentioned in the prayer, have entered into the cal- culations of the jury. If the ship had pursued the voyage ori- ginally contemplated, and had been lost^ Pawson might have lost the benefit of his privilege. Yet it does not necessarily follow that he, would even in that case have entirely lost all be- nefit from it, as is assumed in the prayer. But waiving any dis- cussion on that head, we insist that as Pawson was prevented from performing the voyage by the act of Donnell, the latter takes upon himself all the contingencies, and cannot claim an abatement on account of the hazards^ to which the contemplated adventure was subject. This is the rule in the case of seamen's wages, which are always contingent on the safe arrival of the vessel. In Poth. Mar. Cont. PL 203, page 125, 126, it is said, " that if the ship is voluntarily, and of course by the master's act, unloaded in a place nearer than that which is designated in the contract of affreightment, the wages promised to a sailor hired by the voyage shall suffer no diminution." In Hoyt v?. Wildfire, 3 Johns. Rep. 518, it is said by chief justice Kent, " that the rule on this subject in the English law, does not, I ap- prehend, differ from the marine law of France, although I have 84 CASES IN THE COURT OF APPEALS Pawson's Adm'rs t>. Donnell. Donncll vs. Pawson's Admr's. 1829. not met with any adjudged case in point, and a recent nisiprius decision, Eaken vs. Thorn, 5 Esp. JV*. P. C. 6, looks strongly the other way." And in Sigard vs. Roberts, 3 Esp. JV. P. C. 71 , at the conclusion of the case, Lord Eldon says, "this clause (one in the shipping articles) therefore cannot prevent the sailors suing for their wages when the master discharges them ; the voyage tlien is ended as to the man who is discharged from the ship." The same principle is ruled by Lord Elknborough in Gondell vs. Ponteguy, 4 Campb. 375. ** If the plaintiff was discharged (says Lord EllenborougJi) without a sufficient cause, I think this action is maintainable. Having served a part of the quarter, and being willing to serve the residue, in contemplation of law he may be considered to have served the whole. " In Cook vs. Jennings, 7 T. R. 381, Lawrence, J. in deliver- ing his opinion upon an action for freight, says, "but he is not entitled to the whole freight, unless he has performed the whole voyage, except in cases where the owner of the goods pre- vents him." If then the owner of the goods prevented the ship owner from performing the voyage, the owner of the goods must pay the whole freight. There is no deduction for hazards or contingencies, which might prevent the ship from receiving freight. The case put by Justice Lawrence is in principle the very case under discussion. These cases seem to establish firmly the proposition, that when the party is to be paid by the voyage, he is entitled to full wages if he is prevented by the owner or master from ren- dering the service. And he is not bound to abate any part of the stipulated wages, on account of the hazards of the voyage. In this case the privilege from Canton was a part of the com- pensation, and was by the voyage, and not by the time of ser- vice. It is supposed by the appellant that this part of the com- pensation was liable to be lost, by the destruction of the ship on the voyage. If this be the case, it is strikingly analogous to the case of seamen's wages hired by the voyage, and to the ease of freight. OF MARYLAND. 85 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. The following cases will be found to maintain the same doc- trines. Abb. on Ship. 424, 425 (note 1.) Mahoon vs. The Glo- cester, 2 Peters Adm. Dec. 403. Rice vs. The Polly and Kitty, Ib. 423, (and note) Limland vs. Stepfiens, 3 Esp. N. Pri. Cas. 269. Valin. Com.B. 3. Tit. 4. Art. 3. 2 Br. Adm. 533. Jacobson's Sea Laws, 148. Napoleon Com. Code, Art. 250. Sullivan vs. Morgan, 1 1 John. Rep. 66. In the case last cited, the seamen were hired by the month, and no freight had been earned. Yet they received their full wages for the time they had served, according to the contract, without any deduction on account of the danger, that the ship might have been lost on the voyage before freight was earned, and consequently before wages were due. This case is the same in principle with the one at bar. In both cases if the ship had been lost in the course of the voyage, the compensa- tion contracted to be given would have been lost also. And as it was held not to 'be subject to abatement on that account, in one instance, it is difficult to imagine why it should be held differently in the other. The case of Hulle vs. Heightman, 2 East. 145, turned upon the form of action. In the case before the court the agreement in the beginning of the record removes any difficulty on that score, and permits us to recover in this action any thing that could be recovered in any other form. Besides, in the case of Hulle vs. Heightman, the time of payment stipulated in the contract had not arrived, when the suit was instituted. In that case, the sea- men by an express stipulation were bound " to assist in bringing the ship back again, and making her fast in a proper place, be- fore they could make any demand upon the captain for the wages due." And as the homeward voyage was not abandon- ed, but was in the course of execution, the time had not arrived when the wages would become due, according to the terms of the contract. They could not therefore be sued for as if due. But in this case the original voyage had been abandoned by the defendant, long before this action was brought, and the original contract at an end. The wages were as fully due, at the time 86 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Adm'rs 1829. the suit was commenced, as they would be at any future time, and in this respect also the case before the court stands clear of the diiliculty, which met the plaintiff in the case of Hullevs. JlciglUman. Indeed that case furnishes another proof of the soundness of the principle for which the appellees contend; for it is not suggested that the wages are to abate on account of the hazard, that the vessel might be lost on the homeward voyage, before she was made fast in her proper place. On the contrary, it appears to have been conceded on all hands, that if the seamen were entitled to recover any thing in that action, they were to recover according to the sum stipulated in the contract. And that no abatement was to be made on account of any contingencies to which they might have been exposed, if they had been allowed to go on the voyage originally con- tracted for. In fine, the cases taken together seem irresistibly to lead to the conclusion, that if the person to whom the service is to be rendered prevents the performance of it, he must pay as if it were done. In this case Donnell had a right to change the voyage-, he did change it; and Pawson was bound to obey, and he did obey. Donnell, therefore, prevented Pawson from per- forming the service, and must pay as if it had been performed. The party who is not in fault is not bound to give up any part of the compensation, contracted to be given. It belongs to him by the agreement, and the law will not enable the other party to deprive him of it without his consent. Wirt, for Donnell. The first subject to which the attention of the court is invited, is the claim for the alleged loss of the privilege from Canton, which is the subject of the 2d, 6th and 9th bills of exceptions, on the part of the appellant. This is one of those tilings which it was not supposed possible for human ingenuity to be- wilder with a moment's doubt, until the defendants' second prayer waS refused, and the instruction was given which pro- duced the appellant's 6th and 9th prayers. Graham, the ad- ministrator of Pawson, is obviously a man of business, as ap- OF MARYLAND. 87 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adtn'rs. 1829. pears by the record, and it had not entered into his imagination to make this claim. His letter to Donnell will be found in the record, and his account stated. By his letter it will be seen that he manifestly considered the privilege from Coquimbo as substi- tuted for that originally stipulated from Canton orBatavia; and he claimed nothing more for Paicson than the right to bring the same weight, 25,000 Ibs. from Coquimbo, which he was origi- nally authorised to have brought from Canton or Batavia. " You will observe," says he, in that letter, " that Captain Paw- son's privilege in the ship was not taken by several thousand pounds weight; of course, you will allow for the deficiency as you have done before." It is not the value of the Canton privi- lege in Canton goods, which he proposes to estimate and claim ; but simply the weight which he considered Pawson authorised to bring from Coquimbo, and which, not having been wholly brought, he claims an allowance for the deficiency. Turn to his account on the next page, and you will perceive that there is entered at the foot of the account, in the left hand column, Gra- ham's estimate of this deficiency, to wit, f 255 52, under the de- scription of " loss of privilege," and this thrown in among several articles, by way of make-weight, after the account had been for- mally signed and closed, and consequently not presented as ar- ticles on which he meant peremptorily to insist. Besides, if Graham, with his knowledge of commercial usage, had consi- dered the Canton privilege as a subsisting privilege, he would have charged that privilege at its full value, and we should find on the other side a credit for the freight of Pawson's copper and other goods from Coquimbo. Thaf freight was the inevitable consequence of treating the Canton privilege as a subsisting claim ; for Captain Pawson surely could not have two privileges subsisting in the same ship at the same time ; an actual privilege from Coquimbo, and an ideal one from Canton, charged at its highest speculative value. The total absence of any credit for the freight of Pawson's goods from Coquimbo, and of any charge for this Canton privilege, as a Canton privilege, by Graham, and the total absence of any charge for the freight of Pawson's goods by the Chesapeake, in DonneWs account, all go to prove 88 CASES IN THE COURT OF APPEALS Pawson's Adm'rs . Donnell. Donnell ts. Pawson's Adm'rs. 1899. that this vision of a subsisting privilege, in a non-subsisting voy- age, had never entered the heads of these practical men. It was left for the ingenuity of our learned friends, on the other side, to start this chimera, and it did not occur even to them to start it, till their imaginations had been heated and ignited by the collisions of the trial. The court will find the proof of this fact in the account ; where it will be found that, after Graham had closed and signed his account, under his signature, in the right hand column, there are three entries headed " claim, as set up in court, viz." and then assuming the balance as it had been struck by Graham, $5,552 97, they add to it for drip stones and duties saved, $48 06, and then, for the first time, this Canton privilege makes its appearance under the title of "Loss of Canton privilege, $3,050!" in lieu of the $255 52, which Graham had entered at the foot of the opposite column, on account of the deficiency of weight, merely from Coquimbo. Nor had our learned friends the grace even to throw into the op- posite scale the freight of Pawson's goods from Coquimbo; but they claim both the privilege of supposititious goods, on a sup- posititious voyage, and the privilege of actual goods on an actual voyage ; and thus, according to their statement of the account, Pawson gets the benefit of a double investment of the same capital ; that is to say, he gets the freight of an imaginary Can- ton cargo, in which his capital might have been invested if the ship had gone there ; and also the freight of the goods in which that capital was actually invested at Coquimbo: the learned counsel, seeming to suppose, that as they had a fat pigeon to pluck, it was not necessary to be at all scrupulous as to the ex- tent of the depredation. The court, however, not being dis- posed to " go the whole" length, instruct the jury, that if they allow the plaintiff the Canton privilege, they must allow the de- fendant the freight on Pamon's adventure from Coquimbo. After such a manifestation of the grasp-all disposition on their own part, it does not seem to be with the best of all possible graces that the learned counsel on the other side complains of the spiru which concocted DonneWs statement of the account. But waiving this interchange of courtesies, let us proceed from OF MARYLAND. 89 Pawson's Adm'rs vs. Donnell. Donneil vs. Pawson's Adm'rs. 1829. this view of the origin of this Canton claim, to the consideration of its nature. It is proper to observe, in the first place, that this is not an in- sulated contract for an insulated voyage. This is not Pawson's first and only connexion with Donnell. It appears by Graham's letter, that he had been previously in his employment, for in re- fusing to admit the freight for the cordage, he reasons upon DonneWs own construction of the captain's privilege in a pre- vious voyage which had been performed for him by Pawson in 1816. It is the case, then, of a sea captain, looking to a per- manent and profitable connexion, in the line of his business, with an opulent and enterprising merchant. This fact should be borne in mind. It is essential to the successful pursuit of commerce, that the merchant should have the uncontrolled privilege of planning and altering his enterprizes at pleasure. In all his operations he is governed by the intelligence which he is continually receiving, of the state of the markets abroad ; and as these markets are always fluctuating, it is an every day's occurrence to see a com- plex voyage, which had contemplated several ports, varied and remodified in the course of its progress, at the pleasure of the merchant for whose benefit it is made. Those who enter a mer- chant's employment, enter it with full knowledge of his sove- reign power over the destination of his ship. The captain knows that he is bound to obey the owner's instructions, with- out asking for a reason. He knows, that with regard to his owner "sic voJo, sic jw&eo, stet pro vatione voluntas" is reason enough, and that he the captain has nothing to do bdt to obey. With regard to any little adventure which the captain is per- mitted to have on board, and to carry, free of freight, it is a mere dependant on the great enterprizes of the merchant. The overruling object of the voyage is the profit of the owner. The captain avails himself of the owner's experience, skill and knowledge, in seeking the most profitable ports, to make his own small investments at the same ports. He knows very well that the voyage is not made on his account, but on the sole ac- count of his owner. He is not the charterer of the ship. His VOL. 112. 90 CASES IN THE COURT OF APPEALS Pawson'9 Adm'rs vs. Donnell. Donncll vs. Pawson's Adm'rs 1829. instructions are not charter parties and contracts of affreiglitment, in which light they seem to be erroneously viewed on the other side. The privilege accorded to him is a mere dependant pri- vilege following the fortunes of the larger adventure as obse- quiously as the cock-boat follows the ship to which she is lash- ed, and to which she belongs; and the cock-boat might just as rationally complain that the ship had changed her course, as the captain complain that the owner had changed the destination of the voyage ; because the captain enters the service with full knowledge that this power of change is perfectly arbitrary on the part of the owner. With regard to his own small venture, he knows that it will be generally true, that what is most profitable for his owner will be most profitable for himself; that if, for ex- ample, the market of Baltimore was already glutted with Can- ton goods, so that his owner had no longer a hope of a profit on Canton goods at that market, neither could he hope for a profit on the same kind of goods in the same market; and even when it is otherwise, and the captain would prefer for his own inter- est, that the original destination had not been changed, he knows that he is to find his indemnity for any petty temporary loss, in the permanency of his connexion with a rich and bold and skilful adventurer, whose prosperity had already shewn how well he could play at the game of commerce; and that if he should lose to-day by the change of a voyage, he would gain a hundred fold in the long run by the permanency of the con- nexion. The captain's object is to be permitted to wield his little capital at the ports which he visits for his owner, and to carry his goods free of freight in the owner's ship. There is no stipulation on the part of the owner, that his ship shall visit such and such ports. If there were such a stipulation, Pawson, if he had lived, might have maintained an action for damages against Donnell for not having sent the ship to Canton. But this, surely, cannot be pretended. Nay, it is conceded that Donnell had the right to change the destination of the ship at pleasure: and this concession is utterly inconsistent with the idea of a stipulation with Paicson, that the ship should go to Canton; for if there were such a stipulation, Donnell had no OF MARYLAND. 91 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. right to violate it, no man having a right to violate the rights of another. Now, if the original plan of the voyage by Canton did not amount to a stipulation that the ship should go to that port, and consequently gave Paicson no right to sue for dama- ges, the opinion of the court below is wrong, for this is the very thing which they permit Paicson virtually to do ; for they per- mit him to claim damages for the loss of the Canton privilege on the ground of his title to it by stipulation. They allow him to prove what such a privilege from Canton would have been worth in that year, and to recover the amount so proved in the form of damages ; an opinion which cannot possibly be right, ex- cept on the postulate that Donnell had no right to alter the ori- ginal voyage by reason of this stipulated privilege with the captain. But it is conceded that the owner has the sovereign right to change the voyage at pleasure and if he has a right to do so, he surely cannot be made to answer for it as wrong. On our side, we admit that the captain is entitled to his pri- vilege by force of the stipulation ; that is, he is entitled by the stipulation to bring home twenty-five tons by admeasurement, or 25,000 Ibs. by weight, of goods, in DonnelVs ship, free of freight. This is the substance and the whole effect of the stip- ulation according to the law and usage of merchants. The error of the opposite opinion arises from considering Donnell as under a stipulation to send the ship to Canton, or to answer the captain in damages if he fails to do so. But such a construction would lay a burthen upon commerce, which would not only em- barrass it in the extreme, but destroy it altogether. A mer- chant could never change the original plan of his voyage, with- out meeting an action for damages by the master, at every step ; and if the voyage be a trading voyage, consisting of many parts, it is easy to perceive that the owner is altogether at the mercy of his captain, and the direction of the voyage taken out of the owner's hands and placed in those of his servant; a perversion of all commercial ideas so monstrous, that the opinion which leads to it cannot be right. That the owner has a right to change the course of the voyage at pleasure, is one of the first axioms in commercial operations, and it has been necessarily J8 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Fawson's Adm'rs. 1829. conceded on the other side. The inevitable consequence of which is, that the privilege of the captain is ambulatory and contingent, as to tlie port from which it shall he taken. It de- pends upon the owner's pleasure, and is known on all hands to depend on his pleasure in directing the movements of the ship. The substance of the stipulation is, that the captain shall carry so much free of freight ; but from what port he shall carry it de- pends on the ultimate pleasure of the owner, and grows necessa- rily out of his sovereign control over the voyage. Hence, when an owner in the outset, plans a complicated voyage, consisting of many parts, and gives the captain a privilege e. g. of twenty- five tons from the last named foreign port, it is always taken as subject to the condition that the plan of the voyage shall not be changed by the owner, or that if it shall be changed, the cap- tain shall have his equivalent in the same number of tons from whatever port shall, under such change of voyage, become the port of departure for the home port. Such, it is manifest, was the understanding of Donnell, of Pawson and of Graham, and it may be with confidence averred, that such is the understand- ing of all commercial men. It cannot be otherwise without placing commerce under a load of embarrassments, which would long since have crushed and destroyed it If this view of the subject be sound, as it is confidently be- lieved to be, the consent of Pawson to the change of the voy- age, is wholly immaterial. The privilege, as a privikge from Canton, fell, when the owner, in the just exercise of his author- ity, struck out that port from the plan of the voyage. Being, from its nature, dependant entirely on the condition of the ship's going to that port, there was an end to it as soon as the owner determined that the ship should not go to that port ; and, howe- ver the question was put to the court, the court erred in the pos- itive instruction which they gave to the jury, that this claim depended on the question, whether Pawson had, with a full knowledge of his legal rights, waived this privilege, and con- sented to the change of the voyage. They were wrong in treating as a reality and a substance what had never been more than a mere shadow, and which had ceased to be even a OF MARYLAND. 93 Pawson's Adm'rsrs. Donnell. Donnell vs. Pawson's Adm'rs 1829. shadow after the change of the voyage on which it depended, and they were wrong in making the extermination of that voy- age to depend, in any degree, on Pawsori's consent, because its extermination was an act within the sole and perfect competen- cy of the owner alone, and entirely independent of Pawson's consent, or refusal. But suppose, for the sake of the argument, Pawson's consent to the change of the voyage to have been necessary to put an end to this privilege from Canton; it is respectfully submitted, that that consent is as expressly given as consent in such a case can be given. Not only is it in proof, and that in writing, that he cheerfully acceded to the proposed change of the voyage, but that he recognized the transfer of his privilege from Canton to Coquimbo, and proposed to send home the pro- ceeds of his little capital from Coquimbo, not on the footing of freight, but on the footing of his privilege. Donnell, in his letter of 26 Dec. 1819 to Pawson, after stat- ing that mature reflection had satisfied him that a Canton cargo could not be realized in Baltimore, proceeds thus " I there- fore revoke and countermand the orders 1 gave you to proceed from Chili to Canton, and now substitute, that you will return with the ship and cargo of copper direct from the coast of Chili to Baltimore" He then proceeds immediately to the subject of the captain's privilege, in these words " As relates to the disposal and investment of your own funds, you must use your own discretion by investing it in copper, or any thing else, and bringing it with you in the ship the copper may, (as I hope it will,) be bought on terms that will, ^ith my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from thence to Samarang, in the island of Java, and there invest my funds, and your own, in coffee, (no other article of the produce of the island will answer,) and proceed from thence direct to Baltimore. The government of Batavia may object to your loading at Samarang, being an out port, but you must use every means in your power to obtain from the government a permis- 94 r \SES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Doniwll. Donncll t's. Pawson's Adm'rs. 1829. sion, as you will be able to put on board coffee at Samarang, two or three dollars per picol less than at Batavia" As explanatory of this letter, it is proper to call the court's attention to the description of the captain's privilege, as it stood in the voyage first planned. It will be found at the close of DonneWs letter of the 18th of November, 1819, and is in these words: "To prevent misunderstanding I deem it necessary to state your compensation to be two thousand dollars, payable on your return, with a privilege from Canton not to exceed twen- ty-five tons, but it is understood that you are not to put any cop- per or heavy article on board at Chili, as my views are that you completely load her there with copper, and that only for my account." In his postscript to this letter of the 1 8th Nov. 1819, Donnell anticipates the possibility of being disappointed in procuring copper at Chili, and in that event gives a similar direction with that in the letter of the 26th Dec. as to proceed- ing to Batavia for a cargo of coffee, and thence direct to Balti- more; so that in the original plan of the voyage, Canton was not contemplated as a port to which the ship would certainly proceed : for in the owner's views of the subject at that time it was made to depend on the contingency of being able to get a cargo of copper at Chili. And we find him shifting the cap- tain's privilege at pleasure from Canton to Batavia, and from Canton goods to Java coffee, at pleasure, in the full exercise of his clearly understood rights as owner. So in his letter of the 26th Dec. when he had determined that the ship should not visit Canton, he provides for the captain's privilege by taking off the interdict as to his putting copper, or other heavy articles on board at Chili; and authorises him to bring home his funds in copper, or any thing else he pleases; or if by failing to get a cargo of copper at Chili, he finds it necessary to go to Java, to bring home his funds in coffee. It is hence very manifest what DonneWs understanding of his rights as owner were. What says Pawson to this change of voyage ? In his letter of Feb. 7, 1820, from London, he says " I have had the pleasure to receive your letter of the 26th Dec. in which you are pleas- ed to alter the original intention of the voyage, which will be OF MARYLAND, Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adtn'rs. 1829. cheerfully and strictly attended to, and if on my arrival I shall find it necessary to proceed to the island of Java, no ex- ertions shall be wanting to have your wishes fulfilled in getting the cargo of coffee only at Samarang." Again, to shew Pan- son's distinct understanding that his original privilege from Canton or Batavia was now transferred to Coquimbo, he says in his letter from that place of Sept. 4, 1820, " as I may possi- bly not have another opportunity, direct to the United States shortly, I would thank you when you make insurance on the ship and cargo, also to insure for my account the same sum which you did me the favour to insure from London here. I think it probable it will be shipped in silver bullion and cop- per." And again, still more explicitly, in his letter of 4th Nov. 1 820, from Coquimbo, he says, " In my former letters I re- quested you to insure for my account the sum of $5,000. I now have to request you will insure $1,000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds in silver." If this be not a consent, a free, voluntary, cheerful consent, to take his privikge from Coquimbo in lieu of that from Canton or Batavia according to the original voyage, language has lost its meaning, and discussion is idle and delusive. It is insisted, on the other side, that this was not a question for the court, but a question for the jury. Why ? Because it is said it is a question which did not depend on letters alone, but was to be inferred from the whole correspondence, and the acts of the parties taken together, and so is exactly like the cases of Laidlow vs. Organ, 2 Wheaton, ^83, and Etting vs. Bank of the United States, 11 Wheaton, 75.' But it is not so; for it is a question arising upon the letters alone. We do not rely upon a single, act of either the parties to aid our construction of the letters. We say, that upon the face of the letters alone there ig a clear and cheerful consent on the part, of Pauson to the change of the voyage, and the substitution of the privilege from Co- quimbo, in lieu of that contemplated in the original voyage. How are these letters to be construed ? Not by the technical rigour which is applied to special pleading, or to the old com- 96 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Adm're. 1829. mon law conveyances. They are letters written by commer- cial men, in a course of business, and are to be construed with the freedom and candour which are always applied to such a correspondence, and so construed there cannot be a rational doubt that Petit-son freely and cheerfully adopted the substitu- ted voyage and privilege. The court's attention is particularly invited to the declaration in his last letter, that if he should find the ship too heavy laden with DonneWs copper, he would cur- tail his privilege in that article, and bring home his funds in sil- ver. His privilege in what article ? in copper. From where ? from Coquimbo. Did he mean that he would curtail his privil- ege from Canton in copper ? Did he even propose to bring home copper from Canton? Once more, did Pmcson expect to pay freight for the copper which he was about to bring home from Coquimbo? For the court have said, and justly said, that if he meant to rely on his privilege from Canton, he was bound to pay freight on his goods from Coquimbo? Did he ex- pect that he was to pay such freight when he himself express- ly declares that he was going to bring it home in part of his privilege, and the rest of his funds, if necessary, in silver. It is unnecessary to pursue so palpable a proposition any fur- ther. It must be manifest to the court, that Pawson knew that Donnell had merely exercised his proper rights in changing the voyage ; that Pawson acceded to this change willingly and cheerfully, and perfectly understood that in consequence of that change, and as a necessary part of it, his privilege from Can- ton to Batavia, according to the original voyage, was now com- muted for the same privilege of twenty-five tons from Coquimbo. And as all this appears upon the letters alone, it was a question solely for the court, under the authority of J\facheath i/s. Haldi- mand, I T. R. 172, 180, and Ferries vs. Walsh, 5 Hair. $f Johns. 308. But the court below instructed the jury, that the right to set up this claim of damages for the loss of the Canton privilege, not only depended on the question, whether Pawson had agreed to waive that privilege, and accept in lieu of it the privilege from CoquimbO) but on the further question, whether he made OF MARYLAND. 97 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adni'rs. 1829. such waiver and acceptance with a knowledge of his legal rights. In this last qualification of the instruction it is conceived that there is a double error. 1. In supposing that Pawson had a right to object to the change of the voyage, or to insist on this privilege, as a subsisting privilege from Canton, after the voy- age had been changed by the authority of the owner. 2. In putting it to the jury to say, whether such waiver and accept- ance were made with a knowledge of his legal rights, when there was not an atom of testimony in the cause, to draw that knowledge into question. Every man is presumed to be conu- sant of his legal rights till the contrary appears. The evidence every where exhibits Pawson as a man of superior intelligence. All his letters and all his actions, are those of a scholar, and a man of judgment and endowments far above the great mass of those who are engaged in similar pursuits, nor is there one scintilla of proof in the whole record tending in the slightest degree to impeach his capacity. And yet it is in this case that the court, sua sponte, raise, for the consideration of the jury, the question, whether Pawson acted with a knowledge of his legal rights. The Court of Appeals, in the case of Davis vs. Davis, 7 Harr. fy Johns. 36, took the case out of the hands of the jury on the ground, that although there was some evidence in the cause, it was not such evidence as ought to satisfy a reasonable man of the truth of the proposition. The court of Baltimore county, reversing this rule, refuse to decide a proposition which properly belongs to them as a court,/ (the construction of the letters) and hand over the whole subject to the jury, on the ground that the proposition submitted to them depended on an- other proposition which belonged peculiarly to the jury, to wit, whether Pawson acted with a knowledge of his legal rights, when there was no evidence in the case which had a tendency to raise this latter question. Thus it is a question gratuitously raised, without a tittle of evidence to prompt it, and which, thus raised, is supposed to excuse the court for refusing to decide on the construction of the letters, whereas the truth is, that if the question had really been called for by the evidence, the court VOL, 113. 100 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll vs. Pawson's Adm'rs. 1829. court on the part of the appellant. Relying on those arguments aiul authorities, and claiming the full benefit of them, it is in- tended to confine the further argument to two questions 1. Whether the contract was not an entire one, and the whole compensation, therefore, lost by the death of Paicson at Coquimbo before he had completed the contract. 2. Whether if Pawson's representatives are entitled to reco- ver a rateable portion of that compensation, the court did not err in the termini which they gave to the jury for the ascer- tainment of the ratio of compensation. 1. This question arises on the appellant's fifth prayer, which presents the single point of the entirety of the contract, and its defeat by the death of Pawson at Coquimbo before its com- pletion. Natural justice, it may be admitted, would seem to require that every contract for labour should be considered as divisible and apportionable, and where a party has been prevented by causes over which he has no control, from completing his en- gagements, he should be paid for so much of them as he has faithfully performed. The law, however, leaves it to the par- ties to make their own contracts; and wherever they have made an express contract the law never interferes to vary that con- tract upon any notion of natural justice. There is, perhaps, no class of contracts which more strikingly illustrates the truth of this principle than the contract for rent. A rents of B, a storehouse on a wharf in town, and stipulates expressly to pay him so much rent at the -end of the quarter or year. The house is burnt down the next day, and the tenant has no use of the property at all ; yet he must pay the rent. A whole wharf was consumed in Norfolk by the great fire of February, 1804. The houses which covered that wharf, (CampbelVs wharf,) were wholly in the hands of tenants. These tenants, with their families, were all unhoused in the severest part of the winter, and many of them lost their goods, as well as their houses. The extent of the calamity excited universal sympa- thy. They were unable to repair, the misfortune was one beyond their control. They had lost the enjoyment of that for OF MARYLAND. 101 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. which alone they had stipulated to pay the rent. The landlord was a minor; and his guardian was the late Judge Tucker, who considered himself bound to act according to law. The ten- ants insisted on an abatement of the rent. Natural justice seemed to require it. But the law was clear. Their contracts were express; and for that reason alone they were held bound to pay the rent. In the course of the investigation a case was cited from Meyn's Reports, where a tenant had been disposses- sed, and held out by a hostile invasion of the kingdom. Yet he was held bound to pay the rent by force of his express con- tract. That was a case in which natural justice seemed to forbid the demand; but all considerations of natural justice were silenced by the express contract of the parties, and the unwillingness of the law to interfere with those contracts. It is on this ground that it has become a principle of law in the construction and enforcement of contracts, that "unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided." These are the words of Starkie in his 3d volume, 1765; and he adds "this holds equally, whe- ther a specific price has been agreed on or not. It is univer- sally incumbent on the plaintiff to prove performance." In the American edition of Slarkie the court will find under note (k,) and note (1,) to the above cited page, a collection of British and American decisions, all goiiig to illustrate and fortify the position, that a contract made 'entire by the parties, cannot be divided by i/ie court, and several of those, it is believed, at least as strong, if not stronger, than the case now under consi- deration. Thus in the modern case of Ellis vs. Hamlen, 3 Taunt. 52 " It was held that a builder who undertook a work of special dimensions and materials, and deviated from the specification, could not recover on a quantum valcbant for the work, labour and materials." In The Countess of Plymouth vs. Throgmorton, I Salk. G5, the defendant's testator had appointed the plaintiff to receive 100 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll . Pawson's Adm'rs. 1829. court on the part of the appellant. Relying on those arguments ami authorities, and claiming the full benefit of them, it is in- tended to confine the further argument to two questions 1. Whether the contract was not an entire one, and the whole compensation, therefore, lost by the death of Pawson at Coquimbo before he had completed the contract. 2. Whether if Pawsorfs representatives are entitled to reco- ver a rateable portion of that compensation, the court did not err in the termini which they gave to the jury for the ascer- tainment of the ratio of compensation. 1. This question arises on the appellant's fifth prayer, which presents the single point of the entirety of the contract, and its defeat by the death of Pawson at Coquimbo before its com- pletion. Natural justice, it may be admitted, would seem to require that every contract for labour should be considered as divisible and apportionable, and where a party has been prevented by causes over which he has no control, from completing his en- gagements, he should be paid for so much of them as he has faithfully performed. The law, however, leaves it to the par- ties to make their own contracts; and wherever they have made an express contract the law never interferes to vary that con- tract upon any notion of natural justice. There is, perhaps, no class of contracts which more strikingly illustrates the truth of this principle than the contract for rent. A rents of B, a storehouse on a wharf in town, and stipulates expressly to pay him so much rent at the. end of the quarter or year. The house is burnt down the next day, and the tenant has no use of the property at all ; yet he must pay the rent. A whole wharf was consumed in Norfolk by the great fire of February, 1804. The houses which covered that wharf, (Campbell's wharf,) were wholly in the hands of tenants. These tenants, with their families, were all unhoused in the severest part of the winter, and many of them lost their goods, as well as their houses. The extent of the calamity excited universal sympa- thy. They were unable to repair- r the misfortune was one beyond their control. They had lost the enjoyment of that for OF MARYLAND. 101 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawsori's Adm'rs. 1829. which alone they had stipulated to pay the rent. The landlord was a minor ; and his guardian was the late Judge Tucker, who considered himself bound to act according to law. The ten- ants insisted on an abatement of the rent. Natural justice seemed to require it. But the law was clear. Their contracts were express; and for that reason alone they were held bound to pay the rent. In the course of the investigation a case was cited from Jlleyri's Reports, where a tenant had been disposses- sed, and held out by a hostile invasion of the kingdom. Yet he was held bound to pay the rent by force of his express con- tract. That was a case in which natural justice seemed to forbid the demand; but all considerations of natural justice were silenced by the express contract of the parties, and the unwillingness of the law to interfere with those contracts. It is on this ground that it has become a principle of law in the construction and enforcement of contracts, that "unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided." These are the words of Starkie in his 3d volume, 1765; and he adds "this holds equally, whe- ther a specific price has been agreed on or not. It is univer- sally incumbent on the plaintiff to prove performance." In the American edition of Slarkie the court will find under note (k,) and note (1,) to the above cited page, a collection of British and American decisions, all going to illustrate and fortify the position, that a contract made 'entire by the parties, cannot be divided by tlie court, and several of those, it is believed, at least as strong, if not stronger, than the case now under consi- deration. Thus in the modern case of Ellis vs. Hamlen, 3 Taunt. 52 " It was held that a builder who undertook a work of special dimensions and materials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials." In The Countess of Plymouth vs. Throgmorton, 1 Salk. G5, the defendant's testator had appointed the plaintiff to receive 10-2 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donnell rs. Pawson's Admr's. 1829. his rents, and promised to pay 100 a year for the service, and tin* testator died after the plaintiff liad sewed him for three quar- ters of a ycrtr, and the court held, that the contract being entire could not be divided. In Cvtter vs. Powell, 6 T. R. 326, where the employer engaged in writing to pay a sailor the sum of thirty guineas, provided he proceeded and continued and did his duty on board for the voyage, and before the end of the voyage the sailor died, it was held that the contract was entire, and that as the service, which was a condition precedent, had not been performed, nothing could be recovered. Is it or is it not to be considered as a principle of law, that where an entire compensation is stipulated to be paid for an en- tire service, the whole service must be performed as a condi- tion precedent to the demand, and that there can be no division or apportionment of the payment for a part performance of the service ? It seems impossible to deny it Nor will it do to speak of this principle as antiquated and obsolete: for it is traced through the British books down to Starkie, one of the most recent and authoritative writers, who has engrafted the principle on his text as an existing and solid principle of the English law ; and the host of cases quoted by the American editor, shows how extensively the principle has been recogniz- ed and acted upon in the United Stales. It is indeed admitted by the learned counsel on the other side, " that if from the words of the contract it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compen- sation, then such condition, like every other condition prece- dent, must be strictly and entirely performed. For the parties have a right to contract as they please. But in order to pro- duce this result, it must clearly appear from the words of the contract that such was the intention of the parties; and such was the case of Cutter vs. Powell The same principle pre- vails in commercial contracts. This admission is taken in the terms in which it is stated, (and it is correctly stated) and we are willing that this case shall be tested by it. It must clearly appear from the words of the OF MARYLAND. 103 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs.-^-1829. contract, that it Was the intention of the parties, that the entire performance should be a condition precedent to the payment of any part of the compensation, But when does the law hold such intention clearly to appear from the words of the contract ? Let Starkie answer the question " whenever an entire compen- sation is to be paid for the entire work, the performance or service is a condition precedent, being one consideration and one debt., it cannot be divided" " unless there be some express stipulation to the contrary" The law then considers this intention of the par- ties that the entire performance shall be a condition precedent to the payment of any part of the compensation, as always clear* ly appearing from the words of the contract, where an entire com- pensation is to be paid for tlie entire work, unless tliere be some express stipulation to the contrary. Such is the legal construction of such a contract; and such will be its fixed and final construc- tion, unless there shall be some evidence of a general and known usage acting upon such contracts to vary its construction. In the case of Cutter vs. Powell, the court, after stating the con- struction of the instrument upon its face, admitted that it would be modified by proof of a general usage acting upon such con- tracts, to make them divisible ; and they stayed the ultimate judgment to let in such proof if it could be adduced, feeling manifestly all the unwillingness to enforce the legal construction of the instrument which can be possibly felt in the case at bar, if parol proof of such a usage could be awduced. But it ap- pears by the original report of the case that no such usage could be adduced, and the instrument necessarily had its legal effect. It will be understood as admitted by us, that general usage, or, what is the same thing, a general understanding in the com- munity, founded on such usage, will control the construction of these contracts, and render divisible and apportionable a con- tract which upon its face would be indivisible according to the foregoing rule. An instance of this is put by Lawrence, Justice, in Cvtter and Powell; for he said " that a common servant , al- though hired in a general way, was to be considered as hired with reference to the general understanding upon tlie subject, that I UK CVSES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donncll. Donncll r. Pawson's Adin'rs. Ib^ii). tin- servant shall be entitled to his wages for the lime he served, though he do not continue in the seivicc for a year." Here he puts the course of decision upon the general understanding, founded, manifestly, on the general and known usage, which usage always enters into the contract as a part of the contract. And he confines the remark to common servants, by which he is understood by the annotator to Starkie, to mean domestic ser- vants : for there is no usage or understanding, it would seem, as to servants in husbandry, with regard to whom, therefore, the contract takes its legal and natural effect of throwing on the ser- vant proof of the performance of the whole service, as a condi- tion precedent to his right to demand compensation. Hence, in the case of Tlic King vs. Whittlebury, 6 T. R. 467, the same Justice, Lawrence, observed " that nothing could be due to the servant, (who was it seems a servant in husbandry) till the com- pletion of the year, or the end of the service." The same prin- ciple was decided by Lord Elknborough, as to a servant in hus- bandry, in the case of Spain vs. Jirnott, 2 Starkie^s cases, 265. The learned counsel, on the other side, seems to suppose that these cases decide nothing but as to the time of bringing the action; that is, that the action, for the part of the wages due, cannot be brought till the end of the year. On the contrary, they are understood by us as being decided on the very princi- ple now under discussion, to wit, fhat the entire performance of the contract is fc condition precedent to the demand of com- pensation, and the whole wages are forfeited by the failure of any part of the performance. Cornyns, in his Digest, tit. Jus- tices of the Peace, (B 63,) says "if a servant depart from his service he shall lose his whole wages" for which he cites Bro. tit. Labourer, 40, and the same law is laid down from Dalian's Justice, in the note already cited from Starkie. Con- tracts with mariners are subject, it is presumed, to the same law of usage, thus modifying the terms of a contract, which would otherwise be considered as a condition precedent, as is manifest would have been done in the case of Cutter vs. Powell, if any such usage could have been shewn. And on the same footing of usage and general understanding rests, it is presum- OF MARYLAND. 105 Pawson's Adm'rs vs. Donnell. Donne'll vs. Pawson's Adm'ra. -1829. ed, the construction of contracts for the hire of slaves in this State, if indeed the law has been ever so judicially settled, for which, however, no decision is quoted. In England we have seen it would be otherwise as to servants hired for the purposes of husbandry. On this review of the authorities it may be fairly considered as established, that wherever an entire sum is stipulated to be paid for an entire service, the contract is indivisible, and the performance of the entire service becomes a condition prece- dent to the demand of any portion of the compensation, unless, in the language of Starkie, there be some positive stipulation to the contrary, or unless there be some general understanding or usage in regard to such contracts that they shall be apportioned. Now with regard to a positive stipulation to the contrary, none such can be pretended in this case ; and with regard to usage or general understanding, none such can be pretended to have been shewn or to exist in regard to contracts like this with a supercargo. And it will not do to borrow such usage or under- standing from other classes of contracts and apply them to this; to say for example that, in given cases, the contracts of mariners of domestic servants in England, and hired slaves in this State, have been apportioned ; and then claim the analogy as applying to this contract. If this were allowable the case of Cutter vs. Powell would never have been decided, for there the analogy was close and at hand. The contract in that case was the contract of a mariner, and it would not have been denied that the common contracts of mariners were in some cases appor- tionable ; but this analogy, close as it was, as belonging to the same class of characters and the same description of services, was not permitted to be applied to the specific description of contracts before the court, but the court called for proof of the usage as bearing on that particular form and species of con* tracts. So, if the analogies now offered would have sufficed, the acknowledged usage to apportion the contracts of domestic servants would have been permitted to be brought to bear on the contracts for servants for the purpose of husbandry. But it was not permitted, and the impassable line of demarcation be - VOL. I 14. l(Ni CASES IN THE COURT OF APPEALS Pawron's Adm'rs rj. Donncll. Donncll vs. Pawson's Adm'rs 1829. twcen mariners under those two forms of contract, and servants under those different species of engagement, proves that in that country at least the court* arc not disposed to indulge in this loose transfer of usage and understanding from one class of contracts to another. For it is manifest to these courts, and must be obvious to every one who will look steadily at the sub- ject, that if in answer to the principle of law which has been conceded with regard to the entirety of a contract, it be enough to say and to show that some contracts entire in form are appor- tionablc by force of usage, the principle is no longer of any value; nay it has no longer an existence; it is virtually explod- ed, if such an answer will suffice because the same answer may be given to every objection founded on the entirety of a con- tract. If this principle with regard to the entirety of a con- tract, which grows entirely out of respect to the intention of the contracting parties, and their sovereign right to bargain as they please, be immoral or pernicious, and it is thought better that courts should not only expound but make bargains for their fellow-citizens, let the matter be avowed openly and above board, and let the English principle be publicly exploded. But let us not profess to admit and respect the principle in terms, while we explode it in practice, and render it virtually a nullity. This, then, be it remembered, is a contract vrith a supercargo, as to which species of contract there is no proof in the cause of the existence of any usage or understanding explanatory of the contract. It is a contract, then, the construction of which depends solely upon its own terms, and the only remaining ques- tion would seem to be, is it a contract in which an entire com- pensation is stipulated to be paid for an entire service ? This question can only be answered by referring to the letters of Donnellj which state the whole contract, both the service and the compensation. The letter of the 18th November, 1819, chalks out the whole service in detail. It is a minute specifica- tion of the duties which Pawson was to perform ; carries him around the whole voyage ; and after this specification of the services, concludes thus" to prevent misunderstanding I deem OF MARYLAND. 107 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. k necessary to state your compensation to be $2,000, payabk on your return." Nothing seems to be clearer than that this is one entire compensation stipulated for the entire service. It is not at the rate of $ 2,000; but the sum of $2,000, in solido, payable on Pauison's return, and clearly payable for the entire service. If there be any truth in the principle therefore, or any case to which it is to be permitted to apply, this is such a case, unless there be some positive stipulation to the contrary, which is not and cannot be pretended, or some proof of usage and understanding to the contrary applicable to contracts in this form with super- cargoes, which can be as little pretended. In opposition to this view of the subject, it is intimated rather than directly averred in the opposing argument, that this princi- ple rests on ancient decisions. For the learned counsel, after having quoted Sergeant Williams'' note (4,) to Pordage vs. Cole, I Saund. 320, and 2 Starkie's Ev. 643-4, and note (n,) proceeds with the following inference from those authorities : " What- ever, therefore, may have been the ancient decisions upon this subject, it has for manj years been settled in the English courts that in ordinary contracts, with or without seal, the defendant, according to the principles of the common law, is liable in pro- portion to the benefit derived from the contract, although he may not have received the whole consideration for which he stipulated, provided the plaintiff is not in fault, and does not possess the power to perform the whole stipulation. This is the general rule applicable to all contracts. It is, however, admit- ted, that if, from the words of ther contract, it appears that the parties intended that the entire performance should be a condi- tion precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed." So that the learned coun- sel would seem to give the rule, as he would have it, to be the general rule and the modern rule ; and the principle on which we insist, as an exception from that general rule, resting only on ancient decisions, (one of which, that in the case of the Coun- tess of Plymouth vs. Throgmorlon, Salkeld 65, he seems to think was misunderstood by the court of King's Bench,) and deserv- 106 CASES IN THE COURT OF APPEALS Fawson's Adm'rs r. Donnell. Donncll vs. Pawson's Adm'rs. 1829. ing very little quarter on the score of morality. There is cer- tainly no want of professional address in this mode of present- ing the subject. But we apprehend, that when the authorities relied on to maintain this view of the case shall come to be ex- amined, it will be found that these two rules of law, instead of maintaining the relation of a general rule and an exception, are two separate and independent rules relating to different classes of cases, and each, in its respective sphere of action, equal in gen- erality and dignity to the other. Let us make this examination of these authorities as briefly as possible. The first of them, as cited on the other side, is Pordage vs. Cole, I Sounders' Reports, 320, (. 4.) On turning to this note it will be found that the whole business of the note was to shew in the first place the artificial and subtle distinctions on which the question of dependent and independent covenants fre- quently turned in the old books ; and in the next place to offer a few rules by way of test on that obscure and much mooted question of the law. After observing that covenants, &c. are to be construed to be either dependent or independent of each other according to the intention and meaning of the parties, and the good sense of the case, and that technical words should give way to such intention, he proposes the following rules for the discovery of such intention, in order to enable the pleader to distinguish when it is necessary in a declaration to aver per- formance on his own part. These rules are worthy of attention in this case ; first, because of their analogous bearing ; and se- condly, to enable the court to estimate the value of the passage quoted from this note on the other side. The first rule propos- ed by Sergeant Williams, is this 1. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration, is to be performed, the covenants are inde- pendent, and an action may be brought for the money, &c. be- fore performance, for it appears that the party relied upon his remedy, and did not make the performance a condition prece- dent. Sergeant Williams then offers his second rule in these words : " But, 2. When a day is appointed for the payment of OF MARYLAND. 109 Pawson's Adm'rsw. Donnell. Donnell vs. Pawson's Adm'rs. 1829. money, &c. and the day is to happen after the thing which is the consideration of the money, &c. is to be performed, no action can be maintained for the money, &c. before performance." The court is requested to apply this rule to the case at bar, and they will see that it is decisive of this question. Sergeant Williams proceeds 3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. 5. Where two acts are to be done at the same time, on the same day, neither can maintain an action without shewing performance of, or an offer to per- form his part, though it is not certain which of them is obliged to do the first act ; and this particularly applies to all cases of sale. This is a skeleton of the whole note, and the court will find by reference to it that each of these five rules is separate and distinct from the rest, embracing separate and distinct classes of cases, and neither of these rules proposed by the au- thor as connected with or at all influencing the decisions of cases falling under any other rule. The learned counsel, not averting to this structure of the note, and the distinct classes into which the cases are thrown under these several and distinct rules, speaks of them thus : " The cases upon this point (of conditions precedent) are collected together and iherule laid down in Por- dage vs. Cok, 1 Saund. 320, (note 4) as relates to sealed instru- ments. " The conclusion from all the cases is stated as follows :" and then he gives a quotation, which suits the purpose of his argu- ment, and which he exhibits as Sergeant Williams' result from a view of all the cases touching the subject of conditions prece- dent, whereas the learned Sergeant himself declares it to be his conclusion only with regard to tliat class of those cases which falls under his third rule, and which he is treating as en- tirely separate from those cases which belong to his other 110 CASES IN THE COURT OF APPEALS Pawson's Adm'rs rs. Donnell. Donnell n. Pawson's Adm'rs. 1829. rules. That third rule embraces, as we have seen, those cases in which the covenant goes only to a part oftlie consideration on both sides, and in which the party who complains of incomplete performance, can redress himself by a cross action for damages on account of that short performance. After citing several cases as illustnttivc of this rule, the Sergeant proceeds with the words quoted, " Hence it appears, that the reason of the decision, tn these and other similar cases" (that is, cases in which from the form and nature of the contract the covenant goes only to a part of the consideration on both sides, and in which, from the independent character of the covenants, the party may redress himself for the incomplete performance of Uie covenant on the other side by a cross action,) " besides the inequality of the damages, seems to be, that where a person has received a part of the consideration for vthich he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing any thing for it. There- fore, the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may have sustained in not having received the whole considera- tion." Now, before the learned counsel can have the benefit of this conclusion, he must shew that this is one of those cases to which alone Sergeant Williams applies this conclusion; that is to say, that it is a case in which, from the form and nature of the contract, the covenant goes only to a part of the considera- tion on both sides. The fallacy of the argument consists in supposing this to be a general conclusion applicable to all sorts of covenants; whereas Sergeant Williams limits it ex- pressly to the specific class of cases embraced by his third head; that is to say, to cases where the covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, which he says makes an independent covenant. And having cited all the cases which belonged to this head, and exhausted his own remarks upon it, among which is the passage quoted by the counsel on the other side, he proceeds to hia fourth class in these words : " 4. But OF MARYLAND. Ill Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs, 1829. when the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred." Now, in applying the general conclusion to the case at bar, the counsel begs the question : for he assumes that this case belongs to the third class, and not to the fourth. Whereas we insist that it belongs to the fourth class to which that general conclusion has no relation ; and we prove that it belongs to the fourth class, first by the test prescribed by Star- feie, that it is an entire consideration stipulated to be paid for an entire service; secondly, by bringing to bear upon it, the test given by Sergeant Williams under the second head in his note, to wit: " that a day is appointed for the payment of the money, and the day so appointed is to happen after the thing which is the consideration for the money is to be performed ;" in which case Sergeant Williams adds, " no action can be maintained for the money before performance." The day here appointed for the payment of the money was after Pawson's return payable on your return which was necessarily after all the services had been performed. We are much deceived, therefore, if this note, instead of operating favourably to the other side, will not, when it is care- fully dissected and attended to, be found to operate the other way. The passage cited from 2 Starkie, 643-4, when taken in connexion with the context and with the class of cases of which the author was treating, will be found to have no just relation to this question. StarkieXs there treating expressly of the action for goods sold and delivered. He begins this inves- tigation in page 634, and pursues it down to the passage quoted. In page 640, he says, when the goods which have been deli- vered do not correspond with the contract, the vendee has a right to repudiate the goods so delivered in toto, and if he do go, the vendor cannot recover; but if he choose to keep the in- ferior goods so delivered, he is considered as adopting them in satisfaction of the contract. He then proceeds, in page 642, to contemplate the case where the contract cannot be rescind- ed, as where the goods have been used before the inferiority 1 12 CASES IN THE COURT OF APPEALS Pawson's Adm'rs r. Donnell. Donnell vs. Pawson's Adm'rs 1829. has been discovered; in this case he says the vendor is entitled to recover not the stipulated price ; and then comes in the pas- sage quoted on the other side in this connexion "For in strict- nets the plaiiitiU' who has not performed that which he engaged for, is not entitled to recover at all; if he contracts to build a dwelling-house, he is not entitled to recover for building a stable. But still if the defendant be bcnefitted to a certain ex- tent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as well as of equity and jus- tice, that the plaintifl' should be allowed to recover to the ex- tt-nt of the benefit derived by the defendant, and no further, &c." The court perceive, therefore, that the author is here treating of a contract with regard to goods sold, in which the vendee may, if he choose, repudiate the contract, and return the goods; but in which he has chosen to receive and use them. The passage quoted is in application to contracts of that cha- racter. But how could Donnell repudiate the contract in this case and return the partial services which Pawson had render- ed. The principle has no practicable application to this case. And that it is not of universal application, the case of Ellis vs. Hamlen, 3 Taunt. 52, proves; where it was decided that a builder who undertook a work of specified dimensions and ma- terials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials. The cases cited by the opposite counsel from Abbot, Peter's admiralty decisions, &c. relate exclusively to mariners; and are founded on the laws of Oleron, Wisbuy, and the Hanse-towns, and the ordinance of Louis the XIV. This is a class of con- tracts which stands by itself, and so peculiarly by itself, that we have seen the court of King's Bench, in Cutter vs. Powell, refusing to extend the principles and usage of these contracts even to the case of a mariner when his contract was in a pe- culiar form which removed it from the general ground of ma- riners' contracts. But the case now before the court is not that of a mariner at all ; but of a supercargo, whose contract is not to be tested by the principles established by those ancient laws and ordinances in favour of a particular and favoured class of OF MARYLAND. 113 Pawson's Adm'rs vs. Donncll. Donnell vs. Pawson's Adm'rs. 1829. men; but which is to be tested by the general principles ap- plicable to other contracts, which have been already cited. It is true, as the learned counsel has remarked, on the other side, that in the case of Cutler vs. Powell, two of the judges did advert to the circumstance, that the wages were unusually high, as a proof that they were intended to be contingent. But they did not ground their decision on that fact. It is manifest, that they only called it in aid to fortify the construction, which they had given to the contract on its face. And it is equally manifest, that without that circumstance the contract would have received the same construction. The court is, therefore, respectfully requested to compare the terms of that contract with those of the contract in the case at bar; and we are much mistaken if they will not find that the contracts were substan- tially the same. The learned counsel on the other side, supposes that Justice Lawrence mistook the decision in Portage vs. Cole, 1 Salkeld, 65. If he did, Starkie also mistook it in the note before cited, from his third volume, page 17G5-6, where he presents the case as deciding the same point, "that the contract be ing entire could not be divided." And it is manifest, that Salkeld himself mistook it, too, or else his report is entirely delusive and de- ceptive. And with all the unaffected respect, which I feel for the learned counsel on the other side, I cannot help thinking that Justice Lawrence, Starkie, and Salkeld, having no particu- lar interest to bias their judgment, will be quite as apt to un- derstand correctly the point of an English decision, as our learned friend on the other side, whose judgment, without any disrespect to him, may be suspected of not being quite so un- biassed. The learned counsel seems to think, too, that he has given quite a sufficient answer to the argument dravvi>from the time of payment of the $ 2000, to wit, that they were to be payable on Paicson's return, by referring to 1 Powell on Contracts, 2678, and to Jlbbot on Skipping, 433, 434, (note I ,) and by adding, that " the words in DonneWs letter do not create a condition, VOL. 115. Ill CASES IN THE COUKT OF APPEALS Pawson's Adm'rs M. Donncll. Donncll r.i. Pawson's Adm'rs. 1829. they arc modal only, and relate to the manner in which the con- irael shall 1)0 performed." It is wonderful that this magical word, modal, did not occur to the acute and learned Servant Williams, when he was com- piling the note before quoted. We find there, that in utter de- spite of this cabalistic term, he has erected a whole class of dependant covenants, (the 3d class,) on this circumstance alone, of the time, payment being fixed at a day posterior to that at which the services were to be rendered; which he could never have done, if he had been aware of the omnipotence of tin's word modal. With regard to Powell, he is looking to a very different case from this. He is by no means affirming it as a proposition of universal truth, that time is -never of the essence of a contract, but is always modal. He is asserting merely, what may be safely admitted, that there are cases in which it is merely modal. " We must carefully distinquish, says he, between con- ditions annexed to contracts or agreements, and circumstances annexed, which seem to import conditions, but which are modal only; neither suspending, disannulling, nor altering, the obliga- tion of them, but only relating to the manner of performance; as that an agreement shall be performed at a certain day, or in a certain place. And he then puts several cases, by way of illustration, which have no reference to the mutuality and depen- dence of covenants, (which is tlie very question fiere,) but which regard the construction of a covenant contemplated on one side only, and in which he says, in effect, that the time and place are not of the essence of the contract, but are modal only, leaving the essence of the contract untouched. This is quite a familiar principle; but it is one of a very different aspect from that which we are now considering, and which formed the sub- ject of Sergeant Williams'* note, which is the mutuality or independence of covenants; and where, as we have seen, the fixing a day of payment, subsequent to the time at which the service is to be performed, creates at once a condition prece- dent with regard to the performance of the service. OF MARYLAND. 115 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. The passage cited from Abbot is the same on which we have already commented, the case of contracts with mariners, rest- ing on a body of old sea-laws peculiar to themselves, and from which, therefore, no analogy can be fairly brought to bear on contracts with any other description of characters which rest on the general law. After this review of the law on the subject, it will only re- main for the court to say, whether they acknowledge the Eng- lish principle, that where an entire compensation is stipulated for an entire service, the contract is indivisible, and the per- formance of the whole service becomes a condition precedent to the demand of the compensation. 2. But now admitting, argumenti gratia, that this contract is divisible, and the compensation to be apportioned, did the court below assume the proper termini of the service to make the apportionment? We say they did not; for that this is a con- tract with a supercargo, whose duties begin and end with the voyage, so long as there is a cargo on board. What is a super- cargo? He is one placed over the cargo as his name im- ports. He is placed over the cargo, just as the master is placed over the ship. The master represents the owner of the ship; the supercargo represents the owner of the cargo. " From the general nature of the master's employment, he, is a stranger to the cargo, except for tlie purposes of safe custody and conveyance." 2 Livcrmore, 214. " But when the character of supercargo is superaddcd upon that of master, (as in this case,) the person in whom these cha- racters are united, stands in the relation of agent to two dis- tinct principals at once. To these principals he owes distinct duties, according to the nature of the business in which they have employed him; for a breach of these duties, he is dis- tinctly responsible to them; and they are separately liable for the injurious consequences of his misconduct in those things which respect his peculiar duties to them." Ibid. The master clothed with these double characters may, in his character of supercargo, do with the cargo what the owner, if present, might do. He may (for example.) as supercargo, ac- 116 (ASKS IN THK COURT OF APPKAI.S Pawson's Adm'rs rs. Donnell. Donncll rs. Pawson's Adm'rs. 1829. cept the cargo at a port short of the port of destination, and the owners of the ship will he entitled to freight. He may, as supercargo, accept and sell the goods at a port of necessity, which he could not do as master. 2 Livcrmore, 215, 216. From the circumstance that the supercargo represents, exclu- sively, the owner of the cargo, that he has authority over the cargo in all cases of unforeseen emergency, to act for the in- terest of the owner of the cargo, it is his duty to accompany the cargo, in order to be ready to meet all such emergencies, and take care of the interest of his principals, and consequently, to accompany the cargo to its final port of delivery, The court below seemed to be of opinion, that as soon as the cargo was purchased, and put on board at Coquimbo, and the bills of lading were signed, the duties of the supercargo were at an end, because the transportation and delivery of the cargo at the home port became then the duty of the master of the ship. The master, however, as we have seen, is a stranger to the cargo, except for the purpose of safe custody and convey- ance. Now, suppose the ship to have been driven into a port of necessity, with a damaged cargo, which made it the interest of the owner to have an immediate sale the master could not sell it, but the supercargo might. Suppose a case of capture and carrying into port, where the interest of the owner of the cargo might call for negociation, ransom, or sale. The pow- ers of the supercargo are ample for all these purposes, but not so those of the captain. These contingencies, to be sure, might not happen. But they might; and as they might, it was the du- ,ty of the supercargo to have been on board, to meet them and take care of the interest of his principals. It is fairly to be in- ferred, that it was the intention of the owner of the goods, that the supercargo should be on board, to meet all possible emer- gencies ; and hence the stipulation, that his compensation as su- percargo should be payable on his return. The court below, therefore, it is conceived, erred in fixing the last terminus of the supercargo's duty at the signature of the bills of lading at Coquimbo. It ought to have been fixed at the return of the cargo to Baltimore; the supercargo being as indis- OF MARYLAND. 117 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. solubly wedded to the cargo as the master is to the ship, and having no more right to leave the cargo than the master of the ship. It is said, however, by our adversary, that if the court have erred in this respect, we have no right to complain of it, be- cause in our prayer we fixed the termination of Paulson's serv- ices at the investment of DonnelVs funds in the return cargo ; whereas the court, giving us more than we asked, have fixed it at the signature of the bills of lading. There are two answers to this : 1. That the prayer is misunderstood. It does not make the investment of DonnelVs funds the termination of Pawson's ser- vice. It refers to the investment with reference to the time of his death. He died before he had even completed the invest- ment of the funds. The word even, it is true, is not there. But it is submitted to the court, that this reciting part of the prayer fairly admits that construction. It is not, however, in the recit- als of fact, in a prayer, that you look for the prayer itself. To find the point of the prayer, you look only to that which is the prayer : and in this fourth prayer, the prayer is, that the court will instruct the jury, that the compensation was subject to abatement on two grounds. First, for the abridgment of the voyage, by striking out the Canton trip, which formed a part of it, when the compensation was fixed. Second, for that por- tion of the contemplated services of Captain Paws on, which u-ere lost to the defendant by his death at Coquimbo: not specifying what those services were, but leaving it open to the defendant to insist, as he is now doing, that those services reached down- to the return of the cargo to Baltimore. At best, it is mere matter of inference on the other side, that the defendant's coun- sel considered the services of Captain Pawson, as supercargo, to end with his investment of DonneWs funds. 2. Suppose the plaintiffs construction of this prayer of the de- fendant's right : What then ? If the court had stopped with the simple rejection of a prayer, wrong in itself, there would have been no ground of complaint. But the court do not stop with a simple rejection of the prayer. They go on to superadd an in- 118 ( \si;s IN Till: COIKT OF APPEALS Pawson's Adm'rs r. Donncll. Donnell rs. Pawson's Admr's. 1829. struction of tin ir own, dill'rient from the prayer; and the excep- tion is not only to the rejection of the prayer, but also to the opinion ami direction of the court. And surely, in the appellate court, it is perfectly competent to the appellant, on such an ex- ception, to test the accuracy of that opinion and direction, by the rules of law. An error in his own prayer cannot deprive him of this right. For in this part of the subject, the question is not, whether the prayer was right, but whether the opinion and di- rection were right. However erroneously a party may pray when the court, after rejecting the prayer, proceed to give an original opinion and direction of their own, they undertake to pronounce the law of the case, for that is their function. And on an exception to such opinion and direction, the question is, " have the court pronounced the law of the case ?" And not, " have they given the appellant something more or better than he asked for ?" Have they given him all that he is entitled to ? Not, have they given him more than in a mistake of his rights lie had asked. We hold the question, therefore, to be entirely open to us ; and the court's opinion and direction were wrong, for the rea- sons which have been assigned. We have concluded the argument on DonneWs appeal. But as the plaintiffs counsel in the cross appeal, are about to reply on his points, we beg leave to throw together here, for consi- deration, the arguments which strike us as supporting the court's opinion under the plaintiff's first, second and third bills of exceptions, and as a full answer to those urged by the open- ing counsel on the other side. The attempt of the opposite argument is to throw on Don- nell the loss of the gold, which was confiscated at Guasco. The question arises on the plaintiffs' three exceptions, which fully exhibit all the grounds on which the plaintiff's claimed the appropriation of this gold, and the loss of it, to Donnell, and on which Donnell, by his counsel, resisted it. The question seems to be a very simple and easy one, when impartially and candidly considered, and the dates of the seve- ral transactions carefully noted. OF MARYLAND. 119 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adtn'rs 1829. Pawson set out upon this voyage in the double character of master of the ship, and supercargo, for Donnell. The instruc- tions addressed to him in the character of supercargo, are found in DonnelVs letters, which he bore and accepted as the guide of his actions. In DonnelVs letter of the 1 8th November, 1819, he says to Pawson, in this character of supercargo, "with the ship and the coin on board, you will proceed to the port of Co- (juimbo, in Chili, for the purpose of loading entirely with cop- per, and with it proceed to Canton." Again, " if you have the means of completing the purchase, you must put on board at least 12,200 quintals." Again, speaking of the probability of Pawson's receiving additional funds from Mr. M^Clure, he says, " Should you see him, and he has any funds of mine, or that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorise and empower you to receive and carry it with you, either in copper, or Spanish dollars of the old coin." Thus anx- iously repeating the instruction, that all his funds should be in- vested in copper, and guarding against the possibility of any other investment, more especially a metallic investment, except in Spanish dollars, and those, too, of the old coin. In the close of the same letter he says, " To prevent misunderstanding, I deem it necessary to state your compensation to be $2000, pay- able on your return, with a privilege from Canton, not to exceed twenty-five tons ; but it is understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her with coppery and that also for my account" The same solicitude of the owner to invest the whole of his funds in copper, is kept up in his letter of the 26th December, 1819, in which he changes the voyage by striking out the trip to Canton. That Pawson perfectly understood and acceded to DonnelVs views on this subject, as to the investment of all Don- nelVs funds in copper, is clearly established by his letters of the 15th August, 1820, and the 4th November, 1820, from Coquim- bo. In these letters he states his progress in the investment of DonnelVs funds in copper. In the last letter he says, " there is now purchased for your account, 9,500 quintals, nearly 7000 I o CASES IN THE COURT OF APPEALS Pawson's Adm'rs vi. Donnell. Donncll vs. Pawsun's Adm'rs. 1629. of which is on board, and the remainder in Guasco, whither I shall proceed, and take it in, as soon as I get my crew from Val- paraiso" &c. And in a subsequent part of the same letter, he >.,}* "1 shall, however, be guided by my judgment as the ship conies down in the water, and if possible, bring the whole of ymir funds in copper." And again in the same letter "//" / find the dip too Jicavy laden with your copper, I shall curtail my privikge in that article, and bring my funds in silver." It will be observed, that he says in the last letter, he had already en- gaged for Donnell 9,500 quintals of copper, 7000 being alrea- dy on board, and the rest at Guasco. But there were at Guas- co, as the result has shewn, 3,015 quintals, making an aggregate 10,015 quintals. We have seen Pawsoii's determination, alrea- dy expressed in his letter, to curtail his own privilege, in order to accomplish the primary object of placing all DonneWs funds in copper. And as demonstration of the same purpose, in the dis- charge of his duty to his employer, he declares to his agents, Edwards fy Stewart, that he would appropriate to himself only 1 50 quintals of the copper at Guasco, if the ship would not lake more than 10,000 quintals, and to carry home the rest of his funds in Chinchilla skins and silver. See the letter of Ed- wards 4" Stewart of January 19, 1821. These were his declar- ations, virtually his instructions, made to his agents, Edwards d^ Stewart, before his death. In pursuance of these instructions, they ship for Pawson his 150 quintals, (short only by 23 Ibs.) leaving applicable to DonneWs funds the whole residue of the copper brought home, which more than obsorbs all his funds. Thus, before Pawson's death, and while he was yet the agent of Donnell, all DonneWs funds had been invested in copper, in strict compliance with, DonneWs instructions, and Pawson's en- gagements and avowed purpose. Pawson's death, then, left none of DonneWs funds at the disposal of Edwards Sf Stewart. It left at their disposal only Paw-son's funds and Goddard's. These had not been appropriated, except in the 150 quintals of copper for Pawson. And Edwards fy Stewart fearing to ex- pend them in the manner which they declare to have been indi- cated by Pawson, (to wit, in silver bars,) expend them in OF MARYLAND. 121 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs 1829. silver, gold and Chinchilli skins. These were purchased with Pawson's funds, because the previous investment of all Don- nelVs, according to his orders, left no other funds but those of Pawson fy Goddard at their disposal; and the attempt to throw the loss of the gold on Donnell, as if it had been his, is one of which the justice has not yet been shewn. On what ground is the attempt placed ? The counsel say that Edwards fy Stewart bought the gold for Donnell; and what is their proof? It is this : " The gold is invoiced as DonnclVs; it is put on board, and a bill of lading taken for Donnell. The silver, on the contrary, is invoiced as Pawson's, and put on board as Pawson's, as per bill of lading." The distribution thus made by Edwards fy Stewart is treated as a judicial sentence by these gentlemen, on the rights of the parties. There would be a little more colour for this, if those gentle- men had professed to have acted with full information, and to have intended to decide on ttie rights of the parties. Even then, however, we might have objected to their authority to settle the rights of Donnell by their arbitrament, no such authority having ever been communicated to them. But there is no occasion to take this ground ; for those gen- tlemen never did profess to act as agents for the respective parties ; or to judge of their claims, or to make a final distribu- tion and adjustment of their respective riglits. On the contrary, in their letter of 19th January, 1821, they expressly disclaim any purpose of deciding between Pawson and Donnell. They profess their want of sufficient information to guide them. They do not even dare to follow out what they believe to be Pawson's intentions. If they had, they would have invested the whole of his funds, (after the 1 50 quintals of cop- per,) in silver bars and Chinchilli skins. But even this, they do not venture to do. They prefer, they say, passing the whole of Pawson's balance to Donnell ; leaving it to him to settle with Pawson's representatives in the manner he, Donnell, might think most just and equitable. VOL. 116. K>> CASES IN THE COURT OF APPEALS Pmwson's Adm'rs rs. Donnell. Donnrll r. Pawson's Adm'rs 1829. Again in their letter of the 28th January, 1821, they apolo- gize for the manner in which they had shipped these articles thrir \v<>nl< ;ire " \\c have only to beg you to call to mind, in case that every thing is not exactly correct, the disadvantages we have been under from the sudden death of Captain Pawson" 1 \< re, then, is a strange attempt to attach to the acts of these gentlemen, a consequence which they themselves never dream- ed of attaching to them, and while they declare that they are act- ing by conjecture, in the necessity thus thrown upon them by the sudden death of Pawson, and while they also declare that their purpose is to refer every thing to DonneWs knowledge of the rights of the parties, because of his better knowledge of these rights, the court are called upon, in the teeth of this declaration, to consider these gentlemen as acting with full light and with full power, and as intending to make a final and judicial dispo- sition of this subject between Donnell and Pawson. Let us proceed a step farther. Let us impute to these gen- tlemen, a purpose which it is manifest they never entertained, to decide upon the rights of these parties. What was their pow- er; what their real situation? These gentlemen had been appointed by Pawson, in his life- time, to purchase the copper for the Chesapeake. (See his letter to them, of the 19th August, 1820.) In his letter of September 4th, 1820, to Donnell, he informs him he had so appointed them to purchase the Chesapeake^ cargo. Pawson, then, was the agent of Donnell, acting under written instructions to which he had assented. Edwards fy Stewart were his sub-agents in executing the duties confided to him by Donnell. They were, then, employed by him in executing those duties, under this sub-delegation of pmcer, and under his superintendance. Their whole poicer was derived from Pawson's appointment; and, consequently, the limits of Pawson's power, marked the limits of theirs with regard to Donnell For Pawson could not delegate to them a power whicii he did not him- self possess. But he, Pawson, had no pmccr to buy gold for OF MARYLAND. 123 Pawson's Adm'rs vs. Donncll. Donncll vs. Pawson's Adm'rs. 1829. Donnell ; and tJicrcfore, he, could delegate, none such to Edwards 4" Stewart. During Pawson's life, they were acting under his superior and controlling authority. The acts done during Pawson's life were conclusive, as between him and Donncll. The, rights acquired by Donnell under these acts, during Pawson's life, were vested rigJits, which could not be divested by Pawsorfs successor and sub- dekgale. The copper already purchased was DonneWs, and at his risk. Edwards 8f Stewart if they liad so wislied, could not have altered this state of things. But it is clear that they never proposed it ; never thought of such a cfiange. Yet, without the power and without the intention to make any such change ; declining all interference themselves, and re- ferring all to the decision of Donnell, their acts, avowedly with a different aspect, are supposed to have changed the title which was vested in Donnell, during the life of Pawson, and vested by Pawsorfs own avowed intention and acts. One of the learned counsel has talked of DonneWs specific doubloons having been invested in this purchase. What a no- tion is this of an ear-mark in money ! Pawson held the whole of DonneWs funds, and they were in the hands of Pawson, blended with his own. Whether in doubloons or bank notes, or govern- ment paper, they became one mass in the hands of Pawson. They were placed by him in the hands of Edwards 8f Stewart to make all the purchases, DonneWs and his own. Their de- posite with Edwards ^ Stewart made them their funds. They were DonneWs no longer. They/ were the property of Ed- wards &f Stewart, and they were responsible to Pawson for all the funds placed in their hands. The application of the whole mass of these funds was under the direction of Pawson, during his life ; and whenever he ordered a purchase it is per- fectly immaterial to this question, whether Edwards fy Stewart used these donbloons, or any other portion of their own funds. It is, respectfully, submitted to the court, that the several Opinions of the court below, on this point, were perfectly cor- rect. I M CASES IN THE COURT OF APPEALS Pawson's Adm'rs t>j. Donnell. Donncll vs. Pawson's Adm'rs. 1829. Tancy (attorney general) in reply. The only question in controversy in the appeal now under cituswlrration, is the gold and silver shipped at Gtutsco, and sri/ed and confiscated by the Spanish authorities. Three of the bills of exceptions taken at the trial all relate to this subject. The ship arrived at Coquimbo, August 15, 1820, and sailed from that place for Guasco, January 19, 1821. Pawson died at Coquimbo, December 4, 1820. It appears, therefore, that the silver and gold in controversy was shipped after the death of Pawson, and at a port which he did not live to reach. It does not appear that any part of the silver was purchased in his lifetime ; and it is positively proved that the gold was purchased after his death. Patrson had under his separate control his own individual adventure, and also the funds belonging to Goddard, arising from the sale of the cordage. The appellants are willing to consider the silver to have been bought with the funds under the separate control of Pawson, and the gold on account of Donnell, and propose that the loss shall be borne accordingly. But Donnell insists that neither the silver nor the gold be- longed to him; and that no part of the loss of either can fall on him. The ownership of the gold, seized by the Spanish government, is therefore the point in dispute between the par- ties. The statement in the record shews that both Donnell and Pawson had funds in Chili, in the hands of Edwards fy Stewart, at the time they purchased the gold. It moreover, appears, in proof that the funds of Donnell were in fact employed in this purchase, and not the funds of Pawson. But it is said on be- half of Donnell, that his funds could not rightfully be so em- ployed; and that if they were so used, it was a violation of the instructions given to Pawson, which instructions bound the funds in the hands of Edwards fy Stewart. We do not mean to contend that the death of Pawson alter- ed, in any respect, the rights of the parties. We admit that the funds of Pawson in the hands of Edwards fy Stewart had no OF MARYLAND. 125 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. greater privileges, than they had in his own hands. The first question, therefore, to be decided is, what were the powers and duties of Pawson, under the authority and instructions received by him from Donnell? And this leads us to consider, in the first place, the question presented by the second exception. In this investigation we do not mean to consider the intentions, which Pawson is supposed to have entertained. They will be examined in a subsequent part of this argument. The object now is to ascertain the rights of the parties; and when this is done it will not be . difficult to decide, how far the rights of Pawson can be affected by any designs which he formed in his life time, but which he did not live to carry into execution. In the second exception, the County Court have decided that it was the duty of Pawson to invest all DonnelVs funds in Chili in copper, if copper could be had ; that Pawson could not, con- sistently with his duty, put on board any copper on his own ac- count, while he had funds of Donnell under his control, which could be applied to that .purpose; that if DonnelVs funds in Chili were sufficient to load the ship with copper, that no cop- per could be put on board for Pawson or any one else; that if copper enough was put onboard, sufficient to exhaust the funds of Donnell, no other part of the cargo would belong to him ; and consequently that he could not be affected by the loss or seizure of the silver or gold. This is understood to be the opinion of the court, set forth in the second exception. This opipion of the court denies that Pawson had any license or permission from DonneU to bring copper from Chili to Baltimore, provided DonnelVsf funds were sufficient to load the ship. It denies also that Pawson had any privilege from Chili to Baltimore. When we speak of the privilege of Pawson, we mean that kind of privilege which is described by the testimony. A cap- tain's privilege in the sense, in which it is there spoken of, is not a mere permission, revocable at the will of the owner, but is an absolute and vested right to a certain portion of the ship, secured to him by his contract with the owner. This portion the captain may either use himself, or let out for hire to others, KH CASES IN THE COURT OF APPEALS Pawson's Adm'rs ts. Donncll. Donncll vs. Pawson's Ailm'rs. 1829. and the owner himself must pay for it if he uses it. Such was the character of the privilege from Canton, as appears by the testimony in the record. It will be found, upon recurring to the exceptions and argu- ments in the other appeal between the same parties, that it was in that case strongly urged on behalf of Donncll, that Pawson had a certain privilege in copper from Chili to Baltimore; and that this privilege had been substituted by the consent of par- ties for the one from Canton. The privilege from Chili, there- fore, was supposed to be one of the same character with that from Canton, for which, it was insisted on the part of Donncll, the privilege from Canton had been exchanged. If the counsel for Donnell were right in the argument just stated, then the opinion of the County Court, given upon their prayer in the exception now under discussion, must necessarily be wrong. For if Pawson had a substituted privilege from Chili to Baltimore, he had a right to bring home copper, or any thing else, to the extent of that privilege, although DonneWs funds were not exhausted. But in this prayer they insist that he had no such privilege; that he could use no portion of the ship for his own goods, until the whole of DonmlVs funds were invested in copper, and shipped on board this vessel ; that he might then use any space which happened to be left, and if none was left he could ship nothing. The position taken in the other case is inconsistent with the one they now maintain. If they were right in that case, they must be wrong in this. It is not, however, contended on the part of Pawson's repre- sentatives, that he had any privilege (in the sense in which that word is used in the record) from Chili to Baltimore. We in- sist now as we did in the other appeal, that the privilege from Canton was neither forfeited nor waived; that no privilege from Coquimbo or elsewhere was, by the consent of parties, substituted in its place. But that Paicson had permission from Donncll to bring home from Chili the whole of his funds in any thing he pleased, in copper as well as in any other article. We do not say that he was entitled to do this, without paying- freight If he used any part of the ship under this permission, OF MARYLAND. 127 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. he was unquestionably bound to pay freight. Because as this permission formed no part of the compensation of Pawson, there could be no reason for allowing him to exclude the goods of the ship-owner for his own benefit, without paying the usual compensation. Pawson's recompense for his services depended upon the original agreement between the parties that is the shipping articles, and the letter of Novembers, 1819. And the permission, for which we now contend, is neither the privi- lege secured by that contract, nor any other privilege substi- tuted for it ; but is a separate and distinct permission given afterwards, and given not by way of bargain but by way of voluntary license; and which being once executed, cannot afterwards be revoked. This is the character of the permis- sion for which we contend. And we proceed to enquire, whether he had a permission or license of this character, or whether, as the County Court have said, he had no right to bring home any part of his own funds in copper, unless there was space left in the ship, after DonnelVs funds had been ex- hausted in the purchase of that article. The argument upon this point is necessarily very brief. It depends upon the construction of DonnelVs letter of December 26, 1819. This is a written instrument and must speak for itself, and its true meaning be declared by the court. It is this paper that broke up the original voyage, and directed the new one. And it prescribes what is to be done in the new one. In this letter, Donnell says, " as relates to the investment and disposal of your own funds, you must use your own discre- tion, by investing it in copper or/any thing eZse, and bringing it with you in tJie ship; the copper may (as I hope it will) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep," &c. Argument can scarcely assist the court in fixing the true con- struction of this letter. The permission to Pawson is express to invest his funds in copper or any thing else, and bring it with him in the ship. It is not a contingent permission, depending upon DonneWs funds loading or not loading the ship. It is not 128 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vt. Donncll. Donnell rs. Pawson's Adm'rs 18529. a permission to bring a part of his funds in copper in the ship nor to fill up any particular space. Donnell knew the amount of Pairson's funds for he had given him the bill on Horstman: (see letter from W. F. Itcus,) and with this knowledge he gives to him the unqualified permission to bring home in the ship in copper, or any thing else, the whole amount of his funds. If, therefore, this permission be an absolute privilege, sub- stituted for the Canton privilege by the consent of parties, as has been on another occasion contended for by Donncll, then this opinion of the court, which makes it a mere contingent permission, cannot be supported. If it be an absolute and unconditional license, to be used by Pawson at his discretion, as we contend, and as the words of the letter seem necessarily to import, then it is equally clear that this opinion of the court cannot be maintained. In either view of the subject, therefore, the judgment must be reversed, unless there be something in the conduct or letters of Pawson, which may give to the case a new aspect. We cannot imagine how any thing contained in the letters of Pawson can be relied on to support this opinion of the County Court. The court have said, that he had no right to ship any copper on his own account, provided DonneWs funds would buy copper enough to load the ship. We say, on the contrary, that he had permission from Donnell to bring home the whole of his funds in coppef,\jf in his discretion he thought proper to do so. And we produce the letter of Donnell giving this permission in so many words. Now, whether Pawson had or had not this permission, must depend upon the language used by Donnell, and not upon language used by Pawson. Donnell alone could give the permission ; Pawson could not assume it. It is true that Pawson might, in his discretion, refuse to ex- ercise the permission given. But if he had even done so in express words, it would not support the opinion contained in tliis exception. The point presented is had Pawson the right, under the permission given by Donnell, to bring home his funds in copper, if he thought proper to do so. The court say he had not the right. And, in discussing this question, it OF MARYLAND. 129 Pawson's Adm'rs vs. Donnell. Donneil us. Pawson's Adtn'rs 1829. can make no difference how far he exercised it, or how far he intended to exercise it. The question is, did he possess the right, if he thought proper to exercise it. He may, in his dis- cretion, have determined not to use the permission to the full ex- tent, nor even in a small degree. Yet that would not destroy his right to use it. The right would still exist, although Paw- son did not choose to avail himself of it. And, in order to sup- port this opinion of the County Court, Donnell must shew, not how Pawson used his discretion, but that he had no discretion to exercise. And, whether he had or had not the power to ex ercise any discretion on the subject, must depend on the letters of Donnell, who alone could confer or withhold the power. We cannot, therefore, perceive how Pawson's letters, detail- ing what he had done or intended to do, can affect this ques- tion. It is not suggested that in any of his letters he has ad- mitted that Donnell recalled the permission, given by his se- cond letter. And, unless the letters of Pawson contained this admission, it is not easy to discover in what other way they could prove that the right, which had been vested in him by the license of Donnell, had afterwards been extinguished. Any declarations which may have been made by Pawson, as to the manner in which he intended to use the discretionary power confided to him by Donnell, would not be binding on him, nor limit the range of his power. Every intention entertained or expressed would be liable to alteration, as the business ad- vanced, and at any time before he had acted. In stating this position, however, we shall not be understood to mean, that after Pawson had actually purchased copper on account of Donnell, he could convert it to his own use, and ship it on his own account. This we admit could not be done. When he had once purchased copper for Donnell, he had then exercised the discretion with which he was entrusted, and the copper would remain DonnelVs, and must be shipped as his property. But we insist that lie had the right, instead of purchasing for Donnell, to purchase copper for himself to the amount of his own funds, and that this power remained until he acted, and by purchasing, either for himself or Donnell, exercised the discre- VOL. 117. CW CASES IN THE COURT OF APPEALS Pawson's Adm'rs vt. Donncll. Donncll vs. Pawson's Adiu'rs. 1829. tion, anil put an end to the power. When we speak here of Pavsott's funds, we must not be understood to include the pro- ceeds of Goddard's cordage. If, however, we look at the intentions of Pawson, as express- ed in his letters, or disclosed in the letters of Edwards fy Stewart, nothing will be found to sanction the opinion which the court have expressed. He uses no expression which indicates a be- lief on his part, that he was obliged to exhaust DonnelVs funds in copper before he could ship a single pound for himself, as the County Court have decided. On the contrary, if you re- sort to his own letters, or those of Edwards fy Stewart, he does not appear to have doubted that he had a right to ship a large amount of copper. How much he supposed himself entitled to bring in this vessel does not appear. But it is abundantly evi- dent that he considered it, in a great measure, as a matter rest- ing in his discretion ; and upon which he intended to decide, when he had more certainly ascertained how much could be brought. It seems never to have been supposed by him that his right to bring any was altogether contingent, and depended upon the ability of the ship to bear it, after all DonnelVs funds had been first so disposed of. On the contrary, he never seems to doubt his right he doubts only to what extent he will use it. See his ktter to Donnell, dated November 4, 1 820 and the letter of Edwards fy Stewart, dated January 19, 1821. It is very certain, if Pawson had lived, he would have used the permission given by Donnell very sparingly. He had the strongest inducements not to displease Donnell. He was in his employment. And Donnell was a man of vast wealth exten- sively engaged in commerce who, we admit, paid his agents liberally while they lived, and were useful to him ; and with whom, therefore, Pawson would naturally wish to stand well, and be most careful not to offend. Besides, he acted under the influence of higher and better feelings. He was the trusted agent of Donnell, and as such seems upon all occasions to have preferred the interest of his principal to his own. This was obviously the case in the purchase of gold in London ; and it is equally manifest from his own letters, and the letters of Edwards OF MARYLAND. 131 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. Of Stewart, that he was prepared again to surrender what he be- lieved to be his rights, in order to advance the interest of Don- nell: that he had determined, in his own language, to curtail his privilege in copper ; that is to take less than what he had a right to take, in order more effectually to serve Donnell. We admit most distinctly, that if he had lived, he would have waived his own rights in favor of his principal; and it was his intention to do so. But we are not now to inquire what rights Pawson intended to waive, or what he intended to insist on. It is our business to ascertain what were his rights ; and whatever rights he had at the time of his death, it is the duty of his representatives to maintain, although we may even be satisfied that he himself in- tended to surrender them, if he had lived. If the right was not actually surrendered, it belongs to the representatives ; for they can have none of those inducements to waive them, which might very properly have operated on the mind ofPaivson. We have already endeavoured to show the character and extent of these rights, and hope ve have established the follow- ing propositions : 1st. That DonndVs letter of December 26, 1819, gave to Pawson permission to bring home his whole funds in copper, if he thought proper to do so. 2d. That this privilege had never been recalled by Donnell, nor surrendered by Pawson. Assuming these two propositions, let us in the next place see what were the rights of the respective parties, when adjusted according to these principles. / Pawson had the right, under the license given by Donnell, to invest his own funds in copper in preference to DonneWs, and bring the copper home in the ship. It was also the duty of Pawson, under his instructions, to invest DonneWs funds in that article, provided the ship would bring it, together with his own. But if the funds of both would overload the vessel, Paw- eon was without orders in that contingency ; and consequently was left to exercise a sound discretion, as to the manner in trhich the surplus funds of Donnell should be invested. I ; > CASES IN THE COURT OF APPEALS Pawson's Adm'rs M. Dunm-ll. Domioll rs. Pawson's Adm'rs 1829. In this state of things it must be conceded on all hands, that whenever Patcson bought copper for Dannell, and with Don- tieWs funds, the copper became his property, and could not afterwards be appropriated by Pairson to his own use, if he had been so disposed. And whenever he bought copper for his own use, and with his own funds, the copper belonged to him, and could not become DonnelVs unless it was transferred to him by his own consent, as well as that of Pawson. For Pair- son had a right so to invest the funds of either party ; and when the investment was once made by him, he could not of himself recall it. And indeed any other rule would have been liable to great objections. Because, although copper was the favourite article, and preferred by both parties, yet as it was not all bought at once, but in different lots, the price w r as subject to va- riation, and he might have been obliged to give for some par- cels more than he had given for others ; and it becomes impor- tant, therefore, to fix at once for whom the purchase was made. Besides, although copper proved the most fortunate cargo, it might have happened otherwise ; and if it had come to a losing market, and the gold and silver arrived safe, the latter articles might have proved the best investment. In every view r , there- fore, the purposes of justice required that when the discretion was exercised, and the purchase made by the funds of one of the parties, the article purchased should become at once the property of him for whose use it was bought, and should not afterwards be transferred to the other, without the consent of both parties. Assuming this to be the true principle, let us look at the state of the funds at the time of Pawson's death, and what was done with them afterwards. And this brings up the question in the first exception. On the 4th of November, 1820, Patoson'had bought for J)on- nell 9500 quintals, nearly 7000 of which was then on board at Coquimbo, and the remainder at Guasco, to which place the Chesapeake afterwards intended to sail. (See Pawson's letter.} So far we have an actual appropriation of DonnelVs funds. But we have no other appropriation during his life, and no evidence OF MARYLAND. 133 Pawson's Adm'rs vs. Donnell. Donnell us. Pawson's Adm'rs 1829. that any more copper was purchased by him. A large amount of copper was afterwards bought at Coquimbo. For it appears by the bill of lading, that instead of the "nearly 7000 quintals" at Coquimbo, mentioned in Pawson's letter of November 4, 1820, as purchased and shipped there for Donnell, there was in fact, 8076 quintals and some pounds shipped from Coquimbo. And there is no evidence to show for whom the additional 1076 quintals were bought ; nor indeed any thing to show whether it was bought in Pawson's life time, or after his death. The 9500 quintals, bought for Donnell, did not exhaust bis funds; it left between six and seven thousand dollars of DonneWs funds unappropriated ; and there is no evidence to show that the additional quantity of copper was bought for him, or with his funds ; nor that any further specific appropriation of the funds of Donnell were made by Pawson in his life time. But whether any further specific appropriations of DonnelPs funds were or were not made, it is in proof that they were not all appropriated. For it appears by the testimony, that some of DonnelPs doubloons brought from England had not been ex- pended in the purchases ^made for him by Pawson; and that these specific funds of Donnell were applied after the death of Pawson, and by the advice of his successor, in the purchase of the very gold, which was afterwards seized by the Spanish government. Now, as the specific funds of Donnell were appropriated to the purchase of this gold, and it was bought on his account, the purchased gold belonged to him, and the loss must be borne by him. We have already endeavoured/ to show, that if the Chesa- peake would not bring all Pawsbn's funds in copper, and all DonnelVs funds also, that as Pawson had no specific directions how to dispose of DonneWs surplus funds, he had a right to ex- ercise a sound and honest discretion on the subject, and might invest them in any article he deemed best. He died, leaving funds of his own and funds of Donnell, also unappropriated. The money of both of them came to the hands of persons who had no instructions, from either Pawson or Donnell, and no authority from either of them. Neither Lane, nor Edwards fy I-U CASES IN THE COURT OF APPEALS Pawson's Ailin'r* r>. l)..mifll. Donnrll vt. Pawson's Ailm'rs. 1829. Stewart, in whose hands these funds remained, were appointed th<> agents of Donnell, or the agents of Pawson. In this state of things the money was in their hands in the same condition, and suhjectto the same rights, as when it remained in the hands of Pawson. Edwards <$ Stncart, who held the funds, became trustees for the respective parties, according to the amount of their respective funds, and according to their respective rights of investment and shipment. And when the funds of either party were invested in a particular article, that article became the property of the party whose fund was used in the purchase. The thing purchased belonged to him, and could not be claimed by the other. And if it were lost or destroyed, he could not put that loss on the other party. If indeed the trustee had misbehaved himself in the purchase, and a loss had thereby hap- pened, the party injured would have been entitled to demand compensation of the faithless trustee. But nobody, under such circumstances, could have acted more discreetly or honestly, than Edwards fy Stewart. There is no pretence of complaint against them. But whether Donnell had, or had not cause of complaint against them would not have altered the case. The funds were in the hands of Edwards fy Stewart, precisely as they had been in the hands of Pawson. The funds of Pawson had an absolute right, derived from Donnell, to be invested in copper, and brought home in the ship. The funds of Donnell had a right to be invested in the same article, if the ship would bear it But if the ship would not bear it, the surplus might be invested in any manner that the sound discretion of the agent would justify. These were the rights of the parties while Pawson lived, and the funds were in his hands. Uj>on his death, the funds in the hands of Edwards fy Stewart were liable to the same appropriation, and subject to the same rights; and, by the hands of Edwards fy Stewart, the surplus funds of Donnell have been specifically appropriated to the purchase of the gold. This appropriation would have been a lawful one by Pawson : it was equally so when made by Edwards fy Stewart. If the shipment had proved fortunate, Donnell would have had a right to hold it, in opposition toPawson's representatives; and as it has OF MARYLAND. 135 Pawson's Adm'rsus. Donnell. Donnell vs. Pawson's Adm'rs. 1829. proved to be unfortunate, he cannot throw the loss upon them. It is unnecessary to cite many cases on this subject. Taylor vs. Plumer, 3 Maul, and Selw. 574, is in point. In page 575, it is said " the product of, or substitute for, the original thing still fol- lows the nature of the thing itself, as long as it can be ascertain- ed to be such." The gold in question was "the product of, or substitute for," the doubloons of Donnell. He clearly had a right to follow the gold bought, and to claim it to the exclusion of Pawson; and it would be contrary to every notion of justice to give him the right to it, if it was found to be profitable, and enable him, if unfortunate, to throw the loss on Pawson. If he takes it all, he takes it for better or for worse. And if he has been wronged in the purchase, it was not by Pawson, for he died before the purchase. But in truth he has been wronged by nobody. The investment was judicious and discreet at the time, although it afterwards proved unfortunate. And as it was purchased with -his money it belonged to him, and the court have therefore erred in the opinion contained in the first excep- tion, as well as in that given in the second exception, which was first examined. So far we have argued the case according to the rights of the parties, at the time the gold in question was purchased, and without reference to any thing that happened afterwards. We proceed now to show, that if Edwards <$< Stewart had not pos- sessed the power to make this investment of the funds of Don- nell, yet that Donnell, by his subsequent conduct, has adopted it and assented to it, and cannot now dispute it, even if he might have done so, when first informed/of the transaction. This point arises under the second and third exceptions : It pre- supposes that Pawson in his lifetime, and Edwards fy Stewart, after his death, had no right to invest any part of his funds in copper, and bring it home in the Chesapeake, until DonneWs funds had been first exhausted in the purchase of that article, and had been found to be insufficient to load the ship. But, as- suming this to be the law of the contract between Donnell fy Pawson, we insist that if Pawson in his lifetime, or Edwards fy Stewart after his death, holding in their hands the funds of both CASES IN THE COURT OF APPEALS Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. p.iriic>, d'ul specifically and separately appropriate them in any particular manner, anil if Donnell and Pawson's representatives, after notice of Mich appropriations, acquiesced therein, that such acquiescence will bind the parties, and neither of them could afterwards reject and disallow it, without the consent of the other party. We have certainly offered evidence of all the facts above stated. 1st. It is admitted by the statement, and in prayer of the appellee that, upon the death of Puwson, a large proportion of the funds of both parties were in the hands of Edwards fy Stctrart. 2d. These funds were specifically appropriated. The gold in question was purchased with the money of Donnell, and ship- ped on his account. See where Edicards fy Stewart speak of it as DonneWs gold. The Cftinchilli skins, the one hundred and forty seven quintals and seventy-nine pounds of copper, and the silver mentioned in the same bill of lading, were separately ship- ped on account of the funds under the immediate control of Patcson. See letters of Edicards & Stewart. Also the bills of i lading. When we speak here of the funds under the immediate control of Pawson, we mean his own and Goddard's, as distin- guished from DonneWs. The balance of Pawson's separate ac- count was passed to the credit of Donnell, and invested for him, and shipped on his account. The 900 pigs of copper, and the thirty-six lumps of gold were shipped on DonneWs sole account. And it is distinctly admitted in the argument, and the evidence and figures shew it, that DonneWs funds, independent of those transferred to him by Edwards fy Stewart, would not purchase the 900 pigs of copper. These 900 pigs contained 113 quin- tals more than DonneWs own funds would have purchased, after exhausting every dollar that Donnell had in the hands of Pawson. 3d. Donnell and Pawson's representatives had notice of these specific appropriations, and acquiesed in them. The acquiescence of Pawson's representatives is not dispu- ted. They claim, according to adjustment made by Edwards $ OF MARYLAND. 137 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adra'rs. 1829. Stewart, and have always so claimed. They sue on that ground. See, also, Graham's letter, May 15, 1822. Donnell, also, had notice and acquiesced. The Chesapeake arrived at BaUimore,on her return from this long voyage, Octo- ber 1, 1821. Donnell then received the letters of Edwards fy Stewart, and their accounts, and the bills of lading, and invoices contained in the record, which gave him notice of every thing that had been done, as above stated. So far as to notice : Now, as to acquiescence. He received this notice, October 1, 1821. The 147 quintals, shipped on Pawsorfs account, as before men- tioned, were delivered to his representatives as his share, Octo- ber 29, 1821. All the rest, it seems, was retained as DonneWs. Some months afterwards, and after a full investigation of all the accounts of the voyage, Donnell states an account with Pawson. We have said that this account was made out after a full investiga- tion of the accounts of the voyage, because the paper itself upon the face of it, shows that this was the case ; and we have said that it was made out some months afterwards, because the ear- liest evidence of its existence is to be found in Mr. Graham^s letter of May 15, 1822. In this account he states the 147 quin- tals and 79 pounds, as the whole of Pawson's interest in the cop- per. See the item in the account, in which he charges him with his proportion of the expense of landing and reshipping the copper. Donnell had, at that moment, in his hands 113 quin- tals more than his own funds could have purchased. Yet he gives no account of this, and speaks of the 147 quintals and 79 pounds as the whole of Pawson's interest If Donnell acquiesced in the transfer to him of $7777 87/^y Edwards << Stewart, then he was not bound to speak of this 113 quintals, because he would be debtor for the $7777 87, transferred to him, and he would be entitled to all the cargo purchased with it, and, consequent- ly, to the 113 quintals above "mentioned. If he does so ac- quiesce, then he adopts, also, the shipment of the gold, and, of course, gives up the matter in controversy. The gold was ship- ped on his sole account. And if he adopts and ratifies the acts of Edwards fy Stewart, as to the 113 quintals of copper bought with part of the sum transferred to him, it will hardly be said VOL. 118. 13S CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donncll r. Pawson's Adm'rs. 1829. that he may reject the gold, because it was unprofitable or lost. In line, he may in this aspect of the case accept the transfer of the &7777 87, or reject it altogether. He cannot accept it in part, and reject it in part. He has accepted it as relates to the 113 quintals. If he has acquiesced as to that, he must acquiesce as to the gold also. It can hardly be supposed that Donnell did not acquiesce as to these 113 quintals. They were bought with part of the sum of $7777 87, transferred to him as aforesaid. He had no other funds to buy it. If he did not mean to assent, then these 113 quintals belonged to Parson's administrators. Yet Donnell, after a full view of the whole ground, accounts with them, with- out allowing them these 113 quintals. And after taking all the copper to himself, and these 113 quintals with the rest, he makes himself debtor for 8185 09 only. Whereas, if this copper be- longed to Pawsoti's administrators, it was of itself worth in Bal- timore more than f 2000. Donnell, therefore, stands in this di- lemma. If he did not mean to ratify what was done by Edwards &f Stewart, then he was bound to deliver over this copper to Pawsoii's representatives, for which he himself had not paid, and had no funds to pay. If he did mean to ratify what was, done by Edwards Sf Stewart, he had a right to retain it. In the first case, he could not rightfully withhold it. In the second, he might honestly do so. He did retain it, honestly and justly we say, because the funds were transferred to him, and it was ship- ped on his account. It will not, be said on his behalf, that he withheld it from the account from any unworthy motive. He must therefore have acquiesced in the arrangements made by Edwards Sf Stewart. His conduct in regard to these 113 quin- tals of copper can be justified on no other ground. We do not ask the court to say that this conduct was, in point of law, an acquiescence or consent on the part of Don- nell, and irrevocably bound him. But we insist that it was evi- dence of his acquiescence and consent, after notice of the man- ner in which the funds had been appropriated ; and being evi- dence of such acquiescence and consent, it ought to have been left to the jury to say from the evidence, whether he did, or OF MARYLAND. 139 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. did not acquiesce in the disposition of the funds made by Ed- wards <^ Stewart. If he did assent, it is quite clear that in point of law he cannot afterwards recall it. The case of Prince vs. Clark, 8 Serg. fy Lowb. 54, is directly in point on this subject. In that case the agent applied the funds of the principal in a manner not authorised : in this case, it is assum- ed for the sake of the argument, that the same thing was done. In that case the principal received notice of the manner in which his funds had been applied, May 29, 1822 ; and gave notice of his dissent, August 7, 1822 ; that is, in less than two and a half months afterwards. In this case Donnell must have received notice of the application of his funds, when the ship arrived, October 1, 1821 ; and he expresses no disapprobation of the transfer of Pawson's funds to his account, until he ren- dered his account. And there is no evidence of the time of rendering that account, but the letter of Mr. Graham ; which letter is dated May 15, 1822, seven months and a half after the arrival of the ship. If in the case of Prince vs. Clark, the silence of the principal, or rather the absence of any evidence of dissent by him for the space of two and a half months, was evidence, from which the jury might properly find that he had acquiesced and assented to the act of the agent; surely the silence of Donnell, for the far longer period above stated, was evidence, from which a jury might have inferred his assent and acquiesc- ence in the acts of Edwards <^ Steicart, in the transfer of Paw- son's funds to him, and in the shipment of the copper and gold, on his " sole account," as stated in the letters and bill of lading. Indeed this case has this strong additional circumstance against the principal, that the legal representatives of Pawson were known to him, were living in the same town with him, and to whom he had delivered the property, shipped on account of Pawson, October 29, 1821. And in the ease of Prince vs. Clark, it was not very clear that Leigh was the proper person to receive the notice ; and if he was the proper person, it was not very clear that Prince knew it. We confidently, therefore, rely upon this case to prove that the court erred in the opinion contained in the third exception, in which they decide that the 1 10 CASES IN THE COURT OF APPEALS Pawson's Adm'ra w. Donnell. Donncll vs. Pawson's Adm'rs. 1829. evidence above stated, is not a ratification of the acts of Ed- wards $' Stewart. Whether Donncll did, or did not consent to them was a question of fact for the jury, and not of law, for the court. And if he did acquiesce in them after notice, and the jury had so found, then in point of law it ratified what Edwards 8f Slemtrt had done. So far we have considered the case as if Donnell in his ac- count had dissented from the appropriation of the funds made by Mintnls $ Slcirart. But is this the meaning 1 of the account in question? Does he in this account dissent from what had been done ? It is very true that he says, in noticing this item, that the transfer of $7,777 87, was very improperly made to him. But he does not reject it. He does not refuse to accept it. On the contrary, he credits Pawson with the whole amount, rejects from it Goddard's funds, and then reduces the balance by charging freight, the cost of the gold, &c. &c. and, finally, leaves a balance against himself, on account of this transfer of $112 49 ; and this sum of $1 12 49 is a part of the balance of $185 09, which Donnell admits to be due from him to P meson's representatives. Is not this a direct acquiescence in the trans- fer ? Is it not a positive adoption of it ? True, he complains of it, and denies the right of Edwards fy Stewart to make it. Yet he accepts it; accounts, as he supposes, for all but $112 49; and admits that he owes that sum on account of this transfer. If he did not accept it, he owed nothing on that ac- count. He does, therefore, in admitting this balance to be due, also admit, by necessary implication, that he assented to the transfer. The account is in writing; and whether Donnell does, or does not by this account accept the transfer above mentioned, must depend upon the language of the account which is to be taken all together; and being in writing, is to be expounded by the court. We have endeavoured to shew the court, that by the true construction of the account, he has assented to and ac- cepted the transfer. If we are right in this, then the court ought to have instructed the jury that, "under the, circumstan- ces of the case," the account of Donnell was a ratification of the OF MARYLAND. 141 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. acts of Edwards fy Stewart. For, if by the written language of the account, according to its true interpretation, Donnell had accepted the transfer, his assent was in point of law a ratifica- tion; and the other evidence need not have been left to the jury. If, however, we are wrong in our interpretation of this account, yet all must concede to us that the circumstances, herein before detailed and relied on, furnish evidence from which a jury might have inferred his consent, and that there- fore the opinion of the court cannot be maintained. It has been said that this copper was retained by Donnell, in order to meet any claim that Goddard might make against him. Now the motive which induced him to retain was necessarily a question of fact for the jury, and not one of law for the court. Donnell contends that he retained it to meet any demand that Goddard might make : we insist that he retained it as his own property, shipped to him and on his own account by Edwards $ Steicart. In this state of the dispute the jury must decide the controversy. The court cannot decide tvhat motive or inten- tion influenced Donnell. It is a question of fact The argu- ment, therefore, on the motives which governed Donnell, does not tend to support the opinion given by the court. As the mo- tive was controverted, it was not in the province of the court to decide the controversy. It may not, however, be improper ta remark here, that Donnell does not, in his account, suggest that he retained this copper for the reasons now assigned in the ar- gument. He gives no account of it whatever, and Pawsorfs re- presentatives did not know any thing about it. It is quite evi- dent that Goddard could have ^o claim against Donnelly or against the copper brought in the Chespeake. He never pre- tended to have a claim against either ; and we shall be ready, at the proper time, to shew that he has no just demand against Pawson's representatives. With that controversy, however, we have nothing to do at this time. It is sufficient for us, on this occasion, to show that it cannot be taken as an admitted fact, that Donnell retained this copper for Goddard. The opinion of the court, therefore, in the third exception, cannot be sustained on that ground. 142 CASES IN THE COURT OF APPEALS Pawson's Adm'rs w. Donncll. Donncll vs. Pawson's Adm'rs. 1829. There is another objection to the opinion contained in the third exception, which we must briefly notice. We understand the first branch of the direction to be this: that if Pawson, in his lifetime, was willing to waive the privilege he had to bring home his whole funds in copper, but died before he had actually invested the funds in his hands, and before he had actuallj waived it, that his declared intention, his willingness to curtail his rights would bind his representatives, and compel them to relinquish what Pawson had been willing to relinquish, and had intended to relinquish, but which intention he had not, in his lifetime, carried into execution. This, we presume, must be admitted to be the meaning of the first branch of this direction. Upon what principle can it be sustained ? Is there any case in which the intention to do an act has been held to bind the party, or his representatives? It is not pretended that he did, by any act of his own, surrender a part of his privilege; nor is it supposed that he contracted to surrender it, or any part of it The direction stands on the hypothesis, that he was willing to accept less than he was entitled to. His willingness to do an act cannot be equivalent to the act itself. We are not to inquire what either party was willing to do, but what they had done; and what were their rights at the time of Parson's death; for it is according to these rights that the cause must now be decided. It is time, however, that this argument should be brought to a conclusion. We have endeavoured to show, 1st, that Pawson had the permission of Donnell to bring home in copper the whole of his own funds, if in his discretion he thought proper to do so. And that this permission had never been recalled by Donncll, nor surrendered by Pawson. 2d. That upon the death of Pawson the funds remaining unexhausted came to the hands of Edwards Sf Stewart, clothed with the same rights and privileges that be- longed to them, in the hands of Pawson. 3d. That being so in their hands, Edwards Sf Stewart were not bound to exhaust DonneWs funds in copper, before they invested any part of Pawson's funds in that article , but, on the contrary, had a right OF MARYLAND. 143 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. to invest if they thought proper to do so, the whole of Pawson's funds in that article, and send it in the ship. 4thly. That Edwards fy Stewart, holding thus the funds of both parties in their hands, and Pawson's funds having a right to be preferred in the investment in copper; if Edwards fy Stewart in the exercise of an honest discretion, actually invested any part of DonneWs funds in gold, that the gold became the property of Donnell; and, if a profitable investment, he was entitled to claim it ; and if it proved to be a losing one, he could not throw the loss on Pawson's representatives. 5thly. We have endeavoured to show that whatever might have been the rights of the parties, there is evidence to prove that all of them, after notice, acqui- esced in what was done by Edwards fy Stewart ; and if from that evidence the jury should find such acquiescence, Donnell, as well as Pawson's representatives, are bound by it, and cannot recall it, no matter what might have been their rights before. And 6thly, we have endeavoured to show that by his account, Donnell has given a written assent to the appropriations of the funds made by Edwards &i Stewart ; and that although he denies the propriety of the transfer to him, yet he adopts it, and states the account upon the principle, that he is to account for the money so transferred, and does not deliver or offer to deliver the property in which it was invested, but retained it as if it were his own. And, relying upon the soundness of these pro- positions, the case is submitted to the Court. DORSEY J. at this term delivered the opinion of the Court. Of the refusal of the Court to/grant the instruction prayed for, which forms the ground' of sippeal on the appellant's first bill of exceptions, we entirely approve. Had the instruction been given, it would have been a palpable invasion of the unquestionable and exclusive right of the jury: that of deciding on facts, of which contradictory testimony is adduced. The appellees "had offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account." The appellant then "offered in evidence that 1 1 i CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donncll. Donnell vs. Pawson'a Adm'rs. 1829. there was no usage as above stated, and that the captain was liable to freight to the owner, like any other person, if he chose to exact it." In such a state of the proof, the court could not do otherwise than reject the prayer, calling on them to decide a fact thus controverted. In the appellant's second bill of exceptions are involved ques- tions of great magnitude to the commercial world and of much intrinsic difficulty; and we regret that we are called to the deci- sion of these questions, without proof of commercial usages upon the subject. In the argument it is conceded by both par- ties, that the owner of the ship and cargo has the uncontroled power of breaking up or changing the voyage, but they differ most widely as to the consequences which would ensue, and the nature of the responsibilities, to which the owner would thereby be subjected. For the appellant it was contended that this well established prerogative of the ship owner, entered into the con- templation of Donnell and Pawson, who contracted in reference to it. That upon its exercise no new liabilities were created; the Canton privilege no longer formed any part of the contract ; nor had Pawson any claim to indemnity for its loss. This is assuming much broader ground than was occupied by the prayer to the court below : which appears predicated on the admission of Pawson's title to recover, but for his alleged voluntary relin- quishment of his right. The appellees, on the other hand, in- sist, that upon the change of the voyage, Pawson was not only entitled to claim an indemnification for the injuries thereby sus- tained : but the full value of the Canton privilege, exempt from all the casualties to which it was naturally liable : and also the whole compensation, stipulated as an allowance to the supercar- go, whether the services for which it was equivalent were ever rendered or not; all which on the part of the appellants, is strong- ly controverted. The principles, contended for by each party, are perhaps stretched further than reason or justice would sanc- tion or public policy requires. And it may readily be imagined, how the counsel on both sides, if yielding to the impulse of their clients interest, would have changed hands in the argument , had a new modification been given to the facts, in the case, OF MARYLAND. 145 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. which whilst it varied its aspect, would not in the slightest de- gree have removed it from the operation of the principles now attempted to be applied to it Suppose, for example, the voy- age contracted for had been from Baltimore to London, and thence home with a cargo of dry goods, the stipulated compen- sation of Captain Pawson, in addition to his monthly wages, be- ing three hundred dollars ; but no privilege. After the sailing of the vessel, owing to a sudden depression in the price of dry goods, Donnell changes the voyage : directs that eight thousand doubloons be taken on board at London: be transported to Co- quimbo: there converted into a full cargo of copper : which was to be sold at Canton, and the proceeds of sale there invested by Pawson in a suitable invoice were to be brought home by him, in the Chesapeake to Baltimore: under such circumstances would Pawson's counsel, as they now do, insist on the compensa- tion fixed in the original contract, when the emolument incident to the substituted voyage, by universal usage of trade, were twenty times as great as those which belonged to the original? Impelled by the interests of their client, they surely would re- quire, the accustomed reward for the services rendered. Whilst the counsel for the appellant, if influenced exclusively by his interests, would insist on his discharge, upon payment of the sum specified in the agreement. But suppose another case slightly variant in circumstances, but the same in principle A ship-owner in Baltimore, for a fixed compensation (say 300) employs a captain to navigate his vessel to the Havana : there to sell his outward and purchase a return cargo. Before she reaches the mouth of the Chesapeake, her destination is changed ; she is ordered on a trading voyage that may last for years; she is to double Cape Horn and return by the Cape of Good Hope; would it be attempted to limit the reward for the captain's services to the sum mentioned in the original agreement? But to present the question on facts more immediately before us, suppose the Chesapeake on her originally destined voyage, before she had passed the waters of Maryland, had been ordered to Norfolk, there to sell her cargo and return to Baltimore; could it be pre- tended that Pawson would in such circumstances have been en- VOL. 1. 19. 146 CASES IN THE COURT OF APPEALS Pawson's Adm'rs vs. Donnell. Donnell va. Pawson's Adm'rs 1829. titled to the two thousand dollars, and the undiminished value of the Canton, privilege ! If the rule contended for either by the appellants or the ap- pellees be a good one, it must work both ways, as well to cases where the length of the voyage is increased, as where it is diminished. In its operation it would always work injustice to one party or the other ; and in the latter case, it would, in effect, annihilate that acknowledged and invaluable right in ship owners, of controling the destination of their property ; as its enjoyment would be visited by penalties more than equiva- lent to the losses apprehended from the original, or benefits an- ticipated from the substituted voyage. Reason, justice and public policy, are never to be lost sight of in the construction of commercial contracts; in unison with which, it would be diffi- cult to reduce the rules insisted on by the parties to this contro- versy. The principles which should govern cases like the pre- sent, according to our views, (in the absence of all commercial usage on the subject,) are these. If by the exercise of this important privilege, a special injury is done to the captain or su- percargo, the ship owner must bear the loss ; he must make a reasonable indemnity. If on the contrary, by the change of voyage the captain or supercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby ex- tinguished. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be al- lowed, as appears just, on comparing the services rendered, un- der the voyage originally contemplated, with those which re- main unperformed. For the interpolated part of the voyage the usual compensation must be paid. The parlies should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract, for the voyage as changed, been entered into between them. To all the customary emolu- ments of a captain or supercargo, on such a voyage, are those officers respectively entitled. The County Court, we therefore think erred, in the appel- lant's second bill of exceptions, in refusing to instruct the Jury as OF MARYLAND. 147 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. prayed, that <' the plaintiff (below) is not entitled to any compen- sation, for the alleged loss of the privilege of bringing home the twenty-five tons from Canton;" that being a privilege, so inseparably connected with the vessel's destination to Canton; that upon its ceasing, as it did, to be one of the termini of the voyage, the privilege of necessity expired with it. With the opinion of the court below in the third bill of excep- tions we concur. The alleged misconduct of the captain, hav- ing produced neither injury nor inconvenience to the appellant, forms no defence to the present action. According to the views before expressed by us, the County Court were in error in their refusal to grant the prayer in the appellant's fourth bill of exceptions ; and also in the opinion and direction they thereon gave to the jury, and in conformity with the same views, we approve of their refusal of the opinion and direction prayed for in the appellant's fifth bill of exceptions. The decision made by this court on the second bill of excep- tions, renders it unnecessary for them to examine the opinion of the County Court in the appellant's sixth bill of exceptions : as by that decision the appellant's prayer becomes wholly immate- rial and irrelevant to the issues in the cause ; and let the deter- mination of the County Court be what it might, it would furnish no ground for reversing their judgment. The same may be said in relation to the appellant's ninth bill of of exceptions. Of the refusal of the Court below to grant the prayer in the appellant's seventh bill of exceptions we in part approve and in part disapprove. They were wrong in refusing to instruct the jury that the plaintiffs below were not entitled to recover the said sum of two thousand dollars : but were right in refusing to instruct the jury that they were not entitled to recover " any part thereof." We concur with the County Court in their refusal to grant the appellant's prayer contained in his eighth bill of exceptions. There being cross appeals in this case, it now becomes neces- sary to consider the exceptions on the part of the appellees. It has been attempted to sustain the opinion of the County Court in the appellee's first bill of exceptions, on the ground that [ i- CASES IN THE COURT OF APPEALS Pawson 's Adm'rs vs. Donncll. Donucll vs. Pawson's Adm're. 1829. Edwards $f Stewart were the agents not of Donnell, but of Pairson, and, that lie only must be answerable for their acts. AVith this doctrine to the extent to which it is urged we cannot concur. It is in proof, that it was the known and necessary t:n>tom of trade at Chili and at Coquimbo in the business in, which Pairson was engaged, to employ agents on shore, such as Edwards fy Stewart. That tlie selection of such agents in this case, was not made bona fide, and with discretion, there is no insinuation. The consequences of the neglect, omissions, or mis- conduct of Edwards fy Stewart, in their agency, not imputable to Pawson, must be borne by Donnell ; in fact they are his agents, though appointed by, and under the immediate control of Pawson. For their acts tlierefore, after Pawson's death, not flowing from any instructions previously given by him, in rela- tion to DonnelVs funds, they only, and to him alone, are answer- able. This doctrine is fully sustained by the opinion of this court in the case of Jackson vs. The Union Sank of Maryland, 6 llarr. 8f Johns. 150, and by the late decision of Judge Hallowell before a special jury in the district court of the city and county of Philadelphia. In refusing, therefore, to give the instruction prayed for, we think the County Court erred. The prayer in the appellee"^ second bill of exceptions being in the alternative, the court below were right in instructing the jury, that if Pawson in his lifetime made the investment in gold, that he must bear the loss; but in the instruction given on the latter branch of the alternative, we conceive the court were wrung, upon the grounds assumed by us in the consideration of the appellee's first bill of exceptions. It being a question, under all the proofs and circumstances of the case, fairly open for discussion before the jury; whether the purchase of the gold was made under any instruction or authority from captain Pawson. By their decision, they have determined that matter of fact in the affirmative, and consequently overleaped one of the barriers interposed between the court and the jury. The first branch of the third exception of the appellee's, is inaccurately drawn; and if construed according to its obvious import, might have been rejected by the court for irrelevancy OF MARYLAND. U9 Pawson's Adm'rs vs. Donnell. Donnell vs. Pawson's Adm'rs. 1829. to the matters in issue before them. It prays an instruction to the jury "that the plaintiff (below) is not entitled to recover of the defendant, the amount of any gold or silver, which the said Pawson, or his agents, the said Edwards 4*- Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent or orders of the defendant (below) and which may have been afterwards seized by the government of Chili, and confiscated as having been attempted to be exported contrary to the laws of the land." The plaintiff did not claim to recover the amount of any gold or silver ; on the contrary, the gist of the controversy was his disclaimer of all interest in the gold or the funds with which it was purchased. The prayer was therefore inapplicable to the issue. But give to the exception that construction which has been ascribed to it in the argument; that it presents the question whether the amount of this gold, could by the jury be discounted from any claim which Pawson might have upon Donnell, and the prayer is too wide to be gratified in extenso. If the investment in gold was made by Pawson in his lifetime, or in obedience to his directions, then the discount contended for should have been sanctioned by the court; but if the investment were the act or Edwards fy Stewart without orders from Pawson, then the loss- of the gold shipped must fall upon Donnell. The instruc- tion of the County Court embraces both alternatives, and is- therefore erroneous. In their opinion, on the latter part of this exception, regarding the ratification by Donnell, of the purchase- and shipment of the gold, we concur with the County Court. Having assented to the decisions of the court below, con- tained in the appellant's first, third, fifth and eighth bills of ex- ceptions ; but dissented from those in the appellant's second,, fourth and seventh bills of exceptions; and having dissented from their opinions in the appellees three bills of exceptions : Their JUDGMENT is REVERSED AND A FROCEDENDO AWARDED* 150 CASES IN THE COURT. OF APPEALS \YirgmatTs Adm'rs tw. Mactier. 1829. WIRGMAN'S Adm'rs vs. MACTIER. December, 1829. THE owner of a ship after she was laden at Baltimore, on the 14th May, 1810, agreed with the shippers of the cargo, in writing, that their goods were "to be landed in a permitted port on the continent of Europe, (meaning that they were not to be landed at the Island of Sylt) before the freight should be earned, but should the whole of the continent be shut, the freight, with an addition as arbitrators might determine, would be earned, should the property be landed in England, agreeably to the custom of the country." On the 25th April, 1810, a charter party had been entered into for the same ship, by which the owner covenanted to proceed with his ship from Baltimore, north about, for the Island of Sylt, thence to Hamburg or Bremen, if open to American ships, if not, the cargo to be landed at Sylt if permitted, and in case of refusal there, thence to such permitted port in the North Sea or Baltic, as the master and supercargo might direct; and should the Baltic be closed against the admission of American vessels, then to such other port as the master and supercargo might again direct. The freight was to be paid agreeably to the bills of lading, provided the cargo was discharged at a port in the North Sea; but if delivered at any port in the Baltic, an advance in the freight was covenanted for; and should the Baltic be shut, a further advance in the freight to be settled by arbitra- tion. On the 8th May, 1810, a bill of lading was also signed for the plain- tiff's goods, which stated the ship to be bound from Baltimore for Sylt, and a permitted port in the North Sea or Baltic, the goods to be delivered at the aforesaid permitted port, unto P of Hamburg, who was not the super- cargo of the ship. In an action where the plaintiff claimed under these contracts, he offered testimony to establish that certain ports in Europe not on the North Sea or Bailie, were open to American vessels, but th court held that looking to the historical facts and occurrences of the time, it was manifest that the voyage was undertaken, and the charter party, bill of lading, and agreement entered into, with a view to the then political state of affairs in Europe, and should be construed with a view thereto- that the permitted port on the continent of Europe, in which, the goods were by the agreement to be landed, before freight could be earned, was intended to be a permitted port in the North Sea or the Baltic; and also that all the said instruments must be construed in connexion with each other, and the general terms in the agreement of the 14th May, restricted to the North Sea and Baltic; and therefore rejected the testimony offered,as inad- missible and irrelevant. Whether ship owners are entitled in equity and good conscience, to retain money received on account of freight, is clearly a question not to be left to the jury; but proper only to be decided by the court, under the circum- stances of each case. OF MARYLAND. 151 Wirgman's Adm'rs vs. Mactier. 1829. So where in an action of assumpsit brought by the owner of merchandize shipped in the defendant's vessel, to recover a sum which the defendant had received and retained for freight, it appeared that the shipment was made under the charter party, bill of lading, and agreement above referred to, and that the master was furnished with instructions from the plaintiff, as follows, "on account of the unsettled state of affairs on the continent of Europe, I have thought proper to request my friends Messrs. P- $f Co. of Hamburg, in the event of the cargo of the ship being denied entry at their port, to consult with you on the further destination of the ship, and the disposal of my interest on board. In case they have no friend at the port she may proceed for, you will please take charge of it, and advise with them what is best to be done for my interest. On your arrival off Sylt, should the situation of affairs be such as to prevent you from communi- cating with Messrs. P. Sf Co., in that case you will have to proceed with the cargo where you judge it will be most advantageous for all concerned, when I shall consider my part as entirely under your charge, &c." The ship sailed on her voyage, was captured before her arrival off Sylt, taken into a port in Norway, but ultimately released. The master, after the restoration of his ship and cargo, without consulting with the consignees about the further destination of the ship, or disposition of the plaintiff's property, although he had the means of communicating with them, pro- ceeded with his ship to England, there delivered his cargo, and received (from the agents who sold the cargo,) as freight, the sum claimed in this action. HELD, he was not entitled to retain it. Where by the municipal regulations of certain ports, a certificate of origin was necessary to the admission of certain merchandize there, a shipmaster having received such goods on board his ship, and signed a bill of lading for their delivery at one of such ports, cannot in the absence of evidence to shew it was the duty of the shipper to furnish such a certificate, set up the fact of that document not being on board his ship, as an excuse for not entering the port at which he had agreed to land the property entrusted to him; nor as a justification for his delivering it at another port, and thereby earn freight. APPEAL from Baltimore County Court. This is the same case which was before this court at December Term, 1819, (4 Hair, fy Johns. 558,) on appeal from Baltimore county, where- in the Judgment was reversed, and the record remitted under a procedendo. 1 . At the second trial, the same evidence was offered as on the first trial, and which is set out in the bill of exceptions then taken, [see 4 Hair. &f Johns. 568] except that stated in page 574, lines 5, 6, 7, 8 and 9, from the bottom, as to the under- |.v CASK* IN THE COURT OF APPEALS Wirgman's Adm'rs r.t. Mactier 1829. standing of the merchants of Baltimore, &c. Also that of Jl. Campbell, in page 575, lines 5, &c.aud substituting that of James Dooky as hereafter mentioned. Also omitting in page 575, lines 3, 4, 5, 6 and 7 from the hottom. The defendants in order to prove that Peter IHrgman was ordered to leave Denmark by tin- Collector of the Customs at Flekkcfiord without delay, read in evidence the deposition of James Dooky, taken by consent. He deposed " that he was the second officer on board the ship Willuiin Wilson, Peter Wirgman, commander, on a voyage to Europe, in the year 1810. In the month of October or Novem- ber of the same year, while the said ship was lying at Flekke- jiord, in JVonrat/, and before the Admiralty proceedings against said ship were terminated, the deponent was present at conver- sations between E. Thomman, supercargo of said ship, and said Peter Wirgman, in which the said Thomman united with the said Wirgman in determining that in the event of the liberation of said ship and cargo, they would proceed with the same to the port of Hull, in England. That subsequent to the above conver- sation, and while the said ship lay at Fkkkefiord, as aforesaid, the said Thomman, in the absence of Captain Wirgman, asked this deponent, and Walter Pratt, first officer of said ship, what time it would require to get said ship in readiness for sea; and then declared his determination to proceed with said ship and cargo, in the event of their liberation, to Hull, as aforesaid. That a day or two afterwards the said Thomman left Flekkejiord and proceeded, as this deponent understood, to Christiansand, and this deponent did not see him afterwards. This deponent fur- ther saith, that sometime in the latter end of November, the said fillip left Fkkkefiord, and ilropt down to the Jllbernes, and re- mained there until about the 10th day of December, when Captain Wirgman came on board from Flekkejiord, accompa- nied by a pilot, who ordered the ship to be got under weigh ; and declared, in answer to a question put to him by this depo- nent, why he meant to proceed with the ship to sea that night, that he had received an order to that effect from inspector lessen, who was the Collector or Custom-house Officer at Fkkkefiord. This deponent further saith, that two or three OF MARYLAND. 153 Wirgman's Adm'rs vs. Mactier. 1829. days before the said ship proceeded to sea, the said Wirgman sent an express to Fahareund, to hurry the said Thomman on to Jllbernes, to join the said ship. That the said Peter Wirgman expressed an anxiety that the said Thomman should arrive at Jllbernes before the said ship proceeded to sea. That after the said ship had got down to the harbours mouth, the night being very tempestuous and stormy, Captain^ Wirgman prevailed upon the pilot to return with said ship to her former anchorage, alle- ging the weather as an excuse, but in reality, as this deponent understood, to afford further time for the said Thomman to join the ship-, but that the said ship, after getting within a quarter, of a mile of her former anchorage, was struck aback and com- pelled to proceed to sea; that the said ship proceeded to Hull, and that on her passage, this deponent heard Captain Wirgman frequently express a wish that said Thomman had joined the said ship at Jllbernes, as the said Thomman had promised." The defendants further offered evidence that the cargo of the plaintiff was colonial produce ; and to prove that no Ameri- can vessel, laden with colonial produce, would have been per- mitted at the time the said ship William Wilson left Norway, as aforesaid, to land the said produce in any port in the Baltic or North Sea, unless the cargo of such vessel was accompa- nied by proper certificates, shewing the origin thereof, and that the same was not the produce of Great Britain, or any of her colonies, read in evidence, by consent of the plaintiff, from the British Register, the American Register, the American state pa- pers, and the Federal Gazette newspaper, published in Balti- more, in the year 1810, certain orders, decrees and municipal regulations of France, Denmark, Prussia, Russia, Jlustria and Sweden, which it was agreed shall be read in the argument of this cause before the Court of Appeals. The defendants also of- fered in evidence, that Wirgman, after he left Flekkefiord, as aforesaid, was without further means, or opportunity of com- municating with the said Parish Sf Co. until his arrival at Hull, as aforesaid. The plaintiff then offered to prove by John Donnell, a wit- ness, sworn at the bar, that a certain ship or vessel, called the VOL. 120. r,t CASES IN THE COUKT OF APPEALS AVir^mrui's Adm'rs vs. Macticr. 1829. Eleanor, belonging to the said Donnelly with a cargo consisting of colonial produce, li;nl Billed iVom lidltimorc, iu the year ISK), and proceeded to Gontfafirinopk, a port on the continent of Europe, situate on the Dardanelles, where she had landed and delivered her cargo in safety, without any molestation hy the government of that country ; and also offered in evidence by the same witness, that in the year 1810, a vessel belonging to him proceeded to the port of Salonica, on the continent of Europe, on the J\Iorea, loaded with colonial produce; and also offered evidence that the port of Gibraltar, on the continent of Europe, was, in the year 1810, open to American ships, loaded with co- lonial produce. To the admissibility of which evidence the de- fendants objected, because the said evidence had no relation to the matter in controversy in this suit, between the plaintiff and defendants', but the court [Archer, Ch. J. and Hanson and Ward, A. J.] overruled the said objection, and admitted the said evi- dence ; being of opinion and so directed the jury, that the con- tract of the said Charles 4*- Peter Wirgman with the plaintiff, was not limited to the ports of the continent in the JYor//i Sea or fiultic, but extended to every port of the continent of Europe whatsoever. To which opinion and direction and the admission of said evidence, the defendants excepted. 2. The defendants then moved the court to direct the jury, that if they shall believe that agreeably to the orders and decrees of France, Prussia, Russia, Sweden, and Denmark, as produced in evidence in this cause, all uncertificated colonial produce was prohibited from entry into the ports of those respective coun- tries, and that the captain of the ship William Wilson was un- provided with a certificate of origin for that part of the cargo which belonged to the plaintiff, and which consisted of colonial produce; that then the captain was justified in not attempting to enter any of the ports of the countries before mentioned, to land the said cargo, and that in proceeding to Hull for that purpose he fulfiled the contract between the plaintiff and the ship owners, and entitled them to freight according to said contract, and con- sequently that the plaintiff cannot recover in this action. Which direction the court refused to give. The defendants excepted. OF MARYLAND. 155 Wirgman's Adm'rs vs. Mactier 1829. 3. The defendants also moved the court to direct the jury, that if from a consideration of all the circumstances as given in evidence in this cause, they shall he of opinion, that the defen- dants are entitled in equity and good conscience, to retain the money by them received, that then the plaintiff is not entitled to recover on the first count of his declaration. Which direction the court refused to give. The defendants cxcepted. 4. The defendants further moved the court to direct the jury, that if they shall be of opinion that all the ports of the continent of Europe, on the North Sea and in the Baltic, were closed by municipal regulations against the admission of a vesseland cargo in the predicament of the William Wilson at the time of her lib- eration by the Court of Admiralty at CJtiistiansand, and that in these circumstances, the William Wilson was expelled from the ports of Norway by the orders of ihe^Danish government so sud- denly as not to allow time for a further correspondence between Peter Wirgman and David Parish SfCo. of Hamburg, that by these, events, and by force of the letter of instructions from the plaintiff to Peter Wirgman, of the 8th day of May, 1810, the said Wirg- man became the special agent of the plaintiff, and that being such special agent if he proceeded to Hull and then accepted that part of the cargo which belonged to the plaintiff in satisfaction of the contract, he the plaintiff is not entitled to recover in this action. Which direction the court refused to give. The defendants excepted ; and the verdict and judgment being against them, they appealed to this court. The cause was argued before E^UCHAN AN, Ch. J. and EARLE, MARTIN, STEPHEN and DORSET/, J. Meredith for the appellants, contended: 1. On the first bill of exceptions, that the evidence offered by the appellee, was irrelevant and inadmissible; because, by the true construction of the contract, it looked for the destination of the cargo, to a permitted port in the North Sea, or Bailie, and not to a port, or ports on the continent, situated on any other sea. 2. That such being the true construction of the contract, and appellants having offered evidence, that agreeably to orders I*; CASES IN THE COURT OF APPEALS Wirgman's Adm'n vs. Mactier. 1829. and decrees of France, Prussia, Russia, Sweden and Denmark, all tincertificated colonial produce was prohibited from entry in the ports of those respective countries; and that the goods of the appellee, which consisted of colonial produce, were unaccom- panied hy a certificate of origin, the court erred in refusing t dfeftct the jury, as stated in the second bill of exceptions, that tf they believed said evidence, the captain was justified in not at- tempting to enter any of the ports of the countries before men- tioned, to land the said cargo; and that in proceeding to Huft, for that purpose, he fulfilled the contract of affreightment, and entitled the owners to freight, and that consequently the appel- lee was not entitled to recover; because, by his own omission and negligence, he had prevented the appellants from proceed- ing to any of the said ports. 3. On the third bill of exceptions, that whatever may be the legal construction of the contract, this being an. action for money had and received, the jury had a right to take into their consideration, all the equitable circumstances disclosed by the evidence, and to find a verdict for the appellants, if in their opinion, the appellants had a right in equity and good con- science to retain the money received as freight, even though, had it not been received, they would not have been entitled to recover it, in an action against the appellee, upon the contract of affreightment. 4. On the fourth bill of exceptions, that the court below erred in refusing the direction therein prayed; because, although the contract is admitted to extend to every part of the continent of Europe whatsoever, still Peter Wirgman hav- ing been constituted by the appellee, as his special agent, in a certain emergency, if the jury believed such emergency to have occurred in point of fact, then Peter Wirgman, as such special agent, had a right to alter the destination of the goods of the appellee, within the limits of the contract; and having actually done so by proceeding to Hull, and there accepting that part of the cargo which belonged to the appellee, he en- titled the appellants to freight, and, therefore, prevented the appellee from recovering in this action* OF MARYLAND. 157 Wirgman's Adm'rs vs. Mactier 1829. 1. On the first bill of exceptions. The question is, whether the charter party or the letter or agreement of the 14th of May, was the contract between the parties to this suit. A parol agreement inconsistent with one under seal, cannot be set up against the agreement under seal. 3 Stark. Evid. 1002. White vs. Parkin, 12 East. 578, 583. Wood vs. Day, 7 Taunt. 646, (2 Serg. $ Lowb. 247.) Mbott on Shipping, 454. The agreement of the 14th of May, is repugnant to the charter party. The charter party stipulates, that the cargo might be landed at Sylt; and the agreement of the 14th of May, is, that the cargo should not-be landed at Sylt. If the agreement of the 1 4th of May, did not control the charter party, was the construction given to that agreement, consistent with the char- ter party? Com. on Cont. 23, 24, 25, (Ed. 1824.) The con- tract originally stood alone on the bill of lading. The charter party, in fact, was not executed until the 14th of May. The ports in the Baltic and North Seas only were in the contem- plation of the parties; no other construction can be given to their agreements. The construction of general expressions in agreement is to be restrained. 6 Bac. Jib. tit. Statute, 381. Jldams vs. Woods, 2 Crunch, 341. 2. On the second bill of exceptions. It was the duty of the plaintiff below, to provide certificates of origin of his part of the cargo, required by the municipal regulations of the coun- tries mentioned in this exception. He had covenanted by the charter party to do so. 3. On the third bill of exceptions. The first count in the declaration is for money had and/received. It is an equitable count; and the defendants are entitled in equity and good con- science, to retain the money received by P. Wirgman. The plaintiff cannot go into the original liability of the party. Scott, for the appellee, referred to the decision of this court on the former trial in this case, as reported in 4 Harr. fy Johns. 568, and to the argument of the counsel as taken in manuscript, but not reported, to show that what has been relied on by the counsel for the appellants now, was not then insisted on. 1. On I S6 CASES IN THE COURT OF APPEALS \\ ir.;m;m's Adm'rs vs. Macticr. 1829. the first bill of exceptions, he cited Pow. on Cont. 370, 371. L\ ( >n the second bill of exceptions, be stated tbat more than four- teen years had elapsed between the transaction and the last trial, so that it could not be proved u hcthcr or not the captain was furnished with the necessary certificates. The objection raised at the last trial, had not been urged at the former one, or the necessary proof might have been then procured. There was no evidence adduced that the vessel was prevented from entry into any of the ports, because of the want of the certificate. She had been captured, but was acquitted at one of the ports. 3. On the third bill of exceptions, he Cited 2 Com. on Cont. part 3, Ch. 6, Jim. Reg. 21. Tancy (Attorney General of Maryland) on the same side. 1. On \\iejirst bill of exceptions. This court in the former case, decided that the parties could make a contract different from the charter party, as to the separate property of any of the* shippers. The charter party was a mere formal paper. It was not delivered, and no action could be supported on it. It was executed for no other purpose, but as necessary to make the ship's papers regular. It cannot be the deed of the parties, unless it was intended as such. Com. on Cont. 25, 27, 28. JMoorson vs. Page, 4 Campb. 103. 5 Petersdorff, 363, 367, 310, 372, 350, 351, 371. Barker vs. Hodgson, 3 Maule # Selw, 267. 2 Barnw. # Md. 17. Hadky vs. Clarke, 8 T. R. 259. Smith vs. Wilson, 8 East. 437. Touteng vs. Hubbard, 3 Bos. fy Pull. 295 (note.) 2. On the second bill of exceptions. The jury were not the judges of the written decrees of foreign countries. The con- struction of those decrees was for the court, and not for the jury. Etting vs. Bank of United States, 10 IVheat. 50. Did any of the decrees prevent the entry of the vessel, unless she had a certificate of the origin of the cargo? The captain was not bound to sail without the certificate, if it was necessary. Is it a paper of the cargo or of the vessel ? Mbott on Shipping, 260, 261. Who was to prove that the certificate was on board of the vessel ? If the captain was to prove that it was not on OF MARYLAND. 159 Wirgman's Adm'rs t?s. Mactier. 1829. board,^then he did not prove that fact. It is to be presumed to have been on board of the vessel. It was not in the power of the plaintiff to prove that it was on board, as it was in the possession of the captain. The captain did not attempt to enter the port, but sets up an excuse for not attempting it. He was then bound to prove why he did not. Van Omeron vs. Donrick, 2 Camb. 42. Tarleton vs. Jl/' Gauley, Peakes JV. P. Cas. 205. 3. On the third bill of exceptions. The jury are not to decide what is equity and good conscience. Hunter vs. Princep. 10 East. 378. 4. On the fourth bill of exceptions. There is no legal evi- dence of the fact that the vessel was ordered away from Flek- kcfiord. It was only the declarations of the pilot, which are not evidence. tj in reply. 1 . The construction attempted and insisted on by the counsel of the appellee, is, that there were two agreements one between the ship owners and the appellee, and the other between them and the other shippers. There is a sealed instrument and an unsealed instrument, inconsistent with each other. Which is to give the law of the contract ? Can an agreement under seal be revoked by an agreement not under seal ? The authorities already cited on the part of the appellants are admitted ; but it is said that this court decided the question on the former trial. That question was not before this court on the former appeal, as to the comparative dignity of the two instruments. General expressions found in a statute are to give way to the intention fof the legislature. 1 Blk. Com. 87. Com. on Cont. 533. IVoods vs. Fulton $ Stark, 2 Harr.Sf Gill, 71. 2. If the court were not called on to expound the decrees of the foreign countries offered in evidence, then the jury were the judges of both the law and the fact. But the jury were not required to expound the decrees at all. The question put to the jury was, if they believed that agreeably to the decrees, the ports of the countries were closed as to uncertified colonial produce, and there was no certificate, &c. then Wirgman was 160 CASES IN THE COURT OF APPEALS Wirgman's Adm'rs vi. Mactier 1829. justified in going to England. The certificate was necessary for the safety of the cargo, but not for the vessel. The owner of the vessel could not know whence the cargo came; that was in the knowledge of the freighters. Holt on Skipping, 81. Levy vs. Costerton. HoWs Rep. 170. The plaintiff' was bound to prove that the certificate was on board of the vessel. He might have proved by the consul at Baltimore, that he had ob- tained the certificate required. How could Wirgman prove that it was not on board ? He could not prove a negative. But it has been insisted, that it is to be presumed that all necessary papers were on board, and Van Omeron vs. Dmcick, 2 Campb. 42, was relied on for that purpose. In that case it was the officer of the same country, and it was presumed he did his duty. It has nothing to do with the case now before this court. The case of Tarleton vs. M- Gawky, Peakes JV. P. Cos. 205, is not applicable to the present question. 4. On the fourth bill of exceptions, he referred to Drake vs. Hudson $ Franciscus, 1 Hair. $ Johns. 399. BUCHANAN, Ch. J. delivered the opinion of the Court. This is an action of assumpsit brought to recover a sum of money retained by Charks # Peter Wirgman, who were the owners of the ship William Wilson, on account of freight, out of the proceeds of that part of the cargo, shipped on board that ship, which belonged to the appellee; and the question is, whether freight was earned or not. Four bills of exceptions were taken at the trial. The ap- pellee who was the plaintiff below, offered to prove, that the ports of Constantinople on the Dardanelks, of Salonica on the Morea, and of Gibraltar, all on the continent of Europe, were in the year 1810, open to American vessels loaded with colonial produce, an objection to the admissibility of which testimony, made on the part of the appellants, was overruled by the court. This forms the subject of the first bill of exception, and involves the construction of the contract, between the appellee and Charks fy Peter Wirgman. OF MARYLAND. 161 Wirgman's Adm'rs vs. Mactier. 1829. It is stipulated in the charter party, that the master shall pro- ceed with the ship from Baltimore for the island of Sylt ; " and if, on arrival there, it can be ascertained that the ports of Ham- burg and Bremen are open to the admission of American ves- sels, that the said master shall forthwith proceed to which- soever the said ports, the supercargo and himself shall think most for the interest of the freighters. But should the said ports of Hamburg and Bremen continue closed, then the said cargo shall be landed at Sylt if permitted ; and in case of refu- sal to permit the same to be landed at Sylt, that then the said master shall proceed therewith to such permitted port on the North Sea or the Baltic, as he and the supercargo shall order and direct. And should the Baltic be also closed against the admis- sion of American vessels, in such case the said master shall pro- ceed with the said cargo to such other port, as he and the said supercargo may in their discretion think most proper. And that on the arrival of the said ship at the port of delivery, the said master shall and will make a right and true discharge of the said cargo, to the supercargo, or to such other agent, factor or consignee of the freighters, as they may direct, agreeably to the bills of lading to be signed for the same, and so end and fin- ish the said intended voyage, &c." and the freighters covenant to "pay freight for said cargo agreeably to bills of lading to be signed for the same, provided the said cargo be discharged at a port in the North Sea ; but if delivered at any port in the Baltic, not higher than Kiel or Colberg, then &c. to pay unto the owners an advance of &c. on the amount of freight money stipulated in the said bills of lading. If higher than Kiel or Colberg, and not higher than Koningsburg, a like advance of &c. and if higher than Koningsburg a like advance of &c., and should the Baltic be shut, a further advance to be settled by ar- bitration, &c." This is not an action upon the charter party, and it is not per- haps necessary to inquire what would be the proper construc- tion of that instrument if it stood alone. But taken together with the bill of lading, to which it refers, it seems very clear VOL. I. 21. 163 CASES IN THE COURT OF APPEALS Wirgman's Adm'ra rs. Mactier. 1829. that the permitted port contemplated, was a port in the North Sea or the Bailie. One of the stipulations in the charter party is, that in case of a refusal to permit the cargo to he landed at Sylt, the master shall proceed therewith to such permitted port in the North Sea or the Baltic, as he and the supercargo shall order and di- rect. And another is, that on the arrival of the ship at the port of delivery, the master shall discharge the cargo, to the supercargo, or to such other agent, &c. of the freighters, as they may direct, agreeably to the bills of lading to be signed for the same, and so end and finish the said intended voyage, with a covenant by the freighters to pay freight agreeably to the bills of lading to be signed. And the bill of lading for the goods of the appellee, states the ship to be bound from Balti- more for Sylt and a permitted port in the North Sea or Baltic, and that the goods are to be delivered at such permitted port, unto Messrs. David Parish fy Co. Hamburg, or their assigns, he or they paying freight, &c. at certain stipulated rates. Here then is a charter party, in which the owners engage to deliver the cargo at a permitted port in the North Sea, or the Baltic, to the agent of the freighters, agreeably to the bills of lading to be signed, and so to end the intended voyage ; and the freighters to pay freight agreeably to the bills of lading, with certain stipulated advances. And a bill of lading of the goods of the appellee, in which, they are contracted to be delivered at a permitted port in the North Sea, or the Baltic, to Messrs. Parish fy Co. Hamburg, or their assigns, at certain rates of freight therein mentioned. So far then as concerns the goods of the appellee, it is a con- tract for the delivery of them at a permitted port in the North Sea, or the Baltic, to the Messrs. Parish fy Co. Hamburg, or their assigns, at the rate of freight mentioned in the bill of la- ding, and the advances stipulated in the charier party, and the ending of the voyage by such a delivery of the goods at such per- mitted port. The charter party by the references to the bills of lading, in the provisions for the delivery of the cargo to the agent of the freighters, "agreeably to the bills of lading to be signed," OF MARYLAND. 163 Wirgman's Adm'rs vs. Mactier 1829. and the payment of freight " agreeably to the bills of lading to be signed," adopted, and made a part of it, the stipulation in the bill of lading of the appellee's goods, for the delivery of them at a permitted port in the North /Sea, or the Baltic, to the Messrs. Parish fy Co. Hamburg, or to their assigns, and for the payment of freight ; and is the same, as if instead of referring to the bills of lading, it had expressly stipulated, that the master should deliver the goods of the appellee, at a permitted port in the North Sea, or Baltic, unto Messrs. David Parish fy Co. Ham- burg, or to their assigns, for the freight mentioned, and so end and finish the said intended voyage ; that is, to end and finish the voyage, as respected the interest of the appellee, by a delivery of his goods to the Messrs Parish & Co. or their assigns, at a permitted port in the North Sea or Baltic. There were a number of persons interested in the cargo be- sides the appellee ; and the different provisions in the charter party, with the engagement to deliver the cargo agreeably to the bills of lading, (in the plural,) were probably introduced to meet the views and interests of the several shippers, according to the stipulations of their respective bills of lading, and what- ever latitude may have been given in any of the other bills of lading, that for the goods of the appellee, limited the contract in relation to them to a port in the North Sea, or Baltic, and sure- ly the parties were competent so to contract. Then comes the memorandum or agreement of the 14th of May, 1810, entered into by the owners, which is in these words: "We hereby agree and acknowledge, that the sundry goods shipped by you on board the ship/ William Wilson, Peter Wirg- man, master, are to be landed iii a permitted port on the conti- nent of Europe, (meaning that they are not to be landed on the Island of Sylt,) before the freight is earned. But should the whole of the continent be shut, the freight with an addition, (as arbitrators may determine,) will be earned, should the property be landed in England, agreeable to the custom of the country." And this agreement k supposed so to alter and control the voy- age, as to extend the contract between the Wirgmans and the appellee to any port on the continent of Europe. IM CASES IN THE COURT OP APPEALS Wirgman'a Adm'rs vs. Mactier 1829. This cause was once before in this court, on an appeal from the judgment of the Baltimore County Court, and on a reversal of that judgment, was sent back under a procedendo and it is probable that, that court has been misled by the loose language of the opinion delivered on that appeal, and has supposed, that the contract of the parties was held by this court, to relate not merely to ports in the North Sea or the Baltic, but to any port on the continent of Europe, no matter where, or in what sea, aa is now insisted upon here. And perhaps, looking to the opinion alone, that would be its construction; but it was certainly not so intended. Having delivered the opinion myself, I can speak confidently on the subject, and regret that it was not delivered in more guarded and restricted terms. But the idea, that the contract looked for the destination of that part of the cargo at least, which belonged to the appellee, to any permitted port on the continent of Europe, other than a port on the North Sea or Baltic, was not suggested in the ar- gument, which was particularly, and with great force, directed to the political state of affairs in Europe, in reference to what was commonly called the continental system, and the advanced and inclement season of the year, which it was contended for- bid an attempt by the masterTto navigate' the Baltic; and with the danger of capture and detention by privateers, justified his proceeding to Hull, and there delivering the cargo. The whole course of the argument which was a very elaborate one, pointed to a state of tilings having no connexion with, or relation to, other ports on the continent of Europe, not in the North Sea or Baltic. The question whether the contract contemplated any other permitted port on the continent of Europe, than one in the North Sea or the Baltic, was not raised, nor thought of by the court, at least by myself; but looking only to those seas, and construing the engagements between the parties, with reference to the known state of affairs in Europe, as likely to operate upon the governments on the continent, having ports in those seas, and not the governments without the influence of that state of things, and having ports in other seas, the broad terms, the whole of the ports on the continent of Europe, to be found in the opinion OF MARYLAND. 165 Wirgman's Adm'rs vs. Mactier. 1829. delivered, were too carelessly perhaps taken from the agree- ment, and were not meant to be used with reference to all the ports of the continent, no matter where. or in what seas, as the ports intended by the contract, at some one of which the goods were to be delivered, before freight could be earned : but to the ports only on the continent of Europe, in the North Sea or the Baltic, according to the subject matter then in the view of the court. And that we think, is the only legitimate construc- tion that can be given to the papers at that time, as now before us. Looking to the historical facts and occurrences of the time, to which we may judicially look, and cannot well shut our eyes against them, it is manifest that, the voyage was undertaken, and the charter party, the bill of lading, and the agreement entered into, with a view to the political state of affairs in Europe, and should be construed with a view to that state of affairs ; and so interpreted, it is not difficult to perceive, that the permitted port on the continent of Europe, in which the goods were, by the agreement to be landed before freight could be earned, was in- tended to be a permitted port in the North Sea or the Baltic ; other ports on the continent of Europe, such as Constantinople, the ports in the Morea and Gibraltar not being affected by the system, the state of things, in the view of the parties, and the ports of the continent in the North Sea and the Baltic being; alone within their influence. The question is not what would be the correct construction of the agreement of the 14th of May, 1810, if it stood alone, with- out any index pointing to the intention of the parties, that could be properly looked to ; or any tiling in the context, to restrict the understanding of the general terms used^ according to their plain and popular meaning, to a mere special and peculiar sense; but it is apparent that, that agreement relates to the voyage, contemplated by the charter party and bill of lading of the ap- pellee's goods, and the acknowledgment that they are to be landed in a permitted port on the continent of Europe, before freight is earned, has reference to, and so far recognizes the con- tract arising from those instruments, and should therefore be 1GO CASES IN THE COURT OF APPEALS :uan's Adm'rs vs. Macticr. 1829. construed in connexion with them, and that contract, looking for the destination of the appellee's goods, to a permitted port in the North Sea or Baltic, the agreement speaking in relation to that contract/must be understood, by the terms "on the continent of Europe" to mean on the continent of Europe, in the North Sea or Baltic, and to have used those terms only for the purpose of showing, that the goods were to be landed on the continent, as distinguished from the Island of Sylt, and that interpretation is given to it, by the clause immediately following in the agreement itself, " meaning that they are not to be landed on the Island of Sylt," that is, that the terms " on the continent of Europe" mean not on the Island of Sylt, or denote, that they were not to be landed on the Island of Sylt, but on the continent only, before freight could be earned, and were used for that, and no other purpose. And the words in the last clause, " but should the whole of the continent be shut," have reference to what goes before, and must be construed to mean the continent, in the same restricted sense, in which it is before spoken of, that is, the whole of .the continent of Europe on the North Sea and Baltic and cannot mean any part of the continent, not contemplated in the preceding part of the agreement. Under this construction of the agreement, taken in connexion with the charter party and till of lading to which it relates, the contract between the par- ties is, that the goods shipped by the appellee shall not be land- ed on the Island of Sylt, but at some permitted port on the con- tinent of Europe in the North Sea or Baltic, before any freight shall be earned ; but in the event of the whole of the ports on the continent of Europe in the North Sea and Baltic being shut, then, and not otherwise, the owners shall be entitled to freight on the goods being landed in England, with a stipulated ad- dition. The ports of Constantinople, on the Dardanelles of Salonica, in the Morea, and of Gibraltar, were not the permitted ports contemplated by the contract; proof therefore of their being open in the year 1&10, to American vessels loaded with colonial produce, was irrelevant and inadmissible, and the testimony of John Donnell ought to have been rejected. OF MARYLAND. 167 Wirgman's Adm'rs vs. Mactier. 1829. By the term shut, as used in the contract, is meant an occlu- sion by the municipal regulations of the country, and unless in that sense of the term, all the ports' on the continent of Europe in the North Sea and Baltic were closed against the admission of the goods of the appellee, on board the ship William Wilson, the vessel could not earn freight by going to England; nor then, unless the instructions given by the appellee in his letter of the 8th of May, 1810, to Peler Wirgman, the master, were complied with. It has been contended, that if agreeably to the orders and decrees of France, Prussia, Russia, Sweden and Denmark, all uncertificated colonial produce was prohibited from entry into any of the ports on the continent, in the North Sea or Baltic. It was incumbent on the appellee to have furnished the captain of the ship with a certificate of origin of that part of the cargo which belonged to him; and that if he neglected to do so, the captain fulfilled the contract of affreightment by proceeding to Hull, and there delivering the cargo. But we think otherwise, and that the want of such a document alone, was not sufficient to justify the captain in proceeding to Hull, and there deliver- ing the appellee's goods. All parties were aware of the unsettled state of affairs in Europe, and the difficulties that would probably attend the landing of the cargo at any of the contemplated ports in the North Sea and Baltic. The charter party and bill of lading show it; the agreement and letters of instruction prove it. The goods were shipped, and the voyage undertaken, with the expectation of having risks and difficulties to encounter, and the contract /and instructions were framed accordingly. The ship owner^ knew when they signed the agreement, which was subsequent to the bill of lading, that no certificate of origin waS on board, and with that knowledge, and a knowledge of the character of the cargo, made their engagement with a view to the difficulties that might attend the landing of such a cargo, under such circumstances ; and can no more avail themselves of the want of that document, because of the prohibition merely of uncertificated colonial produce, than they could have done of the fact, that the cargo consisted of co- H58 CASES IN THE COURT OF APPEALS U adman's AdnTrs vs. Mactier. 1829. lonial produce, if the prohibition hail been of all such produce, uncertificated or otherwise. If in the latter case, they could not have sheltered thcmsi-lves under the pretext alone, that the cargo consisted of colonial produce, and was therefore pro- hibited from entering any of the contemplated ports, having made their contract in relation to such a cargo; neither can they in this case, avail themselves of the circumstance alone, that the appellee's part of the cargo consisted of uncertificated colonial produce, and was therefore prohibited, having made their contract in relation to goods in. that known predicament. The same reason would seem to apply itt one case, as in the other; the prohibition in both being of the goods on board. In one, of goods without a certificate of origin; in the other, either with or without such a certificate, and there is no evi- dence in the cause to show that it was incumbent on the appellee to have provided such a paper, to enable him to resist the claim of the ship owners to freight, or that he was required to do so. The shipment was made on a calculation of chances, and the knowledge, advice and assistance of the ^Messrs. Parish fy Co. Hamburg, were evidently much relied upon for the success of the enterprise. And to obtain the benefit of their counsel and assistance, the appellee, in his letter of instructions to Peter H'irgmdn, the master, informs him, that he had requested them to consult with him on the further destination of the ship, and the disposal of his interest on board, in the event of an entry being denied at Hamburg; directing him to advise with them, as to what was best to be done for his interest ; and constituting him his agent, if the state of a flairs should be such as to prevent his communicating with them ; in which case, he tells him to open his letter of instructions to them, to which lie refers him for his government. These instructions the master was bound to obey; it was his duty diligently to seek and to pursue the advice and directions of Messrs. Parish <$' Co. and if agreeably to the orders and decrees of the governments of .France, Pnissia, Russia, Denmark and Sweden, the goods of the appellee were prohibited from entering the ports on the continent of Europe, in the North Sea and Baltic, yet there might have been such OF MARYLAND. 169 Wirgman's Adm'rs rs. Mactier. 1829. occasional suspensions of them, or relaxation in the enforcement of them, as to render the information and advice of Messrs. Parish ^ Co. of the first importance. And it would seem to have been in such a state of things, that the appellee wished to have the benefit of their superior intelligence and advice, and not when it could be had, to trust to the discretion of the master, who could not be so well informed. If there was a port on the continent of Europe, in the North Sea or Baltic, open to the admission of the appellee's goods, the master was bound to go there, before freight could be earned ; it was the contract of the owners with the appellee, and he had a right to stand upon it. And the master could not entitle them to freight by going to England, and there delivering the goods, either contrary to, or without the advice of Messrs. Parish fy Co. unless he was cut off from all communication with them by the unsettled state of affairs at the time. What then was the course pursued by the master? In his letter to Messrs. Parish ^ Co. of the 13th of July, 1810, he informed them of the capture of the ship by a Danish privateer, and that he was taken into a Danish port for adjudication; spoke of his having property on board belonging to the appellee, and asked advice and informa- tion, but said nothing of the consignment of the goods to them. That letter does not appear to have been received. In his letter of the 14th of September, 1810, he informed them, that he had craved their advice in his preceding letter, respecting his future destination, but added, that a more extensive know- ledge of prize cases induced him to believe, that if he was in possession of it, it would be of no advantage. Thus virtually dispensing with any advice from them upon the subject; and upon that assumption he seems to have acted, as there is nothing to show, that he ever afterwards sought any advice or informa- tion from them in relation to the destination or disposition of the appellee's goods. In that letter he advised them, that a consi- derable part of the cargo was to their address, without saying to whom it belonged, or giving any account of the amount or character of the goods. On the 13th of October, 1810, he received an answer from them to his letter of the 14th of Sep- VOL. 122. 170 CASES IN THE COURT OF APPEALS i. HI'S Adm'rs vs. Mactier. 1829. tember, dated the 2d of October, and received in eleven days after it was written. In this letter, they requested him to inform them, who were the shippers of the consignment tp their ad- dress, and to forward any letters he might have for them, with any other information that might be useful, suggesting difficul- ties respecting the future destination of the ship, in the event of her being liberated, but that there was time enougli to cor- respond on that subject, after being informed of the cargo on hand, and at the same time telling him, that several of their friends had proceeded from Gottenburg to Carlsham, there to unload their cargoes, &c. On the 14th of October he acknow- ledged the receipt, on the preceding day, of that letter, inform- ed them for the first time of the quantity and description of the goods to their address, and that they were shipped by the ap- pellee, and that he was in daily expectation of his sentence, of which they might depend upon being immediately advised. On the 30th of October they answered that letter; told him they were anxiously awaiting the result of the proceedings in the court of prize; referred him to the public papers for the late French and Danish decrees, and told him that under existing circumstances, it was difficult to point out a proper port of dis- charge, so many changes were taking place, but that if any further alterations should take place, they would keep him in- formed. In his letter of the 8th of November, 1810, he ad- vised them of the liberation of the vessel, and the restoration of his papers, on the 5th of the same month, by sentence of the prize court, and of his determination to discharge the cargo at Flekkefiord, where the ship was then lying. Thus announcing his determination not to seek or await any instructions or advice from them, relative to the disposition of the cargo, but to act upon his own judgment. And on the 10th of the same month, he acknowledged the receipt of their letter of the 30th of Oc- tober, eleven days after it was written; and after regretting that it contained no information to induce him to alter his determina- tion to unload at Fkkkefiord, told them he intended to com- mence doing so on the Wednesday following and afterwards without consulting them on the subject, or giving them any inti- OF MARYLAND. 171 Wirgman's Adm'rs vs. Mactier 1829. mation of his intention to do so, sailed for Hull, where he un- loaded the cargo. Resting here, there is not a tittle of evidence to show a com- pliance by the master, with his instructions; but on the contra- ry, the whole of it has the opposite bearing. In his first letter to Messrs. Parish fy Co., he informs them of the capture of his ship; in his second he tells them, that his knowledge of prize cases, induces him to believe that their advice in relation to his future destination, would be of no advantage to him; and in his third, he for the first time, (and that only in compliance with their request, contained in their answer to his second letter,) discloses to them, the quantity and description of the goods to their address, and the name of the shipper and although requested in the letter to which that is an answer, to forward to them any information that might be useful, and also told that it will be time enough to correspond on the subject of his future destina- tion, after they should be informed by him of the goods he had on hand, he neither communicates to them the nature of his in- structions, nor asks their advice. In his fourth, he announces to them the restoration of the ship and papers, and that no ap- peal was made, and also his determination to discharge the cargo at Flekkefiord. But it does not appear, that he forward- ed the letters of instruction to them, from the appellee with which he was entrusted, notwithstanding his saying, that the papers \iere restored to him on the 5th of November, and their request in their first letter, that he would forward any letters he might have for them; and in his last letter to them, he reiter- ates his determination to unload/at Flekkefiord, and tells them that lie intends commencing it ^011 the Wednesday following, though they had before suggested to him, that some of their friends had proceeded from Gottenburg to Carlsham, there to unload their cargoes; and speaking of the frequent changes that were occurring, had promised in their letter of the 30th of October, to keep him informed of any changes that might take place in the state of affairs. And with a view to those frequent changes, that very unsettled state of affairs it was, that the shipment was made, and his instructions given him to 173 CASES IN THE COURT OF APPEALS Wirgman'a Adm'rs rs. Mactier. 1829. consult with, and be governed by the advice of the Messrs, Parish fy Co. But having as early as the 14th of September, 1810, brought his mind to the conclusion, that the advice of J/t\m. Parish fy Co. would be of no service to him, and act- ing upon that assumption, he manifestly determined, not to throw himself upon them for information or instructions, but to> take the disposition of the cargo upon himself. And he dhi do it, regardless of their suggestion, that some of their friends had proceeded from Gottenburg to Carlsham, to land their cargoes, their promise to keep him informed of any changes that might take place in the state of affairs, and their intimation of a correspondence to be opened, after they should be informed! by him of the goods on hand, all which was before the vessel had been liberated; his advice of which event was accompanied by the information, that he had determined to discharge the cargo at Flekktfiord, and followed two days after by the information, that he should begin unloading the Wednesday following, with- out asking any advice or information on the subject, which, ad- ded to his having withheld a disclosure of his own instructions, and neglected to forward the letters of instruction to them from the appellee, and thus kept them in a state of ignorance that he was placed under their direction, was calculated to induce the belief, that he was acting by authority, seeing that he withheld himself from all furtlier communication with them, and suffi- ciently accounts for their not writing to him again, in the ab- sence of proof of any other cause. If at the time of the liberation of the William Wilson, all the ports of the continent of Europe on the North Sea and Baltic, were, in fact, closed by municipal regulations, against the admission of a vessel and cargo in her predicament, and she was expelled from the ports of JVorzmt/, by the orders of the Danish government, so suddenly after her liberation, as not to allow time for a further correspondence between the master and Messrs. Parish Sf Co., and he was prevented from commu- nicating with them, by the situation of affairs, and not by his own act or conduct; he would, under such circumstances, to be found by the jury, and by force of his letter of instructions, have OF MARYLAND. 173 Wirgman'a Adm'rs us. Mactier. 1829. become the special agent of the appellee, and by proceeding to Hull, in England, and there accepting that part of the cargo which belonged to the appellee in fulfilment of the contract, have entitled the owners to freight, and the court should have so in- structed the jury, if there had been any evidence in the cause to justify such a direction. But we can discover no such evidence. If it should be conceded that, that part of the deposition of James Dooley relied upon for that purpose, was legal evidence, which is not very clear, being only evidence of what he heard a pilot say, there is nothing in it to sustain such a direction. The most that can be made of Dooleifs testimony is, that about the 10th of December, 1810, the master went on board the ship accompanied by a pilot, who directed her to be got under way, and said he had received orders from a custom house officer to take her to sea that night. Now there is nothing in this, tending in the slightest manner to prove, that the ship was expelled from the port of Norway by the orders of the Danish government so suddenly after her liberation, as not to allow time for a further correspondence between the master and Messrs. Parish fy Co., and that he was prevented from communicating with them by the situation of affairs, and not by his own act or conduct. The ship was liberated, as is shewn by the letter of the master himself, of the 8th of November, 1810, on the 5th of that month, and according to Dooleifs de- position, was taken to sea by the pilot about the 10th of Decem- ber, thirty-five days after her liberation; during the whole of which time, she was permitted by the state of affairs, to remain at Flekkefiord. It is also shewn /by the letters of the master, that in answer to letters addressed by him to Messrs. Parish & Co., after the capture and during the detention of the ship, he received two letters from them, in eleven days after their re- spective dates. Dooley^s testimony then, so far from tending to prove, or affording the slightest ground for the inference, that the ship was expelled from the ports of Norway so suddenly,, as not to allow time for a further correspondence between the master and Messrs. Parish ^ Co. if it proves any thing, clearly establishes the contrary hypothesis^ by shewing that she was 17 1 CASES IN THE COURT OF APPEALS Wirgman's Adm'rs rs. Mactier. 1829. permitted to remain at Flckkcford thirty-five days after her liberation; quite long enough for a communication \vilh .Messrs. Parish fy Co., as it only required eleven days for a letter to pass between them during which time, the master, if he had been so disposed, might, as it was his duty to do, have open- ed a correspondence with them, relative to the disposition or further destination of the appellee's goods. And so far from there being any evidence to show, that his not seeking the ad- vice of Messrs. Parish fy Co., was owing to the situation of affairs, which prevented his communicating with them, the whole of the evidence lies the other way. His telling them in his second letter, that their advice would be of no service to him, and never afterwards seeking it; and his following up that with his letters of the 8th and 10th of November, in the first of which he advises them of the liberation of the ship, and his determination to land the cargo at Flekkcfiord, and in the other, of his intention to commence unloading on the Wednes- day following; and the evidence of Dooley, that in the month of October or November, before the vessel was released, he heard him and Thomman, the supercargo employed by the other shippers, say, that they had united in the determination to proceed to Hull in the event of the liberation of the ship, with the additional circumstance, that he made no effort to obtain their advice, during the thirty-five days that the ship was per- mitted to remain at Fkkkefiord after her liberation, tend strong- ly to prove his fixed determination, not to submit himself to their directions, but to act upon his own judgment and respon- sibility. The hypothetical direction, therefore, which was asked for by the prayer set out in the fourth bill of exceptions, was properly refused, being an abstract proposition, not arising out of the evidence in the cause. Whether the ship owners were, under the circumstances of the case, entitled in equity and good conscience, to retain the money received on account of freight, was clearly a question not to be left to the jury, but proper only to be decided by the court. OF MARYLAND. 175 Bowie, use of Ladd, et al. vs. Duvall 1829. We concur, in opinion, with the court below, on the second, third and fourth bills of exception, but dissent from the opinion expressed in the first exception, and REVERSE THE JUDGMENT AND AWARD A PROCENDO. BOWIE, use of LADD, et al. vs. DUVALL. December, 1829. The statute 3d and 4//i .flnne, Ch. 9, declares that promissory notes shall be assignable or endorsable over in the same manner as inland bills of exchange are, or may be, according to the custom of merchants; and power is by the same statute given to endorsees, to maintain actions against the drawers, or prior endorsers of such notes, in the same manner as in cases of inland bills of exchange. By this statute, bills of exchange and promissory notes are placed on the same footing, and the law applicable to bills, is in general applicable to promissory notes. When a bill of exchange is endorsed in full, all the legal interest is trans- ferred to the endorsee, and having the legal interest, he alone is qualified to maintain an action on such bill. He cannot use the name of the payee, because the payee having transferred his interest, can have no compe- tency to maintain an action. So where it appeared that the note of the defendant, payable to B or order, had been endorsed as follows, "I assign the within for value received, to L;" signed B, but which endorsement was erased just before the jury was sworn; it was held that an action in the name of B, originally instituted for the use of L, could not be maintained, upon the note, as there was no evidence from which the jury could infer that the payee and plaintiff was the holder of the note; neither could an action be maintained on the money counts, although there was p/oof of an express promise to pay the sum demanded in such suit, as that must be considered as enuring to the benefit of him who had a right to the note. If a note duly endorsed in full, should, in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would be competent for such person as the holder, to strike out the endorsement, and sue in his own name. English decisions made since the revolution, have no authoritative force here. In an action against the maker of a note, payable at the house of the payee and plaintiff, on a certain number of days after date, no demand of pay- ment is necessary to be averred or proved. 176 CASKS IX THE COURT OF APPEALS Howi>, us,- ,,f |.:i,lil, rt at. m. Duvall. 1829. APPEAL from Prince George's County Court. This was an net ion of assumpsit, brought by the payee against the maker of a promissory note. The declaration contained a count on a note drawn on the 4th of September, 1821, by the appellee, (the defendant in the court below) for $1387 65, payable sixty days after date, to the appellant (the plaintiff in that court) or order; and also the common money counts. The general issue was pleaded. 1. At the trial, the plaintiff offered in evidence the following promissory note: "$1387 65 Prince George's County, Sept. 4, 1821. Sixty days after date, I promise to pay Washington Bowie, or order, thirteen hundred and eighty-seven dollars and sixty-five cents, for value received, and payable at the house of W. Bowie. John Duvall." The signature of John Duvall thereto, being admitted to be in the hand writing of the defendant. The defendant then offered in evidence, that the said note had been specially endorsed by the plaintiff as follows: "I assign the within for value received, to John //. Ladd $ Co. Washington Bowie." Alexandria, 22d October, 1822. The signature of the plaintiff being admitted, the whole of the said endorsement was erased just before the jury was em- panneled. The defendant further proved by the docket entries, that the suit was originally instituted for the use of John H. Ladd $ Co. The defendant then prayed the court to instruct the jury that the plaintiff was not entitled to recover. Of which opinion the court [Stephen, Ch. J. and Key and Plater, A. J.] were, and so instructed the jury, there being no proof offered that Washington Bowie, the legal plaintiff, ever had actual possession of the note, after the special endorsement, except that the note was filed in the cause. The plaintiff excepted. 2. The defendant then, on the above evidence, prayed the court to instruct the jury, that as the plaintiff had not averred in his declaration, that the amount of the said note was demanded by him at the house of Washiyigton Bowie, agreeably to the OF MARYLAND. / 177 Bowie, use of Ladd, et al. vs. Duvall 1829. terms of said note, and no proof of a demand was given to the jury; the plaintiff was not entitled to a verdict. And the court being of that opinion, so instructed the jury. The plaintiff excepted. 3. In addition to the above evidence, the plaintiff proved by a competent witness, that after the institution of this suit, the defendant, in conversing with the witness relative to this suit, stated that he was making exertions to pay off the suit against him, and that he could easily do so if he was not forced to sell his property, and that he only wanted time. That he never, in any numerous conversations to the same effect, intimated to the witness that he had paid the note, or had any defence whatever, except once, when he then stated (after the witness had refused to grant him any indulgence) that he intended to dispute the claim, and that his counsel had been so instructed. The witness also stated, that the defendant, in April, 1825, and during the term of Prince George's County Court, inquired of the witness the number of the case on the docket, and asked the witness, if he believed the court would continue its session until the case should be reached, and then said that if a judg- ment should be entered, he hoped the witness would give him a stay of execution. At this time the defendant did not say that he had any defence against the claim. The witness further stated that his impression is, that the defendant, at the time he asked for a stay of execution, was willing to have confessed a judgment. The plaintiff then prayed the court to instruct the jury, that upon this evidence, if /believed by the jury, the plaintiff is entitled to recover the amount of said note. But the court refused to give such instruction; and were of opinion, and so directed the jury, that so long as the endorsement aforesaid remained on the note, a suit could not be brought on the said note in the name of Washington Bou-ic. The plaintiff then prayed the court to instruct the jury, that if the note was endorsed and delivered to John II. Ladd 8f Co. by Washington Howie, that it was competent for John II. Ladd <$ Co. the endorsees, to have this suit brought in the name of Washington Bowie, for their use, and to authorize the striking VOL. I. 23. 178 CASES IN THE COURT OF APPEALS Bowie, use of Ladd, et al. rs. Duvall. 1829. out the endorsement to them for that purpose. And that in this case, if the suit was so brought by John IL Ladd Sf Co. then the endorsement being struck out after the suit was brought, the plaintiff is entitled to recover. Which instruction the court refused to give. The plaintitF then prayed the court to instruct the jury, that if the jury believe from the evidence, that after the suit was brought, the defendant acknowledged the justice of the claim, and promised to pay it, or confess judgment, then such acknowledgment is evidence under the mouey counts; and also of the plaintiff's right to recover as the holder of the note. Which instruction was also refused by the court. The plaintiff then prayed the court to instruct the jury, that if they believe from the evidence, that after this suit was brought, the defendant acknowledged the justice of the debt for which lie was sued, and promised to pay or confess judgment, then such acknowledgment is evidence under the money counts. Which instruction the court also refused to give. The plaintiff cxcepted to all the refusals and opinions of the court. Verdict and' judgment for the defendant; and the plaintiff appealed to this court. The cause was argued at June term, 1 828, before BUCHAN- AN, Ch. J. and EARLE, ARCHER and DORSEY, J. F. S. Key and J. Forrest for the appellant. On the first bill of exceptions, they cited 2 Phill Evid. 29, (note a.) 11, (note e.) Dugan vs. United States, 3 IVheat. 173. Chitty on Bills, 150 (note b.) Biddle vs. Gray, et ux. 2 Harr. << Johns. 328. On the second bill of exceptions, they cited Rowe vs. Young, 6 Serg. Sf Loicb. 53. Rhodes vs. Gent. 7 Serg. fy Lowb. 84. Sank of the United States vs. Smith, 11 IVlieat. 172. Wolcott ts. Santvoord, 17 Johns. Rep. 248. 1 ChUty's Plead. 263,264. 3 Chitty^ Plead. 4, (note a.) J. Johnson and Stonestrect for the appellee. On the first bill of exceptions, they cited- Dugan vs. United States, 3 W heat. 172. Chitty on Bills, 150, (note 6.) Clark vs. Pigot, 1 Salk. 126. Theed vs. Lovell, 2 Slra. 1103. Kiersted vs. Rogers 4r Garland, 6 Harr. fy Johns, 282. OF MARYLAND. 179 Bowie, use of Ladd, et al. vs. Duvall. 1829. On the second bill of exceptions, they cited Wolcott vs. Sant- voord, 17 Johns. Rep. 254. Bowes vs. Howe, 1 Serg. Sf Lowb, 8. Trecothick vs. Edwin, 2 Serg. fy Lowb. . 470. Gammon vs. Schmoll, 1 Serg. fy Lowb. 128. Rowe vs. Young, 6 Serg. fy Loicb. 105. Rhodes vs. Gent. 7 Serg. Sf Lowb. 84. ARCHER, J. delivered the opinion of the court. The statute 3d <$ 4th Jlnne, ch. 9, declares that promissory notes shall be assignable or endorseable over in the same man- ner as inland bills of exchange are, or may be, according to the custom of merchants ; and power is by the same statute given to endorsees to maintain actions against the drawers, or prior endorsers of such notes, in the same manner as in cases of inland bills of exchange. By this statute bills of exchange and promissory notes are placed on the same footing, and the law applicable to bills is in general applicable to promissory notes. Chit, on Sills, 335. When a bill of exchange is endorsed in full, all the legal inte- rest is transferred to the endorsee, and having the legal interest he alone is qualified to maintain a suit. He cannot use the name of the payee, because the payee having transferred his interest, can have no competency to maintain an action. It is true, that if a note duly endorsed in full, should in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would be competent, for such person as the holder to strike out the endorsement, and sue in his own name. These positions/ are fully maintained by the Supreme Court of the United Stares, in the case of Dugan vs. Tlie United States, 3 Wheat. 183, where it is said "that if any person who endorses a bill of exchange to another, whether for value or for purposes of collection, shall come to the possession thereof again, he shall be regarded as the*/;0nct fide holder and proprietor of such bill, and shall be entitled to recover not- withstanding there may be on ii, one or more endorsements in full, subsequent to the one to him, without producing any i-prcml. or endorsement back from cither of such endorsees, whose names he may strike from the bill, or not, as he pleases." 180 CASES IN THE COURT OF APPEALS Bowie, use of Ladd, ft al. rs. Duvall ' The correctness then of the opinion of the court below, as expressed in the first bill of exceptions, must depend upon the , \\li-ther there was any evidence from which the jury could infer, ihat /'. Boicic the payee and lethal plaintiff' in this case, \\.is at the time of the institution of this suit, the holder of the note upon which this action was brought. The suit is in the name of the payee, and is marked to the use of Ladd fy Co., to whom the endorsement had been made in full, before the commencement i of the suit Either Borne or Ladd fy Co. filed the note and di- rected the use. If Bowie filed the note with its special endorse- ment, and directed the use, it was evidence not to be disregarded, that Bowie meant the assignment should be perfected. He had in fact by so doing delivered it to La dd $ Co.; and Ladd $ Co. must be considered in the absence of evidence to the con- trary, as assenting to the transfer, it being for their benefit. Nor could^otcze, after the endorsement and the direction to enter Jt for the use of Ladd 4' Co., although the legal plaintiff, strike out the use, or interfere with the endorsement without the consent of Ladd fy Co. It is therefore manifest even in this view of the case, that Bowie would have parted with his right, was no longer a holder of the note, and could not main- tain a suit. If on the contrary, Laddfy Co. filed the note with the assignment, then the transfer was clearly complete, and the suit should have been brought in their names, as they were legally entitled to the note, and were the holders thereof. There being then no evidence from which the jury could infer that the payee and plaintiff was the holder of the note, he was not entitled to recover upon the evidence stated in the first bill of exceptions. The views which have been submitted of the law arising out of the first bill of exceptions, disposes of the two first prayers in the third exception. We also concur with the court below in the opinions ex- pressed by them on the third and fourth prayers in the third ex- ception. If the right was in Ladd # Co. there could be no re- covery by the plaintiff on the money counts ; the promise to pay must be considered as enuring to the benefit of him who had OF MARYLAND. 181 Bowie, use of Ladd, etal. vs. Duvall. 18'Mr. Justice Bayley^s and Mr. Justice Jlbbofs commentary on San- derson vs. Boices, 2 Brod. y that order he was apprized that if " the Coun- ty Court shall reverse or annul the order of the Levy Court, the restraint upon the defendant must be continued." He admits after the decision of the County Court, he did not expect a dis- solution of the injunction. It was the fault of the complainants that it was not made perpetual. The answer then sets out the proceedings of the Commissioners of the County, under the de- fendants new application, c. and avers that the order of the Commissioners justified his acts of December, 1827, and w r ould not have been any contempt of this court, even if the injunction had been made perpetual. The only effect of a perpetual in- junction, would have been to prevent the defendant from claim- ing any right to obstruct the road in virtue of the order of the Levy Court, which had been rescinded, and could not deprive him of the right of filing a second petition, &c. He, therefore, in the month of December, 1827, did cause fences to be erected across the said road, as stated in the complainants several peti- tions of the 4th of January and 9th of April last, and in which petitions the complainants for the first time prayed the court, among other things, to compel the defendant to place the said road in the same situation that it was previous to his closing the same, " on or about the 1 3th of December last." That the acts done on OP about the 13th of December last, are the only breaches of the injunction of which the complainants at the time of filing their petition had complained. On the answer of the defendant to the said petition, the Chancellor proceeded to pass his de- cree upon the wlrole matter tliereof. He refers to the decree of the 23d of April, 1828, and insists that even if the erection OF MARYLAND. 201 Williamson rs. Carnan. 1829. of such fences and obstructions as these charged in the several petitions of the 4th of January and 9th of April, could be consi- dered a contempt of the court, he is not now to answer for it, as he has already been before the court to answer the said char- ges, and the same have been adjudicated. The said petitions prayed that the defendant should be compelled to place the said road in the same situation it was on or about the 13th of December last, and did not require, nay, may be construed to forbid him, to remove any obstructions, &c. of an earlier date none others had he ever been required to remove. Those which had been placed there before the granting of the injunc- tion, the court upon the ex parte application of the complainants, could not command him to remove. The language of the in- junction was to desist, and did not and could not command him to do. That the first order of this court, whether in the form of an injunction or of a decree in the premises, commanding the defendant to remove or take away any fence, stones, &c. is to be found in the decree of the 23d of April, 1828. This decree the defendant admits has not been executed by him. He has pray- ed an appeal from it; has given bond with approved security, and insists that the same operates a stay of all further proceed- ings until the same is affirmed, or the defendant fails to prose- cute it. That the execution of the decree at this time would deprive him of every benefit, that by a reversal of it, should it be reversed, he would gain, &c. Prayer to be dismissed. BLAND, Chancellor, (20th of May, 1828.) The defendant having been brought before the court in custody, by an attach- ment upon a charge of contempt, iia having committed a breach of the injunction heretofore granted in this case j and the motion for a dissolution of the injunction standing ready for hearing, the solicitors of the parties were heard in relation to both of those matters, and the proceedings read and considered. A brief review of this case seems to be necessary to a cor- rect understanding of the matters now to be decided upon. [The Chancellor's opinion then stated the facts, proceedings, and views of the case, as before set out, and said,] it was to this state of the pleadings and to arguments of this nature, VOL. 126. CASES IN THE COURT OF APPEALS Williamson vs. Carnan. 1829. I addressed myself in the order of the 2d of December, 1^,'G, by which the injunction was continued until the hearing on further order. The defendant, it will be seen by his an- swer and his motion thereon for a dissolution, did not, as it would seem, then consider an order of the Levy Court for shut- ting up the road, (even admitting it to have been in all respects a final, conclusive and irreversible judgment,) as having of it- self the effect of annulling the injunction, or as virtually dis- solving it, without any motion or application to this court for that purpose. No such notion had been in any manner intima- ted or suggested, either in the pleadings or arguments as they were then presented to this court ; and it never once occured to me, at the time of uniting that order, that any such notion ever had been, or would be advanced or attempted to be sustained. Indeed so far from it, the contrary is clearly deducible from the course pursued by the defendant himself. For, although he did contend, that the order of the Levy Court for closing the road was conclusive ; yet, he deemed it necessary, and then came here to ask a dissolution of the injunction as soon as practicable; because, until it was dissolved by this court, he could not take the benefit of that legal authority which he had thus obtained from a competent tribunal; and as he distinctly alleged, the continuance of it would be attended with great and irreparable damage and loss to him. Thus expressly admitting, that so long as the injunction remained in full force, and unre- voked by this court itself, he would not be justified in disobeying it by any authority which he could obtain from any other tribunal. The granting of the injunction was predicated upon the fact, that the specified lands of the defendant were charged with a public servitude as a highway; the defendant bottomed his prayer to be relieved from the restraint, upon the allegation, that it had been finally discharged from that servitude; he failed to sustain his allegation; and the injunction was continued. The principle, that an injunction once granted, continues in full force until dissolved by the court by which it has been awarded, is so entirely obvious, and so necessary to preserve OF MARYLAND. 203 Williamson vs. Carnan 1829. harmony among the several branches of the government ; and to prevent any one tribunal from being brought into collision with the legislature, or any other court of justice which may have the power to exercise authority upon the subject to which the injunction relates, that I had supposed it never had been, or would be questioned by any one. And my order of the2d of December, 1826, was written under this strong impression. The parlies, by the proceedings as they then stood, looked to the final determination upon the proceedings of the Levy Court by the County Court, as that decision by which the right to the highway in question, was to be put at rest; and, therefore, I said, that they must be held in their then situation, to await that decision. But I neither intimated nor supposed, that the parties were, or could be restrained from pursuing any legal course whatever, for the purpose of having the right to this public road finally determined. I was aware, that if it should be in any way legally closed, either by the legislative or judicial authority, this defendant would be entitled to be relieved from the restraint which had been imposed upon him. But, I did not for a moment suppose, that this defendant, after the obligation he had admitted himself to be under to obey the injunction, not- withstanding the legal authority he had, as he said, obtained, would at any time afterwards, attempt to disobey it, because of any other legal authority which he might believe he had obtained in any other manner than that to which he then especially referred. And, it is clear from what I then said, that I expected to hear again from the defendant as soon as he had, in any manner whatever, succeeded in obtaining a final and complete legal authority for closing the road, which the injunction had thus restrained him from obstructing. In short, the whole course of proceedings, antecedently to this period, so far from warranting the inference that the injunction could be virtually dissolved by any other judicial proceedings, shows, that it was, notwithstanding any such proceedings, to be considered as in full force until dissolved by this court itself. On the 3d of January last, the defendant filed a petition, in which he states, that the proceedings of the Levy Court referred SOI CASES IN THE COURT OF APPEALS Williamson r. Carnan. 1829. to iii the bill, had been taken by ccrtiorari to the County Court, and by that court set aside; that he had made another applica- tion, and had obtained an order for closing this road ; which order, he says, being final and conclusive without appeal, and he being greatly aggrieved by the passing of the old road over his lafids, and conceiving himself fully authorised so to do, by that order, did in virtue thereof, proceed to close it from A to B, as designated on the plot, [returned under the last order for closing the road,] and that he shut it up, without force, and without opposition from any one. And then concludes by asking leave to file an amended answer, setting forth the several matters therein stated, and that the bill be dismissed upon such terms as may seem just. This petition not being sworn to, and, even if it had been sustained by an affidavit, laying no proper ground for leave to amend the answer, was, by an order passed on the next day, dismissed with costs. On the same 3d of January last, the plaintiffs also filed a petition with sundry affidavits, showing that the road had been obstructed and closed by the defendant, in disobedience of the injunction, and praying for an attachment, which was ordered, issued, served, and returned executed. But the plaintiffs, as it seems, suffered it to pass off without asking to have any thing done upon it. On the 9th of April last, the plaintiffs again asked an attachment against the defendant for disobeying the injunc- tion, which was awarded; and on the 22d of April last, he was brought before the court, in custody, when he filed his petition on oath, with a reference to the bill of injunction, answer, order and attachment for contempt. In this petition he sets forth, that the proceedings of the Levy Court, which were removed by certiorari to the Baltimore County Court, having been there considered and quashed, he had afterwards made a new appli- cation to the Levy Court, and had obtained an order to shut up the road in question ; which order was final and conclusive, without appeal no writ of certiorari having been applied for. That conceiving himself fully authorised to close the old road, so far as it passed over his land, and not in contempt of this court, he did shut it up accordingly. Whereupon, he prays that the OF MARYLAND. 205 Williamson vs. Carnan. 1829. road may be suffered to remain closed, that he may be released from custody, and that the attachment may be quashed. It appears then, by the defendant's petitions of the 3d of Jan- uary and 22d of April, that he had conceived himself fully and legally authorised to close this highway by virtue of the order of the Levy Court, notwithstanding the injunction of this court, which had positively prohibited him from closing or ob- structing it in any way whatever; or, in other words, that the final order he had obtained, had virtually, yet effectually and completely dissolved and annulled the injunction heretofore granted by this court. The defendant made no application or motion to have the injunction dissolved after the 2d of Decem- ber, 1826, until the 22d of April last. He has not even deigned to speak of the injunction, in the body of either of those peti- tions, in which he acknowledges and attempts to justify the closing of the road ; and yet, in the first, he asks to be permitted to file an amended answer, and to have the bill dismissed; and in the second, he prays that the road may remain closed; and that he may be discharged from the attachment. If the prayer of his first petition had been literally and fully granted, and the bill dismissed; yet, that would not have dissolved the injunction, unless it had been so expressly ordered. By the second peti- tion, this court is, in effect, gravely asked to make a most ex- traordinary transit over all its own proceedings, into those of the Levy Court; to approve, and act upon them, and totally disregard its own. For, an order of this court, as prayed, that the road should be suffered to remain closed, and that the de- fendant should be discharged ftpm the attachment, most mani- festly, could stand upon no other foundation than a complete affirmance of the proceedings of the Levy Court, and an entire disregard of all the previous proceedings of this court. I never before heard of such an indirect mode of obtaining a virtual dissolution of an injunction, by bringing to bear upon it a judicial decision of another, and totally different tribunal, not exercising, cr having any appellate jurisdiction over the court, whence the injunction issued. An injunction, emanating from a, competent authority, is a command of the law; and the citizen 206 CASES IN THE COURT OF APPEALS U illiumson vs. Carnan. 1829. is, as I have always understood, bound to yield implicit obedi- ence, until the restriction has been removed by the authority which imposed it. But, if the position assumed by this de- fendant be correct, then, instead of obeying, or moving to dis- solve an injunction, a party may avail himself of various modes of getting around, or under, or over it, without being chargeable with the slightest contempt of the law. The judgment of this court, continuing the injunction, was founded upon the proof or admission of certain facts, after hearing both parties, as to the very point, whether it ought to be continued or not. But, if it could be indirectly and virtually dissolved by a judgment of the Levy Court, upon a different case, then it might be evaded by one party, without hearing the opposite party as to the former, or any new facts, or equity which he might be able to show, as a most solid ground for its further continuance. The court, commanding obedience to an injunction, might thus be brought into collision with another court, alleged to have sanctioned, or, as this defendant has said, ratified the acts in disobedience of it; in which conflict of jurisdiction, the rights of persons and of property, it is evident must suffer; while he who produced the scuffle, might escape with the spoil. Surely, such princi- ples, which, to say the least of them, lead so directly to disor- der and confusion, ought not to be tolerated for a moment. It was upon these considerations, that L passed the order of the 23d of April last, from which the defendant has appealed, and given bond for the prosecution of his appeal. After I had in open court, addressing myself to the argument that had been urged in support of the defendant's petition of the 22d of April last, declared, that the order of the Levy Court could not be allowed to operate as a virtual dissolution of the injunction ; that it could only be dissolved by this court itself, on motion, after hearing the parties; and that until so dissolved it must be consi- dered as in full force, and would be enforced by attachment; the defendant, on the same 22d of April, filed his petition pray- ing for a dissolution of it, upon which the court, on that day, passed the order appointing the 1 3th inst. for the hearing of the motion to dissolve, on notice being given as directed. On the OF MARYLAND. 207 Williamson vs. Carnan. 1829. 5th of the present month, the plaintiffs filed their petition, with an affidavit, in which it is stated, that the defendant had violated the injunction by causing obstructions to be erected across the road, which he had not removed as he ought to have done, in obedience to the order of the 23d of April last; whereupon they prayed that an attachment might be issued against the de- fendant, "to answer for the contempt so by him committed and wilfully persisted in, contrary to the order of this court; and for the continuance of the breach of the said injunction." And they further prayed, that the sheriff of Baltimore County might, by a special order, be directed to remove the obstructions complained of. The attachment was ordered as prayed; upon which the defendant was brought before the court in custody, on the 13th instant, the day appointed for hearing the motion to dissolve the injunction; and he then moved to quash the attach- ment; because an appeal had been prayed and bond given which had suspended the further proceedings of this court. On the next day, the 14th instant, the defendant filed an answer on oath to the alleged contempt; in which he claims a dis- charge upon two grounds First, that the injunction only operated as a restraint from closing the road, under and by vir- tue of the authority of the Levy Court, referred to in the bill; but did not prohibit him from shutting it up under any other authority than the one mentioned; and secondly, that the whole subject matter having been heretofore brought before the court, and having been embraced and adjudicated upon by the order of the 23d of April last, has been suspended by the appeal from that order; and cannot, therefore, be now in any manner treated as a contempt of this coiirt. The bill upon which the injunction was granted, as is usual in such bills, recites the colourable or pretended legal authority under which the defendant had obstructed the specified high- way, contrary to law; and avers, that the pretended legal authority of the Levy Court, under which the defendant had assumed the right to act, was erroneous, and that its validity was a question depending, and then to be decided upon by a superior tribunal; and hence, the defendant having then no CASES IN THE COURT OF APPEALS Williamson rs. Carnun 1829. authority whatever to close the road, it thereupon prays, in general terms, that he may be altogether enjoined from doing so. There is absolutely nothing in the prayer of the bill, nor in the writ of injunction itself, which limits the prohibition to a shutting up under the order of the Levy Court, or under any other particular and specified authority whatever. Neither the terms of the prayer, nor of the writ make any allusion what- ever to any judicial proceedings of any kind then depending, or thereafter to be instituted. The restriction imposed upon the defendant is as general and comprehensive as it could well be expressed. The clear and unequivocal sense of which is, that the road shall continue to be considered as a public road or highway, which the defendant shall not be permitted to close until he shall produce and show to this court, that he had ob- tained a legal authority to do so. Therefore, the only question now is, whether the acts done by this defendant are such as he was prohibited from doing by the injunction? Those acts are the erection of obstructions upon this highway ; now those are the very acts which this injunction does most positively and distinctly prohibit. It is true, that if the injunction had prohi- bited acts^of one description from being done, and the party restrained had done acts of another description, he could not, as the defendant has alleged, be charged with a contempt. The injunction did not prohibit him or any other person from instituting any proceedings, or making any application for the purpose of obtaining a legal authority to close this road; and consequently such acts of the defendant cannot be regarded as a breach of the injunction. So, too, if any other person had obtained an authority to close this road, such person might have proceeded, at once, to shut it up; but, most unquestionably, this defendant cannot be allowed to do so, upon his obtaining an authority to close it, until he has first shown that authority to this court; and upon motion and notice to the opposite party, according to the established practice, obtained a dissolution of that general and unqualified restraint which has been imposed upon him by the injunction. This first cause shown by the de- fendant, for his discharge, being based upon an assumed posi- OF MARYLAND. 209 Williamson vs. Carnan.- 1829. tion not warranted by the proceedings, is therefore deemed insufficient. Indeed, the showing itself seems tacitly to admit the correctness of the charge of contempt, but for that qualifi- cation of the injunction which it has assumed, and which has in fact, no real existence. The second ground upon which the defendant rests his claim to be discharged, is, that this whole subject has been taken from this court to the Court of Appeals. I feel no dis- position to meddle in any way whatever, with appeals from this court; and certainly shall not, knowingly or intentionally, check, control, or retard them in any manner or form, either directly or indirectly. And, therefore, until otherwise directed by the Court of Appeals, I admit, that the appeal has entirely sus- pended the power of this court to execute the order of the 23d of April last; and consequently, that the defendant cannot now be charged here with any contempt for a disobedience of that order. With regard to the prayer of the plaintiffs' petition of the 5lh of May, instant, that the sheriff may be ordered to remove the obstructions that have been placed in this road, I deem it unnecessary, upon this occasion, to express any opi- nion whatever. But the injunction has not yet been dissolved, and there has been no appeal or other proceeding by which the enforcing of that command has been waived or suspended. The petition of the plaintiffs of the 5th instant, and the attach- ment awarded thereon, charges the defendant with contempt by acts "committed and wilfully persisted in contrary to' the order." And also by "the continuance of the breach of said injunction;" or, in other words, "in disobeying the injunction and order heretofore issued in this cause." The language of the writ of attachment is, as usual, general; but so far as it is calculated to embrace a charge of disobeying the order appealed from, it is considered as improper. The defendant, as to so much, must be discharged, and that writ, so far, is hereby quashed. The question, therefore, is reduced to this, whether or not the appeal from the order of the 23d of April last, has suspended the authority of this court to enforce obedience to the injunc- tion? The order of the 23d of April, is an adjudication upon VOL. I. 27. 210 CASES IN THE COURT OF APPEALS Williamson rs. Carnan. 1829. the subject matter then submitted to the court for its decision, and nothing more. The defendant had been brought before the court upon a charge of contempt, for having violated its injunc- tion; and upon that charge it pronounced that judgment. The court had the power to have committed the defendant to prison, and to have imposed a fine upon him; but, considering the erro- neous advice and misapprehension under which he had acted, it imposed the lightest punishment it could select in application to the circumstances and nature of the case which was, that the defendant should immediately himself be at the expense and trouble of removing the obstructions, and should pay the costs of the attachment. But suppose this order had been literally obeyed, and the defendant had afterwards erected other ob- structions on this road, during the continuance of the injunction, the court, on application, would certainly have had him brought before it, and punished for this new contempt; or if the defendant had neither obeyed, nor appealed from the order, then, on ap- plication, he might have been attached and punished, as well for his failure to remove the obstructions as ordered, as for the continuance of them in disobedience of the injunction. Every continuance of a nuisance, or trespass, is a new and additional subject of complaint, and each continuance may at law be made the subject of a separate prosecution or suit. The not removing the obstructions, and the continuance of them are clearly two distinct subjects. The first is embraced by the order which has been suspended by the appeal. But the second can only be considered as a violation of the injunction, which has been in no way dissolved or suspended; because, it was that alone, and not the order, which prohibited the continuance of the obstruction. Every continuance of the obstructions is a new and distinct ground for an attachment. All contempt for the continuance of these obstructions, antecedent to the order of the 23d of April, and also during such reasonable time thereafter, within which the defendant might have complied with it, are embraced under, and to be atoned for by him, upon the terms of that order. But the specified continuances of them since, are totally distinct subjects of complaint; are new OF MARYLAND. 211 Williamson vs. Carnan 1829. violations of that injunction, which is admitted to be in full force; and are now to be treated and considered as if nothing had occurred in disobedience of it, prior to that time. 1 am, therefore, of opinion, that this second cause upon which the defendant rests his claim to be discharged, so far as relates to the continuance of the obstructions, after they might have been removed as above mentioned, is as entirely unfounded as the first. The plaintiffs have, by their petition, suggested, and also urged in argument, that the defendant, while in contempt, is not in a situation to move for a dissolution of the injunction; that his petition, asking to have a day appointed to hear a motion for a dissolution, having been filed before he had cleared himself of the contempt wherewith he then stood charged, was irregular, and that the motion cannot now be heard, until he has cleared himself of the present charges. It is certainly true, as a general rule, that a party will not be permitted to come in and claim the benefit of that judicial authority, which he has contemned and set at naught. He must recognize its power by obedience, and clear away all imputa- tions of contempt, before he can be allowed to "ask from it any relief. But the circumstances of this case are evidently very peculiar. The nature and extent of the punishment to be im- posed upon the defendant, for the breach of the injunction, with which he now stands charged, ought, and must depend, in some degree, upon the determination, whether the injunction is to be continued or not. If it is dissolved, a mere corrective fine, proportioned to the disobedience complained of, will be sufficient. If it is continued, then he should, at the least, as before, be ordered to remove the obstructions; to pay all the costs; and also to pay a fine, or stand committed, or both; which may be hereafter so increased as to insure obedience. It therefore occurred to me, to suggest to the solicitors, the propriety of now hearing the motion to dissolve the injunction, in order that I might, upon the attachment, adopt the most suita- ble mode of enforcing obedience to the injunction, should I come to the conclusion that it is to be continued. The motion CASES IN THE COURT OF APPEALS Williamson vs. Carnan. 1829. for a dissolution, was accordingly taken up and argued; and I now proceed to consider and decide upon it. On adverting to the proceedings which have been in this case, antecedent to the 13th instant, it will be seen, that the defendant admits he closed the road subsequently to the service of the injunction upon him ; and that he also admits he has not hitherto obtained from this court a dissolution of that injunction. These positions are unquestioned and unquestionable. From these premises, I conceive it to be the duty of this court, to assume and act upon the position, that this road is now open, and has not been as yet closed, so far as regards this defendant. For if the defendant were admitted, in any way, to avail himself of that shutting of it up, which has been in fact done by him- self, then he would be thus suffered to take advantage of his own wrong, which can never be allowed. And from a review of this case, I also consider it proper, as regards the defendant, to assume and act upon the position, that he cannot claim a dissolution of this injunction, unless, at the time of asking it, he shows, that the closing of the road, so far as it passes over his land, has been legally and finally authorized by some com- petent authority; and that the question, whether it should be closed or not, is not, at the time of hearing the motion for a dissolution, depending before any legal and competent tribunal. The plaintiffs, by their petition filed the 13th instant, set forth and show several causes why the injunction should not now be dissolved as prayed ; and, among others, they show, that proceedings have been instituted, and are now depending before the Commissioners of Baltimore county, a legal and com- petent authority, for having this same highway, called the Gar- rison Forest Road, opened, and kept open, as it has heretofore been. As I have observed upon a former occasion, in regard to the Levy Court, whether the proceedings which have been thus instituted before the commissioners, are as correct and regular as they ought to be, is not for this court to determine. It is enough, that it satisfactorily appears, now, upon the hearing of this motion, that the defendant has not yet obtained a final and conclusive legal authority to close this road; and, that he OF MARYLAND. 213 Williamson vs. Carnan. 1829. has, as yet, no right to shut it up; because the right to do so, is, at this time, depending before, and to be determined by a legal and competent tribunal. And, therefore, until that pro- ceeding has been finally terminated; or rather, until the defen- dant can show to this court, some good and sufficient legal authority for closing it, this injunction, by which "it has been in point of law, up to this time, kept open, so far as it passes over his land, must be continued. Ordered, that the injunction heretofore granted in this case, be, and the same is hereby continued until final hearing in, or further order of, this court. Ordered also, that the defendant do forthwith, and with the least possible delay, entirely remove and take away all fences, &c. and all manner of obstructions, which, having been hereto- fore by him, his agents, or servants, placed or put in or upon the road in the proceedings mentioned, contrary to the inhibition of the said injunction, he has suffered to remain and continue in and upon the said road in disobedience of the said injunction, after he might have removed the same as directed by the order of this court of the 23d of April last. Ordered also, that the defendant for his contempt in not obeying the injunction of this court, by continuing the said ob- structions in the said road as aforesaid, after the time when he might have removed the same as directed by the order of this court of the 23d of April last, pay a fine of fifty dollars, and all the costs of the last mentioned attachment, and that he stand committed until the said fine and costs are paid. From which last mentioned /order, and also from the order of the County Court directing the injunction to issue in this cause, (12th of May, 1826,) and from the order of the Chan- cellor of the 4th of January, 1828, directing an attachment to be issued against the defendant, and also from the order of the court of the 9th of April, 1828, directing another attachment to issue against the defendant, he also appealed to this court. And, upon the defendants presenting to the Chancellor the bond which he had entered into with sureties for prosecuting the said appeal, the Chancellor on the 21st of May, 1828, passed the following order 214 CASES IN THE COURT OF APPEALS Williamson w. Carnan. 1329. Ordered, that the foregoing bond this day filed, be, and the same is hereby approved. And, in reply to the motion sub- mitted, the Chancellor declares it to be his opinion, that the said bond having been filed and approved before the actual payment of the fine and costs, as commanded by the order passed yesterday, which has been appealed from, and before the defendant had been actually committed to the custody of the messenger, to be by him closely confined in gaol, operates as a supersedeas of all further proceedings for that or any other purpose, in relation to the matters appealed from. The said appeals being allowed, a transcript of the record was transmitted to this court. At June term, 1828, on a motion made by the appellees to dismiss these appeals, it came on and was argued before BUCHANAN, Ch. J. and EARLE, MARTIN and ARCHER, J. Gwynn, for the appellees, in support of the motion, referred to Snowden vs. Dorset/, 6. Harr. Sf Johns. 115, and Thompson vs. McKim, Ibid. 302. He insisted that the appeal from the order of the 12th of May, 1826, was too late, and cited Strike vs. McDonald, 2 Harr. fy Gill, 191. He also insisted that the order of the 20th of May, 1828, refusing to dissolve the in- junction, was a mere interlocutory order, whereby no rights were finally settled between the parties, and from which no appeal would He. Magruder, against the motion, referred to 1 Madd. Ch. 1 28. Eden on Inj. 162, 163, 167. Co. Litt. 56. a, and the act of Ass. of 1794, ch. 52 sec. 14. He urged that there could be no breach of the injunction, until the decision of Baltimore County Court, under the certiorari. If the appellees had applied for and ob- tained a perpetual injunction, then the appellant might apply to the Levy Court, and obtain another order to close the road. Denton vs. Jackson, 2 Johns. Ch. Rep. 321. On an injunction to stay w r aste, pending an action of ejectment or trespass, it will be dissolved, on motion, unless it is shown that the complainant had succeeded at law. Here, on the decision made by Balti- OF MARYLAND. 215 Williamson vs. Carnan 1829. more County Court, the injunction was at an end it had per- formed its office. The proceedings of the Levy Court being annulled, the appellant had no right to shut up the road; but he applied again to that court, and another order for shutting the road up was granted to him; and he then did shut up the road. After which, it appears that the appellees applied to the Com- missioners of the county, (they being substituted in the place of the Levy Court,) to open a new road where the old road had run. He contended that the orders of the Chancellor, directing the appellant to remove obstructions, &c. from the road in question, affected his rights ; and that his rights were as much affected thereby, as in Thompson vs. McKim. If he were to remove his fences, &c. from the road, and it should be finally decided that they ought not to have been removed, how could he then be compensated for the injury he had sustained. Taney, (Attorney General,) also, against the motion in his argument, referred to Attorney General vs. Utica Insurance Company, 2 Johns. Ch. Rep. 378. Edenonlnj. 157, 162, 163. Gtci/nn, in reply, cited Eden on Inj. 55, 56, 162, 163. He said that the court could not compel the party to resort to a new injunction, where the reasons for a former injunction had ceased to exist, and new reasons had arisen which would justify an injunction. BUCHANAN, Ch. J. delivered the opinion of the court. The order of the Commissioners of Baltimore County, on the 13th of December, 1827, confirming the report of the commissioners appointed by the Levy Court of that county, and directing and authorising the old road to be shut up, placed the premises over which it formerly run, under the controul of the appellant to whom the land belonged, and gave him the same right of user of the land of that road, that he had of the rest of his estate. And we think that the subsequent order of the Court of Chan- cery, does so materially affect the right and interests of the ap- pellant as to bring the case within the principle of Thompson 216 CASES IN THE COURT OF APPEALS Tiernan vs. Poor. et MX. ti. al. 1829. vs. JlfcKim, heretofore decided by this court, and form a fit subject of appeal. The motion, therefore, to dismiss these appeals, is overruled. MOTION OVERRULED. EARLE, J. dissented. TIERNAN vs. POOR, et ux. et al. December, 1829. Where the facts charged in a bill were all admitted to be true by the plead- ings, and there was no replication, but the parties agreed that the Chan- cellor might take the papers and decide the cause; by such agreement the cause is. set down for hearing, and whether the proceedings of the defend- ant bo regarded as a plea, or as an answer, the question submitted, is on their legal sufficiency to bar the plaintiff's claim. When any instrument of writing is designed to operate as a transfer of property, and proper and apt terms are used, whereby the meaning of the parties can be clearly ascertained, if some circumstances are omitted to give it legal validity, which deprive it of its intended, specific operation, a Court of Equity will set it up as a contract, or as evidence of a contract; and when the rights of innocent third parties would not thereby be affected, will, as between the parties to such instrument, carry it into specific execution; provided it be founded upon a valuable consideration. P and his wife, in consideration that T would give up a lien which he held upon P's personal property, agreed to execute a mortgage of certain real property, which, by a post-nuptial settlement, had been conveyed to trustees for the sole use of the wife, with power to her to "sell, convey and dispose of the same, absolutely in such manner as she might think proper to direct, without the concurrence of her husband, and from and after her decease, such parts of the property as should be left undisposed of, by her deed or contract," was conveyed in trust to her children. In pursuance of such agreement, T gave up his lien, and P and his wife executed a deed to T, for some of the trust property. The deed was in the usual form of a mortgage, except that the wife was not examined apart from her husband, by the justice of the peace who took her acknowledgment, and according to the Acts of Assembly passed in relation to deeds executed by femes covert grantors. Upon a bill filed by T r praying a sale of the mortgaged premises, the court held, that whether the instrument of writing which forms the basis of this call, for the interposition of a Court of Equity, be in fact a mortgage, in its legal and technical sense, in consequence of its not having been acknowledged in the manner which the acts of Assembly require, it was not necessary to determine; but it was clearly intended OF MARYLAND. 317 Tiernan vs. Poor, et ux. et al 1829. to be a mortgage, and within the limits of the wife's disposing power; and therefore decreed the property mentioned therein to be sold. The title to the assistance of a court must be exposed by the pleadings; but the style and character of pleading in equity, has always been of a more liberal cast, than that of other courts; as mispleading in matter of form there, has never been held to prejudice a party, provided the case made is right in substance, and supported by proper evidence. APPEAL from a decree of the Court of Chancery, dismissing a bill of the complainant, (now appellant.) The original bill, filed on the 21st of February, 1822, stated that Dudley Poor, (one of the defendants,) being indebted to the complainant in the sum of $600, and desirous of securing the payment thereof, and the interest, in consideration thereof the said Poof, and Deborah his wife, (another of the defendants,) on the 28th of March, 1820, executed to the complainant a deed of mortgage, by which they conveyed to the complainant a lot of ground in the city of Baltimore, on the north side of Market street, next to the corner of Gay street, No. 50, with a proviso, that upon pay- ment of the said sum of money, and interest, on or before the 1st of July, next ensuing the date of the said deed of mortgage, the same should be void; which said deed of mortgage was aver- red to have been duly acknowledged and recorded on the 27th of September, 1820. That although the said 1st day of July next ensuing the date of the said deed of mortgage, and the pe- riod therein mentioned for the payment of the said $600, with the interest due thereon, has long since passed by ; yet the said D. Poor, and Deborah, his wife, have neglected to pay the said sum of money, &c. Prayer for a sale of the mortgaged premi- ses, &c. and for further relief. / The *!eed of mortgage exhibited by the complainant, as stated in his bill, was dated the 28th of March, 1820, executed by D. Poor, and Deborah, his wife, to the complainant, whereby, in consideration of the sum of $600, to them paid, they conveyed the lot of ground mentioned in the bill, with the proviso therein stated, with a covenant for further and other acts, deeds, assur- ances and conveyances. The deed of mortgage was signed and sealed by the said Poor and wife, and acknowledged by VOL. I. 28. 218 CASES IN THE COURT OF APPEALS Tiernan vs. Poor, et ux. et al. 1829. them before two justices of the peace, &c. on the day of its date. But there did not appear to have been any private and separate examination of the wife, apart from her husband, as required by the acts of Assembly, to conveyances, executed by femes covert, conveying their real estates, or relinquishing their rights of dower. The deed was recorded on the 27th of Sep- tember, 1820. The answer of Poor and wife, admitted the execution of the deed of mortgage; but by way of pka and answer to the bill, they stated that the defendant, Deborah, is one of the heirs at law, representatives and devisees of John O'Donnell, deceased, and as such, was entitled to a large real and personal estate, as her distributive share of the said estate. That the said es- tate was distributed and divided among the legal representa- tives of the said O'Donnell. They further stated, that after the said estate was so divided and allotted, they, the defendants, by a deed duly executed, acknowledged and recorded, bearing date on the 24th of August, 1816, did convey, &c. unto Colum- bus CPDonnell and John H. Poor, all their estate, and interest in the said share of the estate of the said John O'Donnell, in trust for the sole and separate use, benefit and behoof of the said Deborah, for and during the term of her natural life, so that she be suffered and permitted, peaceably and quietly, to use, &c. the said real estate, property and premises thereby conveyed, and the rents, &c. thereof, and of every part thereof to receive, take and apply to her separate use, without being subject to the disposition, &.c. of the said Dudley Poor, or of any future hus- band of the said Deborah, and in no wise liable or answerable for the payment or fulfilment of his or their debts, contracts or engagements; and so as that the same estate and property thereby granted and conveyed, and every, or any part or parcel thereof might be sold, conveyed and disposed of absolutely, by the said Deborah, in such manner as she may think proper or direct; and that without the concurrence of her present, or any future husband. And from and after the decease of the said Deborah t then as to the whole of the same estate, property and premises thereby granted and conveyed, or such parts or part thereof, OF MARYLAND. 219 Tiernan vs. Poor, et ux. et^al. 1829. as may remain undisposed of, by deed or contract, in trust for all the children of the said Deborah, and their heirs, as tenants in common, equally. But in case the said Deborah shall depart this life, without leaving a child, or a descendant of a child, living at the time of her death, then, in trust for the use, and behoof of such person or persons, or for such uses and purposes as the said Deborah, (her coverture notwithstanding, or whether sole or covert,) shall or may, by any instrument of writing in the nature of, or purporting to be her last will and testament, direct, limit and appoint; and in default of such limitation or appointment, then for the use, benefit and behoof of the right heirs of the said Deborah, and their assigns, forever. And upon this trust, nevertheless, and with full power to the said Colum- bus O^Donnell and John H. Poor, and the survivor of them and his heirs, with the consent, and by the direction of the said Deborah, testified in due form, but not otherwise, from time to time, at any time thereafter, to make any lease or leases, demis- es or grants of the estate and property thereby conveyed, or of any part thereof, with the appurtenances, for any term or terms whatever, renewable or not renewable, so as upon every such lease or leases, there be reserved to continue payable to the said Columbus O'Donnell and J. H, Poor, and the survivor of them, and his heirs, during the respective lease or leases, the best rents that can be obtained for the same; and so as in every such lease or leases, there be contained reasonable and usual covenants, in like cases; and also a proviso or clause of re-en- try for non payment of the rent or rents thereby reserved. And these defendants further say, that the real estate specified and mentioned in the said mortgage was included in the said deed to the said C. CPDonnell and J. H. Poor, and was a part thereof. And these defendants, by way of plea, and in bar of the com- plainants right to recover in the said bill, say that they are ad- vised they had no legal right to make the ssid deed of mortgage, and that no legal interest or title whatever \vas thereby convey- ed to the complainant the legal title being outstanding in the said trustees, C. O^Donnell and J. H. Poor and moreover, that the said deed of mortgage is defectively executed; and even CASES IN THE COURT OF APPEALS Tiernan rs. Poor, et we. tt al. 1829. if a legal or equitable title existed, in these defendants, that the said deed is wholly defective in its execution, and agreeably to the laws of this state conveyed no title, legal or equitable, to the complainant. And these defendants, therefore, pray hence to be dismissed, with their costs, &c. The deed of trust exhibited by the defendants, was dated the 24th of August, 1816, executed by them to C. CPDonndl and J. II. Poor, conveying the real estate, &c. as mentioned in the above answer and plea, and in the manner, and upon the trusts as therein stated. It was acknowledged by the defendants on the day of its date, and the wife was privately examined apart from and out of the hearing of her husband, &c. and was re- corded on the 21st of September, 1816. The complainant having obtained leave for that purpose, amended his bill by making C. O'Donnell and J. H. Poor par- ties defendants. The answer of D. Poor and Deborah his wife, to the amend- ed bill, admitted C. O'Donnell and J. H. Poor mentioned therein, as trustees of the said Deborah in the deed of trust, are the trustees appointed by the same as therein alleged. The complainant having again obtained leave for that pur- pose, further amended his bill, by stating that after the execu- tion of the deed of trust, and before the execution of the mort- gage, D. Poor had rented from the complainant a dwelling house in the city of Baltimore, which house D. Poor and his family had occupied for a considerable period. That shortly before the execution of the mortgage, there was due to the complainant from D. Poor, the sum of $600, as rent in arrear for the said house, and for which the complainant had levied a distress on the goods and chattels of the said D. Poor, then in the said dwelling house, of sufficient value to secure the said rent; and, at the time of the agreement hereinafter mentioned, had and held the said distress in full force and effect. That on the 28th of March, 1820, the complainant being possessed of the said security for his rent aforesaid, the said D. Poor and Debo- rah his wife, agreed with him, that they would execute the mortgage filed with the original bill in this cause, for the pur- OF MARYLAND. Tiernan vs. Poor, et MX. et al. 1829. pose of securing the payment of the aforesaid rent, in consi- deration that the complainant would relinquish his said distress, and give up the said goods and chattels, levied on as aforesaid. The complainant alleges that he complied with the said agree- ment on his part, and the said D. Poor and Deborah his wife, in pursuance of the said agreement, executed the said mortgage, and the said goods were given up to the said D. Poor, and the said mortgage was duly recorded according to law. That the said mortgaged property constituted a part of the property men- tioned in the said deed of trust; and that the complainants claim remains unpaid. Prayer, that the mortgaged premises may be decreed to be sold, &c. and for other relief, &c. To this amended bill, all the defendants answered, admitting the facts set forth in the said bill of complaint, to be true as stated; yet they allege and contend that the complainant is not entitled to relief; and therefore pray that the said bill may be dismissed with costs, &c. Agreement. " It is agreed in this case that the Chancellor may take the papers and give a final decree the counsel for both parties considering that the questions of law connected with it, having been fully discussed before his honor, the Chan- cellor, in a late case against the same defendants, that it is un- necessary to discuss them again." Signed by the counsel. BLAND, Chancellor, (September term, 1826.) From the whole proceedings the case appears to be substantially no more than this. The plaintiff, to secure a debt due to him, obtained a mortgage of certain property from Dudley Poor and wife, who by their plea allege, that prior thereto the mortgaged pro- perty had been conveyed to Columbus O'Donnell and John H. Poor, in trust for certain uses as in that deed mentioned, and therefore, that Dudley Poor and wife had no right or power in equity to make and execute the mortgage relied on in the bill. The plaintiff has admitted the sufficiency of the plea by reply- ing to it. And the truth of the facts therein stated, which alone has been put in issue, is clearly established by the proceedings in the cause. The plea covers the whole substance and merits >>> CASES IN THE COURT OF APPEALS Tiernan vs. Poor, el ux. et al. 1829. of the plaintiffs case, and consequently, being fully sustained in la\v and fact, puts an end to it altogether. DECREED, that the bill of complaint of the complainant be dismissed with costs. From which decree the complainant appealed to this court, where the following agreement was entered into by the counsel of the parties. " In this case it is agreed that the plea to the original bill shall be considered as a plea to the amended bills the appellant reserving all objection to the plea itself, both in form and substance, and not admitting it to be a plea at all." The cause was argued before EARLE, ARCHER and DOR- SEY, J. Gill for the appellant contended, 1. That the deed of trust from D. Poor and wife to O'Donnell and /. H. Poor, conveyed to Mrs. Poor an equitable estate for her sole use, independent of her husband ; which estate she had a right to assign abso- lutely or mortgage at her discretion, by the terms of the trust deed. 2. That having such right, it is bound by her contract set forth in the bill; and the Chancellor erred in not decreeing a sale of it to satisfy her contract. 3. That if there be any error in the mortgage from Poor and wife to the complainant, then upon the original contract inde- pendently and without that mortgage, the complainant having fulfilled his part of the contract, and Poor and wife having received a valuable consideration from him, he is entitled to a sale of the property described in the mortgage, to satisfy his claim. 4. That this cause is substantially before this court, as it was before the Chancellor, upon general demurrer the answer to the amended bill being in effect a demurrer. 5. That there was no plea filed by the defendants in this cause. 6. That if there was a plea, it was abandoned or overruled by the last amended answer; and if not, the agreement to sub- mit the case, was in effect, setting the plea down for hearing. OF MARYLAND. 2-23 Tiernanrs. Poor, etitx. etal. 1829. On the first and second points, he cited Price fy Nisbet vs. Bighorn's Ex'rs, 7 Harr. fy Johns. 296, 318. On the third point, he cited Williams^ Ex^rs. vs. The Mayor Sfc. of Jlnnapolis, 6 Harr. &f Johns. 533. Hunt vs. Rousma- niere's Mm'rs, 1 Peters's S. C. Rep. 13. On the fourth point. This case is to be considered as if the defendants had demurred. The bill as last amended is admit- ted in every particular. It is not in any respect contradicted by the plea filed to the original bill, and the last amended answer in terms, admits the amended bill; and it is this bill which discloses the plaintiffs claim. There is no dispute about, no denial of the facts. There was nothing for a replication to act upon. Nothing then was left for the Chancellor to decide, but the law of the case arising upon the bill. In effect, there- fore, it is as if a general demurrer had been filed, and exclusive- ly relied upon. The law of this case in every particular is set- tled by this court in the case in 7 Harr. fy Johns, before referred to. The law of this case is its conscience and honesty, arising from the fact, that the plaintiff at the request of the defendants, Poor <^ Wife, gave up to them a valuable property, for which he now asks payment. On the fifth point. Is there any plea in the case ? The Chancellor says there was a plea to which the complainant replied. If there was a plea to the original bill, it is admitted there is one to the amended bills. But it is denied that it was a plea at all. It is an answer, and not a plea. It is wholly deficient in the form and substance of a plea. Mitf. Plead, (ed. 1812,) 235, 238, 240. James's Eq. Pkad. 339, 340. The defendant must plead to the whole of the bill, or a part, and then answer as to the residue. The plea and answer must be distinct, and cannot be mixed together. Ringgold vs. Ring- gold, I Harr. Sf Gill, 12. Here it is impossible to discriminate between what facts are relied on to constitute a plea, and what, to constitute an answer. On the sixth point. If it is a plea and not an answer, it never was replied to. There was no general replication. The case was set down for hearing under the agreement entered into for *> I CASES IN THE COURT OF APPEALS Tieraan tw. Poor, et ux. et al 1899. that purpose. The filing the amended answer, abandoned the plea. What is the effect of a plea, and an answer admitting the facts in the amended bill? There could be no occasion for the plea to the amended bill, as it contains all the facts stated in the supposed plea. Mitf. Plea, 254. Chase vs. McDonald $ Ridgely, 7 Harr. # Johns. 178, 197, 198. Winchester for the appellees. This is an attempt to make the wife's separate estate, answerable for her husbands debt. The trust is express that the property should not be disposed of to pay the debts of the husband. The mortgage to the complain- ant was acknowledged by D. Poor and wife, but she was not privately examined, &c. as required by law. Was the property at the time of the mortgage, liable to the mortgage, or the contract growing out of it? The bill does not speak of the mortgage as a contract growing out of, or within the deed of trust, under the power reserved to the wife to make a contract. The bill is to foreclose a mortgage, and for no other purpose. Is it a mortgage sufficient to pass the estate in the property of a feme covert, admitting that it was not trust property ? She cannot be considered or regarded as a feme sole, capable of making her separate estate answerable for the debts of her husband. 1. The mortgage is not in execution of the power reserved to the wife under the deed of trust. 2. If it is, it is such a defective execution of the power, as this court will not aid. A feme covert cannot dispose of her real estate unless agreeably to the act of Assembly; or under some power re- served to her by deed, and in execution of such power. This deed cannot be considered a mortgage ; nor is it in execution of the power reserved to her under the deed of trust. The case of Price fy Nisbet vs. BigJiam's .EzYs, is not similar to the present. There the contract was for improvements to be made on her estate; and there was an attempt by her and her trustee to execute the power reserved to her. Here the wife could not contract, except in the way pointed out by the trust. She must have united with the trustees in any transfer of the pro- perty. It cannot be a contract by a feme covert, unless executed OF MARYLAND. Tiernan t10 CASES IN THE COURT OF APPEALS Morrow vs. The State, use of Israel 1829. Chancellor directed such bonds to be given to the Attorney General. The same provision is contained in -the act of 1792, ch. 67, sec. 3. By the tenth section of that act, an imprisoned debtor, if required by the Chancellor, was to give bond : but it is not said to whom such bond was to be given. The practice seems to have been that the Chancellor directed the bond to be given to the sheriff of the county in which the debtor resided. Similar provisions are contained in the acts of 1793, ch. 68, sec. 3, 10. 1794, ch. 72, sec. 3, 10. 1795, ch. 82, sec. 3, 10. 1796, ch. 70, sec. 4, 1 1. By the act of 1797, ch. 82, sec. 7, the bonds of the debtors are to be given to the trustees. The act of 1797, ch. 97, sec. 4, 11, contains the same provisions as the act of 1796, ch. 70, sec. 4, 11, &c. Similar provisions are also con- tained in the acts of 1798, ch. 64, sec. 4, 11, and 1799, ch. 88, sec. 4, 1 1. By the act of 1804, ch. 1 10, sec. 4, trustees were re- quired to give bonds to the State. By the eleventh section of that act, imprisoned debtors, if required by the County Court, &c. are to give bonds with security, for their appearance, &c. but it is not said to whom such bonds were to be given. The act of 1805, ch. 110, sec. 4, 11, has the same provisions. The same expressions will be found in the act of 1808, ch. 71, sec. 2. We come now to the act of 1816, ch. 221, sec. 2, whereby the Commissioners of Insolvent Debtors for the city and county of Baltimore, are required to take a bond for the petitioner's ap- pearance, &c. " with security to be by them approved." From all the preceding, it will be seen that there is no provision of law which authorises the giving of a bond by a petition for the benefit of the insolvent laws, to the State of .Maryland. The bond of a trustee of an insolvent debtor is expressly provided to be for tlie use of the creditors of the insolvent, whereas the bond to be given by the debtor is not provided to be for such use. No suit can be maintained on a public bond, unless the law pro- vides that persons damnified may bring suit on any such bond. This was the argument in M^Mechen vs. The Mayor, fyc. of Haltimore, 3 Harr. 8f Johns. 534. See the acts 1794, ch. 54, and 1798, ch. 101, siib-ch. 3, sec. 10, sub-ch. 12, sec. 5. And as analagous, he referred to 3 Saund. 412,415 (no/e.) 1 T. R. 287. OF MARYLAND. 241 Morrow vs. The State, use of Israel 1829. Kerr vs. The State, 3 Harr. fy Johns. 560. Ellicott vs. The Levy Court, fyc. I Harr. fy Johns. 359. 2. The bond being given that the insolvent debtor shall ap- pear, &c. cannot be for the benefit of the creditors, if he does not appear. At all events, the debtor failing to appear cannot subject the surety to the payment of all the debts due to credi- tors. In an action on a bond with a collateral condition to se- cure third parties, there ought to be some evidence of damage; or else, why should the plaintiff be permitted to sue? What interest has this creditor in this bond, (his name not appearing in it,) except because he is damnified by the non-appearance of his debtor? He ought to have given some slight evidence of injury sustained by the forfeit of the bond. It would be a violent presumption, without evidence and against evidence, to presume that he is damnified to the whole amount of his debt. And not he only, but all the other creditors. So that the surety of an insolvent debtor is to be overwhelmed, because, to relieve his friend from imprisonment, he is his surety for his appear- ance. He may be, and no doubt, universally, sureties become so, because they know their principal is worth nothing or little, and, therefore, they can be very slightly injured by the forfeit- ure of the appearance. There is-nothing in the law analogous to this doctrine. For with regard to special bail, or rather sureties in a bail bond, the presumption is, that the debtor is able to pay the debt, from which he absconds. But it is other- wise with respect to insolvent debtors. 3. But suppose the presumption not to be so in ordinary cases. In this case evidence w^s offered and rejected, to show actually that the principal had nothing, and, therefore, the creditor could have recovered nothing. All that could be done was to imprison him. This would be no satisfaction of the debt, but merely a penalty for fraud. Under our insolvent laws, imprisonment is no satisfaction for debts. It is used to coerce debtors to give up their property, and as a punishment for fraud. Here the proof is, that the debtor had given up all his property, oj course, all that could be done would be to im- prison him. VOL. I. 31. 242 CASES IN THE COURT OF APPEALS Morrow vs. The State, use of Israel 1829. 4. If there was such a privity between this creditor and the obligors in the bond, that being forfeited, he could sue on it. Still if he was not actually damnified, he was only entitled to nominal damages. By the act of 1821 , ch. 250, provision is made for the enlargement of the time for the appearance of the debtor, without requiring a new bond, and without the consent of the creditors. What then becomes of the old bond? 5 Johns. Rep. 42. 9. Johns. Rep. 300. 10 Jo/ins. Rep. 563. 2 Johns. Rep. 205. Meredith, for the appellee. This suit was brought in the name of the state, for the use of one of the creditors of an insolvent, against his surety, in a bond given for the appearance of the debtor, in pursuance of the act of 1816, chap. 221, sec. 2. In the argument on the part of the appellant, it was made a question whether there could be any recovery on the bond in this case, since there is no specific provision in any part of the law referred to for taking bonds of this description in the name of the State; and it is upon this question alone that the counsel for the appellee, will detain the court. It is certainly true, that the act in question does not designate the obligee in these bonds. After providing for the appointment of the provisional trustee, the section above cited, proceeds to direct, " that the Commis- sioners shall take bond, with security, to be by them approved, for the appearance of such insolvent, to answer such interroga- tories as may be propounded to him by any of his creditors, or such allegations as may be filed against him, within the time hereinafter mentioned." But, in the similar provision, which is to be found in the acts of 1805, ch. 1 10, sec. 11; 1807, ch. 150, sec. 3; 1808, ch. 71, sec. 2; and 1817, ch. 183, sec. 1, there is no more particular designation of the obligee, than in the act of 1816; and yet the invariable practice has been from the passage of the first general insolvent law in 1805, to the present period, to take the appearance bonds of insolvent debtors in the name of the State, and the legality of doing so, it is believed, has never before been questioned. A construction, therefore, thus given OF MARYLAND. 243 Morrow vs. The State, use of Israel. 1829. by the courts throughout the State, and uniformly acted upon for upwards of twenty years, in the innumerable cases which have arisen under the insolvent law, should not be disturbed but for the strongest and most unanswerable reasons. Where the interpretation of a law is doubtful, the exposition given to it immediately after its passage, when the intention of the Legis- lature is more certainly ascertained than at a later period, is entitled to great consideration, and generally is deemed deci- sive. Contemporanea expositio est fortissimo, in kge. 6 Bac. Jib. 385. Again, it is a rule in the construction of statutes that such an interpretation ought to be given as will prevent the object of the law from being defeated. 1 5 Johns. Rep. 358. If the objection to the bond in this case is a valid one, it is ma- nifest that the provision which the Legislature intended for the security of creditors is rendered wholly inoperative. For if the bond cannot be rightly taken in the name of the State, because it is not so specifically directed, it cannot for precisely the same reason be taken in the name of any other obligee. And thus creditors are left without any security whatever, and the inten- tion of the Legislature, which is obviously to substitute the ap- pearance bond in the place of special bail, is completely frus- trated. Legislative intention is often resorted to, to explain the meaning of laws. 15 Johns. Rep. 358. That intention may be collected from other provisions in the same law, and look- ing to the provision with regard to the trustees bond, which is expressly directed to be taken in the name of the State by the act of 1805, it would seem that the Legislature must have in- tended that the appearance borid should also be given to the State, or they would have otherwise directed. Why should the one be taken in the name of the State and not the other? They are both for the security of creditors; the State, is not interest- ed, but selected merely as a safe and permanent trustee for their benefit. Having once mentioned the form of a bond, it was not thought necessary to repeat it. And it may be remark- ed, that in the act of 1808, ch. 71, sec. 3, where both the trus- tees bond, and the appearance bond are mentioned, there is no specific direction as to either, with regard to the obligee; and ,' 1 1 CASES IN THE COURT OF APPEALS Chamberlain vs. The State, use of Keiler. 1829. yet it will scarcely be doubted, that a trustees' bond is under this law, which is the last upon the subject, properly and le- gally given in the name of the State. If, however, the bond in this case is not considered as being authorised by the act of 1816, in connexion with the preceding insolvent laws, the ap- pellee insists that it is still a good bond at common law, and that the State ought to be regarded as a trustee for the creditors, for whose benefit it was intended. This principle will be found to have been repeatedly settled in England and this country. The court, however, is particularly referred to. 2 Strange, 1137. 12 Mass. Rep. 367. Mdison>s (Perm.) Rep. 72, 84. That creditors may sue upon bonds of this description, notwithstand- ing there is no particular provision to that effect in the law un- der which they are given, the court is also referred to 4 Doll. Rep. 95. 5 Mass. Rep. 91, and M'Mechenvs. The May or, #c. of Baltimore, 3 Harr. &f Johns. 534. See also 1 Binney's Rep. 370, as to the priority of those who first sue on official bonds, tyc. CHAMBERLAIN vs- THE STATE, use of KIELER. This third case was an appeal from Frederick County Court, and also an action of debt on a writing obligatory entered into on the 24th of June, 1818, by the defendant, (now appellant,) with David Wagner and John Gilbert as his sureties, to the State in the penalty of $1000, and conditioned for the appearance of the defendant in Frede- rick County Court on the first Monday of November then next, to answer the allegations of his creditors according to the pro- visions of an act of Assembly, entitled, "an act for the relief of sundry insolvent debtors, passed at November session, 1805, and the supplements thereto," and shall not depart the said court without the leave thereof. The defendant pleaded. 1. That the action ought not to be maintained, &c. because no creditor or creditors of the defendant at any time from the time of the making the said writing obligatory to the time of the com- mencement of this suit, made any allegation or allegations in Frederick County Court against the defendant, according to the provisions of the act, entitled, &c. or the supplements thereto, or any of them ; and this he is ready to verify, &c. 2. That the OF MARYLAND. 245 Chamberlain vs. The State, use of Keiler. 1829. action ought not to be maintained for the use of George Keiler, because the said Keiler did not at any time from the making of the writing obligatory aforesaid, to the commencement of this suit, make any allegation or allegations in Frederick County Court against the defendant, according to the provisions of the act of Assembly, entitled, Sac. or of the supplements thereto, or any of them; and this he is ready to verify, &c. 3. That the defendant did make his personal appearance in Frederick County Court on the first Monday of November next ensuing, the date of the said writing obligatory, to answer the allega- tions of his creditors, according to the provisions of the act, &c. and did not depart the said court without the leave thereof; and this he is ready to verify, &c. To the first and second pleas there were general demurrers. To the third plea, a re- plication that the defendant did not make his personal appear- ance, &c. And that George Keiler was a creditor of the defendant to the amount of $61 96. Issue tendered and join- ed. The County Court ruled good the demurrers to the first and second pleas. Verdict on the issue to the replication to the third plea for the plaintiff. Judgment on the verdict, and the defendant appealed to this court. The cause was argued before BUCHANAN, Ch J. and EARLE, ARCHER and DORSEY, J. Taney (Attorney General of Maryland,) and Ross, for the appellant. The act for the relief of insolvent debtors, 1805, ch. 110, and its several supplements, have for their object, the relief of insolvent debtors who comply with the provisions of those acts. The bond required by those acts (vide the act of 1807, ch. 150, sec. 3,) manifestly shews that the condition of the bond was, to answer allegations if filed, but not to make the debtor and his securities answerable to creditors who had no allegations to make against the debtor. If the insolvent was a delinquent, and against whom the creditors thought they had a right to complain, and did complain in the form of allegations, then the condition of the bond was forfeited by the non-attendance of CASES IN THE COURT OF APPEALS Kiersti.l. .M. trow and Chambcrluin vs. The State, &c 1829. the insolvent debtor. As no allegations were filed in this case, it is proof that the insolvent debtor fully complied with the provisions of the insolvent laws; lor it was not necessary, to enable the creditors to file allegations, that the insolvent debtor should be present. The condition of his bond was, to answer the allegations of his creditors, but if they have no allegations to make, or if they had, and made none, how can they derive a right for the non-performance of a condition, the breach of which was attended with no loss to them, nor invaded any of their statutory rights ? To enable the creditors to recover on the insolvent debtors' bond, they must show they filed allega- tions against the petitioning debtor, and that he did not person- ally appear to answer those allegations as the condition of his bond required him to do. Pieman, for the appellee. By the argument of the appel- lant's counsel, it appears that the appellant contends that he is not liable to any creditor on bis insolvent bond, as no allega- tions were filed against him. Now it is evident it was the in- tention of the act of Assembly, that the appearance of the in- solvent should precede the filing allegations. The allegations are pleadings and could not be filed so as to call on Chamber- lain to join issue until he was in court. The proper authority discharged him out of custody upon his bond to appear to answer allegations, evidently to come into court first, to enable the creditors to file allegations. If the words of the act of As- sembly are particularly attended to, this will appear clearly to be the proper construction; and this construction the court below gave the words of the act of Assembly. It appears in the record that Chamberlain did not appear; of course, the condition of his bond was broken. EARLE, J. delivered the opinion of the court, in the three preceding cases. We propose to give a condensed view of these cases, and to decide them together. For although their pleadings are a little variant from each other, they have all originated in the same OF MARYLAND. * 247 Kiersted, Morrow and Chamberlain vs. The State, &c. 1829. kind of cause of action, and the principal questions presented by them on the argument are the same. They are suits upon obligations given by insolvents to the State, conditioned to appear at certain times and p'aces. to an- swer the interrogatories and allegations of their creditors, to be filed against them, which in each court were decided adversely to the obligors. The first and chief question, arising out of them is a conside- ration whether actions can be maintained on these obligations, inasmuch as they have been taken in the name of the State of Maryland, and no express authority is given by law so to take them. The act of 1805, ch. 110, is the first general insolvent law enacted, in this State, to which there have been many supple- ments; and since then various insolvent acts to suit the situation of the city and county of Baltimore, have been passed. All have been examined by the court, as well as some in favour of individuals, before and since 1805. In none of those acts is \ there any specific provision for taking these bonds of the insol- vents in the name of the State, although by the act of 1805, and several other acts, the courts, judges and commissioners, are to take of the imprisoned debtors, at the time of their dis- charge, bonds conditioned for their appearance to answer the allegations of their creditors, in penalties to be prescribed, and with security to be approved of by them. Notwithstanding the manner of taking these bonds, is no where specifically directed*, we are assured, upon full inquiry, that they have been invariably passed to the State of Maryland, for more than twenty years past, whether taken by the courts, the judges, or the Commis- sioners of Insolvent Debtors for the city and county of Balti- more. What has produced this uniformity, it is not easy to say, unless it has been brought about by implicitly following the example of the courts and judges, upon whom it first devolved to execute these acts of Assembly. As no person was desig- nated, in whose name the bonds were to be given, it is probable the courts and judges were prompted to the course pursued by the consideration, that the law in this particular could not be CASES IN THE COURT OF APPEALS Kiersted, Morrow and Chamberlain rs. The State, &c 1829. executed, without an obligee was supplied by them, and by reflecting, that for permanency and convenience, none could be selected, more suitable than the State itself, to which all official bonds were given, and other kinds of bonds, where a multiplicity of persons are concerned. And it may be, that they were conducted to this resolution, by reasoning upon the supposed intention of the Legislature, that these bonds should be taken in the name of the State, from the fourth section of the act of 1805, c/i. 1 10, which directs the trustees of insolvents to give bond to the State. Whatever may have led to the practice, its consis- tency fully establishes the cotemporaneous construction of the first act, in this system of laws, and we think it has too long obtained, to be at this time shaken and disturbed. And we further think, that to promote the execution of similar legis- lative provisions, it may be well received as a settled rule for the government of our courts of justice, that obligations in which many persons are interested, be taken in the name of the State of Maryland, whenever the law is silent in naming the obligees to whom they are to be given. Another question insisted on by the appellants in the argument of this cause is, whether the appellees could sue these bonds for their use, there being no provision in any of the insolvent acts, to enable them thus to sue. This point we consider settled in this court, by the cases of McMechen vs. The Mayor and City Council of Baltimore, use of A. Storey, and McMechen vs. The Mayor and City Council of Baltimore, use of Hollingsworlh, fy Williams, 2 Harr. &f Johns. 41, and 3 Harr. fy Johns. 534. They were suits on an auctioneer's bond, taken under an ordi- nance of the city, which did not authorise any person, in parti- cular, to sue it. They were nevertheless sustained, and the judgment of the County Court therein, affirmed by this court. A still further question was moved on the argument of this case, by the appellant's counsel. They contended, that if those obligations were liable to be sued by the appellees, nothing could be recovered by them but nominal damages. Upon this subject, we are of opinion, there is very little room for doubt. In directing these bonds to be taken, the Legislature must have OF MARYLAND. 249 Giraud's Lessee vs. Hughes, et al. 1829. had in view the interest of the creditors of the insolvents, and not merely to authorise them to sue, to run the insolvents and their securities, to useless costs. To give them additional security for their debts, by obliging the insolvents to enter into stipulations, in nature of bail bonds, was the object; and the amount of their individual demands, we should think, must be the measure of the damages to be recovered by them respec- tively. These cases were partly argued upon notes, 'which were not filed until the close of the last term, and could not have been earlier disposed of by us. They appear to have been properly decided in every respect, by the County Courts, and we affirm their judgments, concurring with them in the opinions expressed on the exceptions, in the two first, and on the demurrers in the last case. JUDGMENTS AFFIRMED. GIRAUD'S Lessee vs. HUGHES, et al. December, 1829. It is true as a general principle, that the lines of a tract of land originally run by course and distance, without calls, must be confined to the course and distance, and cannot be extended beyond them. Where a tract of land lies adjacent or contiguous to a navigable river, or wa- ter, any increase of the soil, formed by the water gradually, or impercepti- bly receding, or any gain by alluvion in the same manner, shall, as a com- pensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. It is not upon the principle that the land calls for the water, but, because if'adjoins the water, that the owner ac- quires a title to the soil so formed./ In ejectment it appeared that the land for which the action was brought, and which had been recently patented as vacant land, had been formed by the gradual recess of the waters on the shores of the river Patapsco ; and that another tract of land the lines of which ran into, though they did not call for the water, where the recession took place, had been patented many years before. The defendant claiming title under the grant of this last tract, HELD that the action could not be sustained. The Port Wardens of Baltimore by the act of 1783, ch. 24, were authorised to grant permissions to make wharves, but in order to vesta title in any such wharf, it is essential by the provisions of the act of 1745, ch. 9, sec. 10, that the grantee should have completed it according to his permission. VOL. I. 32. CASES IN THE COURT OF APPEALS Giraud's Lessee . Hughes, et .-.! CASES IN THE COURT OF APPEALS Giraud's Lessee vs. Hughes, et al. 1829. original book that was kept by the said Board of Wardens, in which were made and contained minutes and entries of their acts and proceedings. And also proved by John Eager Howard, that the said Leonard Harbaitgh removed from the State of Maryland to the City of Washington, in the year 1791, where he resided until his death, two years or more since, except about two years whilst he was in Frederick county, and for a short time in Bal- timore, and returned to Washington. The defendants then of- fered to read in evidence the following entries made in the said book, to wit: "jAt a meeting of the Wardens of the Port of Baltimore, July 5th, 1785, present Samuel Smith, Richard Ridg- ley, John Sterett, William Patterson, Samuel Purviance, Chair- man the board received the application of Mr. Leonard Har- baugh for permission to extend a wharf on Luns' Point, accor- ding to the plan annexed to his petition, which was read and or- dered to lie for further consideration." " At a meeting of the Board of Wardens for the Port of Baltimore, September 28, 1786, present Samtiel Purviance, William Patterson, Samuel Smith, Thomas Russell, Thomas Elliot, Daniel Bowly, the board having taken into consideration the application of Leonard Harbaugh, for extending his wharf on Luns" 1 Point, agree that he be permitted to extend the same to the following courses and lines laid down as limits, viz : Beginning at a stone set up at the present waters edge at the east side of Henry street, mark- ed C, H, No. 45, and running north two degrees, west eight perches, then north eighty-eight degrees, east twenty-eight perches, then south fifty-six degrees thirty minutes, east ten perches and one quarter of a perch, thence south thirty-nine degrees forty minutes, cast ten perches and one quarter of a perch, thence south twenty-three degrees, east ten perches and one quarter of a perch, thence south ten degrees fifteen min- utes, east five perches and a half a perch, thence south eighty- eight degrees, west parallel with the second line until it intersects the shore on the north side of Montgomery street, ordered that permission be granted accordingly," As the best evidence now to be had of the matters set forth and contained in the said en- tries, and for the purpose with the other evidence of the better OF MARYLAND. 255 Giraud's Lessee vs. Hughes, et al. 1829. enabling and authorising the jury to presume and find that per- mission as stated in said last entry, had been in due form of law granted by the said board to said Harbaugh, to build a wharf as therein stated And also proved that the lines of the permission in the said entry mentioned are truly located on the plots. The plaintiff objected to the admission of the said entries in the said books as evidence, and did also object to the admission of all the said parol evidence about the said seal, and did then and there assert before the court, that the said evidence was not proper to go to the jury. But the said court [HANSON and WARD, A. J.] did then and there declare and deliver their opin- ion that the said evidence, on the part of the defendants, ought to be admitted, and did permit and suffer the same to go to the jury. The plaintiff excepted. 2. The plaintiff in addition to the matters contained in the first bill of exceptions, further offered in evidence, a verdict and judgment rendered between the same parties in this court at the present term for a part of the hereinbefore mentioned tract or parcel of land called Gist's Inspection. The defendants then in addition to the matters before offered in evidence by them, proved that from fifty to fifty-five years ago, the shore of the basin of Baltimore, passed at common tides as located on the plots in this cause, in the most western position of said shore, from a small plank enclosure on the south side of Montgomery street, standing at the east end of a brick distillery of the lessor of the plaintiff, and running thence northwardly near a pump now standing, and thence passing between two stones on the north side of Hughes street, at /the intersection or corner of that street and Leonard street, which several objects were pointed out by the witnesses to the surveyor in making the survey in this cause. And they also proved by a certain ( Gould) that he when a boy, had paddled about in a canoe on the shoal water of the said basin, at or near where said pump now stands. It was then ad- mitted by the parties, "that the several water lines or shores lo- cated by either party in this cause, show and designate where the tide water of the Patapsco river or basin of Baltimore flowed at different periods of time, receding gradually caslwardly to wJiere 256 CASES IN THE COURT OF APPEALS Giraud's Lessee t. Hughes, et al 1829. the same now are shown by the most eastward location thereof, on the plots, and (hat the lines of Gist's Inspection when the same was granted, including part of the sixth line thereof, from the end of said line, ran into the water of the Patapsco or hasin of Baltimore Town, to the end of the tenth line thereof; and that the above lines are so located, except a small part of the south end of the tenth line." The defendants then prayed the court to instruct the jury, that if they believed the matters so offered in evidence, the plaintiff was not entitled to recover. Which in- struction the court gave. 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 and STEPHEN J. Learned, for the appellant contended, 1 . That thea ppellant (the plaintiff below) derives his title to the land in dispute from the State of Maryland, in whom the title was at the time of the grant to his lessor. 2. That the patent for Gist's Inspection, under which the de- fendants claim to hold said land, contains a course and distance location only, and the land in dispute lies entirely without the lines of that tract. 3. That the defendants cannot extend their lines of the tract of land called Gist's Inspection, so as to take in any alluvial for- mations, without the lines of said tract according to its course and distance location, as laid down upon the plots. The patent not having called for the water in a single point. 4. That the lines of the deed from Mercer Porter to Hughes, for a part of the tract of land called Gist's Inspection, cannot pass a title to any land lying without the lines of the whole tract, ac- cording to its course and distance location; but that the second line of Porter's deed to Hughes must terminate at the outlines of the original tract. 5. That land covered by navigable water belongs to the State, and-is the subject of a grant; subject however to the com- mon use of fishing and navigation, &c. OF MARYLAND. 257 Giraud's Lessee vs. Hughes, el al 1829. 6. That there is no alluvial formation appurtenant to the land in dispute in this cause, to which the defendants can claim title as riparian proprietor, so as to enable them to follow the recession of the water of the basin. 7. That by the act of Assembly the permit of the Port War- dens of Baltimore, to build a wharf, was contingent in its effects, and did not divest the State of its title to the land covered by the permit, but in the event of the completion and maintain- ance of a wharf, that should be a permanent and beneficial im- provement. 8. That the wharf mentioned in the proceedings in this cause was never completed, and is not such a permanent and beneficial improvement, as by the act of Assembly, will vest a title in fee in the land embraced in the Port Wardens' permit, in the maker of said wharf, and those who may claim under him. 9. That the defendants having caused the tract of land called Gist's Inspection to be located by metes and bounds, imder a commission obtained by their ancestor for that purpose, are now estopped from extending the lines of said tract of land, so as to take in other land lying without the lines of said tract, at the time said commission was executed. 10. That the title to the land in dispute, out of the plaintiff, on which the defendants rely in their defence, is not such a title in the defendants or a stranger, as is sufficient to prevent the plain- tiff from recovering. The grant for Gist's Inspection, dated the 9th of July 1732, has no calls in it, but all the lines are course and distance. When the survey was made the courses ran into the water, and the grant was for land covered by water. The points arising in the first bill of exceptions are waived for the present. On the second bill of exceptions the material questions arise. It has been decided by this court that the title to lands covered by navigable water remains in the State. Brown vs. Kennedy, 5. Harr. 8f Johns. 195. Land so situated remains so until granted by the State. Has this land been granted by the State ? We contend that it was not until it was granted to the lessor of the plaintiff. This tract lies without the lines of Gist's Inspection; VOL. I. 33. 258 CASES IN THE COURT OF APPEALS Giraud's Lessee vs. Hughes, tt at 1829. and Gist's Inspection must be located course and distance ; and so located, it does not interfere with the land granted to the lessor of the plaintiff. There is no call to the river in the grant of Gist's Inspection. It cannot, therefore, bind on the river. Imperative calls are to be gratified, and course and distance disregarded. This is settled law. When the grant of a tract of land is by courses and distances only, the grantee cannot take alluvial formations. All such formations belong to the State, unless granted to another by the State. The proprietary abolished calls in all grants, in order to prevent more land being included in any grant than the party paid for and contracted to purchase. The evidence in this cause shows that there were no alluvial formations. Harbaugh had permission from the Port Wardens to make a wharf, which he commenced and worked some time on it, but finally abandoned it. The ancestor of the defendants then took possession, having before then leased the adjoining property to Harbaugh. By that lease he located his land ; and where a location is made by a party, he is estopped from deny- ing it. Ridgely's Lessee vs. Ogle Sf Leonard, 4 Harr. fy McHen. 123. Upon Harbaugh's abandonment, the land reverted to the State, and Hughes had no right to interfere with the wharf. He was a trespasser upon the property of the state. Act of Jlssem. April, 1783, ch. 24, sec. 9. The acts of Assembly vesting pow- ers in the Port Wardens to grant permission to erect wharves, contemplated permanent and beneficial improvements. The wharf commenced by Harbaugh and abandoned, was not a per- manent or beneficial improvement. It was suffered to go to ruin. His contract, therefore, was void on his abandonment. Until such contract is fully complied with, the land continues in the State. R. Johnson, for the appellees. The questions which arise upon the title and proof, are, 1. Whether or not the defendants are entitled, under the doctrine of alluvion, to all land added to Gist's Inspection ? OF MARYLAND. 259 Giraud's Lessee vs. Hughes, et al. 1829. 2. Whether or not such a tide is shown, under the permission given to Harbaugh, to erect a wharf, in the greater part of the land in question, as will prevent the plaintiff from recovering ? 1. There can be no extension of the lines of Gist's Inspection farther than they will go by the courses and distances expressed in the grant. But the question of alluvion depends upon that tract of land lying on the river. It seems that a considerable part of Gist's Inspection, at the time of the grant, was covered by water. The claim under that grant, in the absence of the doctrine of alluvion, is for all that part which was so covered by water at the time of grant, but which is now, by the reces- sion of the water, become firm land. The right of a person to alluvion, having land bounding on the sea, has been considered to be a common right There is no difference whether the tract of land called for the river or not, the right to alluvion is the same. The right is given upon the principle, that he might lose land by the washing of the shore by the river. 2 Blk. Com. 61, 66, 261, 262. 5 Bac. M. tit. Prerogative (B) 495. This doctrine is not made to depend upon the grant of the land calling for, and binding on the river ; but upon the fact only of the land lying adjoining the river. The point could never arise, if the land called for and to bind on the river, for in such a case, wherever the river went, the land would go with it. But the right is given to the proprietor of the adjoining land, because his land does not, by its lines, call to bind on and with the water. It is, therefore, only necessary for the defendants to show, that their land did adjoin the river, at the time it was granted. / The doctrine of estoppel cannot operate in an action of ejectment as to the locations made of the same land in another action of ejectment, even if between the same parties. Here the plaintiff has not counterlocated the location made by the defendants of Gist's Inspection. The evidence is, that the water run in a particular manner, until it gradually receded to where it now runs from, O to B, to 5 to V, leaving land formed by accretion. This is admitted in the bill of exceptions, and does away the effect of Harbaugh's wharfing out a part of it. 260 CASES IN THE COURT OF APPEALS Giraud's Lessee TS. Hughes, et al. 1829. If this gradual increase of the land was by the recession of the water, in fconjunction with the acts of Harbaugh, still the doc- trine of alluvion will attach. Jldams vs. Frothingham, 3 Mass. Rep. 352. For a part of the land at least, there has been a gradual accretion, independent of the acts of Harbaugh. 2. The defendants are entitled, under the permit ioHarbaugh, to build a wharf. But it has been said that Jlugfies was a tres- passer. Suppose he was, it was nothing to the plaintiff. It was only necessary for the defendants to show that the State had parted with its title to the land. The Port Wardens had no authority to give permission to Harbaugh, to wharf out in front of //Hg/ies's land, so as to deprive him of his water right. The wharfing privilege was to be given to the owner of the land, in front of which the wharf was to be made. Act of 1 745, ch. 9, sec. 10. The lease from Hughes to Harbaugh was only of a temporary interest. When is the improvement perfected so as to vest the property in the improver ? There is nothing to show but that the wharf erected by Harbaugh, did answer all the purposes for which it was intended. It will not be said, that if the wharf had been completed, but is now in a ruinous state, it would divest the title out of the improver. There \\ as an im- provement made, even if the wharf was not completed. If the permission granted, was not complied with, it was the duty of the Port Wardens to have it destroyed, as a nuisance. Act of April, 1783, ch. 24. The presumption is, that the permit to build the wharf, was complied with. When Hughes took pos- session after HarbaugVs abandonment, the right became his- He was not bound to complete the wharf. All Harbaugh's rights were vested in Hughes. After the act of April, 1783, ch. 24, this kind of property and right were placed under the control of the Port Wardens, and the land office had no right to grant a warrant to affect any land so placed. All the right of the State, if it had any, was vested in the Port Wardens; and by the act of 1796, ch. 68, is vested in the corporation of Baltimore. Could not Harbaugh transfer his right to another; and could he not abandon in favour of Hughes ? It will be presumed that he had regularly abandoned in favour of Hughes. OF MARYLAND. 261 Giraud's Lessee vs. Hughes, et al. 1829. Mitchell, on the same side. When Gist's Inspection was sur- veyed and granted, as all the deeds offered in evidence recog- nize, the tract of land ran with the edge of the river. The common law doctrine of alluvion is the civil law of alluvion. Harg. L. T. 28. Mbot of Ramsay's case, 3 Dyer, 326. b. The State never had the right of alluvion. It is an increment of rivers subsequent to possession being taken by the sovereign. It cannot be appropriated or granted to any person, being im- perceptible. If it was perceptible it might be granted, but being imperceptible it accrues to the adjacent soil. If an island appears in the sea, the sovereign may take possession of it. The King vs. Lord Yarborough, 10 Serg. fy Lowb. 19. At what time did the right of the State, if any, accrue to this alluvion ? The right of the public to navigable rivers, is no longer than any such river is covered by water. When it is no longer a public river, but has become land, it belongs to the owner of the adjacent soil, whether his grant for his land called to bind on the river or not. This case is not similar to Brown vs. Kennedy. This is a case of dereliction, not a filling up. Harg. L. T. 28. Abbot of Ramsay's case, 3 Dyer, 326. 2 Blk. Com. 261. 5 Bac. M. tit. Prerogative (B. 3,) 498. The Bat- ture case, 5 Hall's L. J. arguments of Jefferson and Livingstone, 26, 27, 60, 63, 42, 46, 146, 147, 148, 149, 160, &c. txmart vs. Dundee, 8 Bro. Parl. Gas. 119. Poth. 19, 20. Valid, B. I ch. 22, sec. 5, page 121. The right to the adjoining water passes as an appurtenance in all grants of land. This gave a right to the holders of adjoining lands to build wharves in Bal- timore, if it did not obstrust ttye navigation of the river. The acts of 1745 and 1783, took away all the State's right and vested it in the Port Wardens ; and they were the judges whe- ther or not Harbaugh had complied with the permission grant- ed to him to build a wharf. If Hughes was the riparian pro- prietor both before and after his lease to Harbaugh, the State had no right to divest him of such right. After Harbaugh abandoned, the rights of Hughes were reinstated, and he was clothed with all Harbaugh's rights, who could not acquire a 2T>> CASES IN THE COURT OF APPEALS Giraud's Lessee vs. Hughes, et al. 1829. - 1 ; fee simple right against Hughes. See 2 HalVs L. J. 434, and 4 HalVs L. J. 517. The verdict in the former ejectment did not affect the ques- tion as to the land now in dispute. Here the defendants, and those under whom they claim, have had long and uninterrupted possession; and the presumption is that the water belonged to them. Beaky vs. Slutw, 6 East. 213. Learned, in reply. The question is whether or not land form- ed by alluvion, vests in the proprietor of the adjoining land? 1 . As to the effect of the grant of Gist 's Inspection it incor- porates the terms and conditions under which the grantee held the land. Calls were excluded. Kilty's Land Hold. Jlss. 228, 229. The condition of the grant was, that there should be no calls, but that each line was to run course and distance from the beginning. The grantee was then bound by course and distance location, and could not bind on, and run with the river. Lands here are not held as they are in England. There it is a prerogative right, but here all lands are passed by grant and held in fee. The whole province was originally granted to the Lord Proprietary. He granted to individuals, and what he did not grant, remained in him, and now in the State. Lands are not Ueld here by fiction of law, but they are held under grants, which are differently construed from 'those in England. Our courts have said, that course and distance are to be the location, where there are no calls; but if there are calls, they are to be gratified, and course and distance not to be regarded. Is this so in England? Where the adjacent proprietor of the soil, by his grant, calls for and binds on the river, then he is entitled to all alluvion; but if his grant has no such call, he has no right to alluvion. Vattel, B. 1. ch. 22, page 121. 2 Blk. Com. 261, 262. Brown vs. Kennedy, 5 Harr. fy Johns. 1 95. 2. Alluvion must be imperceptible, &c. and if not, the land formed otherwise belongs to the sovereign power, and does not vest in the riparian proprietor. 3. There was not such an improvement made by Harbaugh as the act of Assembly contemplated ; and this court from the OF MARYLAND. 263 Giraud's Lessee vs. Hughes, et al. 1829. evidence, is competent to judge of that fact, and apply the law to it. The evidence is that the wharf was not completed only part of it was built, and then it was abandoned. There is no evidence that it was ever used as a wharf for any purpose. STEPHEN, J. delivered the opinion of the court. This action was instituted in Baltimore County Court, to re- cover a parcel of land called Augustus's Discovery Resurveyed, which was patented to John James Giraud, as vacant land, and whether it was vacant or not at the time he caused it to be re- surveyed, is the question now to be determined, and in order to ascertain this question it becomes necessary to decide what was the true location of Gist's Inspection, patented to Richard Gist, on the 9th of July, in the year 1732, that is, not how it was ori- ginally located, but what was its true position at the time of Au- gustus's Discovery, and the resurvey upon Augustus's Discovery were taken up. It is admitted that Gist's Inspection, when it was surveyed and patented, ran into the water or basin of Baltimore; since that time the water has gradually receded, and the land formed by the recession of the water, is the land upon which Giraud made his survey of Augustus's Discovery in the year 1812, and his resurvey, in the year 1813. In the course of the trial, the parties made the following admission : " It is admitted that the several water lines or shores located by either party in this cause, shew and designate where the tide water of the Pa- tapsco river or basin of Baltimore, flowed at different periods of lime, receding gradually eastwardly, to where the same now are shewn by the most eastward^ location thereof, in blue shaded lines, and that the lines of Gist's Inspection, when the same was granted, including part of the sixth line thereof from the end of said line, ran into the water Patapsco or basin of Baltimore Town, to the end of the tenth line thereof, and that the above lines are so located, except a small part of the south end of the tenth line." It has been contended that as the lines of Gist's In- spection were originally run, course and distance, when the sur- vey of it was made, and had no call to the water, it must be confined to its course and distance, and cannot be extended be- .'it CASES IN THE COURT OF APPEALS Giraud's Lessee rs. Hughes, et al 1829. yond them. This position is true as a general principle in expo- sition of grants; but the question is not here what was the true original location of Gisfs Inspection at the time it was survey- ed, but whether under the circumstances of this case, the defen- dants are entitled to the adjacent land formed by the waters having gradually receded in an eastern direction. Christopher Jlughes, the father of the defendants, held a part of Gist's In- spection, and the deed under which he claimed title to it, de- scribes it as running into the water; that deed bears date the Cth of June, 1782. The principle seems to be well settled, that where a tract of land lies adjacent or contiguous to a navi- gable river or water, any increase of soil formed by the waters gradually or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. For this principle, see 2 Blk. Com. page 261, where he says, "as to land gained from the sea, either by alluvion by the washing up of sand and earth, so as in time, to make terra firma, or by dereliction, as when the sea. shrinks back below the usual water mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining." It is then not upon the principle that the land calls for the water, but because it adjoins the water, that the owner acquires a title to the soil so formed, for, continues he, de minimis non curat lex ; and besides these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore, a reciprocal consideration for such possible charge or loss; here we have in plain and strong language, the reason of the rule, which places the acquisition of the additional soil by the owner of the adjoining land, upon the ground, that he might be a loser by the breaking in of the sea, or at an expense to keep it out. And to bring the case within the operation of the rule, it is only necessary that the land should be adjoining the water. To the same effect is the law laid down in the 5th vol. of Bacon's Abridgement, page 494, title prerogative ; the principle is there stated to be, that OF MARYLAND. 266 Giraud's Lessee vs. Hughes, et al. 1829. if the sea leaves any shore by a sudden falling off of the water, such derelict lands belong to the king, but if a man's lands lying to the sea, are increased by insensible degrees, they be- long to the soil adjoining. Here, too, it appears only to be necessary, that the land should be adjoining to the sea, to en- title its owner to the derelict land formed by the recession of the water. It appears by the proof in the cause, that Harbaugh who obtained from the Port Wardens in Baltimore, a permis- sion to make a wharf, never did complete it according to such permission, but after proceeding in the work for some time, totally abandoned it. This permission he obtained from the Board of Wardens ivho were authorised to grant it by the pro- visions of the act of 1783, ch. 24, but in order to vest a title in such wharf, it appears to be necessary that he should have completed it. This appears to be essential by the provisions of the act of 1745, ch. 9, sec. 10, by which it is enacted, that "all improvements, of what kind soever, either wharves, houses or other buildings, that have or shall be made out of the water, or where it usually flows, shall (as an encouragement to such improvers,) be forever deemed the right, title, and inheritance of such improvers, their heirs and assigns, forever." Neither Hughes nor Harbaugh therefore, acquired any title to the work done by Harbaugh, in virtue of his permission, but it being expressly admitted by the parties, that the water gradually receded to where it now flows, it is upon the ground of such gradual recession, by which the derelict land was formed, that Hughes and those now representing him claim title to it. The counsel for the appellant having/ waived the points arising on the first bill of exception, it is not deemed necessary to give any opinion upon it. JUDGMENT AFFIRMED. VOL, I. 34. 266 CASES IN THE COURT OF APPEALS Hoskins vs. Rhodes. 1829. HOSKINS vs. RHODES. December, 1829. G, a feme sole, contracted with the plaintiff to let him BOW a field in grain, and he agreed to give her one third of all the grain raised, as rent. The plaintiff went upon and sowed the field in rye. The defendant, who after the making the contract, intermarried with G, entered upon the field, refused the plaintiff permission to cut the crop, and afterwards cut it himself and carried it away. In an action of trover for the value of the rye, it was held that the contract between G and the plaintiff, clearly constituted them landlady and tenant; and that the plaintiff was entitled to recover. The reservation of rent to nomine necessarily constitutes a lease. APPEAL from Frederick County Court. This was an action of trover, brought by the appellee (the plaintiff below) to reco- ver the value of two hundred bushels of rye. The general issue was pleaded. At the trial the plaintiff offered in evidence the following lease from Vioktta Gwinn to Samuel Wiles, viz : "Articles of agreement made, concluded, and agreed upon this the 4th day of March, 1820, between Samuel Wiles, of Frederick county, in the State of Maryland of the one part, and VioUlta Gwinn of the other part of the said county and State as above mentioned, to wit: The said Samuel Wiles, for the consi- deration hereafter mentioned, hath agreed, and hereby covenants and agrees to build the following buildings, to wit: one dwelling house, one stable, one corn house and spring house, and to keep the fences in good repair. The said Violetta Gwinn, for the above consideration, rents to the said Wiles her part of a tract of land, formerly occupied by Joseph Gwinn, late of Frederick county, deceased, for which she insures him three years quiet and peaceable possession for the term of three years Tent free, the first year to commence on the first of April, 1820. For and to the true and faithful performance of the foregoing covenants and agreements, the said parties do hereby bind themselves to each other and their respective heirs, executors and administra- tors in the sum of $600 dollars," &c. The plaintiff then proved that sometime in the year 1822, he called upon Violetta Gwinn, she being a feme sole, and OF MARYLAND. 267 Hoskins vs. Rhodes 1829. contracted with her to sow a field of ten acres of land, part of the farm leased to Samuel Wiles, in grain, and to give to Vio- Utta Gwinn one third of all the grain raised upon said field as rent. That in pursuance of said contract the plaintiff went upon and sowed said field in rye That in the month of July, 1823, the defendant, who had after the contract aforesaid, in- termarried with Violetta Gwinn, entered upon said field and cut and carried away said crop. That the plaintiff had previously applied to the defendant, who had gone into the possession of the farm mentioned in the lease to Samuel Wiles, for permission to cut said crop, which the defendant refused, stating that he would cut the crop himself. The plaintiff further offered in evidence, that at the time of the contract aforesaid, Violetta Gwinn agreed that the plaintiff should hold said farm for three years after the expiration of the lease to Samuel Wiles. The defendant then proved that in the spring of 1823, the plaintiff and defendant agreed that that part of the lease which was to run from the 4th of March, 1823, should be abandoned, and that the defendant never went into possession of any other part of said farm, except the ten acre field aforesaid. The plaintiff then proved by Sam- uel Wiles, party to said lease, that in the fall of 1822, said Wiles agreed to let to the plaintiff the ten acre field aforesaid, to be sowed in grain, one third of which, raised upon said field, was to be delivered to the said Wiles in the shock. The plain- tiff further proved by a witness, that he heard the defendant say that he would stand by his wife's contracts; and that the plain- tiff might cut the grain growing upon the said ten acre field. The defendant then prayed the cou^t to instruct the jury that upon the evidence offered, the plaiiitiff was not entitled to recover. Which instruction the court [T. BUCHANAN, A. J.] refused to give; but on the contrary thereof, gave their opinion to the jury that the plaintiff was entitled to recover. The defendant ex- cepted; and the verdict and judgment being against him, he ap- pealed to this court. The cause was argued before BUCHANAN, Ch. J., and EARLE, MARTIN, STEPHEN and ARCHER, J. 208 CASES IN THE COURT OF APPEALS Hoskins vs. Rhodes 1829. Nelson for the appellant, contended, 1. That the lease of the land to Wiles, being for a term certain, and to expire on a day certain, the landlord was entitled to the possession of the whole, on the 1st of April, 1823. That the crops growing on said farm, after that day, were the pro- perty of the landlord, no reservation having been made by the tenant, of a right to take away said crops, after the determina- tion of the lease. That of consequence, the agreement be- tween the tenant ( Wiles] and the appellee, could avail nothing to the prejudice of the rights of the appellant. The tenant ( Wiles) could transfer to the appellee, no other or greater interest, than he held himself, in the premises leased 2 Blk. Com. 145. 1 Thomas Coke, Lilt. 633. 2. That by the agreement with Miss Gwinn, the appellee acquired no such exclusive interest in the growing crop, as to enable him to maintain the action. Because the letting of the ten acre field upon shares, for a single crop, was no lease of the land; and the possession, in point of law and fact, remained with the landlord. And with reference to said crop, the appel- lant and appellee, were tenants in common, having therein undi- vided interests. Hare vs. Celky, Cro. Eliz. 143. And because there was in proof, nothing to shew a destruction of the property, (which is indispensable, at the time of the suit brought,) which alone would enable one tenant in common, to maintain trover against his co-tenant. Heath rs. Hubbard, 4 East. 110, 121. Wilbraham vs. Snow, 2 Saund. 47, f. g. (note 1.) Bulkr^s N. P. 34. 1 Chitttfs Plead. 66. With regard to the three years lease, of which, there is proof of an agreement between the ap- pellee and the wife of the appellant, it is only necessary to say, that it was abandoned, and that no possession of the property in question, passed to the appellee under it. The defendant does not contend, that under the circumstances disclosed, the appellee was not entitled to his portion of the crop, and that he might not have recovered the value thereof in a different form of action, or even in the action of trover could he have shown a destruction of the property. He insists, however, that of the crops in question, the appellant and appellee, were tenants OF MARYLAND. 269 Hoskins vs. Rhodes. 1829. in common, and that the cutting and carrying it away, did not constitute such a conversion of the property, as to enable the appellee to maintain his action of trover. Thomas, for the appellee, insisted that the parties were not tenants in common, under the contract as proved and set forth in defendant's bill of exception. Butler's JV. P. 85, and the case there cited, Welch vs. Hall. Weems vs. Stallings, 2 Harr. fy Johns. 365. If the plaintiff and defendant are to be considered as tenants in common of the grain in question; yet it is contended that the opinion of the court below, was right: because, there was an actual conversion and destruction in law, of the common property by the defendant, who seized the whole grain, claimed it as his own, and denied the title of the plaintiff. Doe vs. Prosser, 1 Cowper's Reports, 218. At all events, whether the acts of the defendant amounted to a destruction of the common property, is a question which the court below rightly should have left to the determination of the jury. Barnardiston vs. Chapman and Smith, Bull. JV*. P. 35. The case relied on by the counsel for the appellant, Hare vs. Celley, Croke Eliz. 143, is not in point, and if parallel, is not law in this State. 1. Because, in that case, Hare, the tenant in fee, never parted with possession, of consequence the plaintiffs did not stand in relation of landlord and tenant. In this case, the appellee had exclusive possession by contract, with Wiles, with Miss Gwinn, and with the defendant himself. In that case Hare furnished a part of the seed grain, aided in manuring and sowing the land. In this case no such labour in common, and possession in common, existed between the plaintiff and defendant Moreover the rela- tion of landlord and tenant is expressly created by the contract, that one third of the grain should be delivered by the plaintiff, to Miss Gwinn, as rent. 2. The case from Croke is not law in this State, having been virtually overruled by the case of Weems vs. Stallings, 2 Harr. fy Johns. 365. No reliance should be placed on the case of Bradish vs. Schenck, 8 Johns. Rep. 152 the only authority re- lied on there being the case already referred to in Cro. Eliz. 270 CASES IN THE COURT OF APPEALS Hagthorp et x. et al. vs. Hook's Adm'rs D. B. N 1829. which is not applicable to this case, and is not sustained by re- ference to any known authority in the law. MARTIN, J. delivered the opinion of the court The contract between Miss Gwinn and Rhodes for the ten acre field, clearly constituted them landlady and tenant. He was to make a crop, and give her one third of it for rent. The case of Hare and others against Celley, reported in Cro. Eliz. 143, is very different from that presented by this record. In the reported case the contract was, that Hare, the owner of the soil, should find one half of the seed, and the other half to be supplied by the three persons who were to manure and cul- tivate the land, and the crop to be divided between them. The court said this being for only one crop, it was not a lease. In the case now to be decided, there is nothing for legal construc- tion. The agreement is explicit, that one third of the crop should be paid as rent, and the reservation of rent eo nomine, necessarily constitutes a lease Rhodes was the tenant of Miss Gwinn by express contract, and it is immaterial whether the rent was to be paid in money, or to depend on the amount of the profits of the land. 2 Wheat's Selwyn, 1017, note 2. Bull. JV. P. 85. JUDGMENT AFFIRMED WITH COSTS. HAGTHORP et ux. et al. vs. HOOK'S Adm'rs D. B. N. Decem- ber, 1829. In a cause which had been set down for hearing, the Chancellor, after argu- ment of counsel, proceeded to discuss many rules and principles of equity, and a great variety of facts, as applicable to the subject under consideration ; and announced his intention at some future day to decree accordingly. To enable him to do so, he referred the cause to the auditor, to state an account in con- formity to his views, from the proceedings, and proofs then in the cause, or from such other proofs, as might be adduced by the parties, which they were respectively authorised to introduce upon notice, before a given day. la this state of the cause, an appeal was taken ; and upon a motion to dismiss it, HELD, that the order in question did not so settle, or materially affect, OF MARYLAND. 271 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. all, or any of the rights, or interests in controversy, as to make it a decre- tal order, from which an appeal would lie; that it was a mere preparative,, to the decision of the cause, and not decretal; and that it was only front what the Chancellor had done, that is, adjudged, or decreed, and not from what he intends to do, that an appeal would lie. A, by deed, conveyed certain real and personal chattels to I, upon the proviso, that if I, his executors, &c. should absolutely omit, neglect and refuse to pay. certain creditors of A, recited in the deed, their just demands, then the deed should be void. This property came to the hands of I, and after his death,, passed to his administrators and the other defendants claiming under him r and them. Upon a bill filed by the administrator de bonis non of A, praying that the property may be accounted for, and together with the rents and profits delivered up, it appeared that some part of the chattels real was still in the hands of I's representatives, some claimed by those who had purchased with a reference to the original conveyance, and the residue by those who offered no proof of being purchasers for value without notice. The Chancellor decreed that the deed would be considered a mortgage, and nothing having occurred to destroy its redeemable quality but one of A's creditors having been paid, directed the auditor to state an account, in which I's representatives must be charged with the value of the whole of the personal chattels, and interest thereon, from the date of the deed from A to I ; and with the rents and profits of the real chattels from the same date, and until the time when they passed into the hands of the other defendants ; who were responsible during the time they respectively had possession. And that I's representatives would beheld liable for all rents, and profits, which the other defendants should fail, or be unable to pay, giving them credit for the debt paid. PER BLAND, CHANCELLOR. According to the law of England, an administrator de bonis non, cannot call the representatives of the previous deceased administrator of his intestate to account, for any property of the intestate that such predecessor may have converted or wasted ; nor can he claim or recover any thing, but those goods, chattels and credits of his intestate which remain in specie, and are capable of being clearly and distinctly designated and distinguished as the property of the intestate. IB. In equity, an executor or administrator, is considered as a trustee of the credi- tors, legatees and next of kin of the deceased ; is expected and required to preserve the property of the deceased apart from his own ; and if he does so, the court will do every thing that can be done to protect and assist him. IB. The only remedy at present against an administrator or his representatives, for any waste or misapplication of the effects of the deceased, is by an action at law upon his administration bond, by any one interested. IB. The authority conferred by letters of administration de bonis non by our law, is to administer all things described in the act of Assembly as assets, not 272 CASES IN THE COURT OF APPEALS Hagthorp et we. et al. vs. Hook's Adm'rs D. B. N 1829. converted into money, and not distributed, delivered, or retained by the for- mer executor or administrator, under the direction of the Orphan's Court ; and such an administrator can only sue for those goods, chattels and credits, which his letters authorise him to administer. IB. The legal title to the chattels real, and personal estate, of an intestate, vesti in his administrator, who alone is considered as to them his legal represen- tative ; between the death, and the granting of letters, that title is suspended and vested in no one. IB. In the construction of the statute of distributions, it has been held, that although the creditors of the deceased are the first and special objects of its regard ; yet that the next of kin, among whom the surplus is to be distributed take an interest which vests in them, by operation of law immediately, in the nature of a present debt of an unascertained amount payable at a future day; and it is clear that they can only obtain possession of their distributive share, through and from the administrator. IB. When the general replication is put in, and the parties proceed to a hearing, all the allegations of the answers which are responsive to the bill, shall be taken for true, unless they are disproved by two witnesses, or by one witness with pregnant circumstances. IB. Every allegation of the answer which is not directly responsive to the bill, but sets forth matter in avoidance, or in bar of the plaintiffs claim, is denied by the general replication, and must be fully proved or it will have no effect. IB. K a defendant submit to answerjat all, he must answer fully, and particularly, not merely limiting his responses to the interrogatories of the bill ; but respond to the whole and every substantial part of the plaintiff's case: he is not however bound to go further and to answer interrogatories asking a dis- closure of matter, no way connected with, or material to the case. IB. When the answer in the body of it, purports to be an answer to the whole bill, but the respondent declares, that he is entirely ignorant of the matters con- tained in the bill, and leaves the plaintiff to make out the best case he can, or uses language to that effect; and the plaintiff files the general replication, all the allegations of the bill are thus denied, and put in issue ; and conse- quently all of them must be proved at the hearing. IB. The rule in relation to trusts by implication, or operation of law, is by no means so large, as to extend to every mere voluntary conveyance. IB. Where the nature of the transaction charged in the bill, is such a one as must have been altogether within the knowledge of the intestate, the administra- tor may answer as he is informed and verily believes, but the answer of an administrator must always betaken, as well with a reference to the reason given for his belief, as to the nature of the subject of which he speaks. IB. A purchaser for a valuable consideration without notice will not be disturbed in equity. IB. A purchaser with a knowledge of the trust becomes himself the trustee, and stands in the place of the vendor, under whom he claims. IB. OF MARYLAND. 273 Hagthorp et ux. et al. vs. Hook's Adtn'rs D. B. N. 1829. A purchaser with notice, from another purchaser without notice, may protect himself by the want of notice in his vendor. When a purchaser cannot make title, but by a deed which leads him to a knowledge of the fact ; and more especially, when the deed by virtue of which he takes, recites, or directly refers to the instrument, in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice. IB. Under the head of just allowances, it has long been the course of this court, to allow a trustee or mortgager in possession, for all necessary expenses incurred for the defence, relief, protection and repairs of the estate. And when a mortgager thinking himself absolutely entitled, had expended con- siderable sums in repairs and lasting improvements, he should be allowed the value of them. IB. The estimate of the value of such lasting improvements, is to be taken as they are, at the time of accounting, or passing the final decree ; and in charging rents and profits the estimate must not include those arising exclusively from such improvements. IB. This was an appeal from Chancery. The bill was filed by James Neale, administrator de bonis non of Anthony Hook, and claimed payment for certain personal, and an account of the rents and profits of certain leasehold property, which the said Anthony in his life time had conveyed in trust to John Hook, deceased, and which was alleged to be in the possession of the representatives of John Hook, viz. Edward Hagthorp and wife, and other defendants, purchasers from the said John or his representatives. The complainant claimed the property for the purpose of distributing it according to law, and charged the defendants with confederating to prevent that object. Answers were filed, testimony taken, and/the cause set down for hearing. But as the merits of the case ijvere not reviewed by the appel- late court, the appeal having been dismissed as prematurely taken, on the motion of the appellees ; it is deemed unnecessary to publish more than this brief notice of the proceedings, and to refer to the opinion of the chancellor which follows for the ma- terial facts of the cause, and to which his opinion is applied. BLAND, Chancellor, December Term, 1826. This case standing ready for hearing, and the counsel on both sides having been fully heard, the proceedings were read and considered. VOL. I. 35. 17 1 CASES IN THE COURT OF APPEALS Hagthorp el x. tt al. vs. Hook's Adm'rs D. B. N. 1829. This suit is brought by James JVca/c, alone, as administrator de bonis non of the late Anthony Hook: and, from the pleadings and proofs, it appears, that the intestate, Anthony //oofc, died in June, 1798: that in the month following, administration on his goods, chattels and credits, was granted to his son, John Hook, who died in September, 1800: that in the month of November following, administration de bonis non of the personal estate of the late Anthony, was committed to his widow, Mary Hook; who died sometime after the year 1804: and, that on the 5th of April, 1820, administration de bonis non of all the goods, chat- tels and credits of the late Anthony, w r as granted to James Ncak; who, as such, on the 15th of December following, instituted this suit. According to the law of England, an administrator, de bonis non, cannot call the representatives of the previous deceased administrator of his intestate to account, for any property of the intestate, that such predecessor may have converted or wasted; nor can he claim or recover any thing but those goods, chattels, and credits of his intestate, which remain in specie, and are capable of being clearly and distinctly designated and distin- guished as the property of his intestate. 3 Bac. Abr. 1 9, 20. Hence, it is, that, in a Court of Equity particularly, an executor or administrator, who is there considered as a trustee for the creditors, legatees, and next of kin of the deceased, is expected and required to preserve the property of the deceased apart from his own, and by itself to give it, as is said, an ear mark, that it may be always known and readily traced to any one, into whose hands it may happen to fall : and if he does so the court will do every thing that can be done to protect and assist him. 3 Mer. 42, Salk. 306. According to our provincial testimentary system, an adminis- trator de bonis non might, under certain circumstances, have had his predecessor cited before the commissary and compelled to account. 1715, ch. 39, sec. 3. Dep. Com. Guide, 55, 57. But at present, the only remedy against an administrator or his representatives, for any waste, or misapplication of the effects of the deceased, is, by an action at law upon his administration OF MARYLAND. 275 Hagthorp et itx. et al. vs. Hook's Adm'rs D. B. N 1829. bond by any one interested. For, it is expressly declared by our present law, that the authority conferred, by letters of administration de bonis won, shall be to administer all things described in the act as assets, not converted into money, and not distributed or delivered, or retained by the former executor or administrator, under the direction of the Orphans Court, 1798, JVo. 101, ch. 14, sec. 2. Hence, it follows, that this plaintiff is incompetent to demandA in the representative character, in which he sues, any thing, but those goods, chattels and credits, which his letters authorise him to administer; that is, the chattels real and personal pro- perty of his intestate, which remain undisposed of by either of the previous administrators, John or Mary; or which have been, and continue to_beJieJd4mac,C>unted--fep by -any one, as trustee or agent of the late Anthony Hook, .his.- intestate.. The state- TnTrntTand allegations of these very obscure original and amend- ed bills, must, therefore, be taken subject to the limited rights of the representative character of this plaintiff. It appears, from the pleadings, in this cause, that some of the next of kin, and distributees of the late Anthony Hook, under an impression, that the chattels real of the deceased, had vested absolutely in them, have disposed of, or attempted to make a final disposition of the whole, as if such chattels had been immediately cast into their hands by the mere operation of law : in like manner as the real estate of an intestate, is at once cast upon his heirs. If these next of kin acquired, at once, by the act of the law alone, a legal right to these chattels real, by virtue of which they might, either concurrently or independently of the administrator, dispose of them, then, as the joint or inde- pendent holders of the property in controversy, they ought to be made parties to this bill ; and if they have acquired such a legal right, and have actually disposed of these chattels, then, it is no less evident, that all claim against these defendants is, so far, entirely at an end. In these points of view the allegations of the bill, in relation to these next of kin, of the intestate, present some important preliminary enquiries. CASES IN THE COURT OF APPEALS Hagthorp ct ux. et al. vs. Hook's Adm'rs D. B. N. 1829. The real estate of an intestate, devolves at once and entirely, upon his heirs, by the mere act of the law itself. But his personal property is, by the law itself, cast upon no one; nor does the legal ownership of it vest, immediately, in any person. Because, such legal title can only vest in an administrator; who alone, is considered as the legal representative of the intestate, ' as to his chattels real, and personal estate. In the interval of time, between the death of the intestate and the granting of administration, the legal right to such personal property is in suspense, or in the keeping of the law, and vested in no one. During that interval, there is no person who can sue or be sued for it; and, hence, it has been held, that a person who had, alter the death of the intestate, obtained possession of his personal property, could not have it quieted or matured into a right, by the lapse of any length of time, even as much as forty years uninterrupted possession, before the granting of letters of administration; because, the statute of limitations could not be allowed to operate at all, until the legal title was vested in some one; and there was a person lawfully clothed, with a capacity to sue for, hold and dispose of such property, 4 Bac. Jlbr. 479, Salk. 421. Our statute of distributions, like that of England, 3 Bac. Jlbr. 72, directs the goods, chattels and credits of those, who die intestate, to be committed to an administrator, whose powers and duties are prescribed. He has a yested interest in the personal estate of the deceased, 1 P. Will. 43 : and is directed to collect and take the whole of it into his possession, which, or the proceeds of the sales thereof, he is, in the first place, to apply to the satisfaction of all the debts due from the intestate, and then, but not until then, he is to distribute the surplus among the next of kin of the deceased. In the construction of this statute, it has been held, that although the creditors of the deceased are the first and special objects of its regard; yet, that the next of kin, among whom the surplus is to be distributed, take an interest which vests in them, by operation of law imme- diately. It is considered as a species of chose in action of an indefinite value : in nature of a present debt, of an unascertained OF MARYLAND. 277 Hagthorp dux. et al. vs. Hook's Adm'rs D. B. N. 1829. amount payable at a future day. 3 Mod. 59. 1 Show. 2, 25. 2 Show. 407. Pre. Cha. 21. IP. Will. 380. 4 Fes. 665. This interest vests in those who are the next of kin of the deceased at the time of his death : not, however, in exclusion of a posthu- mous child, who is regarded as a then living though unborn distributee, and therefore, should any of them die before the distribution of the surplus is actually made, his share will not be sunk into the estate of the intestate : but go to his own legal representatives in like manner as his other personal property, Dep. Com. G. 114. 2 P. Will. 446. Hence, it is clear, that in no case, nor under any circum- stances, can any one as next of kin of the intestate, rightfully and legally make title to, or obtain possession of his distributive shard, but through and from the administrator: who, in equity, is regarded as a trustee for creditors arid the next of kin; and as such may, in Chancery, be called to account by all or any of them, 1 //. <$< /. 151. 5 Fes. 743. And every one who takes possession of personal property of an intestate, after his decease, may be sued at law by a creditor as an executor de son tort, and charged accordingly; and in equity, he will be considered as a trustee, and held accountable to the administrator, no matter how long he may have had possession, before the admi- nistration was granted. 2 Rand. Rep. 397. 2 Desan. 232. The utility and necessity of having all the personal estate of a deceased, placed in the hands of an administrator, and the prin- ciple of law that neither a creditor, nor a distributee of an intestate could obtain any right 7 to the personal estate of the deceased in any other manner, than from an administrator, has been very strongly recognized by the legislature more than a century past. By the act of 1719, ch. 14, sec. 7, it is declared, that many widows, or others having the deceased's effects in their hands, and right to the administration thereof, designedly suffer other persons to administer, whose mouths are easily stopped, with part of the estate's being delivered to them, and bring only such part of the appraisement to the great dishonour of the deceased, and deceit of the living; for prevention whereof, as well as of 278 CASES IN THE COURT OF APPEALS Hagthorp et we. et al. vs. Hook's Adm'rs D. B. N. 1829. frequent tedious suits, for the detecting such concealments, it is enacted, that the court may, in a summary way, cite such per- sons before it, and examine, and decide on the matter. Here the distributees, the widow and others, having a right to the administration, who are the next of kin, are specially desig- nated, and it is expressly declared, that they shall not retain, or hold any of the personal estate of the deceased : and if they do conceal any of it, they are made liable in a summary way as wrong doers. If the law were otherwise; and if each creditor, and every one next of kin, were allowed to help himself, to what he thought his due ; to seize upon, and, in any manner by his own act alone, acquire a legal right to the personal property of the intes- tate; the greatest confusion would ensue, and the most monstrous frauds might be perpetrated; no letters of administration would be taken out, in any case ; but on the death of every one who had left any personal estate, worth contending for, a disorderly scramble would take place; and those residents at a distance, infants, and all others who were unable to take care of their own interests, would be openly and wantonly defrauded, as this venerable act declares, " to the great dishonour of the dead and deceit of the living." Such a course could not be tolerated in any shape or for an instant. Hence, the indispensable necessity in all cases of a regular administration, and of compelling all, as well creditors, as next of kin, to resort for the payment of their claims and distributive portions, to an administrator. In this case, it is not pretended, that these next of kin of Jlnthony Hook, obtained any thing, any right whatever from his administrators; consequently, having derived no right from either of the administrators; and none having been cast upon them by mere operation of law: they never had the power, in any manner, legally to dispose of any of the personal estate of the deceased; or to do any act which could at all affect the rights of the present plaintiff. Leave was asked and obtained on the 7th of February, 1823, to make James Hook, the son of the late John Hook, a defendant; who, on the same day, filed his answer to the OF MARYLAND. 279 Hagthorp et ux. ft al. vs. Hook's Adm'rs D. B. N. 1829. amended bill; and in a kind of amended or duplicate bill, filed on the 23d of July, 1824, James Hook, is once incidentally spoken of as a defendant ; no process was ever prayed against him ; but by an agreement, filed on the 4th of November, 1826, he is admitted to be a party defendant. This person is no otherwise noticed in the proceedings; no charge, whatever, has been made against him; nor does it appear that he can, in any degree, be made liable for any part of the subject in contro- versy ; either in his individual capacity, or as heir, or next of kin of his father, the late John Hook, or of his grandfather the late Jlnthony Hook. The presence of this defendant, James Hook y it appears to be in no way necessary ; and, therefore, I shall, for the present, take no further notice of him. The bills, through a considerable portion of them, seem to consider the next of kin and distributees : or, as it calls them, in relation to these chattels, the heirs of the late Jlnthony Hook, to be in some way or other parties to this suit: but they have neither been made plaintiffs, nor defendants as such ; and there- fore, all that has been said, or proved about them, and their agreements, must be rejected as mere surplusage, and entirely foreign to the matter now under consideration. William Mc- Meclien, a defendant, says, he answers " the bill of complaint of James JYeale and others, representatives of Jlnthony Hook, deceased :" and in the body of his answer, he says, " during all which time several of the complainants resided in the neigh- bourhood of the said land:" others of the answers seem to have an eye to some other complainants, besides Neale. These respondents appear, in this respect, to have turned their atten- tion to some of the irrelevant circumstances related in the bill, without sufficiently regarding its substance. But all such ex- pressions and allusions, in the answers, must, in like manner, be rejected as surplusage. So much as to the excrescences, the foreign matter, and mere careless verbiage of the bill, and some of the answers. But, before we can proceed to consider the merits of the case, it will be necessary to ascertain from these pleadings, as accu- rately as practicable, what is the matter as to which the parties CASES IN THE COURT OF APPEALS Hagthorp et we. et al. TS. Hook's Adm'rs D. B. N 1829. are at imic ; and \\hat part of the allegations of each had been admitted, taken for true, or is to be sustained or combattcd by proof. In relation to these matters it will be necessary to explain, recollect, and apply some of the general rules in rela- tion to answers. The first of these general rules, which have a bearing upon this case is, that where the general replication is put in, and the parties proceed to a hearing, all the allegations of the an- swers, which are responsive to the bill, shall be taken for true; unless they are disproved by two witnesses, or by one witness, with pregnant circumstances. The answer to this extent is considered as evidence, and conclusive, unless disproved ; even although the defendant may have a direct and palpable interest in establishing the truth of what he advances. 3 Wheat. 527. An answer is only so far responsive as it answers to a material statement, or charge in the bill, as to which, a disclosure is sought; and which is the subject of parol proof; but no further. Where a deed, or instrument of writing is necessary to esta- blish any right, and the bill enquires for the evidence of such right, the answer, unaccompanied and unsupported by such deed or writing, will be no evidence, although it should directly respond to the bill ; because the answer is only in the nature of parol evidence; and in such case, evidence of a higher grade is required by law. 5 Harr. << Johns. 381. But where the bill asks for the production of evidence, which from the nature of the plaintiff's case, he has a right to claim, that may be necessary and useful to him in other cases beside the one then under consideration; an answer to such a bill is not responsive, which merely asserts the facts without saying any thing of the evidence of its existence, or the means of obtaining it. And, where a defendant, by his answer, asserts a right affirmatively in opposition to the plaintiff's demand, he must establish it by proof; or the assertion will be disregarded : for, a defendant cannot be permitted to swear himself into a title to the plaintiff's estate. 1 Wash. 225. I Mun. 395. 2 Jo/in, C. Rep. 87. 2 Ev. Poth. 157. But where an administra- tor is called upon to answer certain matters, which appear to OF MARYLAND. 281 Hagthorp et ux.. et al. vs. Hook's Adm'rs D. B. N. 1829. have rested exclusively within the knowledge of his intestate, it will be sufficient that he swears as he is informed and helieves ; Carnan, Ex'rs vs. Vansantfs administrators, 1807, J\?I. S., but such an answer is to be taken with reference to the reasons given for his belief; for, if the reasons are futile, and especial- ly if the alleged belief be in a high degree irreconcileable with the admitted, or established circumstances of the case, the an- swer cannot be credited : nor be allowed thus loosely to swear away the equity of the bill. Tong. vs. Oliver and others, 1809, M. S. 9 Can. 160. A second general rule is, that every allegation of the answer, which is not directly responsive to the bill, but sets forth mat- ter in avoidance, or in bar of the plaintiff's claim, is denied by the general republication, and must be fully proved, or it will have no effect. A third general rule is, that, if the defendant submits to an- swer at all, he must answer fully, and particularly: not merely limiting his responses to the interrogatories of the bill : but re- spond to the whole and every substantial part of the plaintiff's case. 1 John, C. Rep. 75, 107. He is not however, bound to go further, and to answer any interrogatory asking a disclosure of matter no way connected with, or material to the case. If the answer be in any respect evasive, or insufficient, the plaintiff may except to it; and thus extract from his opponent a full and perfect answer. But to this general rule there is a modification, the na- ture and bearing of which may be sufficiently illustrated by one or two instances: a defendant to 7 a bill of discovery, answered a portion of it, and as to all the pther matters therein set forth, he answered and said, that he had no other knowledge of them, than what he had obtained confidentially as counsel; and therefore declined answering further : this answer was deemed sufficient; and again a defendant answered as to part, and as to the residue relied upon the statute of limitations: this answer was also held to be sufficient. In such cases, a part of the answer per- forms the office of a plea; and the defendant thus makes defence to the whole case, by a disclosure of all the facts so far as he is bound so to respond; and for the residue, by presenting such an VOL. I. 36. 289 CASES IN THE COURT OF APPEALS Hagthorp ft MX. et al. vs. Hook's Adm'rs D. B. N 1829. equitable bar to the plaintilPs claim, as is a sufiirimt excuse for not answering in the manner required Inj tlic bill. The exact compass of this modification of the rule, that if a defendant sub- mits to answer at all, he must answer fully, remains yet to be adjusted. 2 Mad. Ch. 339. Much lias been said upon the subject; but as the cases in relation to this "distracted point," as it has been called, have no bearing upon the case now under consideration, they have been thus generally noticed merely to prevent misapprehension. A fourth general rule, is one which grows out of the third rule, that exacts a full answer: and requires to be attentively considered in this case : it is, that where the defendant fails to answer any of the material allegations of the bill, such unan- swered allegations shall, at the hearing, be taken to be true, (a) Thus were the bill demands the delivery of two pieces of pro- perty, and the answer makes defence as to one, but is totally silent as to the other. In such case according to this rule, the bill may be taken pro confesso for that, as to which the answer is silent; and the plaintiff may obtain a decree according- ly. The propriety of this rule has, however, been questioned; and therefore it stands in need of all the support it can derive from authority, reason, and analogy. If, upon exceptions, the answer is held to be insufficient, the defendant will be ordered to answer more fully : and if he fails to do so, in England, sequestration will go against his estate. The plaintiff need not, however, stop there, but may proceed to have his whole bill taken pro confesso; for the court is in the habit of considering an insufficient answer as no answer. 2 Jltk. 21. 3 Fes. 209. 1 F. and B. 367. 2 Fes. and B. 258. In this state, obedience to the order directing a more perfect answer, upon exceptions being sustained, is usually enforced by attach- ment; but, as in England, on the defendant's failing to answer as ordered; and the process of attachment failing to coerce an an- swer, as required, the whole bill may be taken pro confesso. 3 Vcs. 372 209; so, where the defendant had answered, and the (a) The fourth general rule above stated has been denied by the appel- late court in the late case of Warfitld vs. Catnbrill. OF MARYLAND. 283 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. plaintiff then amended his bill, introducing new matter, he is entitled to an answer to such new matter; because, an amend- ed bill is a part of the original bill, and the defendant's answer thereto is a part of his original answer; and consequently, the defendant is as much bound to answer the amended bill, as to answer each portion of the original bill itself. Therefore, if he fails to do so, the plaintiff may proceed, according to the course of the court, and have his whole bill taken pro confesso. 4 Ves. 619. 3 John. C. Rep. 410. For, as it has been said, if the plaintiff should not be entitled to such a decree under those cir- cumstances, then the authority of this court would be very de- fective and the justice of it might be eluded. 2 Eq. Ca. Jib. 179. 1 Har. Pr. Ch. 277. 2 Jltk. 21. A plea is a special answer to a bill, differing in this from an answer in common form, as it demands the judgment of the court, in the first instance, whether the special matter urged by it, does not debar the plaintiff from his title to that answer, which the bill requires: but where, from the matter set forth in the bill, an answer is required to support a plea, it will be overruled without such an answer; upon the ground, that the matters not thus answered are taken for true. As where the bill sets out a claim arising on a mortgage made more than twenty years before the institution of the suit, and then goes on to shew, that there have been such partial payments, or recent acknowledgments, as would take the case out of the statute of limitations, were it pleaded. In such case, a plea of the statute of limitations must be supported by an answer, de- nying such partial payments arid recent acknowledgments; for, otherwise, those circumstances, not being denied by the plea, would be taken for true, if not denied by way of answer; and would show, that the case had been taken out of the statute. 2 Scho. fy Lef. 725. These authorities appear satisfactorily to sustain this rule; and to shew, that the defendant cannot be allowed, with impu- nity or advantage to himself, to refuse to answer at all; or, in any manner or form, to stop short, or to omit to answer any ma- 28 1 CASES IN THE COURT OF APPEALS Ilagthorp et x. etal. vs. Hook's Adm'rs D. B. N. 1829. tcrial part of the plaintiff's case: and, that the consequence of such a ivfusal or failure, is, that the whole bill, or so much of it as remains unanswered, may, at the hearing, be taken pro confer- to. The proceedings in Chancery have been formed according to the course of the civil law, in some respects; and analogous to the common law in others; and, as to all matters of substance, there must be the same strictness in pleading in equity, as in hm. .Mil. Pr. 232. Hence, it is not unfrequent, where a case arises, as to which former decisions furnish no safe guide, to have recourse to the illustrative analogies of the common law. 2 Atk. 21. 3 Jltk. 589. 6 Fes. 594. 9 Ves. 55. 11 Ves. 292. Supposing, then, that in relation to this subject, there was a total absence of all manner of precedent and authority, the analogous course of the common law will be found to afford much and strong light. At common law, there are two defaults; the one before, and the other after appearance. The consequence of the first, in England, is, that the defendant may be outlawed; and in this State, in many cases, is, that an attachment may go against his estate. The consequence of the second default, or the defend- ant not putting in any plea at all, is, that the plaintiff may have a judgment by nil dicit. The plea is called, at common law, the answer of the defendant: and, if he fails to answer, judg- ment is awarded against him on the ground, that he has thus tacitly admitted, or confessed the case of the plaintiff, and left him nothing to litigate or to prove. So, in equity, after an ap- pearance, the taking a bill pro confesso, where no answer has been put in, or no sufficient answer, after exceptions have been sustained, is analogous to the taking the declaration for true, where the defendant has put in no plea at all, or it has been held insufficient on demurrer. 2 Jltk.'21. It is a rule at common law, that every plea must answer the whole declaration, or at least every material part of it, which goes to constitute the gist of the action. But, the defendant may fail, or purposely decline to plead, or answer to every part of the declaration : in which case the plaintiff may join issue OF MARYLAND. 285 Hagthorp et ux et al. vs. Hook's Adm'rs D. B. N. 1829. on the plea, and take his judgment for the unanswered part as by nil dicit. And we are told, that it is frequently judicious to plead only to part, or to admit a part of the cause of action in order to save the costs of the trial of such matter: for, nothing can be tried, that is not put in issue; and the defendant, by de- clining to answer a part, deprives the plaintiff of the power to burthen him with the costs and expense of proving that, on a trial, which he has not denied, and put in issue. 1 Chit. Plead. 509. So, in equity, where the defendant fails, or declines an- swering any material part of the plaintiff's bill, as to which he seeks, and may obtain relief, it amounts to a tacit admission of so much: and, such part of the bill may, therefore, be taken pro confesso: and, if the declining to answer a part of the cause of action may, from any motives, be judicious at common law, certainly a defendant in Chancery may be induced for like rea- sons to pursue a similar course; since no costs, or expense, can be allowed in Chancery, any more than at law, for the proof and trial of any matter not put in issue. 2 P. Will. 557. 1 9 Johns. Rep. 505. 2 Desan. 172. Upon the whole, this rule in rela- tion to pleadings in equity, appears to be as fully sustained by analogy to the course of the common law, as by direct and po- sitive authority. There is, in many instances, a strong disposition manifested by courts of Chancery to harmonise their proceedings, in prin- ciple, with the positive rules of the common law. But, where the Legislature have prescribed rules of proceeding for the court itself; and cases occur within the spirit, but not within the letter of them, the Chancellor feels himself, not merely invited, for the preservation of harmony, but becomes sensible of a duty to conform, upon the ground, that equity is bound to follow the law in spirit and in principle. In equity, the consequences of a default before appearance, when pursued to the utmost, seldom enabled the plaintiff to ob- tain the precise relief he was in quest of; because, there could be no adjudication upon his case, applying the remedy, as speci- fic performance, or the like, exactly to suit it, until the de- fendant had appeared, and the allegations of the bill had been ..Mi CASES IN THE COURT OF APPEALS llagthorpetwx. etui. vs. IlookV \.li..'r> D. I 1 ,. N. 1839. taken for true or established. The English courts, evidently under a strong sense of the necessity of their being some better mode of attaining justice, than by a sequestration of the defend- ant's estate, have carried the doctrine, in relation to substituted and constructive summons, full as far as was within the compass of judicial power; further than it ever was in this State; and yet, short of the point of manifest and general utility. In the year 1718, the Legislature partially interposed, and by the act of 5 Geo. 2, ch. 25, provided the means of enabling a plaintitl' to proceed against a defendant, who had not entered his ap- pearance, and have his bill taken pro confesso; which could not be done in equity until then. 2 Jltk. 23. This statute was in- troduced and used in this state, Kil. Rep. 189, and seems to have been the original settler among us ; whence sprang that numerous family of legislative enactments upon this subject, to be found in our statute book, from the year 1773 down to the present time. The following is a list of the acts of Assembly under which a bill may be taken pro confesso against a defendant, who has not been summoned nor has appeared: 1773, ch. 7, sec. 3. 1785, eh. 72, sec. 30, 31. 1787, ch. 30, sec. 1. 1790, ch. 38, sec. 3. 1792, ch. 41, sec. 2, 4. 1794, ch. 60, sec. 2, 3, 5, 9. 1795, ch. 88, sec. 1, 2. 1797, ch. 114, sec. 2, 3. 1799, ch. 79, sec. 3, 4. 1804, ch. 107, sec. 2. 1820, ch. 161. These acts provide for all the cases that have, or, as it is supposed, can occur; absent or absconding defendants; non-resident defendants, who are either non compos, infants, or adult; absent or non-resident mort- gagers; defendants who evade the service of the subpoena; the case where there are two or more defendants, of one or some of them being non-residents; the case of a bill of revivor, where the party had removed out of the State, &c. And where a party had been returned summoned, but had failed or refused to appear and answer, the acts of 1785, ch. 72, sec. 1 , 9. 1799,c/i.79, sec. 1,2. 1820, ch. 161, provided that the plaintiff may, according to a prescribed mode, have his bill taken pro confesso. According to the course of the English court, there are cases in which an implied confession is held to be a sufficient ground OF MARYLAND. v 287 Hagthorp et vx. ct al. us. Hook's Adm'rs D. B. N. 1829. for a decree : as where the defendant appears, and has been attached for not answering, and is brought three times from prison into court, and has the bill read to him, and refuses to an- swer ; such public refusal in court amounts to a confession of the whole bill. So too, where a person appears and departs without answering, after which process has gone against him to sequestration, there also the bill is taken pro confesso ; be- cause, it is presumed to be true when he has appeared and de- parts in despite of the court, and withstands all its process without answering. For. Rom. 36. But, these modes of hav- ing a bill taken pro confesso, having been deemed in many re- spects too oppressive, or unnecessarily tedious, 1 John. C. Rep. 8, more easy and expeditious modes have been provided by the acts of 1785,c/i. 72, sec. 20. 1779,c/i.79,sec.2, 9; and 1820, ch. 1 6 1 , sec. 1 . By these acts, if a defendant, who has appeared, fails to demur, plead, or answer, according to the rules of court, within a limited time, the bill may be taken pro con- fesso. At law, where the nature and amount of the plaintiff's demand may be distinctly ascertained from the declaration, as in debt assumpsit, upon a promissory note, or the like, the judgment by nil dicit, is final; but in actions for the recovery of damages only, it is not so; because the amount claimed is uncertain; and, therefore, an enquiry must be made, and proof heard as to the quantum which the plaintiff is entitled to recover. Suits in equity are susceptible, in some degree, of a similar classification; and, hence it is, that several of our aidts of Assembly, which allow the bill to be taken pro confessol^ go on to declare that the Chan- cellor may, in his discretion, order a commission to issue for the plaintiff to examine witnesses to prove the allegations of his bill ; or the plaintiff may himself be examined on oath. But in some of these acts such a provision was omitted ; and hence, by the act of 1799, ch. 79, sec. 5 ? it is said to appear unreasonable, that, in any case whatever, the Chancellor should be directed abso- lutely to take the bill or bare allegations of a suitor pro confes- so ; and, therefore, enacts that, in all such cases, it shall be at the discretion of the Chancellor, either to take the bill pro con- ( \si:s IN THE COURT OF APPEALS Hugthorp tt ux. et al. vs. Hook's Adm'rs D. B. N. 1829. /mo, or to direct a commission for taking depositions exparte : which law, as amended by the act of 1818, c/i. 193, sec. 6, 5, has enabled the Chancellor to call for proofs and explanations in all cases which appear to require it. These, then, are the legislative rules in regard' to the whole bill, where no answer at all is put in. But not one of these acts of' Assembly which seem to have provided, with such an infinite deal of care and solicitude, fur all the various causes and modes of neglecting or failing to answer the whole bill, do, in any man- ner, speak of, or allude to the case of a neglect or refusal to an- swer a distinct or material part only of the bill: where an an- swer is made to all the rest. The act of 1795, c/i.88,sec. 1, says, the bill may be taken pro confesso, and the Chancellor shall pro- ceed to decree in the same manner, as if the defendant had ad- mitted by his answer the facts stated in the bill ; and in case the defendant has been summoned, or has appeared, and fails to an- swer, he must be ordered to do so, by an appointed day ; or an interlocutory decree may be entered on the default, and a com- mission issued exparte : but, in every case the consequence of the default is, that the bill may be taken pro confesso. Hence it appears to be clear, that these legislative rules which, according to their letter, are only applicable to the case where there is no answer at all, must, in spirit and principle, be alike applicable to the case where the answer only covers a part of the material allegations, and is totally and absolutely silent as to the residue of the bill ; and, consequently, according to the principle and spirit of these legislative rules, the unan- swered part of the bill must, on the hearing, be taken to be true ; otherwise, there would be a manifest inconsistency in the course of the court : and although a party might have a right to relief in Chancery, and be entitled to an answer to every allegation in his bill, necessary to sustain his claim to relief: if the defendant failed or refused, to answer them all, he might have his bill taken pro confesso ; yet, if he failed or refused to answer a part of those allegations for such part unanswered, he must pursue a different course. But the reason and principle being the same, the rule must be the same in both cases. If the whole bill is OF MARYLAND. 289 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N 1829. left unanswered, it may be taken for true : and*.if a part only be left unanswered, that part must, in like manner, be taken for true. These acts of Assembly of ours, allowing a bill to be taken pro confesso on the defendants default in not answering all of them, authorise the Chancellor in such case to pass a final decree at once, if he deems it unnecessary to issue a commis sion. The decree by default, in all such cases, is as complete ly final and absolute, as a judgment by default in an action of debt at common law. The course of the English court of Chancery is, in some respects, different. There, when the plaintiff obtains a decree by default, a provisional clause is su- peradded, that such decree is to be binding on the defendant, unless being served with process, he shall, within a limited time, shew cause to the contrary. And this decree, being sub modo only, is emphatically a decree nisi; which cannot be, nor ever is considered as final, until the party has been served with process, and it has been made absolute by the court itself, 1 Harr. Pr. Ch. 625. Redes, Tr. 195. ' 9 This, it seems, has long been the established practice of the courts of Chancery of Virginia; so, that where a defendant has not answered the bill, it is held to be error to enter a final decree against him, taking the bill pro cow/esso, without the pre- vious service of a decree nisi : 3 Mun. 83. 2 Hen. fy Mun. \ 9. And it has also been held in that State, that, were some of the allegations oi the bill were not answered, the plaintiff might either except to the answer as insufficient, or move to have the unanswered part of the bill taken pro confesso. But, if he does neither, it must be proved, that he shall not, on the trial, avail himself of any implied admission by the defendant : for, where the defendant does not answer at all, the plaintiff cannot take his bill for confessed, without an order of court to that effSfct, and hav- ing it served on the defendant; and this is the only evidence of his admission : of course, if this mode of proceeding as to the confession of the whole bill be correct, it must be equally cor- rect, as to the confession of any part; 2 Hen. and Mun. 17, 19. 2 Mun. R. 298-86. 4 Rand. R. 454. 6 Craw. 51. VOL. I. 37 "90 CASES IN THE COURT OF APPEALS Hagthorp et we. et al. vs. Hook's Adtn'rs 1>. B. N. 1829. Such is the rule, of the Chancery courts of Virginia. The default, in not making any answer at all; and that of not answer- ing all the allegations of the bill, are precisely alike in kind, differing only in degree : hence, the courts of that State, have applied the same rule, in spirit and principle, to both defaults. The party is allowed to pursue the same course to have his bill, either wholly or partially taken pro confesso, according to the extent of the defendant's default. In this State no decree, nwt, is ever entered and served on a defendant who has not answered: but an absolute decree may be entered at once, as soon as he can be fixed with the default; which can be at any time after the limited period for answering has elapsed, or when he has elected to make, and has actu- ally filed his answer to the bill. The principle and reason of the rule, in Virginia and in Maryland, are the same in relation to a partial answer. The courts in each State, follow the spirit of the established, or legislative rule, which directs the mode of proceeding, in case the defendant puts in no answer at all. The plaintiff is entitled to an answer to each allegation of his bill, which he may require; either because he cannot prove the facts, or to aid his proof, or to aVbid expense : and if the plain- tiff conceives the answer to be insufficient to the charges in the bill, he may except to it; which has been compared to a demur- rer at law, for want of form. The sole object of exceptions is, to extract from the defendant a more full and perfect disclosure, for the benefit of the plaintiff. They are never meant, nor in- tended, nor are they calculated to benefit the defendant, or to put him upon his guard in any respect whatever. The plaintiff may, if he chooses, waive his right to except : and it is always most judicious to do so, where his proofs are ample and at hand; and the character or conduct of the defendant indicates that he is not altogether trust worthy upon oath : for in such case, he will attain his object much sooner and better, by taking the answer at once, as he can get it, and proceeding directly to col- lect proofs, without loss of time, than by stopping to take excep- tions. This is the case where the answer is an evasive, imper- OF MARYLAND. 291 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. feet response; but yet such a one as goes to the whole bill, and by which each of its allegations is denied and may be put in is- sue. But to what end, or for what purpose, where no explana- tion or discovery is sought for by an allegation, should the plaintiff by exceptions call for an answer to it; where it is im- pliedly, and tacitly admitted by not being answered. In such case, both parties would be delayed and troubled, and the de- fendant put to much expense without any object whatever. The general replication puts in issue only the denial or avoi- dance of the answer , nothing more; and neither party is allowed, nor can be called on, to adduce proof respecting any matter not put in issue. The unanswered part of the bill therefore must be admitted, since it cannot be, according to a correct and or- derly course of proceeding, proved at the hearing. But if the unanswered allegations of a bill were required to be proved, or to be rejected altogether at the hearing, then the defendant would be allowed to take, advantage of his own laches : and a want of frankness and simplicity, altogether unbecoming a court of equity, would be tolerated and encouraged : and the plaintiff would be driven to except, in all such cases, merely to extract from the defendant, either a general denial, or an express, in- stead of a tacit disclaimer or confession; when, in truth, it might have been the intention of the defendant, as it is fair to infer it was, to concede the unanswered allegation, for the express pur- pose of avoiding the costs and expense of an answer, of excep- tions, and of proofs, by letting a decree by default go for so much as he had left unanswered. / In ancient times, when the defendant used only to set forth his own case, in the answer, without answering every clause of the bill, it was the practice for him to add, at the end of the an- swer, a general travers, without that, that the matters set forth in the bill are true, &c. But, where the whole bill, and every clause in it, has been fully answered, the adding of a general traverse is rather impertinent than otherwise; and, if issue is taken, upon its general traverse, it is a denial only of every thing not answered before by the answer. 2 P. Will. 87. But, there is no case, in which this general traverse has ever been 292 CASES IN THE COURT OF APPEALS Hagthorp ct ux. et al. vs. Hook's Adm'rs D. B. N 1829. relied upon, as an answer. If it ever had been so considered, it must have occurred, in some of the numerous cases of excep- tions to answers, to have insisted on it as such; yet nothing of the kind appears. The whole range of adjudged cases shew, that the extent and compass as well as the sufficiency of the answer, as whether it is as frank as it ought to be, or whether it covers the whole, or only a part of the bill, are to be ascer- tained from the body of the answer itself: and not from the for- mal introduction, or the formal general traverse or conclusion of it. But, in this case the usual general traverse, denying the truth of all the unanswered allegations of the bill, has not been added by the way of conclusion to any of the answers. In the case of Hopkins vs. Stump, et. al. 2 Harr. and Johns. 301, Chancellor Hanson says, "it would seem likewise, that the complainant misunderstood the Chancellor in another particular. But no person, acquainted with the laws, or rules, or practice of this court, would conceive it the meaning of the Chancellor, that whatever matter stated in a bill is not denied, must be consider- ed as admitted. No ! If interrogatories stated in a bill are not answered, the complainant has a right to except to the answer, and if the interrogatories are proper, the defendant will be com- pelled to answer plainly, fully and explicitly. If then any ma- terial matter charged in the complainant's bill, has been neither denied nor admitted by the answers, it stands on the hearing of the cause/or nought ; this assuredly every lawyer will admit." This language is strong, indicating that it came from a mind at home upon the subject before it, and that it was thoroughly and perfectly satisfied of the correctness of the positions thus ad- vanced. But, to the latter of them, my mind cannot yield its assent; and, therefore, I have deemed it a respect due to the memory of my predecessor, to set down the authorities, and the reasons which have led me to a different conclusion. From all that has heen said upon the subject, it appears to be agreed on all hands, that the plaintiff being entitled to an answer to each allegation contained in his bill, may except to an answer which omits to respond to any of them; that, in Virginia, the plaintiff, by a certain prescribed mode of proceeding, may have the un- OF MARYLAND. 293 Hagthorp el ux. et al. vs. Hook's Adm'rs D. B. N. 1829. answered allegations taken for true, but if he omits to take that course for that purpose, and goes to hearing, he must then prove the truth of the unanswered allegations, or they will be disre- garded ; that according to Chancellor Hanson^ the unanswered allegations stand on the hearing of the cause for nought , and that in my opinion, all material allegations of the bill, as to which the answer is entirely silent, are on the hearing, to be, taken pro confesso. A fifth general rule is, that where an answer in the body of it, purports to be an answer to the whole bill, but the respondent declares, that he is entirely ignorant of the matters contained in the bill, and leaves the plaintiff to make out the best case he can, or any language to that effect; and, the plaintiff files the general replication ; all the allegations of the bill are thus denied and put in issue ; and consequently, all of them, must be proved at the hearing against a defendant who has thus answered. 1 Fes. 274. This in England, is said to be the usual form of the answer of the Attorney General ; and no exception can be taken to such an answer ; or, indeed, to any answer of the Attorney General, 2 Mad. Ch. 335. The same form and rule prevails here, where the Attorney General appears for the State. This also is com- monly, the form of the answer of an infant, or a person non com- pos, who answers by his guardian or committee. And, by a long established practice, individuals, who are, in truth, ignorant of the whole matter as to which the bill requires any disclosure but who are made defendants as having an interest in the mat- ter in controversy, have been permitted, by this general mode of answering, to deny the whole /bill, and to put the plaintiff to prove all its allegations at the hearing. 6 Harr. and Johns. 291. If, however, it appears from the bill, that the defendant has any knowledge of any matter in it, he may be required to answer more fully and particularly to the extent of his knowledge or belief. Divesting this case then, of all extraneous matter ; of all that relates to the two first administrators of the late Jlnthony Hook ; because, this plaintiff is incompetent, in the representative char- acter in which he sues, to recover any thing, but so much of 294 CASES IN THE COURT OF APPEALS Hagthorp el MX. et al. vs. Hook's Adm'rs D. B. N 1829. the personal estate of his intestate as remains in specie, or has remained, and is now in the hands of any one, who can be re- garded as a trustee for the use of the late Anthony and his re- presentatives ; of all that which relates to the next of kin of the late Anthony Hook ; because none of them, as such can have any title, but from one of his administrators, and no such title is alleged or pretended ; and also, because none of them are made parties to this suit as plaintiffs ; and Barbara Hagthorp and James Hook, who have been made defendants, are neither charged as, nor make any claim or defence in right of their being two of the legal representatives of the late Anthony Hook ; and the case, when thus cleared on the part of the plaintiff, is simply this. By a deed bearing date on the 17th of August, 1797, the late Anthony Hook conveyed certain property, therein mentioned, to the late John Hook, on the terms specified in the deed ; which property came to the hands of the late Jo/in, and after his death, passed into the hands of Hagthorp and wife, as his administra- tors; and is now held and detained by them, and the other defen- dants, who claim from, and under them. The plaintiff alleges, that this property, according to the nature and terms of the deed, was conveyed to John, as an indemnity ; in case and upon condi- tion, that he should pay certain debts, therein specified, which have not been paid ; and, consequently, that the late John Hook had held, and his legal representatives, and those who claim under them, now hold this property as trustees, for the use of the late Anthony Hook and his legal representatives ; who is now the present plaintiff: upon which the complainant prays that this property may be accounted for and delivered up, together with the profits thereof. The whole of this controversy has grown out of the deed of the 17 th of August, 1797, from the late Anthony Hook to his son, the late John Hook. This indenture recites, that Anthony, being justly indebted to John Moak, and thirteen other persons who are named; but the amount due to any, or all of them, is not specified : and then declares, that John had agreed to pay those creditors of his father, Anthony, their several and respec- OF MARYLAND. 295 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. live debts ; in consideration of which, and also in consideration of natural love and affection for his son; and of the further con- sideration of five shillings, Anthony conveyed to John his lease- hold right, to two pieces of land ; the one a lot often acres, part of the tract called David's Fancy : and the other a lot, fronting on Jlliceana street, in the city of Baltimore, together with cer- tain negroes and personal property ; all of which are particular- ly described. The indenture then concludes in these words : " To Have and to Hold the said ten acre lot, and the other lot on Jlliceana street, for and during all the rest, residue, and re- mainder of the original terms granted for each respectively, sub- ject to the rents and covenants reserved and contained in the above, in part, recited lease and assignment: and To Have and to Hold all and singular the household and kitchen furniture, plate, and negroes, unto him, the said John Hook, his executors, administrators, and assigns, forever. Provided always, and it is the true intent and meaning of these presents, and of the par- ties hereto, and if the said John Hook, his executors, adminis- trators, or assigns, shall absolutely omit, neglect, and refuse to pay the said recited creditors of the said Jlnthony Hook, their several and respective just debts and demands against the said Jlnthony Hook, then this indenture, and every matter, clause, and thing therein contained, shall cease, determine, and be utterly null and void, to all intents and purposes whatsoever; any thing herein contained, to the contrary thereof, in any wise notwith- standing." This proviso, or condition, is explicit and unequivocal. The estate conveyed to John Hook, /was to be null and void, on his failing to pay and satisfy the enumerated creditors of Jlnthony Hook. It is, in fact, a conveyance, by Jlnthony, of certain pro- perty to John : upon condition that he should advance a certain sum of money for the use of Jlnthony. This proviso, with the recital, gives to the whole the shape and character of a pledge or mortgage, from Jlnthony to John. It was intended to in- demnify John, for money advanced by him to the use of his fa- ther: and all John can claim, by virtue of this deed, is indem- nity and reimbursement for any money so by him advanced. In SIX? CASES IN THE COURT OF APPEALS Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N 1829. the ordinary cases of a mortgage, the grantor is the actual debt- or of the grantee: and it is stipulated that the estate conveyed, shall be absolute, if the grantor fails to pay at the appointed time. In this case, the grantee undertakes to substitute him- self in the place of the creditors of the grantor, or to satisfy those claims : and if he fails to do so, then it is stipulated that the estate conveyed, shall be void. The object of the grantor, in both cases, is the payment of his debts; and, in both, securi- ty is the object of the grantee. That security, in equity, ex- tends no further than complete reimbursement. The payment of the whole principal and interest due,, and no more. 9 Wheat. 495. There is no clause in this indenture authorising John Hook to sell the property, and to apply the proceeds of the payment of the claims of the enumerated creditors : and even if there were, it would not have destroyed the redeemable quality of this mortgage, or the resulting 1 use arising out of the nature of this deed. 3 Harr. <" Johns. 106. In this case it is alleged, that the late John Hook, and his representatives, have altogether failed to pay the enumerated debts, in compliance with the stipulations of the deed. If so, Anthony Hook had, and his representative now has, a right to a return of this property, with its profits : or, at least, to redeem it on the payment of so much as has been advanced by John Hook, or his representatives. It has been urged, that there is not the least room to deduce, from this deed, any thing like an implied or resulting use to Anthony Hook, and his representatives : because, it is declared to have been made, not only for a valuable consideration, as the payment of debts, and also of five shillings; but likewise for a good consideration, as the natural love and affection from the father to the son. The doctrine of a resulting use, first introduced the notion that there must be a consideration expressed in the deed; or, otherwise, nothing could pass but it would result to the gran- tor. It is certain, however, that the rule in relation to trusts, by implication, or operation of law, is by no means so large as to extend to every mere voluntary conveyance; and, consequently, if this deed stood alone, upon the valuable consideration of five OF MARYLAND, 297 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. shillings, and upon the good one of natural love and affection, or upon either of them, unconnected with other circumstances, there could be no doubt of its validity, as an absolute, and effec- tual conveyance, from Anthony to John. 2 Jltk. 256. But, when other matters are necessarily brought into view, or form a part of the contract, then it is no less clear, that the mere express consideration of five shillings, even with the superadded expres- sions, "and of other valuable considerations," or of natural love and affection, will not prevent the deduction of a trust by impli- cation or operation of law. I Fes. Jtw'r. 92. 1 Jltk. 93, 191. 2 Jltk. 149. And where a trust is declared as to part, or the property is to be applied for a particular purpose, and nothing is said of the residue; what remains, so undisposed of, results to the grantor. 2 Fonb. 116, 133. This indenture cannot be read with a total disregard of its recital and proviso, two of its most important features. We cannot turn aside from clauses, so very striking and efficient, as the recital of the cause of its having been made, and the provi- so wherein it is said, if that consideration alone be not complied with, the whole shall be a nullity. If these matters could be entirely passed over, the argument against a resulting trust would be exceedingly strong, if not altogether irresistible. But, look- ing to the recital, and the proviso, it is perfectly manifest, that the sole object of the deed was to secure the payment of cer- tain creditors of Jlnthony Hook. If they were not paid, the whole deed, utterly regardless of the consideration of five shil- lings, and of natural love and affection, was declared to be void. The payment of the creditors was, then, that consideration alone upon which the conveyance was to stand or fall. This, is the real extent of the consideration, no more; and to this extent, and no further, the late Jlnthony Hook parted with his right and interest in this property : consequently, in the value of this pro- perty, beyond that of the aggregate amount of the specified debts, there is an implied or resulting use, remaining or vested in Jlnthony Hook, the grantor, and his representatives. But, there is an express saving in the statute of frauds, of trusts by implication or operation of law; nor does the statute VOL. I. 38. 298 CASES IN THE COURT OF APPEALS Hagthorp tt vx. et al. vs. Hook's Adm'rsD. B. N. 1829. affect trust of mere personalty. 10 Mod. 404. 3 Bro. C. C. 587. Such uses, therefore, might in this case be established by parol proof, if this were not sufficiently manifest from the terms of the deed itself. 2 John C. Rep. 409. Let us now, then, turn to the answer and proofs. Hagthorp and wife have answered jointly. She, before her marriage with Hagthorp, obtained letters of administration on the personal estate of her late husband, John Hook, and it is in that character only, that they are now brought here as defen- dants. They say, in relation to the enumerated creditors of the late Anthony Hook, "that the said John Hook paid the said sums of money, set out in the assignment, so far as the creditors applied for payment of the same:" and again, "that the said John Hook accordingly paid the debts particularly mentioned therein, (that is in the deed) as these defendants believe and charge." It is too late now to inquire whether this answer is as frank and unexceptionable as it ought to have been or not. The only question at this stage of the proceedings, is, whether it be such a response to the bill as constitutes a sufficient defence, if un- contradicted by proof; or whether, as is often said on motions to dissolve injunctions, the answer has sworn away the equity of the bill? The first of these sentences cannot be considered as a distinct answer to any extent; either, that the debts have, or have not been paid: and the second of them amounts to no more than a declaration of a belief that they have been paid. Where the na- ture of the transaction, charged in the bill, is such a one as must have been altogether within the knowledge of the intestate, the administrator may answer as he is informed and verily believes; but, the answer of an administrator must always be taken, as well with a reference to the reasons given for his belief, as to the nature of the subject of which he speaks. This, however, is a broad assertion of a belief, without giving any reasons for it; or its appearing, or being alleged, that the matter was exclusively within the knowledge of their intestate. In these particulars this answer is ,not so responsive to the bill as to constitute an available defence. OF MARYLAND. S99 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N. 1829. But, according to the bill and the deed, which is made a part of the bill, John Hook undertook to pay certain debts due from Anthony Hook. The answer to this charge must, then, from the nature of things, be such- a one as would furnish evidence available to Anthony or his representative: it is that, the bill seeks. For, by the deed, Jlnthony was to be protected from the claims of his creditors; and upon John's affording that pro- tection his title rested. In effect the bill asks, not only whether the debts have been paid, or not; but more, it requires the evi- dences of their payment to be produced, as a means whereby Jlnthony, and his representatives, may be protected against those claims ; and such evidence, in addition to any thing that might be said in the answer, is also necessary, because it constitutes an affirmative part of that title set up by John Hook's representatives, in opposition to the plaintiff's claim; and must therefore be supported by indifferent testimony. All the claims of the enumerated creditors which have not been paid, it is most likely have been long since barred by the statute of limitations ; but that is a protection which the law itself gave to Anthony. He is entitled, by the terms of his deed, to be furnished by John with the evidence of their being satis- fied, as the means of his protection in that form. This answer, therefore, is not for these reasons also, so responsive to the bill as to afford the defendants an adequate defence. On adverting to the proofs and exhibits, it appears that John Moak^s is the only one of the specified claims that has been satisfied; and none others are to be allowed as paid. / I lay out of this case the testimony of Henry Burman, who, as the husband of one of the distributees of Anthony Hook, has an interest in establishing the facts to which he testifies, and is, therefore, incompetent. All the other witnesses are competent. From the copy of the unexecuted bond, the declarations of Bishop Carroll, and the other occurrences and proceedings in the Orphans' Court found amoung the proofs, it appears to have been perfectly well understood between Anthony and John, during their lives, that John held, as the trustee of Anthony, ac- cording to the terms of the deed : and it appears, that the repre- 300 CASES IN THE COURT OF APPEALS Hagthorp et u*. ttal. vs. Hook's Adm'rs D. B. N. 1829. gentatives of John always admitted, that they held under the deed; and yet, except the claim of John Moates, it does not appear, that they ever undertook to shew, that any of the claims of the enumerated creditors had been satisfied. It lay upon John and his representatives to shew, that those claims were paid ; and they have not done so, and the truth is therefore that, except Moale^s claim, none of them have been satisfied. The answer of Hagthorp and wife, after some preliminary no- tices of several allegations in the bill, and those responses, as to the payment of the enumerated debts, passes on to a long his- tory of the sayings, actings, and doings of sundry of the next of kin of the late Anthony Hook, in relation to the ten acre lot ; as to all of which, for the reasons already assigned, it will be unne- cessary to say any thing further. The bill specially charges, that Hagthorp and wife, by a deed dated on the 23d day of Decem- ber, 1819, leased, or assigned, a part of the lot on Jlliceana street , to Matthew Bennett. Of these special allegations, these defen- dants take no notice ; but say, that the late Jlnthony Hook, by an indenture dated on the 8th day of May, 1797, conveyed the lot on Aliceana street, to the late John Hook. This is an alle- gation in avoidance of the bill, and certainly required to be sup- ported by proof. But their is not even an exhibit, nor one tittle of proof in relation to it. This part of the answer, therefore, passes for nothing. As to all the allegations of the bill, in relation to the negroes, and other moveable property mentioned in the deed, this an- swer is absolutely and totally silent it says nothing: and, conse- quently, as to so much the bill must, according to the rules that have been laid down, be taken pro confesso. Upon the whole, then, and from what has been said, it follows that the defendant, Hagthorp and wife, as the legal representa- tives of the late trustee, John Hook, will be decreed to deliver up to the plaintiff, all the property mentioned in the deed; or to pay the value of so much as they may have converted, or fail to deliver, together with the profits thereof, or the interest on the value; except certain allowances, and those parts wherewith the other defendants may be charged, as I shall now proceed to enquire and determine. OF MARYLAND. 301 Hagthorp et ux. et al. vs. Hook's Adm'rs D. B. N 1829. All the other defendants deduce their title, either directly or indirectly, from Hagthorp and wife, except Nathaniel Chitten- den, who traces his claim from the late John Hook. But all al- lege, that they are purchasers for a valuable consideration, with- out notice. There is no principle of equity better settled, than that such a purchaser will not be disturbed by this court. On the other hand, it is equally well settled, that he who purchases with a knowledge of the trust, becomes himself the trustee, and stands in the place of the vendor, under whom he thus claims, subject to all his liabilities. Yet a person having himself no- tice, who purchases of one who had not notice, may protect himself by the want of notice in his vendor; nor shall a purchas- er without notice, or a previous purchaser with notice, be af- fected by the notice of his vendor : and where a purchaser can- not make title, but by a deed, which leads him to a knowledge of the fact; and more especially where the deed, by virtue of which he takes, recites, or directly refers to that instrument in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice. These are the well established principles of equity upon this subject. 2 Fonb. 147,151. William McMechen, in his answer, avers that he is a pur- chaser, for a valuable consideration, without notice; and yet makes an exhibit, by his answer, as a part thereof, of a deed dated on the Qt h of September, 1 803 : under which he takes from Hagthorp and wife, in which the indenture from Jlnthony Hook to John Hook, out of which/the trusts arise, is clearly and distinctly referred to as one of the links in the chain of the title of Hagthorp and wife. This, of itself, is enough to shew that McMechen is a purchaser with notice. But the proofs leave no- doubt upon the subject: they shew, that he had ample notice. This defendant, therefore, will be decreed to deliver up and re- convey to the plaintiff whatever of the ten acre lot, thus acquir- ed by him, he may now hold : and to account for the rents and profits thereof, from the date of the deed under which he ob- tained possession, with such just allowances as he may be enti- tled to; the nature of which shall be specified. 30-2 CASES IN THE COURT OF APPEALS Hastliorp et MX. et a/, vs. Hook's Adm'rs D. B. N. 1829. Samuel Moore and George Jl. Hughes answer jointly ; they positively aver, that they are purchasers of. William McMechen, for a valuable consideration, without notice. But they exhibit no evidence of title, nor any proof of right whatever. Accord- ing to the rules and principles before laid down, they cannot be permitted thus to swear themselves into the estate of the plain- tiff; and consequently, even if their answer were in other re- spects fully responsive to the bill it could not avail them as a defence, unsupported, as it is, by proof. These defendants will, in like manner, be decreed to deliver up and reconvey to the plaintiff the proper y held by them ; and be also charged with rents and profits, from the 1st day of May, 1818, when it ap- pears they obtained possession. John Color, by his answer, states, that he purchased of Mc- Mechen that which he holds. His predicament and pretensions are similar, in all respects, to those of Moore and Hughes. Color, therefore, will likewise be decreed to deliver up and re- convey, and also to account for the rents and profits of what he holds, from the 1st of May, 1818; when he was let into posses- sion, with such just allowances as shall be specified. John S. King, by his answer, states, that he leased from the defendant, Color ; but having exhibited no better title than his lessor, Kill be in a like manner, ordered to deliver up, reconvey, and account for the rents and profits, to the plaintiff, from the 9/h of March, 1819, when he took possession. John Weaver, in his answer, says that he, too, is one of those who purchased of William McMechen. This defendant has also left his answer entirely destitute, and wholly unsupported by any exhibits or proofs. He will, therefore, be decreed to deliver up, reconvey, and account for, the rents and profits to the plaintiff. He admits that he obtained possession in the year 1819; but does not specify the day or month. 4 medium, in the absence of proof, will, therefore, be taken; and the ac- count will commence on the 1st day of July, of the year 1819, with such just allowances as shall be specified. The defendant, John Fitzgerald, in his answer, states that on the 4th of September, 1806, he purchased of John H. Hall, a OF MARYLAND. 303 Hagthorp et ux. et al. vs. Hook's Adm'rsD. B. N. 1829. part of a parcel of ground, containing ten acres; part of a tract of land called Davids Fancy : that he gave for it a valuable consideration; and had no notice of the claim of the representa- tives of the late Jlnthony Hook. He then goes on to state, that he purchased of the defendant, Hagthorp, two other parcels of the same ten acre lot; the one on the 9th of August, 1810, and the other on the 17th of June, 1815; and that he purchased a fourth parcel of it, on the 17th of September, 1811, of Gerard Tipton; for all of which, he avers, he paid a valuable consider- ation, and that he had no notice of the claim of Anthony Hook's representatives. This answer is also entirely unsupported by any evidence whatever; and, therefore, this defendant will be decreed to deliver up, and reconvey to the plaintiff so much of the ten acre lot, mentioned in the bill, as he holds: and will, also be held accountable for the rents and profits thereof, from the dates when he obtained possession of each parcel respectively. The nature of the just allowance to which he may be entitled, will be described. Benjamin Rawlings, surviving executor of the late William Raiclings, states, that his co-executrix, Catharine Rawlings, who had been made a defendant, is dead : that he is in possession of part of the ten acre lot in the bill mentioned, by virtue of a deed bearing date on the 10th day of September, 1804. This answer is also entirely unsupported by proof. This defendant will be decreed to deliver up and reconvey the property, so held by him to the plaintiff; and be charged with the rents and pro- fits, as executor, from the date of the deed under which his testator obtained possession; wip such just allowances as shall be specified. The defendant, Matthew Bennett, in his answer, says, that he is in possession of a part of the ten acre lot mentioned in the bill, which he holds under a conveyance from Hagthorp and wife, dated on the 3d day of August, 1810. But this defendant, too, has left his answer entirely destitute of proof. The bill express- ly alleges, that Hagthorp and wife, by deed, dated on the twenty-third day of December, 1819, leased a part of the lot on Jlliceana street to Matthew Bennett : in relation to which, this 304 CASES IN THE COURT OF APPEALS Hagthorp et ux. etal. vs. Hook's Adm'rs D. B. N. 1829. defendant says nothing in his answer. This allegation of the bill, as against him, must therefore be taken for true. He will be decreed to deliver up, and reconvey all the property held by him, to the plaintiff: and to account for the rents and profits of each parcel from the time he took possession. The defendant, Nathaniel Chittenden, admits that he holds possession of the lot on Jlliceana street to which he derives ti- tle, through various mesne conveyances, from the late John Hook. He avers that he, and those under whom he claims, were, all of them, purchases for a valuable consideration, without notice ; but produces no proof in support of the allegations of his answer. He will therefore, in like manner, be decreed to deliver up and reconvey the property, so held by him, to the plaintiff; and be held accountable also for the rents and profits. The defendant, James Hook, on the 7th day of February, 1823, filled his answer; and he says therein, to the amended bill of the complainant; but there does not appear to have been any amended bill put upon the record until some time after that day. There is, however, no charge whatever made against this de- fendant, and therefore the bill will be dismissed, as to him, with costs. I have said, that the recital and proviso in the indenture of the 17th of August, 1797, from Anthony Hook to John Hook, gave to that instrument the features and character of a mortgage. Consequently, the original parties stood and their legal represen- tatives now stand in the relation to each other of mortgagor and mortgagee, or trustees, and cestui que trusts. No acts, or cir- cumstances appear to have occurred to destroy the redeemable quality of that deed. Hagthorp and wife, as administrators of the late John Hook, have succeeded to his character of trustee, and the defendants who all claim under them, except Nathan- iel Chittenden, who derives his claim from the late John Hook, as purchasers with notice for so much as they hold, stand charged with the same trusts. The whole of the property mentioned in the bill has been continually in the possession of the late John Hook, anb those who have succeeded to, and claim under him, ever since the OF MARYLAND. 305 Hagthorp et ux. etal vs. Hook's Adm'rs D. B. N. 1829. year 1797. They have protected it, relieved it from burthens and charges, and have placed upon some parts of it lasting im- provements. It now, therefore, only remains to apply the rules of equity in relation to these matters, and to direct how the ac- counts shall he stated. If a mortgagee, without the assent of the mortgagor, assigns the mortgaged estate to an insolvent person who he puts into possession, he will be held answerable for the rents and profits received both before and after the assignment; upon the princi- ple, of its being a wilful breach of trust, to transfer the property to another, which, as trustee, he had no right thus to dispose of, to the prejudice of the mortgagor. Pow. Mort. 948. 2 Fonb. 179. A trustee is, in no case, to be charged with imaginary values, but only with what he actually receives : and the same rule applies to a mortgagee, in possession, who is regarded as a trustee. But no default must be imputed to him; for in all such cases, he will be charged with what he might have made, but for his default. The annual value is that which the premises are actually worth nett, according to a fair estimate, clear of all necessary charges. Under the head of just allowances, it has long been the course of the court to allow a trustee, or mortgagee in posses- sion, for all necessary expenses incurred for the defence, relief, protection and repairs of the estate : such as costs of suit, and fees for taking opinions and procuring directions necessary for the due execution of the trusts, 10 Vts. 184, taxes, paving con- tributions, ground rent, and sums expended in necessary repairs. Pow. Mort. 956, n. 2 P. Will 455. It has been also said and I think with justice, that where a mortgagee, thinking himself ab- solutely entitled, had expended considerable sums in repairs and lasting improvements, he should be allowed the value of them. Pow. Mort. 956, n. And in a modern case, the value of new buildings, erected by the mortgagee, was allowed, 4 Fes. 482, and a liberal allowance for the improved value of slaves while in the possession of the mortgagee, was directed to be made. Ross vs. Worrall, 1 Wash. 14. The grounds of these decisions appear to be, that a mortgagee in possession, is the legal holder VOL. I. 39 306 CASES IN THE COURT OF APPEALS Hagthorp et ux. et al. rs. Hook's Adm'rs D. B. N 1829. of the estate; which the mortgagor may at any time redeem and so prevent him from making any repairs or improvements, and if the mortgagee has been long in the possession, claiming adversely, and suffered to treat the estate at his own, and the mortgagor stands by and permits lasting improvements to be made, he shall pay for them. 5 Harr. fy Johns. 147. 4 John. C. Rep. 122. But the estimate of the value of such lasting improvements is to be taken as they are at 'the time of accounting or passing the final decree. For such allowances are made upon the ground, that the improvements do, in fact, pass into the hands of the plaintiff as a new acquisition. And they can only be a new ac- quisition to him, to the extent of their value at the time he re- covers or obtains possession of them; and therefore their value at that time is to be allowed, and nothing more. 3 Rob. Mm. Rep. 101. It is also necessary to observe that in charging rents and profits, the estimate must not include any profits which arise ex- clusively from such improvements; for, if they were to be em- braced by the estimate, the occupier would, in fact, be paying for the profits of that which was his own; and the plaintiff would be allowed to derive the benefit from a new acquisition before the court had awarded it to him. Therefore, the estimate of rents and profits must be made, in exclusion of such as appears to have arisen from the occupying claimant's own expenditure in improvements. 1 John. C. Rep. 388. In this case, the late John Hook disposed of the lot on Alice- ana street, and his representatives Hagthorp and wife, having disposed of the other property in a manner in which they had no right to do, and the bill standing unanswered, and for true, as to the negroes and moveable property, Hagthorp and wife must be charged with the value of the whole of that property, and interest thereon, from the date of the deed from the late Antho- ny Hook to the late John Hook, and the account for the rents and profits of the chattels real, will commence from the same date. Hagthorp and wife must be charged with the rents and profits of all the chattels real, mentioned in the bill up to the time when they, or any part of either passed into the hands of any OF MARYLAND. 307 Hagthorp et ux. et al. vs. Hook's Adtn'rs D. B. N 1829. of the present defendants. But Hagthorp and wife will be held liable for the whole amount charged against the other defendants, or to the amount which all, or any of them may fail or be unable to pay to the plaintiff, and these defendants must be credited with the amount of the debt which was due from Jlnthony Hook to John Moale at the time of the execution^ of the deed to John Hook, with interest thereon, from the time when it appears to have been paid. The account against each of the other defendants will com- mence from the day on which it appears by his answer, or by the proofs now in the cause, or which may hereafter be exhi- bited, that he obtained possession, and he will be charged for all the time he held that portion of the property, or until it passed into the hands of another of the defendants. The account against each of the defendants who is now a holder of any por- tion of the property is, for so much as he holds, to be brought down to the time of taking the account. Whereupon, it is ordered, on this 5th day of December, in the year 1826, that this cause be, and the same is hereby referred to the Auditor, with direction to state an account, or accounts, accordingly ; from the proceedings and proofs now in the cause, or such other proofs as may be laid before him by the parties : and it is further ordered, that the parties be, and they are here- by allowed to take such testimony as they may think proper, in relation to the accounts so directed to be stated by the Audi- tor ; on giving to the opposite party or his or their solicitor three days notice as is usual. Provided, that no testimony shall be used before the Auditor, or, in 1 any way admitted into this cause, unless it be taken and filed with the Register, on, or be- fore the 15th day of January next. From this order the de- fendants appealed to this court. The cause came on to be argued before EAB.LE, ARCHER and DORSEY, J. when, Williams, (District attorney of U. S.) and Learned for the appellee, moved the court to dismiss the appeal, upon the ground that an appeal did not lie from the order of the Chan- 30S CASES IN THE COURT OF APPEALS Haicthorp tl we. el al. vs. Hook's Adm'rs D. B. N. 1829. celior in this case, as it did not settle any question of right be- tween the parties. They rel'envd to Snoicdcn vs. Dorsey, 6 Harr. fy Johns. 114. Thompson vs. M'-Kim, ib. 327, and Odder vs. H'alker, 2 llarr. # Gill, 326, 32!). Moale and R. JV. Martin against the motion, referred also to Snowden vs. Dorsey, and Thompson vs. MKim y and to Strike vs. JW Donald, 2 Harr. $ Gill, 191. DORSEY, J. delivered the opinion of the court. A motion being made to dismiss the appeal to this court, on the ground, that the Chancellor decided nothing in controversy between the parties which can properly form the basis of an appeal; to present a view of the question, but few of the facts contained in the record need be stated. The appellee sought to recover certain leasehold and personal property, with the rents and profits arising therefrom. The right to such recove- ry being resisted by the defendants, and much testimony in relation thereto, being taken under commissions issued for that purpose; after the case had been argued, the Chancellor, in his explanatory or introductory remarks to what he was then about to order, discusses at great length many rules and prin- ciples of equity and a great variety of facts, all of which he considers clearly in favour of the appellee, and announces his intention at some future time to decree accordingly : and to enable him to do so, he passed the following order, viz: (See the order ante, p. 307.) From this proceeding of the Chancellor, the present appeal has been prosecuted; and the only question submitted to our consideration is, does this order so settle or materially aifect all or any of the rights or interests in controversy between the parties, as to make it a decretal order from which an appeal would lie^greeably to the provisions of the acts of Assembly of 1785, ch. 72, and 1818, c/i. 193? We are clearly of opinion that it does not. To ascertain what has been decided by the Chancellor, we must look to the order itself. If its expressions be explicit, unequivocal, we need search no further for its im- port; but must give it that interpretation which it bears upon its OF MARYLAND. 309 Hagthorp el ux. et al. vs. Hook's Adm'rs D. B. N. 1829. face. If its construction be ambiguous; then, as the best key to its exposition, we must refer to the introductory remarks of the Chancellor upon which it was founded. In the present order there is no doubt, no ambiguity; and its operation cannot be enlarged by the prefatory observations with which it is connected. Indeed., they are in perfect accordance with its literal, obvious meaning; and demonstrate, that all which the Chancellor designed to adjudicate, was, that the auditor should state certain accounts indispensable to the determination of the questions in litigation. Such an order is a mere preparative to the decisions of the cause; and not decretal. Tis true the Chan- cellor, in considering this case, has discussed all the matters ' both of law and fact, which he deemed in any wise involved in the decree, eventually to be pronounced; and has distinctly declared what he intends to decree. But his intentions form no ground for an appeal : he may abandon or change them ad libi- tum ; until carried into effect, no injury can result from them. It is only, from what he has done, and not from what he intends to do, that an appeal will lie. All that he has done is to direct an audit : every disputed right and interest of the parties re- mains undetermined; and is, by the express declaration of the Chancellor, to be settled by his future decree. Until such decree be passed, upon application a commission to take fur- ther testimony might issue, an unquestionable title to the relief prayed for might be made out. If we now sustain the jurisdic- tion we are called on to exercise, and, in accordance with the appellants views, dismiss the appellees bill of complaint : we deprive him of all such opportunity of strengthening his claims for relief; we in fact become a court of original not of appellate judicature. We usurp the authority of the Chancellor, and reverse decrees which he never did make, and perhaps never would have made. Such a proceeding is utterly inconsistent with the character and attributes of a Court of Appeals. But reasoning upon this subject is unnecessary : the question is put to rest by the authority of Snowden et al vs. Dorsey et al. 6 Harr. fy Johns. 114: a case not distinguishable from that now before us. There the Chancellor upon a bill filed for the con- HO CASES IN THE COURT OF APPEALS Hagthorp et tur. et al. vs. Hook's Adm'rs D. B. N 1829. veyance of land, ordered an account to be taken of the rents and profits; and in the statement of his views introductive of that order pronounced his opinion_(as here) that the complainants claim to relief had been established. Yet, upon an appeal from such order, after argument, and a thorough examination of the practice and decisions upon the subject, this court dismissed the appeal, as being prematurely taken to an order, not decre- tal. It was urged in the argument of the appellants counsel, that the right of appeal in this case was fully established by the doctrine settled in Thompson vs. JWKim, 6 Harr. fy Johns. 302. But the cases are in no wise analogous. There, as is justly observed by the Chancellor, to warrant the issuing of the order, the facts must be "either admitted or so established as to be open to no further controversy at any subsequent stage of the pro- ceedings; and the party making the motion for such order must shew that he has an interest in the money called in; and that he who holds it in his possession, has no equitable right or title to it whatever." Here to justify the order for an audit, no such conclusive establishment of facts is indispensably necessary. There material and irreparable injury was done by the order, let the subsequent decree of the Chancellor be what it might, or although no future decree be ever made. Here no material injury is inflicted on the appellants unless followed by a decree; and that decree too against them. Here the order is not de- cretal or final as to the rights or interests of the appellants. There the order is not only decretal, but in effect final upon the rights and interests of the appellants, and needed not the aid of any future decree or order upon the subject. Ex natura rei, the granting the order to bring the money into court, adjudicated on every right and interest which the appellant claimed. In no future order or decree was it necessary to name or even refer to him ; as to all subsequent proceedings, he was no longer a necessary party in court. All that remained to be done in the cause was, an order for the distribution, among the creditors of Heyland of the money brought into court. OF MARYLAND. 311 Danels vs. Taggart's Adm'r 1829. Strong efforts were made in the argument to distinguish this case from that of Snowden et al. vs. Dorsey et al. founded upon an expression in the courts opinion, in Thompson vs. JW'Kim, stating that the order passed in Snowden et al. vs. Dorsey et al. " bore no impress of the Chancellor's judicial opinion upon the merits of the case." The order, it was contended, in the case at bar, did bear such an impress. But the weight of the argu- ment rests upon a misconception of this expression of the court. They did not mean to say, that the introductory remarks to the order in Snowden et al. vs. Dorsey et al. bore no impress of the Chancellor's opinion upon the merits of the case; because the reverse is most palpably the fact : it does bear the impress of his opinion : but not of his "judicial opinion." The impress of the Chancellor's "judicial opinion," in the sense in which the court have used it, being synonymous with, what he has ad- judged or decreed. APPEAL DISMISSED, BUT WITHOUT COSTS. DANELS vs. TAGGART'S Adm'r. December 1829. T died in a foreign country, leaving his partner K his executor there ; who, upon his return to Maryland, renounced all right to administer upon T's estate here. Letters of administration were then granted to the complai- nant, who filed a bill against K and D, requiring an account and settlement of various claims; some of which related exclusively to transactions of a partnership which had subsisted between K. D. and T. ; others, to demands of the intestate against both of his surviving partners; and others, to misappli- cations of the intestate's property, by both and each of them after T's death. The dates of these transactions were not alleged. To this bill, D pleaded in bar, "That he finally settled and adjusted with K, executor of T deceased, after the death of the said T, an account in writing, and by said account, the balance due to the defendant by the estate of the said T on the 25th Oct. 1823, was admitted to be, &c. which account is just and true." The complainant demurred. The Chancellor overruled the plea, and ordered the defendant to answer over. HELD, that an appeal did not lie from this order, which de- cided a mere question of pleading, and settled no right between the parties, and that this plea was void for uncertainty. The plea of an account stated to such a bill as the present, cannot be sustain- CASES IN THE COURT OF APPEALS i> . ! {art's Ailiu'r. l>-J:i. ed, unless it be supported by ;ms\vi r, dt -us ing the receipt of any part of the money, for which the defendant is called upon to account, subsequently to the time when the account stated, was adjusted. By taking issue on a plea in equity, the plaintiff admits its sufficiency as a bar, if the facts which it asserts are established by proof; and if on such an . the matter of the plea is proved, the bar is complete, and the bill must be dismissed. APPEAL, from the Court of Chancery. The bill of complaint, in this case, was filed on the 9th of November, 1 824, by Wil- liam Taggart, administrator of Henry Taggart, (now appellee) against John D. Danels, (the appellant) and John C. King. The bill stated, that the testator, Taggart, Danels and King, as partners in trade, were the owners of a considerable amount of property and choses in action, and were largely in- debted to others; that the testator, besides his undivided inter- est in this firm, had a la/ge amount of separate property of his own, consisting principally of vessels, and of debts due from this firm of Taggart fy Co. and others ; that thus situated, Henry Taggart died, leaving his partner, King as his executor; that afterwards Danels and King, took, collected, and applied, nearly the whole of the testator's property, as well as that which he had held in partnership with them, as that which was exclusively his own, and applied it to their joint use and bene- fit ; that a part of the testator's property was taken and applied by Danels to his own individual use ; and that King having re- nounced the office of executor of Henry Taggart in this State, administration was granted to the complainant, who now calls on Danels and King to' account for the property so taken and used by them. The defendant, Danels, " by protestation, not confessing or acknowledging all or any of the matters or things in the com- plainant's bill of complaint contained, to be true, in such manner and form as the same are therein and thereby alleged and set forth, and as to all relief prayed in and by the complainant's bill of complaint, and as to all the discovery thereby prayed, save and except so much thereof as prays this defendant may discov- er if any account has been settled, by this defendant, with the said Henry Taggart in his life time, or with his executors since OF MARYLAND. 313 Danels tw. Taggart's Adm'r 1829. his death, doth plead in bar, and for plea says, that he this de- fendant, finally settled and adjusted with John C. King, executor of the estate of Henry Taggart, deceased, after the death of the said Taggart, an account in writing, and by said account the balance in writing due to this defendant by the estate of the said Henry Taggarton the 25th of October, 1823, was admitted to be $38,341 16, which account is just and true to the best of this defendant's knowledge and belief." The complainant " by protestation, not confessing all or any of the matters and things in the plea of the defendant John D. Danels, contained, to be true in such manner and form as there- in set forth and alleged, does demur to the said plea , and for causes of demurrer, among other causes of demurrer, shows that the said plea is not accompanied, as part thereof, by the account therein referred to ; and further, that the said plea is no answer to, and does not undertake to answer the fraud and combination alleged in the complainant's bill; and that the said plea in no respect answers or meets the charges of said bill, or precludes the relief therein sought, or bars the inquiry therein made. Wherefore, and for divers other good causes of demurrer ap- pearing in said plea, this complainant does demur thereto, and he prays judgment of this honorable court, whether he shall be compelled to make any farther and other reply to the said plea ; and he humbly prays that the said Danels may be compelled to answer over to the said bill of this complaint, &c." The defendant, King, filed an answer to the bill. BLAND, Chancellor. (December term,) 1825. This case standing ready for the hearing on the demurrer to the plea of Danels, the counsel on both sides were heard, and the proceed- ings were read and considered. It appears from the allegations of the parties, (and here the Chancellor stated the substance of the bill as before,) to which Danels pleads an account settled with King, as executor of Tag- art, in bar ; to which plea the complainant has demurred. The plea of Danels is intended as a bar to the complainants prayer, for an account and relief grounded on the three charges of hia VOL. L 40. 314 CASES IN THE COURT OF APPEALS DaneU rs. Taggart's Adm'r. 1829. bill. First, that Dancls and King have taken, or converted to their own use, the testator's undivided interest in the property of the firm of Taggart, Dancls and King. Secondly, that Danels and King have taken, or applied to their own use, the testator's separate property; and thirdly, that some portions of the testator's property have been taken or applied by Dan- els alone, to his individual use. If the demurrer to this plea be sustainable, as has been urged, on the ground, that the set- tled account thus pleaded, is not such a one as could, in any form, be pleaded in bar to this bill, it will relieve the court from the necessity of noticing any thing else, that has been pres- sed upon its attention in the course of the argument. A settled account, is an adjustment of the adverse pretensions and claims of two or more parties ; or a mutual compromise and arrangement of their respective debits and credits. . It is, in effect, an agreement between the parties ; and operates re- ciprocally like all other contracts and agreements. The idea of a settled account, or of a contract or agreement, therefore, ne- cessarily involves the notion of two parties, the one contracting, and the other contracted with ; or of parties who mutually agree together in relation to a particular subject. And this notion, as to two parties, also necessarily supposes each of them have not only a capacity to contract, but in almost every instance, a ca- pacity to sue and be sued. But the capacities to contract and to sue, with which each adult citizen is endowed, in general is without limit, for the disposition and protection of his property and person against all others, may be, and are, in many instan- ces, by the particular nature of the subject of the contract or suit, enlarged, modified or extinguished. And the general ca- pacity of an individual to contract or to sue, may also be circum- scribed or fettered by his representative or official character, or by the peculiar relationship to others, in which he may be plac- ed. These positions need no illustration. Now as to the case before us; let it be supposed, that Tag- gart and King only, had constituted this firm or copartnership; in that case it must be admitted, that when, on the death of Taggart, the two characters of surviving partner and executor OF MARYLAND. 815 Danels vs. Taggart's Adm'r 1829. devolving upon King, and became united in himself, he could not contract or sue respecting the undivided interest of the tes- tator Taggart; because King could not contract with or sue himself; and while he chose to act as executor, there would be no other party representing Taggarfs interest to contract with or to sue. And, therefore, if King, the executor and surviving partner, was the debtor of his testator, that debt, by operation of law, would beco'me assets in his hands for the benefit of the creditors and representatives of the deceased; and, if he was, on the other hand, a creditor, he might retain out of the assets of the deceased the amount of his claim against all others. In such case, it seems to be quite clear, that King could not have the capacity, in any manner, to make such a settlement of ac- counts, of himself alone, of the partnership affairs of Taggart and King as would be pleadable in bar of a bill like this, brought by the administrator of Taggart against him for an account. But, in this case, King is not the only surviving partner there is another, Danels ; and it is Danels who pleads the settled account with King as executor in bar. But the union of two interests in King, that of his own, and his testator's, had de- prived him of the capacity to make any binding settlement, or agreement as to his testator's share in relation to his own. This alleged settlement then, if binding at all, or in any way, could only operate between King and Danels; but the whole partner- ship affair, as between Taggart and King would remain open, or unaffected by it. This plea avers and sets out the balance, between Taggart and Danels. But in a partnership or joint trade, carried on by three or nWe persons, it is impossible to settle an account with some of the members of the partnership, so as to ascertain the balance due from any one, to any other member of the concern; and more especially so, as in this case, where the partner as to whom the balance is to be ascertained, is himself a creditor of the firm. Wherever a balance is spok- en of as the result of a settlement of partnership accounts, a par- tial estimate is never understood. It is the result of the adjust- ment of the whole and entire partnership concerns. It is true, that these three partners Taggart, Danels and King y 316 CASES IN THE COURT OF APPEALS Danels vs. Taggart's Adm'r 1829. as to their respective rights, might have made any special agreement, or settled in any manner they thought proper, either in person or by their agents duly authorised. But King as exe- cutor had only the general authority incident to his office ; and this plea of Danels is not based upon any special agreement of any sort ; but upon a general settlement of the entire partner- ship accounts, and sets forth a balance which could only be the result of such an entire settlement. In this case, however, no such settlement could have taken place, in the manner al- leged in the plea, with King as executor of Taggart ; because King was incapable of settling, or agreeing with himself as part- ner and executor, and, consequently, Taggarfs interest in the alleged settlement could not have been represented and protect- ed by any one capable of settling and contracting for his rights. For as to the testator's rights and his interest, it was as if a set- tlement had been made during his life time, between Danels and King, at which Taggart was not present, and of which he had no knowledge. So far then as this plea relates to a settled ac- count of the partnership affairs of Taggart, Danels and King, it has no foundation and cannot be sustained. The bill charges, that the testator's separate property was also applied to the joint use of Danels and King, and prays, that they may account for that likewise. As to the testator's sepa- rate personal estate, there can be no doubt, that his executor, King, might have disposed of it, in like manner, as his testator might have done. And if King had wasted it, in any way, he himself would have been chargeable with the devaslavit ; but the right of any one, fairly acquired, from him would be unim- peachable. If King, as executor, had settled an account with Danels, as to any dealings which Danels had respecting the separate estate of the testator, such a settled account might have been pleaded in bar, of a bill brought against him for an account of such dealings ; because, such a plea, in such a case, would be a fair and direct avoidance and defence to such a bill. But this bill presents a case which is formally and substantial- ly different. In equity, as well as at law, the plaintiff can only have relief, or recover according to the nature of his case ; and the OF MARYLAND. 317 .Danels vs. Taggart's Adm'r. 1829. allegata and probata must substantially correspond. The charge, in this case, is, that Danels and King jointly converted the pro*- perty of the testator, to their joint use and benefit. This charge cannot be sustained by proof, that either of them, separately con- verted it to his own separate use. They are charged as joint wrong doers, who have derived a joint benefit and advantage from their wrong; and the proof, when produced, must be applica- ble to that charge, or it is foreign from the case. Now it cer- tainly cannot be, that joint wrong doers, any more than joint agents, will be allowed to plead a stated account between them- selves, as a bar to a bill against them, for an account of the property so by them converted. In equity, those who have jointly taken and used the property of another; are considered as his trustees or bailiffs, and as such are held accountable. This objection to this plea, applies with equal force, and is an additional objection to it, so far as it relates to the undivided in- terest of the testator in the partnership funds, which the bill charges Danels and King with having taken and converted to their joint use. As to the third charge, about which the bill calls for an ac- count; that is, as to the property of the testator Taggart which came into the hands of Danels, and was applied to his individu- al use. If there had been a settlement of accounts between King as executor of Taggart and Danels in relation to such property, and such settlement had been properly pleaded, i t would have constituted a good and sufficient bar to this charge in this bill. But the plea under consideration is not such a one, It is a pjea in bar of all the relief/, and all the discovery prayed by the bill, founded on a settlement of accounts between Danels and King as executor of Taggart, comprehending all the sub- jects set forth in the bill ; and it avers a balance to be due from Taggarfs estate unto Danels, as the result of that general, com- prehensive settlement of accounts. In pleading an account stated, as a bar, it is essentially necessary to set forth the par- ticular balance found to be due. But if, as in this case, it ap- pears, that the balance thus set out, and which it is essentially necessary should be averred to constitute a good plea of an ac- 318 CASES IN THE COURT OF APPEALS Danels rs. Taggart's Adm'r. 1829. count stated, is deducible from a statement, and is the result of a settlement, the greater part of which was of no avail, or was improper, it follows, that such plea must be considered as sub- stantially defective, in one of its most essential parts. It is as substantially deficient as it would have been, if it had been wholly silent as to the balance ascertained to be due ; since a specification of a balance derived from a source manifestly vi- cious, is as no statement of any balance whatever. Upon the whole it is considered, that this plea is bad ; first, because King being himself executor and surviving partner, could not, and had not the capacity to make such a settlement with Danels of the partnership affairs of Taggart, Danels and King, as Danels might plead in bar of this bill ; secondly, this plea is bad, because, the bill charges Danels and King with having jointly converted to their own joint use, as well the undi- vided partnership property as the separate property of the tes- tator, and to such a charge, a settlement between Danels and King can be no bar ; and thirdly, this plea is bad, as to so much as relates to property of the testator alleged to have been con- verted by Danels to his individual use; because, the balance set out in the plea is shown, by the general reference to the whole bill, to be the result not merely of an account of such property, but of that inclusive of all the other transactions stated in the bill, respecting which, an account between Danels and King could be of no avail against the complainant. Decreed, that the plea of the said Danels be, and the same is hereby overruled ; that the demurrer be sustained; and that the said Danels do make a full and sufficient answer to the complainant's bill of complaint, and the matters therein charged. From this decree Danels appealed to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, ARCHER and DORSEY, J. Winchester, for the appellant. The bill of complaint in this case is simply a bill calling for an account, and being so, the plea of an account stated is a flat bar. The plea is in proper form, and is a proper answer to such a bill. Mitf. Plead. 210, OF MARYLAND. 319 Danels vs. Taggart's Adm'r 1829. 211. The bill does not charge fraud, nor allege any account stated, nor fraud in stating any account. The plea is, there- fore, a proper answer to the bill. Cooper's Plead. 279. 1 Madd. Ch. 81 (83.) Fraud cannot be proved, unless it is alleged in the bill. Westly vs. Thomas, 6 Harr. <^ Johns. 28. A surviving part- ner may be executor to his deceased copartner, as well as a debtor or creditor be executor to his creditor or debtor ; and as such settle all the affairs of the partnership, Burden vs. Bur den, 1 Fes. and Beanies, 170. Mayer and Taney (attorney general) for the appellee. The doctrines of a plea of an account stated ; and whether or not the plea here pleaded is applicable to such a case as this, are fully commented upon and laid down in Cooper's Plead. 277, 279, 252, 225, 228, 229, 282, 283. Mitf. Plead. 208, 209, 211, 236. Beames PI. Eq. 229, 226, 237. Taylor vs. Haylin, 2 Bro. Ch. Rep. 310. Fernon vs. Fawdry, 2 Atk. 119. Drew vs. Power, I Sch. # Lef. 182, 192. Kinsman vs. Barker, 14 Fes. 579. Newman vs. Payne, 2 Fes. jr. 200 Middleditch vs. Sharland, 5 Fes. 87. Beaumont vs. Boultbee, Ib. 485. S. C. 7 Fes. 599. S. C. 11 Fes. 358. Lady Ormondvs. Autchinson, 13 Fes. 47. Chambers vs. Goldwin, 5 Fes. 835. S. C. 9 Fes. 265. Roberts vs. Kuffin y 2 Atk. 112. Roche vs. Morgell, 2 Sch. % Lcf. 725, 727, 728. Bayley vs. Mams, 6 Fes. 586, 596. Goodrich vs. Pendleton, 3 Johns. Ch. Rep. 384. Hawkey vs. Simpson, 3 Atk. 303. Where the party is not presumed to have a counterpart of the account, it must be produced with the plea of an account stat- ed. Here, it could not be presumed, that the complainant had any knowledge of the settled account. Willis vs. Jernegan, 2 Atk. 252. The plea should be signed, Hodder vs. Watts, 4 Price, 18. Beames Pkad. 236, (note a.) It should deny- all badges of fraud, Goodrich vs. Pendleton, 3 Johns. Ch. Rep. 384. A charge amounting to fraud is a charge of fraud. A charge of bad faith, is a charge of fraud; and the plea should deny the fraud, and all the circumstances amounting to fraud. Beames Plead. 34, 35, 236, 237. It is not stated in the plea, when or where the account was settled. The executor of a deceased 320 CASES IN THE COURT OF APPEALS Danels vs. Taggart's Adm'r. 1829. copartner, might by conniving with a surviving copartner, so settle the accounts of the partnership, as to bring the deceased partner indebted to the firm, and by that means sink the whole estate of the deceased partner, and divide the profits between themselves. Whether or not any such object was in view, in this case, is of no sort of consequence. The act is not sanc- tioned by principle. Wirt in reply. The only question in this case arises on the pleadings. Upon the coming in of the plea, the complainant should have amended his bill. No injury could arise from this mode of proceeding. That which is asked by the bill is for discov- ery and relief. If the plea is a bar to relief it is also a bar for a discovery. Cooper's Plead, 291. Is the matter pleaded a bar to the relief? A surviving partner may act as executor of his deceased partner. This is not denied; and if he can, why can he not settle the partnership concerns, and do what the deceased might have done? No settlement which the executor might make could benefit himself. He was always liable to be called on by a future administrator or the repre- sentatives of his intestate. While King was the executor of Taggart he was competant to give a discharge to any debtor, &c. No fraud is charged in the bill so as to affect the plea. The fraud to affect the plea must charge fraud in the settlement and the stated account. There is no more charged in this bill, than there is in all ordinary bills against the fairest characters in the community. If it is a bill for an account, then is the plea, an answer and bar to the account asked for. Mitford, 210, 211. The bill states that there had been no account settled, and calls for one. The plea in answer says that there was an account stated, &c. If the bill had charged an account settled by fraud, &c. Then the plea must have denied the fraud, &c. Drew vt. Power, \ Sch. &f Lcf. 1 92. Cooper's Pkad. 279. But here no fraud or error has been alleged to have taken place in the account stated. The plea is full to all essential parts. Why did not the complainant take issue on it, and put the defendant to his proof? The complainant might in a variety of ways have called for the account. But it is said that the plea must OF MARYLAND. 321 Danels vs. Taggart's Adm'r. 1829. be good in whole; and that if it is bad in part, the whole is vitiated. Mitford Plead. 243. Cooper's Pkad. 230. DORSEY J. delivered the opinion of the court To the plea of an account stated, filed by the appellant, various causes of demurrer, both general and special, were assigned by the ap- pellee; and upon hearing, the plea was overruled by the Chan- cellor. To test the correctness of that decision the present appeal hath been prosecuted. A preliminary question, however, presents itself for the con- sideration of this court, viz : is the decree or order, passed by the Chancellor in this case, of such a character, as to vest in the appellant an immediate right of appeal. That it does not, we think manifest, on reference to the principles established in the cases of Snowden et al. vs. Dorsey et al. 6 Harr. and Johns. 114, and Thompson vs. M^Kim, 6 Harr, and Johns. 302, and Wil- liamson vs. Carnan et al. 1 Gill and Johns. 184, and Hagthorp et al. vs. JVea/e, Jldm'r of Hook, I Gill and Johns. 270. It decides a mere question of pleading : it settles no right between the par- ties. "If the plea is overruled, the defendant may insist on the same matter by way of answer." Mitf. Plead. 248. The only conclusive effect of the decision then is, that it drives the party to the necessity of asserting the same defence in a different form of proceeding; the consequence of which is, that he is subject- ed to the expense of producing his testimony to substantiate the allegations, relied on as his discharge. The same expenditure, he must have incurred, had issue been taken on the plea; and for this expenditure, in contemplation /of law, he is indemnified by way of costs, if successful on the trial. It is not a decretal order, which in the language of the court, in Thompson vs. JW-Kim, "decides and settles the question of right between the parties," or, in that of Williamson vs. Carnan et al. which " so materially affects the rights and interest of the party, as to bring the case within the principle of Thompson vs. M'-Kim;" but it is simply a decision, on a question of pleading, which leaves the whole matter in controversy open for future ad- judication. VOL. I. 41 3-23 CASES IN THE COURT OF APPEALS Danels vs. Taggart's Adra'r. 1829. Waiving 1 , however, the objection to the regularity of the ap- peal; the overruling of the plea meets our entire concurrence. It is wanting in form and defective in substance : it contains not even the common conclusion, repeating the matters relied on in bar of the suit and praying judgment of the court, whether the defendant ought to be compelled to make any further or other answer to the bill. The plea states, in bar of the relief and discovery prayed for, " that the defendant finally settled and adjusted with John C. King, executor of the estate of Henry Taggart, deceased, after the death of said Taggart, an account in writing; and by said account, the balance, in writing clue to this defendant by the estate of said Henry Taggart y on the 25th day of October, in the year 1823, was admitted to be $38,341 16." The particular time or place, when the alleged settlement took place, is not slated, and, for aught that is contained in the plea, it might have beem made in the Slate of Maryland, after the granting of letters of administration to the appellee, and even after the commencement of this suit. But suppose it be conce- ded that the time of accounting was on the 25th of October, 1823, will this cure all objection to the plea as regards time ? unquestionably not. The bill charges the defendant with hav- ing collected (but says not when) after the death of Henry Taggart, a large amount or the whole of the debts, due to the firm of Henry Taggart ^ Co. amounting to $52,383 33; with having applied part of the personal property of Henry Tag- gart, enumerated in exhibits D and E, as of the value of $3260, to the payment of Henry Taggart fy Co's debts; but says not at what time the application was made. The bill also charges that Henry Taggart, at his death, was sole owner of schooners Centillo, Daphne and Cleopatra, and one third of schooner Leano, and held a large interest in the Brig El Presidente. That all of said vessels were taken posses- sion of and sold for the sum of 16,800; and the proceeds of sale applied to the defendants own use: but when the sales were made, and the proceeds received is not stated. That the Brig Aquila, owned by Henry Taggart, on her cruise between Feb- ruary and October, 1823, made many prizes, which were con- OF MARYLAND. 828 Danels vs. Taggart's Adm'r. 1829. demned and sold ; and the proceeds, amounting to upwards of $10,000, received by the defendants and applied to their own use, but when received is not alleged. That in a subsequent cruise she made captures, the proceeds of which were received by Danels, and amounted to upwards of $30,000; and subse- quently made prizes of great value, which were received in like manner. That Henry Taggart, at his death, owned one half of the Brig El Vencedor, the earnings of which, received by the defendant, Danels, had been $64,000, but when received does not appear. That individual debts, due Henry Taggart, at his death were collected by the defendants, and appropriated to their own use, to the amount of $57,440; of the time of re- ceipt nothing is said. Admitting then, what the plea does not distinctly aver, (but what is indispensable to its validity) the time when the account was stated, the Chancellor could not have done otherwise than overrule the plea. It covers not the case set forth in the bill : every word of it may be true, and yet according to the allegations of the complainant, the defendant may have received, subsequently to the time of adjusting the account stated, and be now bound to account for, all the items hereinbefore enumerated, amounting to the sum of $234,483 33. It is therefore no bar to the discovery and relief sought for. The plea, of an account stated, to such a bill as the present, cannot be sustained unless it be supported by an answer deny- ing the receipt of any part of the money for which he is called upon to account, subsequently to the time when the account stated was adjusted. But relieved 7 from this objection the plea is yet void for uncertainty. It alleges that the defendant Dan- els, settled and adjusted with John C. King, executor of Henry Taggart, " an account in writing;" but what transactions it em- braced : whether it related to all or any of the subject matters, now in controversy, we are furnished not with even the means of conjecture. For aught that appears it may have been an account settled between the parties of the partnership con- cerns of Taggart and Danels, anlerior to the admission of John C. King into the firm; or it may have been a settlement of transactions wholly unconnected with all or any of the claims of 3*4 CASES IN THE COURT OF APPEALS Coale, tt war. w. Barney, tt war. 1829. which the defendants are now called on to answer. Upon such a plea the plaintiff could not have taken issue. By doing so he would have admitted the sufficiency of the plea as a bar, if the facts which it asserted were established by proof. And if on such an issue the account stated had been proved, although it might relate to matters wholly foreign to those now in contro- versy, the bar would have been complete and the bill must have been dismissed. " Ir> pleading, (says Mitf. Plead. 237,) there must be the same strictness in equity, as at law ; at least in matter of substance." " A plea must follow the bill and not evade it." Mitf. Plead. 237. " All the facts necessary to render the plea a complete equitable bar to the case made by the bill, so far as the plea extends, that the plaintiff may take issue upon it, must be clear- ly and distinctly averred." Mitf. Plead. 240. The same doc- trine is found in Harr. Ch. 229, and Cooper's Plead. 228. Apply these principles to the plea before us, and all doubt of its insuf- ficiency must instantly vanish. Its defects are equally obvious, by comparing it with the precedent of a plea, of an account stated to be found in Harr. Ch. 618. The plea, professes to be a bar to all the relief and discovery called for by the bill, a part of which refers to specific pro- perty of the late Henry Taggart, now in the possessioi and user of the defendant Danels, to such part of the complainant's prayer, the plea of an account stated, cannot be urged as a bar. APPEAL DISMISSED WITH COSTY.. COALE, etux. vs. BARNEY, et ux. December, 1829. Upon a merely equitable estate, no writ of partition can be maintained i law. A failure to comply with an engagement to do a mere nugatory act, ought not to impair the rights of a complainant in equity to relief, when the facts of his case, otherwise concur, to sustain his bill. An agreement was entered into, on the 27th November, 1813, between the etstui que trusts for life, and remainder in fee, and the trustee, of a certain trust estate, held by the latter in fee, the object of which was to lease out OF MARYLAND. 325 Coale, et ux. vs. Barney, et ux. 1829. the trust property then unimproved, aud secure to the cestui que trusts in remainder, an immediate participation in the rents. For that purpose it was agreed, that the trustee should appoint an agent, to make leases for ninety -nine years, with liberty of renewal, for such rents as should be thought reasonable by the parties interested, payable annually during the terms, to the agent in trust, as follows : viz. one half to one c. q. t., in remainder, during her life; and after her death, to her children, their executors and administra- tors; one fourth to another c. q. t., in remainder for life, with a similar reser- vation to her children, &c. The other fourth, to the c. q. t. for life, during her life, and after her death to the last above mentioned c. q. t. in remainder, her executors and administrators. On the 29th September, 1823, a bill was filed by two of the c. q. t., against-the third, for a specific execution of the agree- ment, upon the ground that the defendant, since the year 1818, had prevent- ed the execution ofj the leases, and refused to do any act, towards carrying the contract into effect. This charge being established, and it appearing that the parties were near relations, and that the complainants had made frequent efforts for an amicable arrangement, IT WAS HELD, that there was an adequate consideration to support this agreement, for the violation of which damages to the full extent of the injury sustained, might be recover- ed; that the complainants had not slept upon their rights in such a way, as to shew the contract had been abandoned ; that Chancery has power to grant adequate relief, which could only be done by providing the means, neces- sary to carry into effect the leading object of the parties, the leasing the property at reasonable rents ; and that in doing this, it was the duty of the court, to gratify the minor provisions of the agreement, so far as it could be done consistently, with the accomplishment of the grand design. The defendant, in this case, was deemed to have forfeited the right of fix- ing the reasonableness of the rents, to be reserved in the leases referred to in the preceding contract, by shewing her determination to act in such a way, as to render her exercise of that ri^ht wholly inconsistent with the re- lief due to the complainants, and her right was therefore transferred to a trustee appointed for the purpose of executing the agreement ; which trustee was enjoined to execute lease/, for such rents, as he, together with the complainants, should think reasonable. Where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried irtto effect, according to its literal im- port, it is the duty of a court of equity, for the sake of the intent, to give it that construction which the rules of law will tolerate; and the intention of the parties, to be collected from the whole instrument, will justify. So the interests of the cestoti que trusts, in remainder, in the property referred to in the preceding agreement being real, and not personal estate, and as such, could not be limited to their executors and administrators. The court decreed the rent to be paid to the c. q. t. and their heirs, and this as to all the parties entitled to such rents. -TS6 Coale, tt iuc. vs. Barney, et we. 1829. APPEAL from the Court of Chancery. The bill, which was filed on the 29th of September, 1823, by the appellees against the appellants, and Hannah Kitty C/wse, stated that John Eager Howard, by his deed of conveyance, bearing date the 28th February, 1793, did convey to William Paca, a certain lot of ground, situate in the city of Baltimore, upon the terms and conditions of the exhibit A, hereinafter set forth. That after the execution of the said deed, and in the life time of Samuel Chase, his daughter Eliza Chase intermarried with George Dugan and Mary Chase, the female complainant intermarried with William B. Barney, the other complainant. After which, Samuel Chase died, and on the 2d of October, 1813, George Dugan died intestate, and without issue of the body of his wife Eliza. That Eliza, his widow, acquired in her right as his wife, a large amount of property, which placed her in very comfortable, if not affluent, circumstances. That Mary, the female complainant, having several children, and being in straitened circumstances, owing to ihe misfortunes of her hus- band in commerce, the said Eliza and Hannah Kitty Chase, the mother of Eliza and Mary, being desirous of bringing the said property into immediate action and use, and for the benefit of all parties interested in the same, which would otherwise have remained useless, both to Eliza and Mary, during the life of their mother, did, together with John P. Paca, the son and heir of William Paca, and to whom the trust aforesaid had descended by the death of his father, and with the complain- ants, execute an instrument of writing, whereby they agreed and covenanted to and with each other respectively, according to the terms of the exhibit B, hereinafter set forth, a copy of which was filed with the bill, and the original of which was to be produced when required. That Eliza Dugan, about the 29th of January, 1818, intermarried with Skipwith H. Coale, and she has since wholly refused to do any act whatever, to- wards carrying into effect, the agreement and covenant afore- said, and hath actually notified John P. Paca, and all the other parties interested, that she will never consent that the same shall be carried into effect. That in consequence of such, her refusal to comply with her said agreement, such OF MARYLAND. 327 Coale, et ux. vs. Barney, et ux. 1829. persons as are desirous of taking leases upon the said lot of ground, have been and still are deterred from doing so; and John P. Paca being but a trustee, and knowing that Eliza is in justice and equity bound to fulfil her agreement and covenant, is yet unwilling to incur the hazard which he apprehends from executing the power of attorney aforesaid. That by the bad faith and refusal of Eliza, the complainants are greatly damni- fied, and scarce possess the means of providing for the subsist- ence, much less for the education of the children of Mary. That she and her sister Eliza were educated and entered life together, and Eliza, at the time of executing the said contract, and until her last intermarriage, was altogether childless; while .Mary, who is the youngest sister, was the mother of several children, and hath since had several others, for whose mainten- ance and education, tenderness and duty alike have always heretofore, and now doubly prompt her to provide. The bill had a general interrogatory, and also a special one as to Eliza's conduct, and whether she did not execute the aforesaid agreement in manner and form, and under the circumstances aforesaid, and prays that Eliza may be compelled to do all such acts in the law as may be necessary specifically to put into execution her contract or agreement aforesaid, according to its true intent and meaning, &c. The bill also prays for all relief proper in the premises. The Exhibit .#, is a deed from John Eager Hoicard to William Paca, dated the 28th of February, 1793, whereby in considera- tion of the sum of five shillings, the/said Howard conveyed to the said Paca, his heirs and assigns forever, all that part of a parcel of a tract of land called Lunn's Lo, beginning for the said part at, &c. containing 21-8 acres of land. To have and to hold the following part of the said parcel of land beginning, c. containing one half acre and one thirty-second part of an acre of land, unto the said Paca, his heirs and assigns forever, in trust to and for the uses, &c. that is to say : In trust for the use and behoof of Samuel Clw.se, and Hannah Kitty Chase (wife of the said Samtiel Chase) for and during their joint natural lives, and the life of the survivor of them ; and after the death of the said Samuel CASES IN THE COURT OF APPEALS Coale, et ui. v. Barney, et ux. 1829. and Hannah Killy, to have and to hold one undivided moiety or half part of the said land and premises, in trust for the use and behoof of Eliza Chase, daughter of the said Samuel and Hannah Kitty, and the heirs of the body of the said Eliza Chase, and to have and to hold the other undivided moiety or half part of the said land and premises, in trust for (he use and behoof of Mary Chase, daughter of the said Samuel and Hannah A't/fy,and the heirs of the body of the said Mary Chase; and in case of the death of either Eliza or Mary without issue, cross remain- ders between them in tail, and with remainders over to Samuel and Thomas Chase (sons of the first mentioned Samuel) in distinct halves in tail, with cross remainders in tail between them; and with final remainders to Jinn Chase (daughter of the said Samuel) as to one half, and to her heirs in fee simple; and, as to the other half, to Matilda Ridgely (another daughter of the siad Samutl) in like manner. To have and to hold all the residue of the said part of the parcel of land, first above mentioned and described unto the said Paca, his heirs and assigns forever, in trust to and for the several and same uses, intents and pur- poses before mentioned, of and concerning the part of the said parcel of land last above mentioned; and on the further trust, &c. The Exhibit B, is an agreement entered into on the 27th of November, 1813, between John P. Paca, Hannah Kitty Chase, Eliza Dugan, William B. Barney and Mary his wife, reciting that " John P. Paca is at this time seized in fee simple, in trust for the said Hannah Kitty Chase, Eliza Dugan and Mary Barney, of and in a certain piece or parcel of ground, in the city of Baltimore, fronting on Lexington street, the breadth of 175 feet, and on Eulaw street, 186 feet, and binding westward- ly on Walshes alley, and on the south with an alley called Chases alley, which piece or parcel of ground is at present unimproved. And whereas, it is thought by the parties inter- ested, that it would be for their mutual benefit, that the said property should be divided into lots, and demised for ninety- nine years, with liberty of renewal, for such rents as may be thought reasonable by the parties interested, to be reserved by the said leases, payable annually during the said terms. And OF MARYLAND. 329 Coale, et iix. vs. Barney, et ux 1829. whereas, by reason of the distance of the said John P. Paca's residence, from this city, it would be inconvenient for him to execute the said leases, and to attend to the collection of the said rents, now, therefore, these articles witnesseth, that the above mentioned John P. Paca, Hannah Kitty Chase, Eliza Dugan and William B. Barney and Mary his wife, have mutu- ally and separately for themselves, their heirs, executors and administrators, agreed and covenanted, to and with each other, respectively, and to and with their respective executors and administrators, that the said John P. Paca shall, and will, by a good and sufficient power of attorney, by him duly executed, constitute and appoint Cumberland Dugan, of the city of Baltimore, his attorney, for the purpose of executing such leaT ses, and giving thereby full power and authority so to do. In which leases, the rents shall be reserved to be paid to the said Cumberland Dugan, his executors or administrators, in trust for the said Hannah Kitty Chase, Eliza Dugan and Mary Barney, in the following proportions : In trust as to one half of all such rents to be paid to the said Mary Barneys sole and separate use, during her life, annually, to her, and after her death to be paid to her children, their executors or administrators, in equal shares; to be discharged, during her life time, by her receipt," fee. And as to one fourth part of the said rent, in trust to be paid to the said Eliza Dugan, her executors and administrators. And as to the other fourth part, in trust to be paid to the said Hannah Kitty Chase, during her life, and after her death, to the said Eliza Dugan, her executors," &c. Signed and sealed by all the said parties. The only answers material, were those of Coale, and wife. They answered separately. Coale answers as to his hearsay and belief, that Mrs. Chase had not performed the consideration, on which the said agreement was founded, that of barring the entail of the said lot or parcel of ground, by uniting in a conveyance ; that she had made leases of the ground in question ; that Barney and wife had mortgaged their estate in it, and that the agreement had been abandoned. Mrs. Coale, in her answer alleges, that her mother agreed, but now refuses to unite with the other persons VOL. I. 42 330 CASES IN THE COURT OF APPEALS Coale, et WJT. ts. Barney, tt ux. 1829. having the remainder in tail, to bar the entail, which was the con- sideration of the agreement of leasing. That the agreement, ex- cept upon that consideration, was without inducement or con- sideration at all. That she had notified her opposition to the leases of the property, because her mother had violated the understanding on which the agreement was entered into. That she has children now, and that she offered to let the agreement be executed, if she should be allowed one half of the three- fourths of the rents. The complainants and defendants counsel on these answers coming in, ordered the register " to file the general replication," and to issue a commission to a person named by them. An agreement was entered into, to set the cause down for hearing at December term, 1 825, with liberty to either party to examine witnesses under a commission. BLAND, Chancellor, (December term, 1825.) It appears from the proceedings, that the articles of agreement mentioned in the bill of complaint, bearing date on the 27th of No- vember, 1813, ought to be specifically performed and exe- cuted, according to the true intent and meaning thereof, as prayed. Decreed, that Cumberland Dugan be, and he is here- by constituted and appointed a trustee for the purpose of exe- cuting and performing the said agreement; and the said trus- tee, shall immediately proceed to make such a lease or leas- ses, of the piece or parcel of ground described in the said articles of agreement, in such manner and upon such terms as he shall deem most advantageous and beneficial to all the parties concerned and interested in the same. In which lease or leases the rents shall be reserved, and made payable unto the said trustee, his heirs and assigns, in trust for the said Hannah Kitty Chase, Eliza Coale, and Mary Barney in the following manner, to wit. In trust, as to one half of all such rents, to be paid to the said Mary Barney's sole and separate use, during her life annually to her, and after her death to be paid to her children, their executors or administrators, in equal shares ; to be dis- charged during her life time by her receipt, &c. And as to one OF MARYLAND. 831 Coale, et ux. vs. Barney, et ux. 1829. fourth of the said rent, in trust, to be paid to the said Eliza Coale, her executors and administrators. And as to the other fourth part, in trust, to be paid to the said Hannah Kilty Chase during her life, and after her death to the said Eliza Coale, her executors, &c. Decreed also, that Coale and wife pay all the costs of this suit. From this decree, Coale and wife appealed to this court. The cause was argued before EARLE, MARTIN and DOR- 8EY, J. Mayer, for the appellants, insisted. 1. That the agreement for leasing the property was inoperative, and could not be re- garded by a court of equity. 2. That the bill, answers and pro- ceedings, do not present a case fit for the cognizance or specific interposition of Chancery. 3. That it was the duty of the com- plainants to allege the equitable merits of their claim leaving no doubt of those merits. 4. That the bill shows no equitable right ; and the answers of the appellants, rebut all pretensions of the bill. 5. That upon the bill, answers and proceedings, the decree was erroneous. 1. The answer of the defendant Mrs. Coale, is strictly re- sponsive to the bill ; and although there is a general replication, and no testimony taken, yet it was incumbent on the complai- nants to prove their case. The case must be considered on the bill and answers. The complainants must satisfy the court, that the agreement to be enforced is liable to no suspicion, and equitably fit to be carried into effect. 2 Pow. on Cont. 222. Seymour vs. Delancey, 6 John. Cfi. Rep. 222. 1 Madd. Chan. 321. 2. The agreement cannot be enforced. It depended on the discretion of Mrs. Coale, whether she would carry it into effect, or not. Equity can have no cognizance of it. The agreement gave Paca no more authority than he before possessed. He had no power to lease. For the non-fulfilment of the agreement none but nominal damages were sustained. Voluntary cove- nants are not to be enforced in equity, 1 Madd. Chan. 321, 327, 328. Minium vs. Seymour, 4 Johns. Ch. Rep. 497. Nor CASES IN THE COURT OF APPEALS Coale, tt ux. r. Barney, et ux. 1829. in any c:isr, where none but nominal damages can be recovered at law. 1 Madd. Chan. 288, 321, 328. Stapiltonvs. Stapilton, I Jltk. 10. Here only nominal damages would be recovered for refusing to permit Dvgan to be appointed an attorney to make the leases. It was only a covenant for the delegation of a pow- er. How could a decree be made to enforce the agreement? It is true, the Chancellor has passed one, constituting Dugan the attorney to execute the leases ; but it is wholly inequitable. Mrs. Barney is one of the complainants. She makes no conces- sion, and has no right to call lor the execution of the agree- ment. 3. But there has been laches fatal to the complainants' case. The agreement was entered into in 1813, and the bill was filed in 1823. Specific performance will, therefore, be refused. 1 Madd. Ch. 239, 330. Marquis of Hertford vs. Boore, 5 Fes. 720 (note 6.) Guest vs. Horn/ray, Ib. 818, 822. 4. There is no allegation in the bill that the property could be leased upon advantageous terms. 5. The answer of Mrs. Coale is separate from that of her husband. Husband and wife must answer jointly. Cooper'* Plead. 24, 30. Winchester, for the appellees. The whole of what has been urged, by the counsel of the appellants might be admitted, as having nothing to do with the case before the court. The de- fendants who resisted this proceeding, must sustain their case by proof in support of their answers. The answers are not re- sponsive to the bill. The agreement is a common- one to change the situation of the title to the property. It is a contract for a valuable consideration. The interest in the property was in Mrs. Chase during her life; and she and her daughters with a full knowledge of the subject, executed the agreement. There is no remedy for enforcing it, unless it can be enforced in equity. The court of chancery can enforce this contract. 1 Madd. Ch. 286. If the allegations in Mrs. Coalers answer, were all prov- ed, yet they have nothing to do with the claim set up by Mrs. Barney, to have the agreement carried into effect. But there OF MARYLAND. 833 Coale, et ux. vs. Barney, et ux. 1829. is no proof of any of the allegations in the answer of Mrs. Coale. The agreement is admitted there is no suspicion of its improper execution. But it is urged that the complainants have sustained no damage, or if any, only nominal damages. Suppose at law, it was proved that the property could have been leased for $1,500 or $2,000, but for the objection of Mrs. Coale to exe- cute the agreement, would Mrs. Barney be turned off with nominal damages. It is also alleged that there is no equity set forth in the bill. This is never done where it is for a specific' execution of a contract, as the contract is to speak for itself. The non-execution of the contract is shown by Mrs. Coale in her answer, shewing, that she prevented its execution. It is admit- ted that voluntary covenants or contracts are not enforced in equity ; but it is denied that this is a voluntary contract within the meaning of, 1 Madd. Chan. 321, 327. It has been said that the complainants have been guilty of laches. This must depend upon all the circumstances of the case, and the connexion of the parties to each other. Here were sisters, who no doubt, were not desirous of going to law, It is not similar to the ordinary cases, of persons wholly uncon- nected by relationship. It is not a contract of purchase and sale ; but it is a family compact in which all had a right to move. Forbearance, therefore, was a duty, and it was meri- torious. Mrs. Coale, in her answer, shows that the subject was constantly a source of correspondence between her and her sister, &c. and that a new agreement was at one time in agita- tion. Taney, (Attorney General) and Mayer in reply. 1 . The court will observe that the real estate in question in the cause stands conveyed to Mrs. Chase for life, with remain- der as to one moiety to Mrs. Coale, the appellant, in tail gener- al, and as to the other moiety to Mrs. Barney, the appellee, also in tail general. The leases cpntemplated by the agree- ment, which is sought to be enforced, reserve one fourth of the rents to Mrs. Chase, for life, another fourth to Mrs. Coale, and 331 CASES IN THE COURT OF APPEALS Coale, tt ux. v*. Barney, tt ux. 1829. " her executors and administrators" and the remaining half to Mrs. Barney for life, and to her children, and their executors and administrators after her death, and reserving further to Mrs. Coale and her " executors and administrators" after Mrs. Chase's death, the part of the rents secured to Mrs. Chase. The result of this prescribed reservation of rents is, that Mrs. Coale has only a life estate in the rent assigned to her, and that after her and Mrs. C/iase'* deaths, the rents as to one half, will entirely cease, neither accruing to the children of Mrs. Coale as her heirs, nor devolving upon Mrs. Barney or her children, by force of any constructive limitation, and the tenant will enjoy half of the ground free of rent. Co. Lilt. 47 a. 2 Roll. Abr. 289, 450. Dyer 45. 12 Co. 35. Cro. Car. 290. This is manifestly a most unreasonable stipulation, and so glaringly unjust to Mrs. Coale and her children, that we presume the court will not ef- fectuate an agreement, that involves such a forfeiture of prior admitted rights. If Mrs. Coale had an estate tail general in the land, the rents in all fairness ought to be co-extensive with such an interest, and any retrenchment, especially one which in- jures her without benefiting the other parties, must be pronounced inequitable in the agreement under consideration. We are told, that " every agreement to merit the interposition of a court of equity in its favor, must be fair, just, rea&nable, bona fide, cer- tain in all its parts, mutual, useful, made upon a good or valuable consideration, not merely voluntary." 2 Powell Contr. 221. 3 Ves. 420. 4 Fes. 480. 9 Fes. 608. Now, regarding the ineffec- tual reservation of rent as to Mrs. Coale, if this agreement be tested by the rule we have stated, it will be found without any of the equitable qualities, that agreements must have to be coun- tenanced by this court and specifically enforced. Can it be said to be "/air, just and reasonable," that Mrs. Coale and her children should be thus cut off from the substance, of nearly her whole estate in this land? If not where, looking to the other elements of the rule, can it be shown that the agreement in this respect, is " mutual," or has a good, and valuable consideration ? Can it be urged that the enjoyment of one fourth of the rent for her mother's life, is any equivalent for the privation of valua- OF MARYLAND. 335 Coale, et MX. vs. Barney, el ux. 1829. ble estate in tail general, and the disinheritance of her children? The suggestion will not bear an argument. By all the principles then that govern the jurisdiction of the court in such cases of spe- cific performance, this agreement cannot be sustained and carried into effect according to its terms, and the court must con- sequently repudiate it unless they have some power para- mount to the literal terms of the writing, by which they may give it effect without doing the injustice we have spoken of. Have the court this power of substituting phraseology, and de- creeing, as if the agreement reserved the rent conformably to the estate to Mrs. Coale and her heirs ? We are told that courts of equity can no more make con- tracts for men than courts of law. Lord Mansfield, Hoth am vs. East India Company, Doug. 277. The construction of a contract is all that courts of Law, or even of equity ever preten- ded to; not the formation of contracts. Courts of Equity, acting as to the/orm and mode of giving effect to contracts may be sup- posed to have gone the length of even devising new contracts, so as to bring into operation the so called spirit of the contract. But it will be found, that the contract in its prescribed boundaries is the text which they respect, and although courts of equity assume a discretion as to the mode and form of assuring the benefit of the contract, the sphere of that benefit is always the express and defined scope of the contract itself. It is true that courts of Equi- ty in regard to charitable uses, exercise a sort of controling dis- cretion, and execute the general intention of the party, as deno- ted, without any regard to limitations or any of his specific views, where the statute opposes them. / But this power is given by the statute of charitable uses, or derived from it, at least, by construction. At common law, no such power is asserted in any judicature. The cy-pres preformance of conditions, for instance, does not presume to transcend the express limitations but the doctrine simply requires that so much of the assigned condition as can, shall be fulfilled but it sanctions no construc- tive equivalent no discretional substitution. The most obvi- ous and noted instances of the seeming departure of courts of Equity, from the terms of contracts in dictating specific per- :yjr CASES IN THE COURT OF APPEALS Coale, ( ( K.r. vs. Barney, < / ux. 1829. formancc, are cases of marriage settlement. 1 JVewl. Cont. Ch. 19. Pow. Con. 40. But on examination it will be found, that the courts do not there enlarge or contract the scope of the benefit as declared and defined by the contract or increase or diminish the persons or objects to be benefited, as explicitly set forth by the contract itself. Thus where there is an agreement in con- sideration of marriage, to settle an estate on the husband and the heirs of his body from the marriage, a Court of Chance- ry very properly esteem the children of the marriage within the marriage consideration, and included in the "heirs of the body," and, inferring that those heirs are to be benefited, (just as the common law in all estates tail infers,) an agreement of such a tenor, is executed in Chancery by a strict settlement on the hus- band, and his sons and the heirs of the body of such sons. But here, and so in all the instances in the books, the court acts with- in the range of the expressed contract; its test being that it shall have no occasion to superadd any thing to the contract in order to consummate it; and adopting the safe principle, that the court shall not take upon itself the sentiments, and identify itself with the situation of the party, but interpret his views as his words denote and limit them in his contract when all fair equitable circumstances concur to incite it to act at all. Courts of equity have the same principles that Courts of law acknowledge in defining and circumscribing their discre- tional power ; but acknowledge the actual convention of the parties as the only subject of their consideration, and its declar- ed scope, therefore, as marking out the latitude of their discre- tion. And without the principles which have been asserted, no such thing as a defined contract can exist, and judicial power will supersede all private right, and judicial discretion be desul- tory and boundless. Now, if the agreement in question in this cause were silent as to the appropriation of rents, equity, accor- ding to common law itself, would give them to the holders of the estate. But here the terms of the leases in this particular are unequivocally limited and no other appropriation can be made that will not contradict the express reservation. Expres- sio unius est exclusio alterius. The conclusion, therefore, must OF MARYLAND. 337 Coale, et ux. vs. Barney, et ux. 1829. be that the court cannot add, or interpolate, any words to give the contract a just and legitimate effect; and, unable to execute it as it exists with all the inequitable consequences it now in- volves, they will leave it, to avail as it may at common law. 2. There is another circumstance which appears to us con- clusive against the interference of the court for the specific per- formance of this contract. The citations we have made show that a contract, to be entitled to specific performance, must be mutual all parties must be bound to perform it. To use lord Eldorfs words, 2 Powell, 232, 234. 4 Fes. 849, " all parties must be bound, or none." Now, how[ stands this point of reci- procal co-equal obligation in regard to the present agreement ? The agreement is between Mrs. Chase Mrs. Barney and her husband and Mrs. Coale, while a widow. Will it be said that Mrs. Coale could legally, or even equitably, enforce this contract against Mrs. Barney, whose proper estate was the sub- ject of her (Mrs. 2?'s) engagement ? It is the legal liability that is the test of the proper mutuality, but at all events, equity fol- lows the law in the case of a married woman's agreement, who has no special disposing pmcer given her under which she may make it. Besides, too, where no damages are recoverable at law on a contract, equity will not enforce it and upon that principle alone, then, the contract could not be enforced in equity against Barney and wife. 2 Powell, 242, 252. It may be said that this latter principle is too generally stat- ed but it will be found substantially correct. The only ex- ceptions to the rule, in its literal dcopc, being where the ina- bility to recover on the contract at law, arises from want of form in the contract, or where the relation between the party claiming and the party liable makes a suit technically imprac- ticable, as in case of husband and wife. 2 Powell, 17. Here there is a manifest want of the mutuality which is an es- sential property of all contracts that may be specifically en- forced in equity. With that, too, falls all idea of a due consi- deration for the agreement. If Mrs. Barney could not be com- pelled to execute the contract, how oppressively unequal is Mrs. Coalers situation, if she is to be held liable-, and where then is VOL. I. 43 338 CASES IN THE COURT OF APPEALS Coale, et vx. vs. Barney, et ux. 1829. the consideration for her being so? Mrs. Barney and Mrs. Coale held together the estate in the land, equivalent to a fee simple and without Mrs. Barney's estate being brought into action, the agreement would be entirely inoperative. There is no ground to say, and can be no pretence, that Mrs. Barney had any peculiar disposing power over this estate beyond that which a feme covert has over any estate which she may have owned before marriage. This property was not even settled to her "separate use," in terms or effect ; which is necessary to make it equitably her separate property that is : so as to give her any right to deal with it as if she were a feme sole. But in|re- gard to real estate even thus made separate property, a power must be expressly reserved to the wife of disposing of it as a feme so/e, else she has no special privilege in that respect. Now in this case, Mrs. Barney had before her marriage a trust estate in tail general of which she had no more right to dis- pose, except by deed with her husband and upon private exam- ination, than if it were her legal as well as equitable estate. It is established that equity recognises no distinction between trust and legal estates in land in reference to femes corert or tenants in tail, or in any respect whatsoever where no special power of appointing is given by the assurance to the wife, or there be not some express and unequivocal stipulation to make the case an exception. If Mr. Dugan had made leases under the agree- ment they would have had no validity as to Mrs. Barneys inter- est^ she being commuted in them only by her agreement. If such would have been the case under tJie agreement, is there any ground for complaint that Mr. Dugan did not proceed to make these futile leases ? and inhere then is the mutuality and consideration in reference to Mrs. Coale? And it may be asked, if the agreement would have authorised no valid leases as regards Mrs. Barney's interest, how can the decree of Chancery pro- duce such effect, resting as it does on the efficacy of the con- tract alone, which, in the particular of Mrs. Barney's interest, is intrinsically nugatory. 3. There must be great difficulty in framing a decree to carry this agreement into effect. Indeed no decree, consistent- OF MARYLAND. 339 Coale, et ux. vs. Barney, et ux. 1829. ly with the agreement, can pass, that shall be absolutely com- pulsive against Mrs, Coalers interest, or paramount to her and her husband's private judgment, as to the expediency and acceptance of the leases that may be proposed. The agree- ment refers to leases that reserves " such rents as may be thought reasonable by the parties interested." There is no doubt that Courts of Law and of Equity may judge of the reasonableness of considerations but in no case can they exercise that author- ity where the " point of reasonableness is expressly referred to the judgment of the individual, and especially the interested indi- vidual." If the stipulation had been simply that " reasonable rents" should be reserved, the court might, no doubt, have determined the reasonableness. But that is not the stipulation in this instance. And here the court, if they act at all on this agreement, must not only take from the party the right of judg- ing the reasonableness of the rents, but, not even themselves exer- cising it, they must delegate it to a stranger and make his judg- ment the imperative rule of our private interests. The case, in this its essential aspect, involves grave and momentous consid- erations which, touching the high and sacred rights of individ- ual property, must be obvious to the court, and will, we are assured, induce them to pause on the question of their jurisdic- tion and however in the abstract they may deem that the par- ties ought to execute the agreement specifically, they will, and must, consider as a point of solemn interest how far they can, within their legitimate province, devise a mode of adversely executing it and how far they rn^y set aside the right of the individual's discretion, which is reserved in the contract as part of that disposing power of her property, consecrated by the Constitution and the first principles of natural justice. DORSEY, J. delivered the opinion of the court. Against any decree for the specific execution of the agreement mentioned in the proceedings in this cause, many distinct and independent grounds have been relied on, by the solicitors for the appellants. First, it was contended that the refusal of Hannah Kitty Chase, as alleged in the answer of Eliza Coale, to perform her promise &40 CASES IN THE COURT OF APPEALS Coale, it x. vs. Barney, et ux. 1829. of uniting for the purpose of docking the estate tail; (which promise, it is said was the main inducement with Eliza Coale, to enter into the contract,) is sufficient to induce the court to withhold that relief which it might otherwise have been dis- posed to grant. Without deciding the question so warmly contested in the argument; whether the answer, without further proof, can sustain a defence thus founded on new, and as it were independent matter, (which it unquestionably could not, unaided by the unsafe and unusually comprehensive interroga- tory in the conclusion of the bill of complaint,) it is sufficient to say, that this ground of resistance, is swept from the appel- lants, by the decision of this court in the case of JVewf on, et al. vs. Griffith, et al. 1. Harr.fy Gill, 111, which determines that estates tail, to the heirs of the body generally, created after the first of January, 1788, are, by the operation of the act of descents, converted into estates in fee simple absolute. And this case cannot evade the rule thus established by the fact, that in Neicton and Griffith, the question arose on the legal title to land, here the principle is to be applied to an equitable interest In this respect equity must follow the law. The alleged promise of Hannah Kitty Chase, to unite in docking the entail, was therefore an engagement to do a nugatory act; her failure, to comply with which, ought not to impair the rights of the appellees. It can hardly be necessary to notice one of the objections relied on : that a Court of Chancery cannot enforce- the contract against Eliza Coale, because it was wholly voluntary on her part; as she was to receive no consideration for her agreement to lease. If it be "no consideration" that the mother, a tenant for life, transfer one half her interest to her daughter, in pro- perty to which the daughter was entitled in remainder, to obtain the daughter's assent to such an improvement of the property, as would (for aught that appears in the record) produce inconvenience or loss to no person interested; but was indispensable to any beneficial enjoyment of it by the mother; it is difficult to conceive, what, in such a case, would be re- quired, as an adequate consideration. OF MARYLAND. 341 Coale, et ux. vs. Barney, et ux. 1829. We are told by the appellants solicitor, that the great depre- ciation in real property, and especially in the city of Baltimore, is matter of public history, of which the court must judicially take notice, and that, although a regard to her own interest, might prompt Eliza Coale to agree to lease in 1813: yet the state of things is now entirely changed, and to enforce the agreement at this time, would be subjecting her to great hard- ship and loss. The condition of this country, in 1813, and a few years afterwards, was an accidental and unnatural one; the like may not again occur for centuries, and it is matter of sheer speculation and great doubt, whether the interest of all con- cerned would not be promoted by an immediate leasing of the property. But if there be hardship and loss in the case, to whom is it to be imputed? To Eliza Coale, whose refusal to perform her agreement, prevented the execution of leases, when rents had reached their most unreasonable height. Had she not thus refused, from that transfer by her mother, which is now called " no consideration," she would have received in rents, up to this time, a sum of money, greater in amount, than the entire value of her present interest in the property: and, independently of rents received, her interest in the property would now have been/^our times as valuable as it is. In this she is not the only' sufferer. But the consequences of this controversy are n#w visited, in a much higher degree upon her sister, Mrs. Barney. It was also urged, that by another rule of chancery jurisdic- tion, the appellees were prevented from obtaining the interpo- sition of a Court of Equity: viz. pat where a party had a com- plete remedy at law, (as might here be had by a writ de par- titione facienda:) or where nominal damages only could be recovered at law, a specific execution of the contract will never be decreed. In answer to this it may be replied, that the rule referred to has no application to the case before us. It does not appear that the lot of ground is susceptible of a division into moieties; and if it were, even if no life estate intervened, the estate of the appellees being merely equitable, no writ of parti- tion could be sustained at law. That if it could, the condition CASES IN THE COURT OF APPEALS Coale, tt we. vs. Barney, et we. 1829. of the parties, under such a proceeding, would be different from what it would be under the agreement. If partition were made at law, 'tis true, that Barney and w/e, with Hannah Kitty C/uwe, might (as is stated) lease a moiety of the ground, for ninety- nine years, renewable forever, reserving the rent to Mary Barney and her heirs; but, non conslat, that she would be willing to do so. She might with con/enience assent to giving her daughters three-fourths of the rents, reserving her life estate in the remaining fourth: yet it by no means follows, that she could conveniently bestow upon one daughter the entire rents of one half of the property; whilst the other half, in its unimproved condition, continued on her hands destitute of value. That so far from nominal damages only, being recoverable, for such a violation of contract, damages to the full extent of the injury sustained by the appellees, would certainly be recovered. Another ground more strongly relied upon against the appel- lees is, that they have slept upon their rights, in such a way as to shew that the contract was abandoned. And many cases have been referred to, between vendors and vendees of real estate, in which a Court of Chancery has denied all aid to those, who have not been vigilant arid active in asserting their rights; or, in the language of some of the cases, who have not been always " ready, desirous, prompt a*id eager," to comply with their portion of the contract, and to enforce on the other party, a like compliance with its stipulations. A contract to lease, say they, is to all beneficial purposes a sale; its effects being the same. This position would not be denied, if this controversy were between a lessor and lessee; nor would the conclusiveness of the authorities cited be questioned, if this were a case between vendor and vendee. The justice, the policy of this rule is most obvious; the grossest frauds and injustice would be practised, if it did not prevail. But for this, stale contracts virtually abandoned, though not formally released; in case of a sudden rise or fall in the value of the thing contracted for, would be set up, and the party com- plainant would unfairly gain what the party defendant would unjustly lose : an amount precisely equal, to the appreciation OF MARYLAND. 343 Coale, et ux. vs. Barney, et ux. 1829. or depreciation which the property had undergone ; could that, in any event, be the predicament of the parties to this suit? Certainly not. As regards enhancement or diminution of price, their interests are homogeneous, inseparable; profit or loss can happen to neither, without a proportionate participation by both. Except in the class of cases adverted to, no authority has been produced to shew that for such laches and under such circumstances, as are before us, relief has been denied under the presumption of a waiver or abandonment of the contract. The delay of the appellees, in proceeding to assert their rights, is considerable; but it is satisfactorily accounted for, and the weight of the objection entirely fails when we reflect on the near relationship of the parties concerned, and look to the answer of Eliza Coale, and see what efforts were made to effect an amicable arrangement of the dispute, and that the door of negociation is still open, and that this implied abandonment of contract is no where insisted on in the answer. The answer does not state, nor has any proof been offered to shew, that the consummation of this agreement will work any particular hardship upon the appellants, or subject them to loss, inconvenience or sacrifice of any description. Why then, these appellants should persist in a course of conduct, by which they have already lost in rents, more than the value of their whole interest in the property, is inconceivable. The hardship of the case lies altogether on the other side. A large lot of ground, as is stated in the agreement, lying "in the city of Baltimore " " unimproved :" owned by a mother for her life, with remainder in moieties to her' two daughters in fee, is kept in a situation to be of no annual value to any of them, by the refusal of one of the daughters to permit its improvement in the usual and only practicable mode; when by complying with the solemn contract into which she has entered, she would relieve the wants of a needy sister and family, for whom she professes great affection and concern; and be herself invested with the immediate enjoyment of one half of that, to which she was only entitled in remainder; and this too, without lessening her interest in her other moiety. Ill CASES IN THE COURT OF APPEALS Coale, et ttx. vs. Barney, et ux. 1829. The last ground, upon which a reversal of the decree was demanded, was; that it was erroneous, inasmuch as it depart- ed from the sense and terms of the agreement, in investing Dugan, the trustee, with the privilege of judging of the reason- ableness of the rent: a privilege reserved to Eliza Coez/e, as one of the persons interested. That this court have the power to grant adequate relief, in a case like the present, we have no doubt. Such relief can only be had, by providing the means necessary to carry into effect, the great leading object of the parties ; the leasing the proper- ty at reasonable rents: and in doing tbis, it is our duty to gratify the minor provisions of the agreement, as far as it can be done, consistently with the accomplishment of the grand design. To pass a decree, as is suggested, tbat leases should be made at sucb rents as Eliza Coale sbould sanction, would be doing a nugatory act. She has, by her conduct in this transaction, shewn a fixed determination that no leases shall be made, if she can prevent them: unless at a sacrifice, of the interests of her mother and sister, which she is not warranted in demanding. She has therefore forfeited this right, by acting, and shewing a determination to act, in such a way, as to render her exercise of it wholly inconsistent with that relief, to which the clear equities of the appellees entitle them. In transfering the pow- er to another tribunal, the court know of none more safe, none so convenient, as the trustee by whom the leases are to be made and executed. So much of the Chancellor's decree there- fore, as appoints Cumberland Dugan, trustee for the purpose of executing and performing the agreement, and gives costs to the appellees should be affirmed with costs : but the residue of said decree must be reversed, because the leases are not decreed to be made for ninety-nine years with liberty -of renewal, as direct- ed by said agreement: and upon a ground not involving the gist of the controversy between the parties, and therefore, per- haps, not noticed in the argument : but which obviously appear- ing on the face of the decree, cannot be disregarded by this court. One fourth part of the rents received by the trustee, are directed to be paid to the said Eliza Coak, her executors OF MARYLAND. 345 Coale, etux. vs. Barney, et ux. 1829. and administrators ; and in like manner, one other fourth after the death of the said Hannah Kitty Chase. The interest of Eliza Coale, in that portion of the rents, to her payable, under the deed from John E. Howard to William Paca, is real, not per- sonal estate; and as such cannot be limited to her executors and administrators after the manner of personality. Such a limita- tion is contrary to the rules of law, and by it nothing passes but a life estate to Eliza Coale: her executors or administrators take nothing. Vide 6 Ba. Mr. p. 21 , tit. Rent, letter H. Tis true, the decree of the Chancellor has literally pursued the agree- ment; but where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried into effect according to its literal import, it is the duty of a court of equity for the sake of the intent, to give it that construction which the rules of law will tolerate, and the intention of the parties to be collected from the whole instrument will justify. This will be effected, by ordering the rents to be paid to Eliza Coale and her heirs instead of executors and administrators. As authorities to shew that courts of cecity to gratify the intent, construe agreements even contrary to the words, we would refer to 1 Srid. Ind. 430. pi 67, and to 5 Ves, 399. 1 P. Wms. 234. Although the appellees do not appear before us, seeking any revision or alteration of the decree ; yet as it is to be new-mod- eled to secure the rights of the appellants : such a change should be made in it, as will do equal justice to both parties. Instead therefore of Mary Barney's moiety of the rents, after her death, being made payable to her children, their executors and adminis* trators, as directed by the decree; it should be to her children and their heirs. And as the appellees have done nothing, which could authorize a court of Chancery to transfer to Cumberland Dugan the right, which by their agreement they have reserved to themselves, of deciding on the reasonableness of the rents reserved ; the trustee should be enjoined to execute leases for such rents, as he, together with William Barney and Mary his wife, and Hannah Kitty Chase should think reasonable. A decree, in conformity to these suggestions will be signed by the court. VOL. I. 44 31f CASES IN THE COURT OF APPEALS Union Bank of Maryland rs. Edwards. 1829. UNION BANK OF MARYLAND vs. EDWARDS. December, 1829. The rule, that a court of equity will sometimes adopt a more liberal and en- larged construction than prevails at law, can never be tolerated, unless it be necessary to effectuate the motives which induced a contract. Relief, by the doctrine of substitution, is never extended to a security, but up- on the assumption that the creditor's debt has been, or is to be fully paid that his further detention of the mortgaged property, is against equity and good conscience. So where a mortgage was executed, for the purpose of securing the payment of all and every sum or sums of money, then owing, or which might there- after be due and owing, from the mortgagor to the mortgagee, upon any promissory note, or notes negotiated or to be negotiated with the mortgagee, of which the mortgagor might be drawer, or endorser, or otherwise how- ever, and upon sale of the mortgaged premises, the proceeds being insuffi- cient to pay a note of the mortgagor's to the mortgagee, for which the lat- ter had no other security than the mortgaee ; it was held, that aji accomo- dation endorser on a note of the mortgagors, discounted by the mortgagee after the execution of the mortgage and before the sale, could not call upon a court of equity to distribute the fund above mentioned, rateably, in pay- ment of both notes. APPEAL from the Court of Chancery. In this case a bill was filed on the 18th of December, 1822, by the appellants y against William Stansbury, for the sale of certain lots of ground in the city of Baltimore, mortgaged by him to them, on the 27th of July, 1822, for the purpose of securing the payment of all and every sum or sums of money then owing, or which might thereafter be due or owing from Stansbury to the Union Hank, upon any promissory note or notes negotiated, or to be negotiated at the said bank, which was or might be drawn or endorsed, or otherwise however; with a proviso, that if Stans- bury should, when thereunto required, pay unto the said bank, all and every, the sum or sums of money then owing, or which might thereafter become due or owing from him to the said bank, either upon any promissory note or notes that had already been, or which might thereafter be negotiated at the said bank, of which he might be drawer, or endorser, or otherwise how- soever, then the said mortgage was to be void. Such proceed- 5 ngs were had upon the said bill, on coming in of the answer, admitting the facts stated in the bill, and consenting to a decree OF MARYLAND. 347 Union Bank of Maryland vs. Edwards. 1829. for the sale of the mortgaged premises, and that out of the pro- ceeds of sale, the sum of $20,000 due to the complainants, with interest thereon, should be paid; that at December term, 1822, a sale was decreed ; provided that not more than $1 9,258 be paid to the complainants. The property was sold by the trus- tee, appointed for that purpose, to the amount of $12,005 33, and the sales were ratified. On the 10th of December, 1824, and also on the 21st of February, 1826, Elizabeth Edwards (the now appellee) filed her petitions. The first petition stated, that in the year 1822, she had loaned her name for a small amount to William Stans- bury, and had either drawn or endorsed notes for his use and accommodation accordingly, which notes had been and were discounted by the Union Bank. That subsequently thereto, Stansbury wishing to obtain further discounts at said bank, and in order to secure the payment of all and every sum or sums of money, then due, or which might thereafter become due, and prevent any loss whatever, on the notes so loaned or endorsed by her, or by other persons, or which might thereafter be loaned by her or others, and discounted at said bank, did on the 27th of July, 1822, execute a deed of conveyance by way of mort- gage to the said bank, whereby he conveyed to them his real estate, or the greater part thereof, which was large, and con- sisted of a variety or number of lots and improvements, situate in the city of Baltimore. That the said property was intend- ed and expressed in the said deed to be conveyed for the pur- pose of securing the payment of all and every sum or sums of money, then due and owing, or wKich might thereafter become due or owing, from Stansbury to the said bank upon any pro- missory note or notes negotiated, or to be negotiated at the said bank, of which Stansbury might be the drawer or the en- dorser. That the understanding and intention of all the parties, being, that the said property should be responsible for all notes negotiated or to be negotiated, at the said bank for Stansbury, and the petitioner believing the said property to be valuable at the time, and sufficient to secure a large amount ; and believing further, than in the event of a failure of Stansbury at any time to pay such notes, the said property would be sold, and the peti- 348 CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards. 1829. tioner and the other drawers and endorsers made responsible only for any deficiency (if any existed,) or that upon their paying such notes, the same could be assigned to them, she did not hesitate from time to time, to renew the notes which she had drawn or endorsed for Stansbury before said deed was execu- ted, and also draw and endorse other notes in his favor, for his accommodation, which were discounted or continued at the said bank. The petition then stated the filing the bill by the bank and the sale of the property, &c. Prayer, that the proceeds of the sale may be applied to payment pro rata of the said notes held by the bank, and drawn and endorsed by Stansbury, &c. The last petition after referring to the proceedings which had taken place in this case, stated, that the said mortgage from Stansbury to the complainants, was designed and intended by the parties thereto, to secure all the notes discounted or nego- tiated at the Union Bank, for Stansbury's use, or in the event of its falling short of the whole amount, then upon a sale becom- ing necessary, that the proceeds should be applied rateably to the discharge of said notes. That the complainants now seek to apply the whole proceeds to the extinguishment of a par- ticular debt, alleged by them to be due and owing to them from Stansbury; although the petitioner conceives the same is not embraced by the mortgage, and forms no part of the nego- tiated notes discounted for his use, 'and which alone were in- tended to be secured by the mortgage Prayer that the audi- tor be directed to state an account excluding the present alleg- ed claim of the complainants, and distributing and applying the proceeds to the payment of the notes negotiated by Stansbury at the said bank, and there discounted for his use and accommo- dation; and another account whereby the same funds shall be distributed and applied rateably to the alleged claim of the complainants, and to the notes negotiated and discounted for Stansbury; and that the complainants produce to the auditor the several original promissory notes held by them and discounted for the use of Stansbury, &c. To this petition the complainants answered, stating among other things, that in the year 1822, and previous thereto, Stans* OF MARYLAND. 349 Union Bank of Maryland vs. Edwards. 1829. bury was indebted to them to the amount of $15,000 and up- wards, upon certain promissory notes discounted by them for the use and benefit of Stansbury; and that on some of these notes made in the fall of the year 1822, the said Elizabeth Ed~ wan/s's name appeared as drawer or endorser; that on the 27th of July, 1822, Stansbury executed the deed of mortgage, &c. That after the execution of the said mortgage, Stansbury con- tinued to present paper whereon he was drawer or endorser, for various amounts and at various times, with intent to have the same discounted for his use and benefit, which said paper was from time to time discounted, and portions thereof were also from time to time renewed by other notes. That these negotia- tions were continued until 1824, and in June and July of that year, Stansbury then stood indebted upon notes whereof he was drawer or endorser, viz. a note for $8700, drawn on the 17th June, 1824, by Stansbury in favor of J. P. cashier, at sixty days. A note drawn on the 12th of July, 1824, by Stansbury in favor of Elizabeth Edwards for $600, and endorsed by her, and Wilmer and Palmer. Three notes, the first dated the 8th of July, 1824, for $1800; the second dated the 14th June, for $1200, and the third dated the 19th of July for $700. All three drawn by Elizabeth Edwards in favor of Stansbury, and by him endorsed; and Stansbury, was also indebted to the said bank on two notes, the first drawn by JV*. M. Bosky in favor of Stansbury for $300, dated the 17th of June, 1824, and the other drawn by J. Medtart in favour of Stansbury for $200, dated the 17th of July, 1824, both/of which notes were subse- quently paid by their respective drawers; but the other notes before mentioned never were paid to the bank, and still remain due and unpaid. That soon after the execution of the deed of mortgage, the respondent filed their bill for the foreclosure there- of, the same having become forfeit, and a decree by consent was accordingly obtained for a sale, &c. That the property was sold to the amount of $12,005 33. That the said sum was answerable for the payment of certain liens there out, which were to be paid before any portion of the above mentioned notes were entitled to be liquidated; which said liens con- 350 CASES IN THE COURT OF APPEALS Union Bank of Maryland rs. Edwards. 1829. sisted of, &c. which said liens thus reduced the amount subject to the payment of the said notes to a sum less than $8000. That the sum thus left is not sufficient to pay the first note due by Stansbury for $8700. They utterly deny that there AV.IS any understanding or agreement between them and Eliza- beth Edwards or Stansbury, that the mortgaged premises when sold should be applied to pay the notes whereof Mrs. Edwards was either drawer or endorser, or that any pro rota distribution of the fund should be made in her favor, or that there was any agreement or understanding between the said parties, other than that recited in the said deed of mortgage. They aver that in granting the discounts as aforesaid to Stansbury, they were regulated by their opinion of the solvency of Mrs. Edwards, in determining whether they would grant discounts with her name; and took her name as a further and additional security for the payment of the notes by Stansbury, lest the security of the mort- gaged premises should be, as it turned out to be, insufficient for their indemnification against loss; and they would not have lent their money upon the security of Mrs. Edwards's name, if they had been apprized that she could or would claim any benefit from the security of the mortgaged premises, as she now pre- tends to do by her petition. They are advised that Mrs. Ed- wards has no right in equity or in law to claim a payment of the notes whereon her name appears, until all the liabilities which were intended to be secured by the said mortgage be first sa- tisfied. Prayer that the petition be dismissed, and the respon- dents be permitted to take such benefit from the mortgage as they are entitled in equity and conscience to demand. Affidavits were filed by Mrs. Edwards ; one of them, that of William Stansbury, who made oath that Mrs. Edwards became drawer or endorser on notes discounted at the Union Sank for the accommodation of the deponent, some time in August, 1822; that her name was substituted upon said notes for R. Middle- ton's, who was considered as in bad credit; and that Mrs. Edwards consented to lend her name on said notes under the express assurance that the payment of them was fully secured by the mortgage deed of a large amount of property to the OF MARYLAND. 351 Union Bank of Maryland rs. Edwards. 1829, said bank, which he believed would have been amply suffi- cient to have secured the payment of all the notes at the said bank, had it not been disposed of at an immense sacrifice. BLAND, Chancellor, (April 28, 1826.) The matter now presen- ted to the consideration of the court, arises out of the petition of Elizabeth Edwards and the answer thereto of the bank. The counsel on both sides have been heard, and the proceedings- considered. It appears, that Stansbury, the defendant, with a view to ob- tain such loans of money as he might want, on the 27th of July, 1822, mortgaged the whole of a considerable proportion of hi& property to the Union Bank, the plaintiff; which, it was stip- ulated should stand as a security for all and every sum or sums of money then owing, or which might thereafter become due and owing from Stansbury to the bank, either upon any pro- missory note or notes, that had then been or might thereafter be negotiated at the bank, of which he might be drawer or endor- ser or otherwise howsoever. At the time this deed was made y Stansbury, it is alleged, was indebted to the bank to the amount of $15,000 and upwards, by notes, of which he was- either drawer or endorser; and some of which were endorsed by Elizabeth Edwards, the petitioner. After which, on the* 18th of December, 1822, the bank filed their bill here to haver the mortgage foreclosed; and on the 27th of the same month,, by consent, obtained a decree for a sale; and, a sale has been made accordingly. But notwithstanding this judicial proceed- ing, the negotiations between these parties were, from time to time, renewed and continued down to the month of July, 1824 when it appears, that Stansbury stood indebted to the bank to a considerable amount by promissory notes; one of which, datedl ion the 17th of June, 1824, for 88700, was given by Stansbury directly to the bank itself without any endorser; all the other notes were endorsed or drawn by other persons the greater amount by Elizabeth Edwards, the petitioner. The case is somewhat complex; but it appears to me, to be resolvable into this : The Union Bank is the creditor of Stans- 352 CASES IN THE COURT OF APPEALS Union Bank of Maryland rs. Edwards 1829. bury to a considerable amount, for the payment of the whole of which it holds Q lien upon the mortgaged property, and for a part it holds the additional personal security of Edwards^ en- dorsements of Stunsbury^s notes. This relationship of prin- cipal and debtor, and of a surety to a creditor who held a pledge of property as an additional security, existed, as relates to Ed~ wards, on the execution of the mortgage deed, and has been, from time to time, revived, renewed, and continued ever since. I shall, therefore, consider these parties as now standing in this predicament and relation to each other. The petitioner insists on having the proceeds of the mortga- ged property, applied to the payment of the aggregate amount of debts due by Stansbury to the bank, as far as they will go, without distinction or discrimination. On the other hand, the bank contends for the right to apply those proceeds exclusively to the payment of Stansbury's note for $8,700, on which they have no endorser or other personal surety than Stansbury him- self. The relationship of creditor, principal debtor, and surety, lays the creditor under certain obligations, which he is not allowed by either a court of law or equity to violate with impunity. Al- though, as between obligee and surety, there is no obligation of active diligence against the principal ; and delay, unaccompani- ed by fraud, or a positive agreement with the principal, will not operate as a release of the surety, "yet, if a creditor undertakes, by express stipulation, to extend the time of payment, or to allow the principal to pay by instalment ; or if the obligee be- gins to sue the principal and afterwards gives time ; or if the creditor in any manner waives, or postpones his right to sue im- mediately the debt becomes due, the surety will be discharged, as well at law, as in equity. Because, immediately, on the next day after the debt becomes due, the surety has a right to file his bill here, to force the creditor to bring suit-, and, therefore, an express and stipulated indulgence given by the creditor to his principal debtor is fatal to his claim against the surety, since it deprives him of this equity. OF MARYLAND. 353 Union Bank of Maryland vs. Edwards. 1829. The taking of a mortgage by the creditor from the principal debtor, is calculated to inspire the surety with confidence. He is thereby induced to relax in his vigilance ; and to for- bear obtaining a sufficient guaranty as an indemnity against his eventual liability. Such a mortgage becomes a trust for the di- rect interest of the creditor, and also, for the direct benefit of the surety. From such circumstances, therefore, an equity arises, that the creditor shall not invalidate, or by any wilful act vitiate his mortgage security to the prejudice of the surety. And also, because the surety, should he be compelled to pay the debt, has a right to call upon the creditor to be put into his place, in all respects ; since, in equity, or such an event, he be- comes entitled to be considered as the substitute of the creditor; and to have the mortgage, and all other securities given by the principal debtor, assigned to him. And this right of the surety stands not upon any thing expressed in the contract, but is based upon the principles of natural justice. The principles in relation to double securities and marshaling assets do not strictly apply ; but, they have a bearing which fortifies and illustrates the equity by which this case is govern- ed. In those cases, where a creditor has two funds, he shall take his satisfaction out of that fund upon which another credi- tor has no lien, or which he cannot reach. This, however, is done for the benefit of creditors, not of the debtor, though it ari- ses out of his acts, and he does receive benefit from it. This doctrine, in relation to double securities, and marshaling assets, has been long established here; and/ is, I am inclined to believe, carried farther than in England. ( To illustrate this matter, let us suppose, in this instance, that Elizabeth Edwards was dead, and that the proceeds of her real estate were now here to be distributed among her creditors. If the bank were to present their claims, as founded on these notes of Edwards, endorsed as surety for Stansbury, the court would require them to show, that Stansbury, the principal debtor, was insolvent, before they would be allowed to come in for a distributive share of Edwards's assets. This marshaling of the assets and securities would be made only, at the instance, and for the benefit of Edwards's cre- VOL, I. 45 3W CASES IN THE COURT OF APPEALS I Hiou Bank of Maryland vs. Edwards 1821). ditors; yet her representatives might also receive material benefit. But, in this case it is a surety, not a creditor, who asks to have the burthen of this claim shifted over from one point of pressure to another. It is the surety who wishes the creditor to be directed to take his satisfaction from his principal debtor, so far as he can obtain it, before he is allowed to demand payment of the surety. It is believed, that a Court of Equity has never, in any case, gone so far, at the instance of a surety, as to turn a creditor away from one fund upon which, according to the ex- press terms of the contract, he had a fair and an unquestionable claim, to seek payment from another, as he could, and which might, or might not, be made effectual. Nothing can be more delicate than the interference, either of the Legislature or of the Court of Chancery, taking away those stipulated rights which the debtor has thought fit to grant. Such an arrangement, or marshaling of securities, it seems to me, would be pressing too closely upon that constitutional restriction, which forbids even our Legislature from impairing the obligation^ contracts. The surety is the guarantee, and it is his business to see, whether the principal pays, and not that of the creditor. But, where nothing is hazarded, and every thing may be at- tained which was contemplated by the parties, when they enter- ed into the contract ; in such case a court of equity may fairly, and safely interpose ; because, by doing so, it does not, in any sense, impair the obligation of the contract ; but a new and equitable direction is given to it, for the prevention of wrong, and for the purpose of doing more ample justice to all. And, therefore, where it is shown, that the creditor has the clear means of making his demand effectual, and there is no risk, delay or expense; as when the money was in the next ro&m, or an ample indemnification against the consequences of risk, delay and expense, the surety has a right to call upon the cre- ditor to do the most he can for his benefit. As if the surety depo- sits the money, and agrees that the creditor shall be at no ex- pense, he may compel the creditor to prove under a commission of bankruptcy, and give the benefit of the assignment to the sure- OF MARYLAND. 355 Union Bank of Maryland t?s. Edwards 1829. ty in that way. Other examples might be adduced equally strong to show, that a creditor may, under circumstances, be called on to act for the benefit of the surety. In those cases, it is not by force of the contract; but of that equity upon which it is con- sidered against conscience, that the holder of the securities should use them to the prejudice of the surety, where he himself can be exposed to no risk whatever. Here it is clear, that the mortgage comprehends all the debts due by notes from Stansbury to the bank, as well those for which Edwards, as drawer or endorser, was surety, as all others. And it is certain, that the bank can run no risk in doing what is now asked ; because the proceeds of the mortgaged property, are now in the hands of this court, or of the trustee, its officer, ready to be delivered over. To the extent of these proceeds, therefore, this creditor not only has the clear means, but the absolute certainty of rendering his demand effectual against his principal debtor. As the bank would not have been permitted to invalidate or enfeeble its mortgage to the prejudice of Edwards, so neither can they be allowed to shift and misap- ply its benefits to her disadvantage. If the bank chose to trust Stansbury on his note and mortgage alone, and they should sus- tain any loss, they have only themselves to blame. It is enough for Edwards, and sufficiently maintains her equity, that the bank cannot lose any portion of the debt for which she is surety, by having that pledged property first applied towards its satisfaction, since it clearly formed a part of that aggregate amount of debt, intended to be secured by the mortgage. Upon the whole, it is my opinion, that the proceeds of this mortaged property, or so much thereof as may remain after all prior liens upon it have been fully paid, must be applied to the satisfaction of the total or aggregate amount of the sums of mo- ney due on notes by Stansbury to the bank ; and that Edwards, as surety, is entitled to the equitable benefit of this application of these proceeds ; and that she is liable to the bank for the ba- lance and no more. As for example, if the bank should obtain from these proceeds only twenty-five cents in the dollar with interest, Edwards must be held liable for seventy-five cents in 366 CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards 1829. the dollar with interest, to the amount of which she was surety and no more. Wherefore it is ordered, that this case be, and is hereby again referred to the auditor, with directions to state an account or accounts according to the principles that have been thus ex- plained and determined. The complainants afterwards on the 17th of July, 1826, pe- titioned the Chancellor for leave to 'amend their answer to the petition of Elizabeth Edwards for the purpose of introducing therein a variety of facts which were unknown to the Chancellor at the time of the hearing, and that a re-hearing may be had, &c. Accompanying the petition were several affidavits, with a list of the notes drawn by the said Edwards, &c. BLAND, Chancellor, (July 19th, 1826) after hearing the soli- citor of the petitioners on the foregoing petition, and consider- ing the same, together with the proceedings. Ordered, that the said petition be dismissed with costs. From which several or- ders in the premises the complainants appealed to this court. The auditor afterwards, on the 1st of May, 1827, reported an account, and thereby applied the nett proceeds of the sales, to the payment of the trustee's commission, costs of suit, ground rents and taxes, the prior mortgage to Richard Sommerville, and dividends on the amounts of the notes held by the bank. The counsel of the parties entered into an agreement, after the appeal was depending in this court, " that the affidavits filed by the appellee in support of her petition, and those filed by the appellants with the petition of the 17th of July, 1826, be receiv- ed as evidence in the cause, as if the same had been duly taken before the hearing of the same. And also the auditor's last report, be confirmed by the Chancellor, and be admitted as part of the record in this cause, as if the same had been done before the appeal was entered ; and that all other audits be dispensed with." BLAND, Chancellor, (25th June, 1828.) On consideration of the agreement this day filed, Ordered, that the statement of the OF MARYLAND. 357 Union Bank of Maryland vs. Edwards 1829. auditor be ratified and confirmed ; and the trustee directed to apply the proceeds accordingly, with a due proportion of in- terest that has been or may be received. The cause was argued in part at June term, and concluded at the present term, 1828, before BUCHANAN, Ch. J. and ARCHER and DORSEY, J. Kennedy for the appellants contended, that the Chancellor erred in his opinion as expressed in his orders in the cause, for the following reasons : 1. That Mrs. Edwards, who was the drawer of certain notes, which were discounted by the appellants for the use and benefit of William Stansbury, was not entitled to have the same admit- ted to a rateable dividend upon the mortgage fund, until the appellants were satisfied in their principal debt of $8700 against Stansbury. 2. That there was error in directing the account to be so stated, as to include the notes of Mrs. Edwards, the fund not being sufficient to pay the note of Stansbury, which had been discounted upon the security of the mortgaged premises alone. 3. That the Chancellor erred in supposing, against the facts of the case, that the notes of Mrs. Edwards were in existence t the date of the mortgage, and designed to be secured by it 4. That he also erred in the opinion, that the appellants were guilty of any laches in availing themselves of the mortgage fund, to the prejudice of the appellee. / 1. Parol evidence is admissible to explain an equitable mort- gage; also, that an absolute deed was intended as a mortgage Ex parte Langston, 17 Fes. 227. 3 Stark. Evid. 1052, 2. Mrs. Edwards has assumed the privilege of a surety. She cannot stand as a surety. He adverted to the case of Clapper vs. Union Bank of Maryland, 7 Harr. $ Johns. 92. When, the mortgage debt is paid, then the surety is to stand in the place of the creditor. Mr*. Edwards might come in for the sur- plus. Hays V8. Ward, 4 Johns. Ch. Rep. 123. Cheesebrough* vs. Millard, I Johns. Ch. Rep. 409. Stevens vs. Cooper, Ib. 43Q. CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards. 18:29. Wright vs. Simpson, 6 res. 734. Craythornc vs. Swinburne, 14 Fes. 1G1. 3. The notes of Mrs. Edwards, were not a substitute in the place of the notes drawn or endorsed by Middleton. If they were, such substitute could not have been for more than $500. 4. He denies the want of due diligence on the part of the bank. There was no application made to the appellants by the surely to proceed against the principal. Wright vs. Simpson, 6 Fes. 734. King vs. Baldwin, 2 Johns. Ch. Rep. 554. R. Johnson, for the appellee. I. Assuming Mrs. Edwards to be a surety of Slansbury, and as such, that she would have been entitled to the benefit of the mortgage. Has she placed herself in a situation to claim the protection of this court ? The debt has not been paid ; and the surety is entitled to the benefit of the pledge made for its payment to the creditor. Hayes vs. Ward, 4 Johns. Ch. Rep. 132. The proper time for applying to the Court of Chancery for apportionment has arrived. Ex purte Langston, 17 Ves. 227. 2. Is not Mrs. Edwards to be considered as a surety, and entitled to protection as such, though she was not known by the bank? Clopper vs. Union Bank of Maryland, 7 Ilarr. fy Johns. 92. Claythornc vs. Swinburne, 14 Ves. 170. The mort- gage being of record, showed to the world, that whatever not 3 was drawn or endorsed by Stansbury, came within the provi- sions of the mortgage. 3. Is not Mrs. Edwards entitled to be protected by the mort- gage, equally with the other endorsers of the notes of Stansbury? The mortgage was not to pay any particular note or debt then due to the bank; and in the answer of Stansbury to the bill filed against him for a foreclosure of the mortgaged premises, he stated that he owed the bank 820,000. The decree by con- sent, was, however, to pay the complainants not exceeding $1 9,258. This sum covered the whole amount of all the notes of Stansbury, including those drawn or endorsed by Mrs. Edwards. There is nothing in the mortgage to show that it was to secure the preferred debt of $ 8700, arising upon Stansbury^ OF MARYLAND. 359 Union Bank of Maryland vs. Edwards. 1829. note to the bank, on which there was no endorser ; and no parol evidence can be admitted to contradict the mortgage. 4. The agreement relative to the evidence taken after the decree, was not intended that the whole of what was contained in the affidavits should be used as evidence ; but only such as was legally admissible. A great part of the facts proved, do not apply to the issue between the parties, flayward vs. Carroll, 4 Harr. 8f Johns. 521. Jones vs. Slubey, 5 Harr. 8f Johns. 382. Westley vs. Thomas, 6 Harr. # Johns. 24, 27. The evi- dence is that the mortgage was executed to secure a particu- lar debt due at the time. In the answer to the appellee's peti- tion in the case under the agreement, the bank prayed to amend it, which the Chancellor refused to grant. The evidence was inadmissible on the ground that it contradicted the mort- gage. It changes the legal operation of a particular clause in the mortgage. Westley vs. Thomas, 6 Harr. fy Johns. 27. Watkins vs. Stockett, Ib. 435. The mortgage was to secure all notes drawn or endorsed by Stansbury. 5. The evidence is sufficient to show that the notes drawn by Mrs. Edwards, were a substitute for the notes which had been drawn by Middleton in favor of Stansbury, and by him en- dorsed to the bank; and that the notes so drawn by Middleton, were in the bank at the time of the mortgage. Williams, (District Attorney of TJ. S.) also for the appellee. The bank could not but know most of the transactions and inten- tions of the parties in 1822, rather/ than in 1826. The mort- gage, bill, answer and decree were all in 1822, and show the clear understanding of the parties. Middletori's were clearly accommodation notes commenced in 1821, and continued to August, 1822. They were then retired by Mrs. Edwards' 1 3 notes, and not by the receipt of $9000. In Baltimore the bor- rowers on accommodation notes generally, almost universally appear as endorsers and not as drawers. All the notes are dated two years after the mortgage deed; and, therefore the terms of the mortgaged are insisted on. The notes of Middk- ton and of Mrs. Edwards, were expressly proved to be ac- 360 CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards. 1829. commodation notes, this was proved by Stansbury. Certain de- positions were filed after the Chancellor had decreed on the proceedings under the petition of Mrs. Edwards. The deposi- tion of Pinkncy contradicts that of Stansbury, and is contradict- ed hy all probability and bank operations. The deposition of Stunsbury contradicts his former deposition, and is contradict- ed by the deposition of Frisby, which is mostly to be relied on Stansbury is a director of the bank. The bank cannot elect to apply this money. 1. Because the deed of mortgage forbids such election; and parol testimony is not admissible. 2. Because they signified a different election at the time of filing their bill, &c. Ham. Dig. 253. Devaynes vs. A*o6/e, 1 Meriv. 608. We appeal from the conduct of the bank in July, 1826, to their conduct in 1822; and insist on the decree of 1822. No parol understanding can be admitted to contradict the mortgage, bill, decree, &c. especially so as to affect third parties. 1. The bank do not pretend an ignorance that the notes of Mrs. Edwards were accommodation and not real notes, until after the decree of 1826. Yet Mrs. Edwards expressly states them to be accommodation notes in her first petition. But it is no matter whether the bank knew it or not, if thej were really so. Her notes were substituted for those of Middleton; and are so proved. If they were not substituted; yet her notes are com- prehended in the terms of thejnortgage, bill, answer and de- cree, &c. 2. The bank had the power to limit all their discounts to within the value of the property; while Mrs. Edwards had no such control. 3. The late language of the bank, and Pinkney's deposition are inconsistent with their being real notes. 4. Mrs. Edwards is prima facie entitled under the mortgage deed; and she is only to be thrown out by being shown to be a debtor. She relied on the mortgage as recorded. She does not ask for the money, but only asks for its proper application. OF MARYLAND. 361 Union Bank of Maryland vs. Edwards. 1829. Taney (Attorney General) in reply. The question is, whether or not the fund arising from the sale of the mortgaged premises, is to be applied to the payment of a particular note, mentioned in the mortgage, or pro rata, to the payment of the whole of the notes ? The mortgage was given to secure the debt of $9000, and neither the Bank, or Stansbury, understood or intended, that any other note was to be paid, or secured by it, until after the payment of that debt. This is proved by Pmfcwei/and Stansbury. The mortgage was for the benefit of the Bank, and not for the securities. 1. Independent of the parol evidence, what is the effect of the mortgage ? it was taken by the bank for its own benefit, not to indemnify securities. The bank could never have inten- ded to place themselves upon the footing, on which the decree has placed them. The liability of the endorsers, &c. was superadded to that of the mortgage. The endorsers have no equity they were not deceived by the bank the bank is not responsible for what Mrs. Edwards might have in view, or thought, or was informed on the subject, not proceeding from it, or its agency. The mortgage embraces all notes, whether Slansbury be drawer, or endorser, principal, or surety suppose Stansbury, to be the endorser; then he is to come in, according to the decree as surety, and claim to be exempted pro rala all securities are not of necessity to contribute pro rata, it de- pends upon the engagement entered into. Craythorne vs. Sicin- burne, 14 Ves. 160. The mortgage was not to project the securities at the ex- pense of the bank. Suppose Stansbury to be solvent, and able to pay his debts, could not the bank, go against Mrs. Edwards, and leave her to her remedy against Stansbury. She has no right to demand of the creditor any fund, until the creditor is satisfied. Could she come upon the fund, and compel the bank to proceed against Stansbury, if he was in a condition to pay ? 4 Johns. Ch. Rep. 123,124,131. 2 Johns. Ch. Rep. 554. VOL. I 46 CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards 1829. JJ/rs. Edwards's notes were not substituted for those of JWid- dleton. J\Ir. Pinkncifs evidence disproves that, and none of Mrs. Edwards notes correspond with t Miihllcton > s. Mrs. Edwards was not a security on any of the notes when the mortgage was executed. JWiddlelori's was a real and not an accommodation note. 2. If the parol evidence is admissible, it is conclusive. Is it admissible? Between these parties it is, to shew what debt, it was the object of the mortgage to secure. The mortgage is no estoppel as to JWrs. Edwards, as she was no party to it. As between the immediate parlies to the instrument parol evidence would be inadmissible; but the rule is different, as regards a stranger. There can be no estoppel, unless it is mutual. It operates between the parties to the instrument, but does not apply to strangers. 3 Stark. Evid. 1052, 1054. Craythorne vs. Swinbttrne, 14 Fes. 159, 168, 170. The parol evidence is not offered to contradict the terms of the mortgage; but in aid of it, to shew the amount of the sum raised who were the drawers, and who the endorsers. This is not a case in which a regular issue is joined. A fund is in court, which two parties claim. The question was how the fund was to be distributed ? Not to be placed before the court, by bill and answer, or any regular form of pleading. Nothing more was necessary, than to state the ground, upon which each party, claimed the fund. 3. It is said the bank was too late. That the decree for the sale changed the relative situation of the parties. The Chancellor dismissed the petition of the bank, upon the ground that he had made up his opinion, as to the manner in which the fund should be distributed. R. Johnson for appellee In explanation of the rule as to the admissibility of parol evidence. The rule in relation to parol evi- dence is, that no one of the parties to the written contract, can introduce it, especially as against strangers to it. As between parties to the instrument, it might be admitted in some cases. Union Bank vs. Belts and wife, I Harr. &f Gill, 175. OF MARYLAND. 863 Union Bank of Maryland vs. Edwards. 1829. DORSEY, J. delivered the opinion of the court. The rights of the parties in controversy in this cause, entirely depended upon the true construction of the mortgage from William Stansbury to the Union Bank of Maryland, bearing date the 27th day of July, 1822. Its objects as set forth in the recital, was to secure the payment to the Union Bank of Maryland, of all and every sum, or sums of money then owing, or which might thereafter become due or owing 1 from the said William Stansbury to the said bank, upon any promissory note or notes negotiated, or to be negotiated, at that bank, of which he was or might be either drawer or endorser. He is described as/ a merchant of the city of Baltimore, and it is apparent that by the execution of this deed, he designed not only to provide an indemnity to the bank for what he -already owed, but to obtain for himself a credit at that institution, which would induce a more free discount or negotiation of notes, on which Stansbury's name should appear as either drawer or endorser. Such a facility is an object of primary importance to him who is en- gaged in commercial pursuits. Its value to Stansbury is mani- fest, enabling him to obtain an immediate accommodation discount of nine thousand dollars on his own note, without an endorser. In litigating these rights, it is competent for either party to prove, what notes drawn and endorsed by Stansbury, and discounted at the Union Bank, existed on the 27th of July, 1822, when the mortgage was executed; and also all such as were negotiated at that bank, subsequently to that period. The first negotiation of Elizabeth Edwards's paper, was in Sep- tember, 1822. To this mortgage, Stansbury and the Union Bank alone were parties. Under it at law, no right was acquired, no interest passed; upon it, 'no action could be maintained but by the bank. All the circumstances which preceded its existence, and imme- diately followed its birth, demonstrate that the object of its execution was, not to indemnify those who were or might become his drawers or endorsers; but to ensure to the Union Bank, the payment of all notes negotiated by them, on which his name might appear either as maker or endorser. 'Tis 364 CASES IN THE COURT OF APPEALS Union Bank of Maryland vs. Edwards 1829. true, if the fund had been sufficient, those who were on his paper, would in equity be protected from loss. But this was a consequence, not the design of his act. The legal construction of this instrument, is in strict accordance with what we have stated as the manifest object of its creation Such being the posture of the parties at law; upon what. prin- ciple is it, that a court of equity can be called on to change their condition ? In construing agreements, it is said a Court of Chancery will sometimes adopt a more liberal and enlarged construction, than prevails at common law. But this latitude, if it exist at all, can never be tolerated, unless it be necessary to effectuate the motives which induced the contract. Here, no such necessity exists. The most perfect harmony prevails be- tween the agreement executed, and the obvious intention of its framers. To adopt the interpretation of the mortgage, which was insisted on for the appellee, viz : that the property was conveyed to the bank, in trust to be appropriated rateably to the payment of all notes negotiated with them, of which Stans- bury was either the drawer or endorser, would be to defeat a leading object of Stansbury in making the conveyance. In- stead of giving additional credit to his name, and a consequent increase to his favors at the bank ; it w r ould have been the most effectual means which he could have adopted, to exclude him- self from all further discounts. As he then stood, the payment of the nine thousand dollar note, was amply covered by the property mortgaged. But every additional discount in propor- tion to its amount, reduced the security for the payment of that note. So that should the bank have increased their accommo- dations to Stansbury to ninety thousand dollars, they would thereby have relinquished nine-tenths of the security, which they had previously held for the payment of the note of nine thou- sand dollars. Nay, such are the positive terms of this deed, if clothed with the attributes of a deed of trust, which are attempt- ed to be affixed to it, that should Stansbury, holding a real note of the most opulent merchant in Baltimore, have obtained its discount at the Union Bank, eo inslanti, such merchant might demand its entire, orp-o rata payment out of Stansbunfs mort- OF MARYLAND. 365 Union Bank of Maryland vs. Edwards 1829, gaged estate. The deed providing, not merely for the payment of notes negotiated for the account or accommodation of Stans- bury, but of all notes bearing Stanbury's name, no matter for whom discounted. The attempt to sustain the claim of the appellee by the doc- trine of substitution, is equally untenable. Such relief is never extended to a security, but upon the assumption that the credi- tor's debt has been, or is to be fully paid : that his further deten- tion of the mortgaged property is against equity and good con- science. Can it be deem.d an equitable substitution, which whilst it left in full force and unsatisfied, the just claims of a cre- ditor, should wrest from him tb^ fund specifically pledged for their payment, and leave him destitute of any other source to which he might apply for indemnity? If after satisfying all debts due to the Union Bank on Stansbury^s notes by them dis- counted, there should remain a surplus of the mortgaged fund, to that amount, might the drawers and endorsers of his accommo- dation notes, who had made payments to the Union Bank, seek to be substituted ? The order of the Chancellor ratifying the auditor's state- ment, making a rateable distribution of the proceeds of sale of the mortgaged premises, between Elizabeth Edwards, and the Union Bank of Maryland, is reversed with costs, so far as regards the application of the funds to the payment of Stans- frwry's notes negotiated at said bank. The order, so far as it ratifies the residue of said statement, is affirmed. This court will sign an order or/decree, directing the trustee to pay the amount thus applied to/ the Union Bank of Maryland on account of William Stansbury^s notes to them for $8700. 366 CASES IN THE COURT OF APPEALS Hays vs. Richardson. 1829. HAYS vs. RICHARDSON. December, 1829. No person who U called as a witness, not being a party to the suit, can refuse to give testimony on tne ground, that he may thereby become liable to a civil action not of a penal nature, or sustain pecuniary loss, or that the Terdict may be used as evidence against him in some other civil proceeding then pending, or which may thereafter be instituted. A witness on the roir dire, may by the party objecting to his examination in chief, for the purpose of shewing his interest, be called on to state the con- tents of written instruments, which are not produced; and the reason as- signed is, that the party objecting, could not know previously, that the wit- ness would be called, and consequently, might not be prepared with the best evidence to establish his objection. An instrument of the following tenor "I hereby authorize R to open, and con- tinue open, a road through my field, beginning at, &c. as also to build, keep in repair, and use a bridge over the branch, in the field on which the said road will pass, .said road and bridge being intended as well for the public use, as the use of R; and to continue until R and myself shall agree it shall be shut up or altered;" executed under the hand and seal of the owner of the land, is a grant of an incorporeal hereditament, a right of way de novo, which will endure until both parties agree upon its discontinuance, and which must be acknowledged, and recorded according to our acts of registration. A right of way in esse may pass by deed of bargain and sale, duly acknow- ledged and recorded. A transfer of way de noro may be by grant or lease, but cannot be effected by way of bargain and sale. A right of way may be said to lie in the county where it exists, or is exercis- able. The acts of Assembly of 1715, ch. 47, and 1766, ch. 14, being in pan materiti, must be construed together as one system. The first having embraced in- corporeal tenements, and hereditaments, there is no reason why they should be excluded from the second. The act of 1766, cannot be confined to conveyances only by which the land itself passes, for the design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records. If contradictions or incongruities exist between the preamble, and enact- ing clause of a statute, the latter shall prevail. A cotemporaneous, unvarying construction of an act of Assembly, for sixty years, ought not to be disregarded but upon the most imperious and conclu- sive grounds. APPEAL from Harford County Court. This was an action on the case for obstructing a way, whereto the plaintiff below (now appellee) claimed right by virtue of an instrument of OF MARYLAND. 367 Hays vs. Richardson 1829. writing under the hand and seal of one Joshua S. Bond. The declaration stated that on the 7th of October, 1820, at, &c. a certain Joshua S. Bond, being seized in his demesne as of fee of a certain close there situated, by his grant under his hand and seal, bearing date the day and year aforesaid, (which is now here shewn to the court) authorised the plaintiff to open and continue open a road through his the said Joshua S. Bond's field, to wit : The said close beginning at the end of the short lane near the house of the plaintiff, and intersecting the Balti- more road, near a chesnut tree; and the said -Joshua thereby also authorised the plaintiff to keep in repair, and use a bridge, over the branch running through the said field. And the plain- tiff also says that by the grant aforesaid, it was declared that the said road and bridge were intended as well for the use of the public at large, as for the use of the plaintiff, and that the said uses were to_ be enjoyed until the plaintiff and the said Joshua S. Bond should agree that the said road, intended to be opened as aforesaid, should be shut up or altered. And the plaintiff avers that afterwards, &c. he opened a road through the said close of the said Joshua, beginning at the end of the said short lane near his the plaintiff's house, and terminating, at, or near a chesnut tree, thus intersecting the road leading towards Baltimore, and continued to pass and repass over the said road with his ser- vants and horses, &c. for a long space of time to wit, at, &c. And he further avers that after the said road was opened, the citizens of this state passed and repassed over the said road. And the plaintiff further avers tha after the said road had been by him opened as aforesaid, while the said grant was in full force and effect, and had not been determined nor any agree- ment made between the said Joshua S. Bond, and the plaintiff, by which the said road should be shut up or altered; the defen- dant well knowing the premises and disregarding the rights of the plaintiff, and intending to injure the plaintiff and deprive him of the use and benefit of the said way, to wit, on the 10th of August, 1823, and on divers other days and times, &c. obstruct- ed the same road by placing, &c. and demolished the bridge across the same, &c. by means thereof, the plaintiff could not CASES IN THE COURT OF APPEALS Hays v*. Richardson 1829. during the time aforesaid, have or enjoy his said way, as he of right ought to have done, to wit, at, &c. And the plaintiff fur- ther says, that he during the time aforesaid, being a public Inn keeper, was much damaged and injured in his trade and calling by divers citizens, as well travellers as others, during the said time being greatly obstructed and hindered in their passage to and from his said Inn, the said road herein before mentioned, then and there leading from or near his said Inn, to the said other road leading towards the city of Baltimore, to wit, at, &c. Wherefore the defendant (the appellant) pleaded not guilty, and issue was joined. 1. At the trial, the plaintiff called Francis A. Bond as a wit- ness, who being examined by the defendant on the voir dire, stated that in case the plaintiff should recover in this cause, he considered he should be obliged to pay the defendant the amount of the verdict, damages and costs, as one of the heirs of Buck- ler Bond, who had conveyed with the covenants in the deed hereinafter inserted, the land over which the way in the declara- tion mentioned passes, to the defendant before the time stated of the trespass complained of, and that he was unwilling to tes- tify in this case for the plaintiff. The defendant then prayed the court that the witness should not be compelled to testify for the plaintiff. But the court [Hanson, A. J.] directed the wit- ness to be sworn; and he was sworn accordingly in chief. The defendant excepted. 2. The defendant further asked the witness Francis A. Bond, while on his voir dire, if in addition to the interest mentioned in the first bill of exceptions, he was or was not interested as the holder of a promissory note or acceptance, conditioned to be paid onjy after deducting the damages and costs in this case, that might be recovered from the defendant. But the court held that witness could not answer this question, inasmuch as the note spoken of was not produced. The defendant excep- ted. 3. The plaintiff then proved that the said Joshua L. Bond mentioned in the declaration in this cause, was* seized in fee of the land over which the said road passed; that the said Bond OF MARYLAND. 369 Hays vs. Richardson. 1829. gave to the plaintiff the following instrument of writing which was duly proved. " I hereby authorise William Richardson to open and continue open a road through my field, beginning at the end of the short lane near his house, and intersecting the present Baltimore road, at or near a chesnut tree, as also to build, keep in repair, and use a bridge over the branch in the field on which said road will pass, said road and bridge being inten- ded as well for the public use, as the use of Win. Richardson, and to continue until William Richardson and myself shall agree it shall be shut up or altered. Witness my hand and seal this 7th day of October, 1820. Joshua S. Bond, (Seal.)" And that the plaintiff opened the said road and repaired the bridge in pursuance of the terms of the said instrument of wri- ting, and used the same ; and that the defendant on the 20th of August, 1823, obstructed the road aforesaid as stated in the declaration, and the plaintiff who was a tavern keeper by the obstruction aforesaid was with many others prevented from using the said way. The defendant then offered in evidence a deed duly acknowledged and recorded from said Joshua S. Bond and a certain Buckler Bond, conveying said land to defen- dant in fee ; dated the 4th of June, 1823, which contained a cove- nant against all prior incumbrances and liens. And upon which deed there was a certificate of the delivery of seisin, to the defendant who further proved, that on the day on which the deed aforesaid was executed, that the said Bond delivered pos- session of the land mentioned in said deed to him. The defen- dant then prayed the court to direct the Jury, that the plaintiff was not entitled to recover, whicn direction the court refused to give. The defendant 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 and DORSET, J. Mitchell and R. Johnson, for the appellant, contended: 1. That the agreement of Bond with the planliff was no grant, and could not be pleaded as such. VOL. I. 47 370 CASES IN THE COURT OF APPEALS Hays M. Richardson. 1829. 2. That if it was a license, it was determinable at the will of Bond. 3. That if not so, the remedy was against Bond only, and not against the defendant, who was a purchaser of the soil with- out notice of this claim. 4. That if it were a grant, it ought to have been recorded to take effect against the defendant, as a purchaser without notice. 5. That if it is to operate as a grant, or otherwise to confer an interest, it is a public road, for the obstruction of which no private action can lie in favor of the plaintiff. 6. That there is a variance between the contract proved, and that declared upon. 7. As to the first bill of exceptions, the witness was directly interested in the event of the suit, and the verdict would have been good evidence against him ; aud, therefore, as a party in- terested could not be compelled to testisfy. 8. As to the second bill of exceptions, the question to the wit- ness was proper, notwithstanding the non-production of the note. 1st. Because the note was not within the power of the defen- dant, nor in the possession of the plaintiff. 2d. because the question was on the voir dire to the interest of the witness alone. 1. The agreement was no grant to the plaintiff as he has pleaded it. He has declared on it, as a right of way to him- self; whereas if it is a right of way, it is not to the plaintiff alone, but to the public as well as to the plaintiff. The way when opened, was a public way. 3 Bac. Jib. tit. Grants, (G) 387. 2. But it was not a grant at all ; and if so it was determinable at the will of Bond. 4 Bac. Jib. tit. Leases for years, 178. Bishop of Bathes Case, 3 Coke, 35. There is no difference be- tween grants and leases ; and where a lease depends upon the will of both parties, it is at the will of either party. 2 Blk. Com. 146. 4 Com. Dig. tit. Estate, (H) 60, 63. Here Bond put an end to the right of way by his grant to the defendant. The plaintiff was to build and keep in repair a bridge ; sup- pose he neglected to keep the bridge in repair, could Bond have compelled him to do so? OF MARYLAND. 371 Hays vs. Richardson. 1829. 3 and 4. If it was a grant of a right of way, has the plain- tiff any remedy against the defendant, without notice? There is no evidence to show, that the defendant had any notice of the grant, if it be one. It was not acknowledged or recorded, but was a voluntary transfer or grant without consideration. Whit- beck vs. Cook, 15 Johns. Rep. 487. Kellogg vs. Ingersoll, 2 Mass. Rep. 97. 5. There is no proof which can entitle the plaintiff to recover. The road was to be opened for the use of the public. It was a right of way for the public. There must be a particular right or a particular damage to the plaintiff to enable him to sustain the action. Butler vs. Kent, 19 Johns. Rep. 226. Co. Lilt. 56. (a.) Harrison vs. Parker, 6 East. 152. Here no particular dam- age has been proved to have been sustained by the plaintiff. 6. There is a fatal variance between the contract proved and that declared upon. The license states, that the termination of the right of way was to be at the " intersecting the present Balti- more road at or near a Chesnut tree." The declaration states it to be "intersecting the Baltimore road, near a Chesnut tree." When a written instrument is pleaded with a profert, it must be recited verbatim. 3 Stark. Evid. 1587, 1588. 1 Chilly's Plead. 364. Brook vs. Willet, 2 H. Blk. 234. Rogers vs. Allen, I Campb. 315. (note .) Coryton vs. Lithebye, 2 Saund. 113. (note 1.) Mellor vs. Spnteman, 1 Saund. 346. (note 2.) Esp. Evid. 274, 275. Doe vs. Calvert, 2 East. 377. Mban vs. Brownsall, Yelv. 164. 1 Hauk. Ch. 76. 3 Jacob's L. D. 280. 7. On this point they referred trf Taney and Kemp, 4 Harr. Sf Johns. 342. 2 Stark. Evid. 74/4, 747. 3 Stark. Evid. 1728, 1648. 1 Stark. Evid. 135. (note.) The king vs. Inhabitants of Gisburne, 15 East. 57, A distributee cannot be called as a witness to testify against the administrator of the estate in which the witness is interested, against his own consent. 8. On this point they referred to 1 Stark. Evid. 1 20. Bolham vt. Swingkr, Peaked A*. P. Cas. 218. S. C. I Esp. Rep. 164. Corking vs. Jarrard, I Campb. 37. Butcher's Company vs. Jones, 1 Esp. Rep. 162. 2 Stark. Evid. 756. Butkr vs. Carter, 2 Stark. Rep. 433. The king vs. Inhabitants of Gisburne, 15 East. 57. 37* CASES IN THE COUR1 OF APPEALS Hays vs. Ruluxrdson. 1829. Gill for the appellee, contended that the first bill of excep- tions, presents the question, whether one can be made to testify against his will and interest in a civil action, not being; a party thereto, and interested in fact to defeat the party relying on him. This question is settled by this court in the cases of Taney vs. Kemp and Tlie City Bank vs. Batcman. The wit- ness must testify. The second bill of exceptions shews, an attempt, on the voir dire to give in evidence the contents of a written instrument, with- out producing it, or accounting for its absence admitting this may be done where it would avail the party seeking such evidence ; yet, in this case, the bills of exceptions referring to each other, the court must see that any benefit which the defendant could have had, from establishing an interest in the witness, on the second bill of exceptions, was within his reach on the first ex- ception. The nature of the witness's interest, on both bills of exceptions, being the same, as it could not avail him on the first, he should not have attempted to raise the same question again. No injustice was done the defendant, for the question which he was seeking to raise by the second exception, had been previ- ously decided, and in a shape too, to be reviewed by the appel- late court. The second exception was wholly unnecessary ; and, whatever may be the opinion of the court in relation thereto, it ought not to affect the cause. The third bill of exceptions, covers the whole controversy, and the appellee contends: 1. That the deed from Bond to RicJiardson is a grant, or a binding and effectual contract, ope- rating necessarily as a grant, to endure until the parties deter- mine the rights secured by it, either by shutting up or altering the road mentioned in it. 3 Bac. M* tit. Grant, (F) 386, 387, (I) 393. Shove vs. Pincke, 5 T. R. 124. Chatham vs. Wil- liams, 4 East. 475, 476. Chester vs. Willan. 2 Saund. 97. (note 1)4 Jacobs'* Law Diet. tit. license, 158. 2. That if not a grant, is it a covenant, that Richardson shall use the way. Bac. Jib. tit. Covenant, 62. 3. A covenant to enjoy a right of way, operates as a grant. 3 Com. Dig. lit Chimin. (D) 60. 4. It is a private way, the public using it, and the sale of the land, over which OF MARYLAND. 373 Hays vs. Richardson. 1829. T the way passes, after the grant, do not determine Richardson's right. Allen vs. Ormond, 8 East. 4. 4 Jacobs' 1 L. D. 158. 3 Cruse, Dig. tit. Way, 115, sec. 22. 1 Bac. Jib. tit. Authority, (P) 321. 3 Stark. Evid. 1680, (note 1.) 5. The road mentioned in Bond^s grant is not a public highway. In this State, public highways are only created according to* legislative authority, and no indictment would lie for a nuisance on this road. It re- sults from these positions, that Ricliavdson had a right of way secured to him by Bond's grant, which still existed at the time of the obstruction complained of. It is admitted, that the spe- cial damage laid "was not proved; but the bill of exceptions ad- mit an obstruction to Richardson's private way, if it exist in point of 1 w, and this was sufficient proof to enable the jury to find for the plaintiff, disregarding the special damage, and of course authorised the County Court, to refuse the defendants prayer. 6. In this case, notice of the existence of the way, is to be presumed in Hays, he being a purchaser subsequent to the opening of the road. Whitbeck vs. Cook, 15 Johns. Rep. 483. 7. The covenant of Bond to Hays, that the former was seized and had power to convey without incumbrance, is not broken by the fact, that a right of way existed over the land to which the covenant referred. A right of way is a mere easement. It does not diminish the interest of the vendee in law. 3 Cruse, 110. Wkitbeck vs. Cook, 15 Johns. Rep. 483. 8. The sale of the land does not determine the right of way ; for the grantor after the execution of his deed, cannot law/ully do any act to prejudice the rights of his grantee. Jackson vs. Jlldrich, 13 Johns. Rep. 106. Mian vs. Ormond, 8 East. 4. It has been contended that the deed from Bond to Richard- son, is a grant which ought to have been recorded to take effect against the defendant, a purchaser without notice. This position is relied upon to reverse the refusal of the County Court, to instruct the Jury that the plaintiff was not entitled to recover. If the position is correct, the judgment of the court below is er- roneous. It is denied that the defendant is a purchaser without notice. His deed shews an unusual and remarkable circum- 371 CASES IN THE COURT OF APPEALS Hays rs. Richardson 1829. stance, that the ancient ceremony of livery of seisin was actually performed in this case; long before this, the road had been opened and used. The existence of the road was palpable to the de- fendant when he took actual possession. In addition to this, upon the authority Whtibeck and Cook before cited, he is pre- sumed to have noticeof a road existing and used before his pur- chase. If then, notice to the defendant can affect this cause favorably to the plaintiff, the defendant had both actual and constructive notice of the existence of the road, when he accept- ed his deed for the land over which it passed. It is however con- ceded that if our acts of Assembly require this grant of way to be recorded, then it is void in a court of law, and the plaintiff cannot recover. The only acts upon the subject, are those of 1715, ch. 47, and 1766, ch. 14., and it is supposed that neither reach this case. That the act of 1715 does not for this plain reason, that the 8th section, which requires deeds to be recorded, relates to deeds of " bargain and sale only." It declares that no manor lands, tene- ments or hereditaments whatsoever, shall pass, alter or change from one to another, whereby the estate of inheritance or free- hold or for above seven years shall be made or take effect in any person or persons, or any use thereof to be made by reason of any bargain and sale only, except the deed or conveyance by which the same shall be intended to pass, should be made by writing, indented, and sealed, &c. The construction of this act has always confined it to deeds of bargain and sale See preamble to act 1766, ch. 14. Other assurances were not within its operation the grant in question is not a deed of that character there is no consideration mov- ing from Richardson the grantee to Bond the grantor. It wants that leading distinctive characteristic of a deed of bargain and sale. The next inquiry is whether the act of 1766 affects the plain- tiff. It enacts that no "estate of inheritance or freehold, or any declaration or limitation of use or any estate for above seven years shall pass or take effect, except the deed or conveyance, by which the same shall be intended to pass, shall be acknowl- OF MARYLAND. 375 Hays vs. Richardson. 1829. edged in the county where the lands, tenements or hereditaments do lie and also be enrolled," &c. This act applies to all forms of assurances, and the only inquiry is, whether the subject matter of this conveyance is referred to in the act. It is clearly not an estate of inheritance, nor a freehold nor a declaration or limi- tation of a use. These are legal technical terms, which do not apply to this grant. The only enquiry now is, whether any es- tate, and if any, whether one for above seven years, is created by this grant? The term estate is significant of interest in wills it is said to include the whole interest in this act of As- sembly associated as it is, with estates of inheritance, freehold, uses, terms for years, it refers to estates, in which as in the other cases, the grantee has an exclusive interest. Now so far from the grantee having an exclusive interest, nothing is more familiar, than an interest in one, and a mere right of way in another, an easement without any possessory right or remedy. In this case the thing granted to Richardson, is a right of way in gross. He could not alienate nor sell. It was in effect a mere privilege val- uable because of its consequences, but unquestionably having no direct tendency to increase his estate. This most significant term estate, is applied to inheritances, freeholds and terms for years and is as particularly indicative of a valuable interest in one case as in another the terms " estates for years" have always been applied to leases and carry with them insepa- rably the idea of a valuable vendible interest in the gran- lee. In the enacting clause of the act of 1766, the language dif- fers from the same clause in the^ct of 1715. The latter de- clares that " no manor lands, tenements or hereditaments shall pass" which the former declares that " no estate of inheritance, freehold or use or for above seven years shall pass" why this distinction in the language, entirely of a technical cast, if the legislature did not take and adopt the known difference between a privilege, and an interest? The preamble of the act of 1766, declares also that " a general registry of all deeds and convey- ances of land would secure creditors, &c." This confirms our views, and sustains the opinion of the court below. 376 CASES IN THE COURT OF APPEALS ll.iys vs. Richardson 1829. DORSEY, J. delivered the opinion of the court at this term. The only question arising on the first bill of exceptions is, were the court below, right, in compelling a witness to give tes- timony, which might subject him to a civil action or pecuniary loss, when offered by the party against whom, his interest would prompt him to testify? On this subject, we have no doubt, since the decisions of this court, in the cases of Taneyvs, Kemp, and t lie City Sank of Baltimore vs. Sateman. In Mary- laud, the rule of law is settled, that no person who is called as a witness, (not being a party to the suit) can refuse to give testi- mony on the ground, that he may thereby become liable to a civil action, not of a penal nature, or sustain pecuniary loss, or that the verdict may be used as evidence against him, in some other civil proceeding then pending, or which may thereafter be instituted. Of the opinion of the County Court on this point in the cause, we entirely approve, but we cannot concur with them, in the decision they have given in the second bill of ex- ceptions. It is wisely settled agreeably to the suggestions of public justice and expedience, that a witness on the voir dire may by the party objecting to his examination in chief, for the purpose of shewing his interest, be called on to state the contents of written instruments, which are not produced, and the reason assigned is, that the party objecting could not know previously, that the witness would be called, and consequently might not be prepared with the best evidence to establish his objection. For authorities on this subject, vide 1 Stark. Ev. 120. 2 Stark. Ev. 756, and the cases there referred to. In the third bill of exceptions is involved a question of much greater difficul- ty and doubt. If the instrument of writing given by Bond to the appellee, be considered a grant of an easement or right of way, (as according to law and the apparent intent of the parties, it may be, if viewed without reference to our acts of registration) then it becomes necessary to examine what is the character of the interest transferred, and how far it is a subject operated on, by the act of Assembly of 1715, ch. 47, entitled an act for qui^ eting possessions, enrolling conveyances, and securing the estates of purchasers." It has been urged that the right transfer- OF MARYLAND. 377 Hays vs. Richardson. 1829. red, is nothing more than a tenancy at will. But such a con- struction is not warranted by the terms of the contract. It is not a demise, or conveyance to continue, in the appropriate phrase- ology of such tenures " quamdiu ambobus partibus placuerit," and which, by the unambiguous terms of its creation, must ex- pire as soon as its continuance ceases to be the will of both par- ties ; but it is a grant whose duration is not to terminate until the will of both parties unites for its discontinuance. In the lan- guage of the agreement, it is to continue until Richardson and Bond shall agree, it shall be shut up or altered. Bond's deter- mination alone, therefore, as evidenced by his conveyance to the appellant, is not a happening of the contingency on which the estate was made to depend. It is unnecessary to determine whether this easement was to expire with the life of Richard- ton, or to remain after his death for the use of the public ; in either event, enrollment is necessary, if the subject matter of conveyance be such as is contemplated by either of the afore- mentioned acts of Assembly. The title of the first act of Assem- bly distinctly sets out its object, viz : the " quieting possessions, enrolling conveyances, and securing the estates of purchasers ," and for the accomplishment of that most desirable end, the 8th section provides that " no manors, lands tenements or heredita- ments whatever, within this province, shall pass, alter or change, from one to another, whereby the state of inheritance or free- hold, or any estate for above seven years shall be made or take effect in any person or persons, or any use thereof to be made, by^eason of any bargain and/sale only, except the deed or conveyance by which the same' shall be intended to pass, alter or change, be made by writing, indented and sealed, and the same be acknowledged in the provincial court, or before one justice thereof, or in the County Court, or before two of the justices of the sajJie,- where such manors, lands, tene- ments, or hereditaments lie, and enrolled within six months af- ter the date of such writing indented as aforesaid." The first enquiry to be disposed of is,* whether the estate or right de- signed to be transferred by the grant, be an t*reditament, (as that is the most comprehensive term, including both lands and tene- VOL. I. 48 378 CASES IN THE COURT OF APPEALS Hoys vs. Richardson. 1829. ments.) In 2 Bla. Com. p. 20, an incorporeal hereditament is de- fined to be " a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within the same," which incorporeal hereditaments, the learn- ed commentator states in the succeding page, " are principally of ten sorts, advowsons, tithes, commons, ways, offices, digni- ties, franchises, corrodies or pensions, annuities and rents," and in page 35 of the same book, it is said " a fourth species of in- corporeal hereditaments is that of ways, or the right of going over another man's ground. This may be grounded on a special permission, as when the owner of the land, grants to another the liberty of passing over his grounds, to go to church, to mar- ket, or the like ; in which case the gift or grant is particular, and confined to the grantee alone, it dies with the person." These references will suffice to show, that the way in question, is an hereditament. Is it then such an hereditament as the act of 1715 can operate on? is the next question to be considered That act of Assembly, as appears by the preamble to the act of 1766, is only applicable to such conveyances as operate by way of bargain and sale, and it is superfluous perhaps to say, that in all our legislation upon the subject of enrollment of deeds, where " hereditaments" are spoken of, they are such as attach or relate to realty, not to personalty. If the deed from Bond to Richardson had been for the transfer of a right of way in esse, there can be no doubt, but that it would pass by deed of bargain and sale; and that for the legal transfer of such an inter- est by deed of bargain and sale, all the solemnities required by the act of 1715, must have been pursued. But such is not the case before us ; it is an attempt to transfer, not a way already in e*se, but a way de noro, which may be done by grant or lease ; but cannot be effected by way of bargain and sale. As authori- ties to that effect, see Beaudley vs. Brook, Cro. Jos. 189. 1 Ba. Abr. 468, tit. Bargain and Sale, Utter B, and Shep. Touch. 226, and the cases there cited. It is assuredly no disrespect to the Legislature of 1715 to suppose, that at the time of their passage of the law referred to, they may not have recollected this technical, subtle distinction, between the mode of transfer- OF MARYLAND. 379 Hays vs. Richardson. 1829. ring rents and ways in esse, and de wore, and they may therefore have acted under the impression, that their act, chapter 47, af- fected the one in the same manner that it did the other. But, whether they did, or did not labor under this misconception of the law, according to our view of the rational, liberal construc- tion, that ought to be given to acts of the Legislature, upon such subjects as the present is wholly immaterial. Experience having shown, according to the preamble to the act of Assembly of November session, 1766, chapter 14, " that the good end and purposes of the said act (meaning the act of 1715) are now in a great measure eluded by the frequent use of conveyances by feoffment, lease and release, limitation, and de- claration of uses, and other modes of conveying ; and whereas a general registry of all deeds and conveyances of land, would very much tend to the security of creditors and purchasers, the preservation of titles, and thereby, to the advancement of the value of real estates, and particularly, to prevent abuses and deceits, by mortgages, and the purchase of pretended titles;" the Legislature enacted " that after the first day of May next, (1767) no estate of inheritance or freehold, or any declaration or limitation of a use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance by which the same shall be intended to pass or take effect, shall be acknow- ledged in the provincial court, or before one of the Justices thereof, in the county court, or before two justices of the same county, where the lands, tenements, or hereditaments conveyed by such deed or conveyance do \ie.Y It has been urged, that as the preamble to the act of 1766 'speaks merely of a general registry of deeds or conveyances of " land," that no recording is required by it, but of deeds or conveyances, by which the land itself passes; and that this construction is strongly supported by the words of the enacting clause, which requires the deed to be recorded in the county where the lands, tenements, or heredita- ments do tie ; and the clerks to keep books in which the deeds are to be registered, and alphabetted in the name of the parties thereto, with the name of the land and quantity of acres. But these suggestions appear much more technical and critical than 390 CASES IN THE COURT OF APPEALS Hays vs. Richardson. 1829. substantial. Both acts of Assembly being in pari materia, must be construed together as one system. The first law having em- braced incorporeal tenements and hereditaments, ingenuity itself cannot insinuate a reason why they should not be included in the second. To confine that act of 1766 to conveyances only, by which the land itself passes, is utterly subversive of that com- plete system of enrollment, manifestly designed to be establish- ed ; is inconsistent with that part of its preamble, which sets out the moving inducement to legislate on the subject to be, to remedy the evil, that the act of 1715 extends only to con- veyances of lands, tenements and hereditaments, by way of bar- gain and sale only, and that other modes of conveyance (meaning by necessary implication of lands, tenements and heredita- ments,) had been frequently used to the elusion of the good ends and purposes of that law ; and is also inconsistent with that part of the preamble, which declares as the objects of the Legisla- ture in adopting a general registry, to be " the security of cre- ditors and purchasers, the preservation of titles, and thereby the advancement of the value of real estates." If contradic- tions, or incongruities exist between the preamble and enacting clause of a statute, the latter shall prevail. There is, however, no such contradiction or incongruity, in the act in question; con- strue the word "of" before the word "land," to mean concern- ing or relating to (meanings of which it is susceptible, and not tmfrequently bears) and perfect harmony is at once restored. By no rule of interpretation can the force of the words " tene- ments or hereditaments" be evaded, or their introduction into the enacting clause be accounted for, consistently with this con- fined exposition attempted to be imposed on the act of 1766. As to the stress which has been laid upon the words " do lie," to prove that they can relate to lands only (as incorporeal here- ditaments, it is said cannot be alleged to lie any where) it ap- pears to be a construction too subtle, not to say hype critic; 1 to have entered info the consideration of the Legislature in passing the law. Nor are we aware that it would be an unwarrantable invasion of the rules of grammar, of the import of terms, or the licensed figures of speech, to say, that a right of way lies in a OF MARYLAND. 381 Hays vs. Richardson. 1829. county where it exists and is exercisable. As to the alphabet to be kept by the clerk, with the entries to be made of the name of the land, and number of acres, those requisites are applicable to the transaction, as important, and necessary to the public in recording a deed transferring an incorporeal heredita- ment concerning land, as if it had been a conveyance of the land itself. If this cramped interpretation of the act of 1766 were to prevail, by no possible deed of conveyance in pais could the husband and wife uniting, grant a rent charge or right of way, on the lands of the /erne, so as to bind her or her heirs after the death of her husband, and the public, and the profes- sion, would learn with astonishment at this day, that notwith- standing our system of general registry a grant of a rent charge de noro, equal to the whole value of the land on which it at- taches, and rights of way, estovers, &c. to any supposable ex- tent, may be legally created, without any entry thereof appear- ing on the public records; but if a rent charge or right of way in esse be conveyed by bargain and sale (the usual mode of conveyance) then all the solemnities of acknowledgment, re- gistration, &c. are required. Cui bono? It adds nothing to the security of creditors or purchasers of land, or the preservation of their titles, because such enrollment furnishes them no means of ascertaining the existence of the conveyances. The alpha- bets discloses not the name of any person, as a party to such conveyance, who ever owned the land, nor in your application to the Clerk of the Land Records, can you inform him in whose name the search is to be made, /It is a matter of minor impor- tance to creditors or purchasers,/! whom a rent charge is paya- ble, (they are rarely for any length of time left uninformed up- on that subject) but it is a matter of vital importance to them to know, whether there be a rent charge or not. In the registry of deeds, therefore, it is an object of ten times more importance " to the security of creditors and purchasers, the preservation of titles, and the advancement of the value of real estates" that a record should be made of de novo rent charges, and in- cumbrances on land, than of those in esse. The former are al- ways sought for, and might be easily found by creditors and CASES IN THE COURT OF APPEALS Hays vs. Richardson 1829. purchasers, whilsMhe latter are rarely if ever sought for, and could not be found, but by reference to every deed recorded in the Land Records, since the date of the patent of the tract of land, into the title of which the examination may be made. We are aware that it has been ruled in England, that a li- cense to use a beneficial privilege upon the land of another is no estate or interest in the land, and notwithstanding the statute of frauds may be granted without writing. In the case of Wood vi. Lake, Say. 3, it was decided that a parol agreement for liber- ty to stack coals upon the land for seven years, and to have the sole use of that part of the close upon which the liberty to stack coals was given, is neither an estate or interest in or out of land. According to this decision, if A by parol for valuable considera- tion agree that B may stack coals upon his lands for ninety- nine years, renewable for ever ; and that B and his assigns du- ring that period, have the sole use of the lands, such agreement is unaffected by the statute of frauds, and though operative to the full extent of its terms, transfers no estate or interest in the lands. Yet in the leading case of Crosby vs. Wadworth, 6 East. 602, a parol sale of a standing crop of mowing grass then grow- ing, was held to be within the statute as being an interest in the land. In Wood vs. Lake the judges rely on the case of Webb vs. Paternoster, reported in Palmer, 7 1 , and Popham, 151. Where a parol license to stack hay upon land was held a charge upon it, in whosoever hands it might come; but say the court, it is countermandable unless a time certain is fixed for its enjoyment, " as if I license one to dig clay in my land." This case let it be remembered, was before the statute of frauds; and therefore could be no warrant for the decision in Wood vs. Lake. In fact the only question which could have arisen in Webb vs. Paternos- ter, as to the necessity of writing to the transfer of such an in- terest, as that attempted to be created, must have been on the old principle of the common law; that an incorporeal right could only pass by deed. But if the opinions of the court in t case are to govern cases since the statute of frauds," are we prepared to go the length to which those opinions must car- ry us? To determine that a parol license to dig clay in land, OF MARYLAND. 383 Hays vs. Richardson. 1829. is the same as the privilege to stack hay on it; but gives no inter- est in the land, though a charge upon it into whosoever hands it may come. Or to illustrate the principle still further, that an oral license to dig coal or iron oar in mines for five hundred years, and agreeably to the case of Wood vs. Aafce, to have also the sole use of the land, in which the mines are situated during that period, passes the right intended to be conferred, and charges the land therewith, is unaffected by the statute of frauds, and yet creates no lease, estate, or interest in the land. It cannot be denied that the case of Wood vs. Lake, has in England been fol- lowed by subsequent adjudications. As late as the year 1818, in Taylor v s. Water, 7 Taunt. 384, Gibbs chief justice of the Common Pleas, states that a license to enjoy a beneficial privilege on land may be granted without deed, and notwithstanding the statute frauds without writing." It is a license not an interest in the land." But these decisions are irreconcilable with the opinion of Lord Ellenborough in Fentiman vs. Smith, 4 East. 107 where the defendant having orally granted permission to the plaintiff to pass water to his mill by means of a tunnel over de- fendant's land; who assisted in making the tunnel, but after- wards obstructed the water, in an action brought on account thereof, it was decided that " the title to have the water flow- ing in the tunnel over the defendant's land could not pass by a parol license without deed." Sugden too in his law of Vendors, page 57, attacks the case of Wood vs. Lake with great effect, and pronounces it " to be in the very teeth of the statute, which extends generally, to all leases, estates, or interests?" In Thomp- son vs. Gregory, 4 John. 81, the Supreme Court of JY*eu> York, (of which Kent, and Spencer were members) determined that a right to overflow the land of another, by the erection of a mill dam, was an incorporeal hereditament, which could be transfer- red by deed only, and not by parol permission to use it; and if it were otherwise that the assignment of such an interest, since the statute of frauds must be in writing. With such strong reasons and high authority for questioning the soundness of the principles adjudicated in Wood vs. Lake, and subsequent cases which have followed it, we feel no dispo- 384 CASES IN THE COURT OF APPEALS Hay vi. Richardson 1829. sition for the sake of analogy to give a similar interpretation to our act of Assembly of 1766, regulating the execution and en- rollment of conveyances of real property, to that given in Wood vs. Lake to the statute of frauds. The language of its provi- sions comprehends the privilege attempted to be conferred by the instrument before us, and the policy of the law, the interests and convenience of the public, forbid that we should restrict its operation. In no other way can the leading object of the legis- lature, the "securing the estates of purchasers" be effected; their design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records. If parol or unrecorded licen- ses of the character of that in controversy were tolerated, frauds and losses upon purchasers would be innumerable as may read- ily be imagined. A man might pay and receive a deed with all the solemnities of law, and covenants which could be devised (short of a general warranty which is rarely given) for a hun- dred acres or more of valuable meadow land, without the knowledge of the semblance of a right in any one by which its value could be imagined; on the next day he may learn that his purchase is a mockery; that his neighbour under an oral license, from some remote proprietor of the property purchased, (of which the vendor was ignorant) is about to inundate every foot of it by the erection of a mill-dam below, his remedy can no where be had. But suppose it were even admitted, that the principles established in Wood vs. Lake, and the cases bottom- ed upon it, stand free from all exception, it is humbly conceived that the case now under consideration is clearly distinguishable from them. The statute of frauds on the construction of which they arose, speaks only of estates or interests into or out of lands, whilst our act of Assembly embraces estates in lands, tenements or hereditaments, and if it be conceded, as it must be, that the right of way in question is an " hereditament," it surely would be stretching technicality to the verge of quibbling, to say that the right which one has in an " hereditament" is not hi " estate" in it. OF MARYLAND. 385 Charles C. Egerton, et al. vs. Thomas B. Reilly and wife. 1829. If we entertained even strong doubts as to what originally should have been the construction of this act of Assembly (of which we have none) they would in a moment be removed by adverting to the single fact, which the whole land records of the State will demonstrate, that from the year 1767 to the present day, grants and conveyances of de novo rent charges, rights of way, &c. have been as uniformly acknowledged and recorded, as deeds conveying the land itself. This contemporaneous un- varying construction of the act of Assembly for sixty years, ought not to be disregarded, but upon the most imperious and conclusive grounds. If there be error in it " communis error facitjus" We are sensible that we have given just cause of com- plaint at the unusual length in which this subject has been treat- ed, but the deep interest felt in it by every landholder in the State must be our apology. We concur in the opinion given by the County Court in the first bill of exceptions, but think their opinions in the second and third are erroneous, and therefore JUDGMENT REVERSED. (JVote.) The decision of the court of King's Bench in Hew- lins vs. Shipman, 5 Barn, and Ores. 221, has been met with since writing the above opinion, by which it appears that the cases of Webb vs. Paternoster, Wood vs. Lake, and Taylor vs. Waters, have been so shaken, that they may be considered as virtually over-ruled, so far as regards the granting of easements by parol. CHARLES C. EGERTON, et al. vs. THOMAS B. REILLY AND WIFE. December, 1829. A complainant filed an exception to an answer, and the County Court without deciding upon it, referred the case to the Auditor, who stated an account, rejecting a credit claimed by the defendant's answer ; to this, exceptions were also filed, and over-ruled, and the account ratified. Upon appeal, it was held, that the County Court had acted prematurely, that after the exceptions to the answer had been decided on, the case should have VOL. I. 49. CASES IN THE COURT OF APPEALS Charles C. Egerton, tt a/, vs. Thomas B. Keilly and wife. 1829. been set down for argument on bill and answer, or a replication to the an- swer put in, and an opportunity aflbrded to the respondent, to make out his defence, by proof. APPEAL from an order of Saint Mary's County Court, sit- ting as a Court of Chancery, confirming the report of the audi- tor of that court. The bill filed on the 9th of August, 1824, by the complainants, (now appellees,) stated, that H. G. S. Key, one of the defendants, was indebted to the complainant Rebecca Reilly before her marriage in the sum of $266.65 ; that the de- fendant, Charles C. Egerton, was in the habit of supplying her with such articles as she required (he, the said Egerton, being a merchant, residing in said county,) and that she was likewise in the habit, occasionally, of making small purchases of the Messrs. Shemwells, likewise merchants of the said county. That for the purpose of securing them, and giving the said Rebecca, a further credit with the said Egerton, she agreed to give him a control over the debt, due her as aforesaid from the said Key, with the express understanding that the sums then due the said Egerton and Shemwells should be paid, by said Egerton, out of said debt, and the balance held subject to the order of said Rebecca, in pursuance of said understanding, the said Rebecca gave to the said Egerton an order, dated the 29th of April, 1822, on said Key for said debt, which was accepted, he, the said Key, being aware of the said understanding. That Key afterwards gave his single bill to Egerton for the amount, who thereupon brought suit and recovered judgment. That Egerton has paid no part of the debts, which according to the foregoing understanding he was to have paid out of the money due from Key, nor did he give the credit to the said Rebecca which he stipulated to do ; but they charge, that combining with Josiah and Philip Turner, also defen- dants, and intending to defraud the complainants of said debt, and convert the same to his use, and the use of the said Josiah and Philip, he had assigned to them the whole of said judgment, when in fact the complainants who have intermarried, are the equitable owners of all that may be due thereon, after satisfying the purposes for which it was placed in the hands of Egerton, which it is much more than sufficient to do. Prayer, that an OF MARYLAND. 387 Charles C. Egerton, et al. vs. Thomas B. Reilly and wife. 1829. account may be stated between the said Egerton, and complai- nants, and that the aforesaid judgment may be decreed them, and in the meantime that an injunction may issue against all the par- ties restraining the payment of the money. Injunctions and sub- poenas issued. The answer of Egerton admits that Rebecca, before her inter- marriage was in the habit of getting family supplies from the firm of Egerton and Pike, of which he was a member, for her own use, and also, as he alleges, for her mother's family, and also, as he believes, from the Messrs. Shemwells, and that she gave the draft on H.G. S. Key, as stated, for which he gave his single bill. That this single bill was put in suit, and before judgment was obtained, he assigned the same to Josiah and Philip Turner ; but he alleges, that the assignment was made for a valuable consideration, being on account of a heavy amount due from him to them ; he states, that at the judgment court, he was ask- ed by Key if he wanted the money, but upon telling him that he had assigned the claim to the Turners, he Key, applied to Josiah who was present, and an arrangement for a settlement was made between them ; that he, this defendant, still owes the Turners a considerable balance. He admits, that at the time the draft was given, it was understood, that the dealings of said Rebecca, with Egerton and Pike, were to be paid out of it, and avers that several other claims, amongst others, one due from one F. P. Key, were also to be paid, as well as the claim against her individually, which deducted from the amount of the said draft, would only leave a balance of $38.91, which is all he justly owes them. He denies, that at the time the note of Key was executed, there was any understanding, that he should hold the balance which might remain of the same, for the use of complainants, but states the understanding to have been, that he defendant, was to be individually answerable for any such balance. He denies any agreement to settle Shemivells claim, and all fraud, &c. The answers of Josiah and Philip Turner state, that Key's note was assigned to them, by Egerton whilst in suit. That the assignment was made for a valuable consideration, and that a CASES IN THE COURT OF APPEALS Charles C. Egcrton, tt al. vs. Thomas B. Reilly and wife 1829. heavy balance is still due them from Egerton. They deny all knowledge of the alleged understanding between the complai- nants, or either of them and Egerton, and of their dealing, ex- cept having heard Egcrton say, he might owe a small balance on the transaction. The defendant, Josiah Turner, states, that at the judgment court, Key acknowledged the justice of the claim, and after judgment asked for indulgence, which was granted on certain terms then agreed upon. The answer of Key, admits the debt, and denying all fraud, c. says he is ready to pay the money as the court may direct. At May term, 1825, the complainants filed exceptions to the answer of Egerton, upon the ground that the attempt to charge them with a debt due from F. P. Key was made without any memorandum or note signed by either of them, or any other person, by them authorized to that effect. At August term, 1825, the court referred the case to the auditor, with directions to state an account, which was accord- ingly stated, and reported to the following March term. At that term, the defendants excepted to the said report of the au- ditor, upon the ground, that he had not given them credit for the amount of the claim spoken of in the answer of Egerton, as due him from jP. P. Key, but the court over-ruled the said ex- ception, and ordered that said report be ratified and confirmed. From which order, the defendants appealed to this court. The cause was argued before BUCHANAN, Ch. J. EARLE and DORSE Y, J. A. C. Magruder for the appellants. This case was not in a situation to be sent to the auditor. The complainants had not put in a general replication, nor set it down upon bill and answer. If it was intended to put in a replication, an opportunity ought to have been given to the defendants to establish their case by proof. If it was to be considered as be- ing before the court, upon bill and answer, then the matters set forth in the answers, being admitted to be true, the complainants clearly had no case. No counsel appeared for the appellees. OF MARYLAND. 389 Charles C. Egerton, et at. vs. Thomas B. Reilly and wife. 1829. EARLE, J. delivered the opinion of the Court. However the decision in this case in itself may be viewed, it was certainly premature, and in this the equity jurisdiction below, committed an error. Before the exceptions to one of the answers was disposed of, the court passed an order, directing the auditor to state an ac- count of the amount of the debt due to the complainants, after deducting the debts due from the complainants to the defendant, Egerton, including the item for postage, according to the terms of the order filed in the cause ; and subsequently ratified and confirmed the auditor's report and statement thereon, excepted to by the defendants. The exceptions to the answer being decided on, the case should have been set down for argument on bill and answer, or a replication to the answers put in, and an opportunity afforded to the respondents to make out their defence by proof. The real object of the order of the 29th April, 1822, and the transaction growing out of it, might then have been understood, and if Egerton 's right to apply a part of it to the discharge of Franeis P. Key's account had not been substantiated by evi- dence, the auditor's report rejecting it would have been free of exception, and the case of Egerton so far properly settled against him. An opportunity to the Turners would also have been offered to shew, that their connexion with the transaction of the assign- ment of Key's single bill, was fair and bona fide, and that the same was made to them for a valuable consideration, and with- out notice of any trust and confidence between Rebecca Key and Egerton, in relation to the debt due from H. G. S. Key to her. We reverse the order confirming the auditor's report, that the case may still take this course in Saint Mary's County Court, and what appertains to equity and justice may yet be done between these two parties in that tribunal. Order reversed ; and adjudged, ordered and decreed by the Court of Appeals, that the order of Saint Mary's County Court, as a Court of Equity, confirming the report of the auditor, 390 CASES IN THE COURT OF APPEALS Miller, Ex'r of Beard w. Negro Charles. 1829. be, and the same is hereby reversed and annulled, and that the said court proceed in the cause, so that equity and justice may be done to the parties. Further adjudged, that the appellees pay the appellants their costs on this appeal. MILLER, Ex'r of BEARD vs. NEGRO CHARLES. December, 1829. By a devise in the following words, viz. " likewise my negro man Charles to be free on the 1st day of January, 1827, on condition that he pay the sum of ten dollars annually, to my before named sister M, so long as he lives ;" it was the intention of the testator, who died in 1825, that the slave men- tioned in the devise should be free on the 1st January, 1827 ; and it could not have been his intention that the condition mentioned, should have been performed by Charks, precedent to that day, as the acts to be done consist of payments to be made by him annually, as long as he may live. Upon a petition for freedom by a negro claiming his right to manumission, un- der a last will and testament, against the executor of his deceased master, the parties agreed upon a statement of facts, which did not disclose whether the testator left assets sufficient for the payment of his debts or not; held that the objection to the manumission arising from the insufficiency of as- sets was not before the court. APPEAL from Anne Arundel County Court. This was a pe- tition for freedom filed in Anne, Jlrundel County Court, on the 10th of March, 1828. The following statement of facts was submitted for the opinion of the Court. It is admitted in this cause, that the said negro Charles was the slave of John W. Beard, the appellant's testator; that the said John W. Beard died in October, 1 825, having first duly made and executed his last will and testament, which is recor- ded in the Orphan's Court of Anne Arundel County ; in which last will and testament, is contained, the following clause, " likewise," my negro man Charles to be free, on the first day of January one thousand eight hundred and twenty-seven, on condition that he the said Charles , pay the sum of ten dol- lars annually to my before named sister, Mary Glover, so long as he lives. It is also admitted that the negro Charks, the pe- OF MARYLAND. 391 Miller, Ex'r of Beard vs. Negro Charles 1829. titioner, and the negro Charles mentioned in the said clause, are one and the same person, and that he was, at the death of the said John W. Beard, and on the first of January, 1827, under the age of forty-five years, and able to gain a sufficient lively- hood and maintenance ; and it is also admitted, that the said negro Charles paid to the said Mary Glover, the sum of ten dollars in January, 1828, agreeably to the annexed receipt mar- ked A, for the year 1827. It is further admitted, that at the death of the said Wesley Beard, and also at the time of the pay- ment of the said ten dollars, the said Mary Glover was a feme covert. And it is further admitted, that the said negro Charles was held as a slave by the personal representative of the said John W. Beard, from the death of the said John W. Beard till the first of January, 1827. The County Court rendered judgment on the case stated in favour of the petitioner, and the defendant appealed to the Court of Appeals. The cause was argued before BUCHANAN, Ch. J. EARLE, MARTIN and ARCHER, J. Speed, for the appellant, contended, 1. The act of 1796, ch. 67, sec. 13, gives no power to will negroes free on condition, and the court will infer no such power. 2. This is a condition precedent, and as such repugnant, and impossible to be performed; and therefore the condition and bequest both fall. 3. But suppose the condition tobe a condition subsequent, and consequently not impossible to bp performed, yet the court will not sustain the bequest. 4. If the court give judgment of freedom, it must be of un- qualified freedom, and the intention of the testator is defeated; for it was clearly his intention, that the petitioner should not be free, unless the terms imposed on him by the bequest could be legally and faithfully complied with. 5. The petitioner does not state, nor is it admitted in the case stated, that there were other assets, sufficient to discharge all the debts of the deceased. CASES IN THE COURT OF APPEALS Miller, Kx'r of Beard vs. Negro Charles. 1829. On the first point, he referred to the act of 1 796, c/i. 67, sec. 1 3. Hamilton vs. Craggs, 6 Harr. fy Johns. 17. Burrouglis vs. Negro Jinn, 4 Harr. fy Johns. 262. On the second, he cited 1 T/ionuw's CokeLitt. 14. 2 Ib. 19 22 (note.M.)2 Blk. Com. 166. Shep. T. 129, 130. On the fifth he cited 2 Johns. Rep. 243. Brewer, Jr. for the appellee, referred to Co. L#f. 274. 6. 1 I fen. 8f Munf. Act of 1692, ch. 52. 1752, c/i. 1. EARLE, J. delivered the opinion of the Court. This cause was decided in Jlnne Jlmndel County Court, upon facts agreed on, and stated between the parties. The state- ment briefly represents Charleses right to freedom under the will of his deceased master, John W. Beard, and points to and sets out the particular clause by which he claims it. What is the true meaning of the testator in this clause seems to have been the sole question submitted to that court, and can alone have our attention in revising their decision. We concur with the Judges in thinking that John W. Beard intended that Charles should be a free man on the first day of January, 1827; it could not have been his intention that the condition mentioned, should have been performed by Charles precedent to that day, as the acts to be done consist of payments to be made by him annually, as long as he may live. Considered as a condition to be performed subsequent to freedom, it presents a question upon which we need not give an opinion, as it is one in which the executor can have no interest. The subject of assets insisted on in the argument, is not be- fore us, and we shall express no opinion, in relation to it. If it deeply concerns the executor, we can only say, that he has had ample time to understand his situation as to assets, and to lake legal steps for his security. We affirm the judgement of Anne Arundel County Court. OF MARYLAND. 393 Burch, et al. vs. Scott 1829. BuncH,ef al vs. SCOTT. December, 1829. A bill was filed in June, 1823, and the usual process of svbpxna and attach- ment issued, which were served on the defendant, from term to term, until March, 1824. He failing to appear, the Chancellor passed an order to take the bill pro con/esso, which was also served on the defendant the 1st of May fol- lowing. The cause was then proceeded in to final decree in August, 1825, and 9. fieri facias issued, returnable to December term, 1825, at which term the ori- ginal defendant with others alleged to be interested in the decree, filed a bill to have the execution countermanded, the decree opened, and an answer of the defendant to the first bill accepted. The grounds of this application were, that the claim was unfounded, that proper parties were not originally made, and that the defendant had been prevented by the omissions of his counsel prior to June, 1824, and by accident in the transmission of his answer since that time, from putting in his answer as he designed and intended. Upon this the Chancellor countermanded the execution, and after answers were filed controverting this application, rescinded the decree of August, 1825, and all proceedings subsequent to July, 1824. Upon appeal it was held, not to be consistent with the salutary exercise of that sound discretion which the Court of Chancery possesses, to open or discharge the enrollment, and va- cate the decree in this case, for the purpose of enabling the defendant to make his defence. A decree of the Court of Chancery is to be considered and taken as enrolled, when it is signed by the Chancellor, and filed by the register, and the term has elapsed during which it was made. APPEAL from the Court of Chancery. On the 14th of June, 1823, the appellants filed their bill against the appellee, upon which an injunction and subpoena issued, and were served to Sep- tember term, 1823, when the defendant not appearing, an attachment issued against him, and pe was returned attached to December term, 1823. The attachment was renewed, and the defendant was returned attached to March term, 1824. On the 30th of March, 1824, an order was passed to take the bill pro confesso, fyc. A service of this order on the defendant, was proved on the 1st of May, 1824. At March term, 1825, com- missions issued to take testimony, which were returned to July term, 1825. On the 4th of August, 1825, the case was referred to the auditor, who on the same day made his report, when the Chancellor decreed accordingly. On the 25th of September, the complainants petitioned for a writ of fieri facias, to levy the VOL. I. 50 31)1 CASES IN THE COURT OF APPEALS Burch, ft d. vi. Scott. 1828. amount of the sum of money decreed to be paid to them by the defendant, which was thereupon ordered, and issued returna- ble to September term, 1825. It \vas renewed to December term, 1 825. Afterwards, and at the same term ( December 1825,) the defendant, with Berry, Gittings and others, filed in the said cause a bill, (stated in the record to be a bill of review,) reciting the substance of the bill of the complainants of the 14th of July, 1823, and the proceedings thereon, and certain proceedings in the Orphan's Court in the District of Columbia, and in Montgomery County, and in the Court of Appeals, between the intestate of the complainants and the intestate of the defendant in their respective lives, and between the intestate of the complainants and the defendant (see 6 Harr. $ Johns. 67,) and certain proceedings of the defendant as administrator of K. Gittings, his intestate, in the course of which proceedings, the defendant, after being served with the injunction and subpcena in this case, (which was before September, 1823,) "lost no time to apply to his counsel, W. Jones, Esquire, to draw his an- swer, and pursue the necessary steps to determine the contro- versy speedily and finally ; but that owing to the residence of the counsel out of the State, his not being a regular practi- tioner of the court, and his various professional avocations, the said Scott was frequently and contrary to his anticipations and expectations, disappointed in having the business put in train for a decision. That he at length became so anxious and uneasy on the subject, that hearing of his said counsel being in atten- dance at the Court of Appeals in Annapolis, at the June term, 1824, lie came from his home in Montgomery County to Anna- polis, for the express purpose of having an interview with him, and getting the answer drawn and filed. That he found his counsel on the eve of returning to Washington, whither he ac- companied him, and immediately on their arrival, the answer was drawn and regularly sworn to, and put into the hands of his counsel to be transmitted by the stage next morning to the register of the court. That said Scott had frequently inter- views afterwards with his counsel on the subject, and he, as well as his counsel, took it for granted the answer and exhibit OF MARYLAND. 395 Burch, et al. vs. Scott. 1829. had been duly received; and he was informed by his counsel, that he had made an arrangement with Mr. Key, one of the oppo- site counsel, who resided in Georgetown, to fix upon some day convenient for them both to go to Annapolis, and argue the cause. And that said Scott remained under this impression without the slightest intimation of the answer's having miscar- ried, until he found that there had been a decree against him, followed by execution. And when he communicated to his coun- sel the facts of his property having been seized by the sheriff, he was utterly at a loss to comprehend how it could have been brought about; having only heard a short time before of the mis- carriage of the answer, and not dreaming that theie could have been a decree, till writing to the register of the court for in- formation, he was certified of the fact." These complainants then by their bill complain, that the decree had been obtained by surprise and fraud on the part of the complainants therein, (the appellants) and contrary to their own knowledge of right and conscience; that the complainants, the Gittings^s, are the chil- dren and distributees of Kinsey Gittings, on whose estate the complainant Scott administered; that Scott is only a trustee, and they the parties really interested, and ought to have been made parties by the appellants in their bill; that the decree is altogether fraudulent both against Scott and the Gittings^s ; inasmuch as by fraud and concealment, the ap- pellants obtained a decree for more than was due, (if ever any thing was due,) having concealed sett o(Ps and deductions which they had always admitted; /and as against Scott, by like fraud and concealment, have charged him with a sum exceed- ing what he had received and was accountable for. That Scotfs said answer, which by some unforeseen and. inevitable accident had miscarried as aforesaid, presented a just and sub- stantial defence, and that the miscarriage and loss of said an- swer has been discovered and known to Scott since the said de- cree, and not before, and the other complainants were totally ignorant that Scott had failed to put in his answer. The bill then objects to the order and proceedings of the Chancellor, and the returns and proceedings of the commissioners, and states 396 CASES IN THE COURT OF APPEALS Burch, et al. vs. Scott 1829. certain errors therein for which Scott has brought this his bill, in the nature of a bill of review, to review, revise, &c. and prays for himself and the other complainants, that the said de- cree and proceedings may be reviewed and reversed, and that the appellants may answer the premises; and that Scott may be allowed to put in his original answer, plea, &c. to said original bill, and the other complainants allowed as well as Scott to ap- pear to the said bill, and answer and defend the same upon the original merits, unprejudiced by said decree; that the said cause may be heard upon all and singular the allegations, matters and things, in this their supplemental bill in the nature of a bill of review alleged and maintained, at the same time that it is re- heard upon the said original bill; that the complainants may be restored to their original situation before the decree; that the said decree may be opened for such rehearing ; that the execu- tion thereof may be suspended, and the writ of fieri facias coun- termanded; and praying publication against the defendants therein, &c. Accompanying this bill was an affidavit from the counsel, J\lr. Jones, stating the drawing of the answer in Wash- ington with a plea in the bar and a demurrer to the equity of the original bill which was sworn to and returned to him to be trans- mitted to the register in Chancery ; that finding the package so large as to make the transmission of it by the mail very expen- sive, he sent his servant to the stage office to inquire whether there were any passengers for Annapolis in the stage of the next day, who returned with answer that he had found a gentle- man who would take charge of the package; upon which he de- livered it to his servant, very securely sealed up and directed to the register of the Court of Chancery in Annapolis , with a note requesting him to file the answer, and enter a notice to dissolve the injunction. He does not recollect that the servant named the person to whom he delivered the package; upon questioning him lately, he thinks he did not know his name, and has forgot- ten it if he did. That he had frequent conversations afterwards with Mr. Key about appointing a day to go to Annapolis and ar- gue the cause, after he had informed him that he had put in the answer. He rested without the least doubt or apprehension of OF MARYLAND 397 Burch, et al. vs. Scott. 1829. the answer's being regularly filed, and does not remember when he experienced so great surprise as when he heard of the bill and decree. Upon this bill and affidavit, the Chancellor by his order of the 16th of November, 1825, suspended and countermanded the execution, and all further proceedings under the decree. At December term, 1825, Scott filed an answer to the appel- lants original bill against him, with sundry exhibits of certain proceedings of the former controversy, in the life of K. Gittings, in the Orphan's Court of the District of Columbia, which it is unnecessary to state. Afterwards, at the" next term (March, 1826) the appellants appeared and filed their answers with sundry exhibits, to the bill of Scott, Berry, Gittings and others, in which they aver and state the justice of the original claim, for which the decree had been obtained ; the proceed- ings in the former suit, &c. the justness and fairness of the decree, denying the allegations of the bill, and refering to the proof taken of Scott's own acknowledgments of the justice of the claim and that he held the money to be paid, whenever the cause should be determined, to the appellants. The answers state the allowance of certain credits, and that they were en- dorsed on the fieri facias, and deny the justice of the others claimed by Scott. That the order for taking the bill, pro con- fesso, was served on Scott before the 20th of June, 1824. They admit that their counsel was informed, that Scott's answer was filed ; and that they are informed and believe, their said counsel thereupon wrote to Annapolis for a copy of it, and was informed that none was filed, which information he shortly after- wards communicated to Mr. Jones. They charge, that the same fact was again, afterwards, communicated to Mr. Jones, after a considerable interval, and they believe was also commu- nicated to Scott. They expressly charge, and state they are prepared to prove that Scott had such information before the decree. They deny all fraud in obtaining the decree, and deny that there ought to have been any surprize on the part of Scott, who is charged as desirous to delay his answer, as long as he safely could. 398 CASES IN THE COURT OF APPEALS Burch, et al. vs. Scott. 1829. Afterwards, at the same term, (March, 1826,) the appellants filed theft petition, praying the Chancellor to revoke his order of suspension of the 16th of November, 1825. And on a rule to show cause on the 25th of July, 1826, the Chancellor passed the following order. BLANJ>, Chancellor, (July term, 1826.) This case standing ready for hearing on the notice given in pursuance of the order of the 4th of May last, to show cause why the order of the 16th of November last, should not be dissolved and revoked, the counsel of both parties were heard and the proceedings read and considered. The Chancellor feels every disposition to relieve this case from all embarrassing forms, and to reach its merits if practica- ble. It will, therefore, be necessary to disengage the complain- ants substantial equity and object, from the forms with which they have been clothed; and to examine their bill with a due regard to their equity and object. The substance of their com- plaint is, that a decree has been obtained against some, which materially affects all of them, erroneously by fraud by sur- prise; or, to say the least, improperly and to the exclusion of a good and available defence. And upon the truth of these alle- gations they ground their equity to have the decree of the 4th of August last set aside their defence let in, and the matters in controversy heard upon the merits. This is the object, and the mode chosen by them to attain it is, by what they call c 'a sup- plemental bill in the nature of a bill of review." Whatever may be the cause of complaint, the party asking relief must conform, at least in substance, to prescribed rules as to time and manner. It has been the long established usage and law of the Court of Chancery to consider all its orders, and decrees, as complete- ly within its control, and open to be altered, revised or revoked, during the whole term at which they are passed, on motion or by petition. But, if the term is suffered to elapse, the party can only obtain relief by bill of review. This law of this court is analogous to that which has been adopted by the courts of common law; and which has been found alike salutary in both. It is believed there is no decision of the Court of Appeals which OF MARYLAND. 399 Burch, et al. vs. Scott. 1829. has directly or distinctly restricted or altered this rule of the Court of Chancery. But in this case the bill of these plaintiffs was not filed until long after the close of the term at which the decree was signed. It cannot, therefore, be considered as enti- tled to the same indulgence, or as standing altogether on the footing of a petition for a rehearing, or alteration, or opening of a decree, filed during the term at which the decree was signed. This bill charges, that the decree of the 4th of August last was obtained by fraud. It is the peculiar province of this court to grant relief in all cases against fraud and accident, not with- in reach of the courts of common law. And there can be no case, of that description, in which it would be more fit and pro- per for it to interfere than upon a charge, that its own decree had been obtained by fraud. Such a case is, however, brought before the court, not by a bill of review, but by an original bill. And in that light, the allegations of this bill require the court, in some respects, to consider it. In the Court of Chancery of England, the Chancellor, it seems, after the hearing, pronounces the substance of his decree orally, minutes of which are taken down by the register, who afterwards draws them out into the form of a decretal order; and, if in doing so, any mistake, should occur, the execution of the order may be stayed a while; until it can be corrected by motion in court. As thus drawn up, this judgment of the court is always called its "decretal order." But it has the force only of an interlocutory order; and is not a perfect, complete, and final decree before enrollment; for/till then the Chancellor may rehear, alter, or reverse it. The/ proper officer draws up the form of the decree of enrollment, from the decretal order, reci- ting all the pleadings, &c. after which a fair copy is made upon parchment and signed by the Chancellor. It is then, and not until then, an enrolled and final decree. The interval of time suffered to elapse between the making of the decretal order, and the enrollment, is seldom less than a month, often more, and in some cases exceeds a whole year. But in this interval the decretal order is so far considered as a final decree that it may be enforced by attachment. 400 CASES IN THE COURT OF APPEALS Burch, et al. vs. Scott. 1829. The Court of Appeals of this State have declared, that the de- cree of the Chancellor is subject to his control, only upon a bill of review, or a bill in the nature of a bill of review. A bill of review lies after the decree is signed and enrolled. A bill in the nature of a bill of review lies after the decree is made, but before enrollment. A decree must be considered as enrolkd, after it is signed by thv Chancellor and filed by the register. But the Chancellor rarel$ ; if ever, pronounces his decree orally, as in England, or if he does do so in any case, no minutes of it are taken down. He is considered as having pronounced no judg- ment; nor as having made any decision in the cause until a de- cree is drawn up in writing, in full and proper form and signed by him. That decretal order, which, in England, always pre- cedes the enrolled or final decree is never made here, and is un- known to our practice. But in England the phrase " decretal order," is often applied to various other orders beside that which immediately precedes the decree; and it is sometimes applied in the same sense here. The plaintiffs have stiled this bill, "their supplemental bill in the nature of a bill of review." But, one of them was the de- fendant, and the others were no parties to the original bill; and it is attached, as an addition, to no other bill; nor does it purport to supply the defects of any original bill. It is, therefore, in no sense a supplemental bill. In England, a bill of review can only come in after the decree has been perfected and enrolled. But if the party discover any error, or new matter of fact after the decree has been pronounc- ed, and before it has been enrolled, he may obtain relief by a bill in the nature of a bill of review; and need not wait or go to the expense of having the decree enrolled. Now, from what the Court of Appeals have said, as we have seen, it clearly follows, that in this State, there can be no such thing as a bill in the nature of a bill of review: Since all decrees here are made by being signed and filed; and when so made are to be considered as decrees enrolled. Most clearly such a bill cannot be resort- ed to in this case. OF MARYLAND. 401 Burch, et al vs. Scott 1829. A bill of review, properly so called, lies against those who were parties to the original bill, and against them only; and must be either for error apparent on the face of the decree, or for some new matter. But, before a bill of review for newly discover- ed matter can be filed, the party must petition for leave to do so: setting forth the new matter, strongly sustaining his statement by affidavits; upon which the leave of the court is granted. In this case there has been no petition setting forth newly discov- ered matter, nor any leave given to file such a bill. This bill, therefore, can, in no respect whatever, be considered as a bill of review grounded on the discovery of new matter. A bill of review for error apparent on the face of the decree may be filed without asking or obtaining the leave of the court; and it may be brought by either of the parties to the original bill alone; or it may be filed by a person not a party to the ori- ginal decree, but whose rights are injured by it. Such is the case now before this court. The bill of these plaintiffs has this character, and more. This bill has yet another aspect. It alleges, that the plaintiffs, one of whom was a party to the original suit, had a good and available defence; that all of them should have been made par- ties; that they have, all of them, an interest which they will be able to maintain and prove; and that the decree of the 4th of August last was obtained by surprise, or owing to a kind of negligence for which they are not at all blamable, or for which they may, at least, be excused. Upon these grounds they pray to have the decree opened and the/^ause reheard. According to the English authorities, if the enrollment of a decree be ob- tained 'by surprise or irregularity, it may be opened; provided, the application be made within reasonable time. And where the merits of the case had not been entered into, an enrolled decree has been set aside, upon the special circumstances, not- withstanding the proceedings were strictly regular. For a court of justice will make every effort, when in its power, to reach the merits of the case, and have justice done. This bill, then, divested of all extraneous matter may be re- garded in three distinct characters. First,a.s an original bill to VOL. I. 51 40* CASES IN THE COURT OF APPEALS Burch, et at. vs. Scott 1829. have the decree of the 4th of August last reversed on the ground of fraud. Secondly, as a bill of review for error apparent on the face of the decree, and because it injuriously affects the interests of some of the complainants who were not parties to it; and Thirdly, as a bill, grounded on the peculiar circumstances, ask- ing to have the decree by default set aside, and the case reheard upon the merits. It was in these characters, that it presented itself to the mind of the Chancellor when it was first laid before him. He then felt, as he still does, a strong impression, that these characters were so entirely incompatible, as to be incapable of being blended together in the same bill; but he conceived, that if it could be sustained in all, or any of them, the parties complain- ing would be entitled to relief. And under this impression it seemed to him fit and proper to suspend, at least for a season, the execution of the decree, until those matters could be more carefully canvassed, and both parties could be heard. And therefore it was, that he passed the order of the 16th of Novem- ber last; which operated as an injunction, and was intended so to operate. But, in the course of the argument, the one party seemed to construe this order as a total revocation of the decree of the 4th of August last; and the other, as a mere stay of execution, be- cause of some credits not having been given. It was also urged, that the allowing of such a bill of review to be filed, did of itself operate as a suspension of all further proceedings, until the final hearing; and that it must be so understood, when taken in con- nexion with the prayer of the bill, and the circumstance of a bond having been required and accepted. The Chancellor has been misunderstood. According to the English law, neither the filing of a petition for rehearing; nor a bill in the nature of a bill of review, nor a bill of review for error apparent on the face of the decree; nor a bill of review for new matter after leave given; nor an original bill to set aside a decree on the ground of fraud; nor a bill to open an enrolled decree and let in the merits, has ever or under any circumstances been considered, m iiself, as a sus- OF MARYLAND. 403 Burch, et al. vs. Scott 1828. pension of the execution of a decree. The party having the decree, in all such cases, is allowed to proceed, unless specially and expressly restrained; which is never done but on the sum decreed being brought into court, or on good security being given. Similar law and practice has been long established here ; and, hence it was, that the Chancellor required a bond with ap- proved security to be filed, before he imposed the restriction or injunction, expressed in the order of the 16th of November last. If, on considering this bill in its third character, there should be found sufficient cause for opening the decree, and having the case reheard upon its merits, it will be most advantageous to all parties, that it should be done : and it will be unnecessary to in- quire, and express an opinion, whether the three characters of this bill are not incompatible ; particularly as no objection to it has been made on that ground ; or whether the decree has been obtained by fraud or not; or is erroneous upon its face. The decree of the 4th of August last, now complained of, was obtained in that suit by the default of the defendant in not filing his answer within the time prescribed by the rules of the court. This apparent negligence, the present plaintiffs, by their bill, have endeavoured to account for to justify, or to excuse. And whether they have done so or not, is the matter now to be as- certained ; if they have, this decree must be opened. The decree was signed as of July term ; and, as has been observed before, all decrees and orders of the court being held entirely subject to its control during the term, if an answer had come in at any time, previous to the close of that term, the de- cree bj default would have been/set aside, and the defence let in. No decree by default, under the rule, will be. signed until after the first four days of the term ; but after that an answer may be filed, and the decree rescinded, at any time during the term. On turning to the proceedings in the original case, it appears, that there had been a return against Scott, the de- fendant, attached for not appearing ; in consequence of which, on the 30th of March, 1824, the usual order nisi was pas- sed, requiring him to appear and answer by the 4th day of the next July term, which commenced on the 13th, and 404 CASES IN THE COURT OF APPEALS Burch, et al. rs. Scott. 1829. closed on the 24th of the same month. Therefore, at any time after the 17th of July, 1824, the parties might have obtained the decree which was signed on the 4th of August, 1825. That they did not obtain it sooner can only be imputed to their own misunderstanding, negligence, or indulgence; because, the court, on application, would have inspected the proceedings, and have done on the next day, after that day, precisely that which it did, when called upon one year after. The plaintiffs in that case then, owing to their own negligence or indul- gence, stood in no better situation at the July term, 1825, than they did at the July term, 1824; because, their decree by default, according to the established practice, was liable to be corrected or revoked during the term at which it was signed. The July term, 1825, commenced on the 12th of that month, and was not finally closed until the 17th of August fol- lowing. Consequently, the decree was not final and absolute until that day. After which it could only be opened or affect- ed by an original bill, or a bill of review. The bill to set aside this decree was not filed until the 15th of November, 1825; and Scott, one of the plaintiffs here, was not charged, on the record of the original case, with a default, which might have been fixed upon him by a decree, until the 18th of July, 1824, making a space of about fifteen months of apparent negligence, which is to be accounted for, justified, or excused. To find which, we must examine the bill and answer in this case. That the defendant Scott, in the month of July, 1824, and before he could have been finally fixed with a decree by de- fault, had made an answer, which was ready to be put on file; that he had charged his solicitor with the care of it; who had attempted to forward it to the register, to be put on file, are facts proven and not denied. It also appears, that under a firm belief, that his answer had reached its destination, and was on file, his solicitor proposed to the solicitor of the plaintiffs to agree upon some day when the cause should be argued by them. The defendant, in this case, Thomas Burch, in his answer, states, that thereupon his conusel wrote for a copy of Scott's answer, and was informed, that it had not been filed; which information was OF MARYLAND. 405 Burch, et al. vs. Scott 1829. shortly afterwards communicated to Scott's counsel, which after a considerable interval was again mentioned to him. And it is expressly charged, that Scott himself, knew the fact before the decree was signed. That Scott's solicitor was very negligent is most manifest. But it does not clearly appear, that Scott him- self, is chargeable with negligence to a greater extent than about four or five months; for it is not said by Burch in his an- swer, how long it was, before the date of the decree, that Scott was informed his answer had not been filed; but it would seem, that the counsel of the plaintiffs in that case, to be assured of the fact whether Scot?s answer was filed or not, inquired for it, and searched the papers so late as about the 1st of July, 1825. It is admitted by the defendants in this case, that the decree of the 4th of August last is for a greater amount than it ought to have been given for; in this respect, therefore, it confessedly requires revision and correction. It is a decree by default, and not upon the merits. But Scott avers upon oath, that he has a good defence against the whole claim of the defendants, which he prays to have let in. And it is not alleged by his opponents, that they have lost, or been deprived of any means of sustaining their pretensions. In short, under all the peculiar circumstan- ces of this case, it appears to be fit and proper, that the decree of the 4th of August last should be revoked; but it must be up- on the terms of paying all costs. Decreed, that the decree of this court passed and signed on the 4th of August, 1825, in the case wherein Thomas Burch, administrator de bonis non of Jesse Burch, Fielder Burch and others/are plaintiffs, against William Scott, together with all the proceedings in the said suit subse- quent to the fourth day of July term, 1824, be revoked, rescin- ded, and annulled. Decreed also, that the said Scott forthwith pay unto the said complainants all the costs which they may have incurred in the prosecution of the said suit subsequent to the fourth day of July term, 1824, to be taxed by the register Decreed also, that the answer of the said Scott, purporting to have been received and filed on the 7th of December, 1825, in the said case, be allowed to be filed as his answer in the said suit, subject to all legal exceptions thereto. S THE COURT OF APPEALS n. ScuCL to bare the occitc by fck ' -.:*:-'-- ::---' ::'"c " : --; - r " OF MARTLAJfD. Cn ::: '.'.-. t::e _-.: be :>:.; he Mfe W , a:nl all rxlra.icous evidence whatever, is, nevertheless to be precedeil and accompanied by the very thing dispensed with ! The argument of the counsel of the appellants, to show that they had an election to proceed under either act of Assem- bly that of 1799, c/i. 7 9, or 1820, c/i. 161; the one be ing suppos- ed to apply to cases where the defendant had stood out to anaf- tachme-.it, and the other to cases where the process had gone no further than a summons, and, therefore, that the two laws are consistent, and each operates upon its appropriate cases, is deem- ed to be clearly untenable. 1. If the two acts could be thus con- strued distnbutively as applicable to these two descriptions of cases, each must operate exclusively upon the cases respec- tively appropriated to it. The provisions applicable to the case of a mere summons could not be applied to and confounded with a case where the party stood out process of contempt. The court is not authorised to follow up these proceedings in- discriminately, in all cases of default, but is expressly authori- zed and required to apply the requisite proceeding to the given case. Therefore there cannot be, under any construction of these acts of Assembly, an election to pursue the one or the other course the precise coui-se being prescribed and limited to the specific case. 2. But, the two acts of Assembly cannot stand together; the latter act virtually supersedes and abrogates the former. It is true it speaks only of cases where the defendant has failed to appear or answer after summons. The only effect of this is to dispense with the process of contempt made a neces- sary preliminary by the former act of the order for taking the bill pro confesso, or for a commission. But no process of con- tempt can issue but upon a previous default toappearor answer upon summons it is necessarily founded on a previous summons. Then when the last act comprehends all cases, as it expressly does, of summons, it necessarily comprehends all cases of attack- mzni the last, by no possibility, being supposed to exist with- out the other; and then the proceeding to an "interlocutory de- cree" and commission is not discretionary, but is required of the court, and becomes an imperative duty, upon the application of the complainant. This is made still more clear by the second OF MARYLAND. 415 Burch, et al. vs. Scott. 1829. section of the act of 1820, c/i. 161. By that, the terms on which a bill may be taken pro con/esso, are strictly guarded and limited: Whereas, by the act of 1799, c/i. 79, the order for taking the bill pro confesso is left entirely to the discretion of the court, upon the mere default of the defendant. 3. But if the validity of this argument were fully granted, the pretended right of elec- tion could avail nothing, since it is perfectly clear that the appel- lants have pursued neither act, but their proceedings consists of an incongruous medley of both. It is submitted by the appellee, whether the matter of this appeal be at all cognizable by this court. It is an appeal from a merely interlocutory order, which goes no further than to set aside a decree by default leaving the whole merits open to a decision at the final hearing. Noth- ing is decided between the parties; but every possible claim, that could be asserted by the complainants under their bill, is fully reserved to them; and even secured to them by collateral securi- ty. They can lose nothing but by a failure of merits in their claim. This is, moreover, an interlocutory proceeding in a matter wholly under the discretion of the Chancellor. It is, there- fore, insisted that this appeal be dismissed, as well upon gene- ral principles, as upon the authority of the cases in Jackson vs. The Union Sank of Maryland , 6 Hair, and Johns. 151 (note.) Gover, et al. Lessee vs. Cooley, 1 Harr. and Gill, 7. Snoicden vs. Dorsey, 6 Harr. and Johns. 114. The principles upon which the case of Thompson vs. M'-Kim, 6 Harr. and Johns. 302, is to be distinguished, are too recent and familiar to this court, to require any illustration/6r remark. Magruder for the appellants/ in reply to the last argument of the counsel of the appellee. The real difficulty in this case, is to ascertain to which class of bills, that with which we have to deal, does belong. It cannot be as it has some times been cal- led a cross bill, because that ex vi- tcrminorum implies a bill brought by a defendant in a suit against a plaintiff respecting the matter in question in that bill; and it is a weapon of defence, in such case. Cooper's Plead. 85. It cannot be sustained as a bill to impeach a decree for fraud, in obtaining it. Here no fraud is admitted or attempted to be proved, "and the fraud 416 CASES IN THE COURT OF APPEALS Burch, et al .r.i. Scott 1829. used in obtaining the decree, bring the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated." Coopers Plead. 97. In real- ity it attempts to partake of every description of bill, and is a non dcscript. In the argument of the appellee's counsel, it is evidently designed to treat it as a bill of review, or in the na- ture of a bill of review'. These two description of bills agree in all respects, (and also a supplemental bill in the nature of a bill of review, which in some places perhaps this bill is called,) except that the one is the proper bill to be filed before, and the ether after the decree is enrolled. Cooper's Plead. 88, 89. One of the ordinances relative to bills of this description is that "the decree must be first obeyed and performed if it be for money, the money must be paid," &c. Coopers Plead. 91; "and where a sum of money is ordered to be paid, it is dispensed with, only if it appear that the party was unable to pay it." "And nothing will excuse the party from this duty but evidence of his inabili- ty to pay it." Wiser vs. Blackly, 2 Johns, cli. Rep. 491. "Where the party is in execution under the decree, and unable to pay, I should rather conclude that the non payment of the money, is not an insuperable obstacle." Per Kent, Chancellor, in Liv- ingston vs. Hubbs, 3 Johns. Ch. Rep. 128. Such has been the fix- ed and invariable law, relative to the filing of bills of this des- cription, from the time that bills of review were allowed. It is said there is no "such positive rule of law." As well might it be said, that there is no positive rule of law authorising the Chan- cellor to allow bills of review to be filed, and therefore they ought not to be allowed. It depends upon the discretion of the Chancellor. Unde derivatur, that notion? Is it reasonable? The propriety of calling upon an inferior court to review its own decree, and especially upon the ground of error in law, appar- ent upon the face of the decree, might well be questioned, unless the performance of it, where money is required to be paid, was insisted upon the evils arising from its exercise the delays which it would occasion, would be insufferable. In every case, where a considerable amount of money is directed to be paid, and it was the wish of the defendant, as long as posible to delay OF MARYLAND. 417 Burch, et al. vs. Scott 1829. the payment of it, instead of taking the appeal which he is by law authorised to take to this court. He could first file his bill of review, and only when that is disposed of, and he was not permitted to file a second, that he would carry his case into the court of last resort, in order to another review. Such bills sure- ly ought not to be encouraged, and the rules which have been adopted to prevent the filing of them merely for delay and vex- ation ought not to be relaxed. If the plaintiff in a bill of review succeeds in obtaining a reversal of the original decree, a bill may be brought to review the reversal of the former decree, and praying that the original decree may stand. Cooper's Plead. 95. If upon a bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal. Ib. 92. And a bill of review has been permitted (upon new matter discovered) even after the affirmance of the decree in parlia- ment. Ib. 92. There is and ought to be no such "latitude" al- lowed to the Chancellor "in adapting the terms to- the circum* stances of each case;" and the cases referred to of Jackson vs. Union Bank of Maryland, 6 Harr. and Johns. 151 (note,) and Cover, et al. Lessee vs. Cooky, 1 Harr. and Gill, 7, are not at all applicable to this. This case is by no means entitled to be excepted from the operation of the rule. Scott knew the situation of the property when he administered. He has been a witness in this case be* tween Jane Burch and Gittings, and an important witness, as ap- pears by the exhibits. If because the property was in the pos- session of GUtings at the time of his death, he thought it right to include it in the inventory, he /ought to have known, that it was not responsible for Gittin^s debts, and no doubt took care to save himself harmless. It appears, moreover, in the testimo* ny,that when the injunction was served upon him he declared be should hold (as he was authorised by law to hold) a sufficient amount of the proceeds of sale to meet this claim. Some of the money for which negroes sold, he says is uncollected, and if this be true, whose fault is it ? The sale was made in October, 1818, on a credit of nine or twelve months. But what excuse can be made for filing this (misnamed) bill of review, when if the plain- VOL. 1 53. 418 CASES IN THE COURT OF APPEALS Burch, tt al. vs. Scott. 1829. tiff wished to have justice done him, and the estate settled, an appeal to this court would have enabled him to have had the whole matter, not only the law of the case, but whether there was proof to warrant the decree, examined. The decree bears date the 4th of August, 1825, and the bill is filed the 15th of November, 1825 less than four months afterwards. It will be no answer to say that if the money had been paid over, and then the decree reversed, it-would have been difficult to get it back. If so the course was to have brought the money into the Court of Chancery, and prays the Chancellor to detain it, pend- ing the appeal, which could have been done, if there were rea- sonable appprehensions of its being lost. The plaintiff is evi- dently entitled to no favour. His object is and can only be de- lay, and to keep the money in his hand as long as it is possible. What is said about the policy of permitting bills of review to be filed after the expiration of the time allowed for appeals, we pass over; for if correct, it does not apply to this case an ap- peal might have been prayed. A few words will dispose of what is said under the third ob- jection, as to the manifest errors of law. There is nothing in these erros. The decree is warranted either by the act of 1799, ch. 79 or 1820, ch. 161. The law to which the appellee's counsel refers, (1799, ch. 79, sec. 6,) authorises a commission for any purpose whatever to issue to one person only, or to three persons, with power to any two with the consent of the party or parties in court. There is an end then to the objection to these proceedings under the act of 1799; and there is as little objection to their regularity if it depended altogether on the act of 1820, ch. 161. By that act if the defendant fails to appear, upon being summoned, as is the case here, the Chancellor, on application of the complainant, is expressly authorised to issue a commission in order to get the proof necessary to entitle the complainant to relief; and this he did. But he must pass an in- terlocutory decree. And what is an interlocutory decree in such a case, but that a commission be issued ? Is there any formula prescribed, and to be strictly observed ? Must he at the top, or on the back of that order write "interlocutory de- OF MARYLAND. 419 Burch, et al. vs. Scott 1829. cree?" If this order be not a compliance with the law, it is difficult to imagine what is. It need not be said it is decreed. The design of the act of 1820, is to put it out of the power of the defendant by refusing to appear or to answer when he ought, to delay the complainant, if the latter be willing to dispense with the admissions which the answer of the defendant might make^ The remedy is given only when the defendant is in default, and the subsequent clause of the act (1820, ch. 161, sec. 3,) affords to the defendant every benefit that he could desire. There is nothing in this objection; and need it be said, as little in the ob- jection, the want of the witnesses' signatures to the depositions, nor as to the mode of executing the commissions, (both of which happened to be executed in the very best, and most regular mode,) nor "above a/Z, the omission of the notice of the time and place of opening and executing the commission." Notice is never to be given out of court to a party who will not appear in court. If there had been any irregularity in executing the com- mission, the defendant ought to (as he might have) appeared in court and filed his exceptions. Objections of this description are not allowed at the hearing. If these objections could be sustained they would be nothing worth on this bill of review; they might deprive the complainants of some testimony, with- out which, perhaps, they could not have obtained a decree be- low; but it cannot be made a question now, whether if such and such depositions were out of the case, the remainder of the tes- timony would entitle the complainants to a decree. "A bill of review lies for manifest errors of/Taw, not of /art." JVon con- stat, that the Chancellor grounded his decree on any of the ex- ceptionable testimony. He too might have thought that there were some irregularities in execution of one, or the other com- mission. What is said under the fourth objection, and especially in regard to the distinction between a decree in a cawse, and an in- terlocutory decree, and decrees nisi, &c. need not be remarked on. The act of 1820 manifestly forbids any thing like a de- cree nisi; "a decree for relief to be made absolute, or to be va- cated on a future contingency." 420 CASES IN THE COURT OF APPEALS Burch, e al. rs. Scott 1829. Nor need it be examined what is designed to prove that the latter act "supersedes and abrogates the former." Much of this, it is presumed, would have been omitted if it had been known that under the act of 1799, as well as of 1820, a commis- sion may be issued to one person. The proceedings were war- ranted by either of the laws, so that either will be sufficient for the complainants; and it is because this case was in a situation which authorised them to proceed under either law, and the proceedings under both, (except the bill be taken pro confesso, under the act of 1799,) are precisely the same, that the learned counsel on the other side, supposes that "their proceeding con- sists of an incongruous medley of both." As to what is said by the learned counsel whether or not this appeal will lie ? It need only be answered that it is to be taken for granted that the appeal will lie, until this court reverse (without mentioning others) their decisions in Munnikuyson vs. Dorsett, 2 Harr. and Gill, 374, and the State, use of Sadler's xV vs. Cox, Ib. 379. Surely if from such an order by a court of common law an appeal will lie, it will, from an order in Chancery; and surely too every thing which is said now, might have been said, and was said, in the cases here referred to. If this be an interlocutory order, then the order of the court in the cases mentioned was an interlocutory judgment at law, from which, it is well settled, that no appeal will He. Again, we are now called upon to deal with this as a bill of review, or bill in the nature of a bill of review, filed to ascertain if there be error of law, apparent in the body of the original decree. Now whoever heard, in such a case, of such a decree, as the decree under examination ? In such a case the only decree which the Chan- cellor can pass is, that the original bill be dismissed, or else mod- ified, and thereby remove the errors of law appearing in the body of the decree. To let in answers to try the merits of the original suit upon other and new testimony is entirely out of the question, when the bill is a bill of review for errors of law, appearing on the face of the decree, and which ex vi termini for" bids a re-examination of the facts of the decree; even the inqui ry whether the original decree is warranted by the testimony OF MARYLAND. 421 Burch, et al. vs. Scott. 1829. already in the case. Such suggestions as are to be found at the close of the argument of the counsel of the appellee, can never belong to a case of this description, and must surely have been made under an impression that this bill of review, though in its commencement for errors of /ate, is in the conclusion a bill "brought upon discovery of new matter, that is to come to light after the decree was made." Which certainly it has never been pretended that it was, and even then a new answer is a thing unheard of. The learned counsel has considered this case throughout as a decree by default an absolute decree grounded (if it had any grounds) upon what he calls an interlocutory decree nisi, and he has been misled by what he has read in the English chance- ry books (and perhaps New-York also) of the law and practice there prevailing with respect to opening decrees of that descrip- tion. No such practice exists in our Court of Chancery, and in truth the power of the Court of Chancery here or in England to open its decrees because of error or irregularity in obtaining them, is not greater than the power of the courts of law. The power is recognized to exist in our Courts of Equity by the act of 1787, ch. 9, sec. 6. And this act shows that the court below had the same power to set aside its judgments in the cases before refer- red to, of Munnikuyson vs. Dorsett, and the State use of Sadlers JEzY vs. Cox, that it can be pretended the Court of Chancery had to meddle with its decree in this cause. That there exis- ted stronger grounds for interference in those cases than in this case, cannot possibly be denied. / In our Court of Chancery a cause is never disposed of when under rule hearing, because of the default of either party in not appearing to argue it. It is very different in England, as will at once be seen by reference to their books of practice; an example is given in Cooper'* Plead. 269, (note) a decree made upon the default of the de- fendant in not appearing at tlie hearing. A decree given for the plaintiff, because of the non appearance of the defendant to open and insist upon his defence, is a thing of constant occurence in the English Court of Chancery, (and similar practices prevail in their law courts ;) but their being no such practice in our 422 CASES IN THE COURT OF APPEALS Burch, tt al. vs. Scott 1829. Court of Chancery, decrees of that description and proceedings in relation to decrees of that description, which so frequently occur in England, can be of no service in this State but to fur- nish material for a speech in a desperate case. In England the rules of court which authorise such a decree, direct it first to be made nisi, and can only be made absolute on the defendant failing to show cause why it should not be, after being served with a writ of supcena for the purpose. Coopers Plead. 269, 27. If there be any irregularity in these proceedings; if the decree has been made absolute, when in truth the subpoena was not served, a decree founded on the rules of court and subject to those rules, will be open, when it appears to have been taken in violation of those rules. It is the same in the courts of law. There is a rule somewhat like this in this court, and the con- struction given to that rule ought to have been conclusive with the Chancellor, and should have influenced him to dismiss this bill, and to have revoked his order which suspended all proceed- ings ui*dcr the original decree. The rule alluded to, is that which entitles the appellee to an affirmance of his judgment nisi, if the appellant and his counsel are absent when the court reaches the case, and to an absolute affirmance if within a certain number of days thereafter, notes are not filed on the side of the appel- lant. Now suppose this case had been in this court, and had been affirmed under that rule, would all the reasons and excuses suggested in this bill have induced the court to open the affirm- ance, at a succeeding term? If one term or more after a judg- ment is affirmed under this rule, the appellant was to apply for an order to open the decree, in order to try the merits, and because the appellee can "lose nothing but by a failure of mer- its in his claim;" and he was by affidavit to make known to the court that he had employed a counsellor, and if you please, one who was not a regular practitioner of the court, and could not neglect other courts and other business to attend a court in which he did not regularly practice, once had really thought his counsellor did go to court, and would be there when the cause was regularly called up and never knew to the contrary, till the appeal was affirmed. It is apprehended, that precisely OF MARYLAND. 423 Burch, et nl. vs. Scott. 1829. that same answer which this court would give to such an ap- plication, is the one which the Chancellor ought to have giv- en to Scott; and for not giving it, there is error in his decreee, and in his suspending proceedings under the former decree, which it is the duty of this court to correct. Scott's case is in- finitely worse. He apologizes for not having filed an answer it was lost. But he makes no sort of apology for that of which we complain, and which caused so much delay in the court below, his contempt in not appearing to the suit, or giv- ing any attention. to the case from September term, 1823, when he was bound to appear, until November, 1825, when for the first time he came into court, to stay the proceedings. STEPHEN, J. delivered the opinion of the Court. Considerable difficulty has been felt in coming to a decision in this case, which involves principles of practice not of very fre- quent occurrence, and which affect in a high degree, the regular and ordinary administration of equitable jurisprudence. It ap- pears by the proceedings in the court below, and whhh have been brought up here on appeal, that a controversy exists as to the right of property in certain negroes, or the proceeds for which they have been sold, between the representatives of Jesse Burchj and those of a certain Kinsey Git tings. To recover these proceeds and to have a distribution made among them, the representatives of Burch filed their bill of complaint in the Court of Chancery, on the 14th day of July, 1$23, against fVil- liam Scott, one of the appellees/ as the administrator of said Giltings, in which bill they also pray for an injunction, to pre- vent Scott from paying over, or in any manner parting with the proceeds of sale until the final decree of the court. The Judge here referred to the proceedings in the Court of Chancery before set forth, including^the decree of the Chancel- lor, and then continued. Upon the propriety of this discision this court are now call- ed upon to decide. As a bill of review to reverse the decree of the Chancellor, for error apparent on the face of the decree, it cannot be available for the complainants. The error which 121 CASES IN THE COURT OF APPEALS Burch, el al. vs. Scott. 1829. will reverse a decree upon such a bill must appear in the body of the decree itself. JVyatt in his Practical Register, page 94, states that a bill of review is to examine and reverse a former decree upon error of law appearing in the body of the decree itself, without averment or further examination of any matter of fact before the decree, or of any matter resting upon record, which might have been had at the time of the decree so in page 98 of the same book, he states the principle to be that upon a bill of review, the party cannot assign for error, that any of the matters decreed, are contrary to the proofs in the cause; but must shew some error appearing in the body of the decree, or new matter discovered since the decree made. So in Cat- terall vs. Purchase, 1 Jltkyrfs Rep. 290, the Lord Chancellor ob- served it is true on arguing a demurrer to a bill of review no- thing can be read but what appears on the face of the decree, but after the demurrer is over ruled, the plaintiffs are at liber- ty to read bill or answer, or any other evidence, as at a re- hearing, the cause being now equally open. To the same effect see Coopers Pleadings in Equity, page 89, Mitford, page 178. Taylor vs. Sharp, SPeere Williams, 37 1 If a decree be obtained and enrolled, so that the cause cannot be reheard upon a petition, there is no remedy but by bill of review, which must be upon error appearing upon the face of the decree, or upon some new matter, as a release, or a receipt discovered since Jft/- att. P. R. page 98. When a bill of review is brought for error apparent, according to the English practice, the usual method is for the defendant, to put in a plea, and demurrer; a plea of the decree, and a demurrer against opening the enrollment; so that in effect a bill of review cannot be brought without having the leave of the court in some shape; for if it be for matter ap- pearing in the body of the decree, then upon the plea and de- murrer of the defendant to the bill the court judges whether there are any grounds for opening the enrollment ; if it be for matter come to the plaintiffs knowledge after pronouncing the decree, then uppn a petition for leave to bring a bill of review, the court will judge if there be any foundation for such leave, Wyatts P. R. page 99. The defendant generally puts in the OF MARYLAND. 425 Burch, et al. vs. Scott. 1829. usual demurrer, that there is no error in the decree. He rare- ly or ever answers unless ordered thereto by the court, and the demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite, (a) same book, same page. In the case now before this court, the defendants have thought fit to desert the usual course of proceedings, according to the above practice, and have put in their answer instead of demurring. But upon a bill of review for error apparent no distinction has been discov ered, between an answer, and a demurrer, because in both ca- ses the court will judge whether there be error in the body of the decree. Upon examining the] decree in this case, it does not appear to this court, that there is any error in law apparent upon its face, nor can the bill be supported upon the ground of new matter discovered since the decree, because such new matter must be to prove what was before in issue, and the leave of the court must be obtained before a bill of review can be filed on this ground, and which the court will not grant, without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it at the time, when the decree was made. No such new proof is alleged in this case to have been discovered since the decree was made. Cooper's Plead, in Equity, page 91. A supplemental bill in the nature of a bill of review, for want of proper parties will not be available, after a decree has been signed and enrolled. See Wiser vs. Black- ly, 2 Johnson JV. Y. C. Rep. 488. Cooper's Equity Plead, page 94, where a decree is impeached oathe ground of fraud practised in obtaining it, the fraud must be' established by proof, before the propriety of the decree can be investigated, same book, page 97. There is nothing in this case by which it can be sustained upon the ground of new matter discovered since the decree, for such new matter as already remarked, must be some- thing tending to prove what was in issue between the parties. Cooper'* Equity Plead, page 91, and where either a bill of review (a) A sum formerly deposited in court as a security, to satisfy costs and damages for delay, if the matter should be found against the party who pre- ferred such bill. WyatVt P. R. 51, ed. of 1714. VOL. I. 54. 426 CASES IN THE COURT OF APPEALS Burch, et al. vs. Scott. 1829. after enrollment, or a supplemental bill in the nature of a bill of review before enrollment are brought upon the ground of such discoveries, the leave of the court must be obtained, which the court will not grant without affidavit that the new matter could not be produced or used by the party claiming the bene- fit of it, at the time when the decree was made. Cooper's E. P. pages 91, 92, 93, 94. Wyatfs Chancery, 98,99. As to the question, when a decree of the Court of Chancery of this State is to be considered and taken as enrolled, we consider it to be clothed with that solemnity, when it is signed by the Chan- cellor, and filed by the register, and the term has elapsed dur- ing which it was made. The only question which remains to be considered is, whether it is consistent with the salutary and wholesome exercise of that sound discretion, which it is admit- ted the court possesses upon subjects of this nature, to open or discharge the enrollment and vacate the decree, in this case for the purpose of enabling the defendant to make his defence. Upon full and mature deliberation, we are of opinion that it is not. We consider that the establishment of such a lax principle of practice would be productive of the most deleterious conse- quences, in the administration of equitable jurisprudence, by the tribunals clothed with Chancery powers in this State. Af- ter being repeatedly in contempt by disregarding the solemn process of the court, the complainant makes his present applica- tion rather with an ill grace. In Wooster vs. Woodhull, I Johnson JV. Y. C. R. page 541, the Chancellor says, "the interference of the court to relieve a party from the consequences of his default must depend upon sound discretion, arising out of the circum- stances of the case. There is no general and positive rule on the subject; and Lord Thurlow observed in one case, ( Williams vs. Thompson,2d Bro. 279,) that if a defendant comes in after a bill has been taken pro con/esso, upon any reasonable ground of indulgence and pays cost, this court will attend to his applica- tion, if the delay has not been extravagantly long. If the indul- gence be great and frequent, there is danger of abuse of the precedent, for the purposes of delay. According to the opinion of Lord Hardwicke as stated in this case, the ques- OF MARYLAND. 427 Aldridge & Higdou vs. Turner. 1829. tion in such cases is, on which side the greatest inconveni- ence would lie ? Testing the propriety of granting the present application by that principle, and but little doubt can exist as to the fate which ought to await it. On the one hand if granted, the complainant might gain an advantage which he has lost by his own repeated contumacy and gross negligence; on the other hand instead of a regular and speedy administration of justice by a prompt and respectful attention to the process and juris- diction of the court, they will be disregarded and disobeyed, whenever a respondent could thereby gain an advantage, to the great reproach of the law, and the most serious delay in the ju- dicial dispensations of justice. On these grounds it is conceiv- ed, that the Chancellor erred. DECREE REVERSED. ALDRIDGE &HIGDON vs. TURNER December, 1829. The endorsement of T, on the promisory note of E payable to A, as follows: "I hereby guarantee the ultimate payment of the within note," is void for want of consideration ; and under the plea of non assumpsit to a declara- tion founded upon that guaranty, the objection to the want of considera- tion may be taken. APPEAL from Saint Mary's County Court. This was an ac- tion of assumpsit, brought on the 19th of February, 1825. There was but one count in the declaration, which stated "That whereas one Charles C. Egerton, jun. before the mak- ing of the promise and undertaking herein after mentioned, to wit, on the 2 1st day of April, in the year 1820, at the town of Baltimore, in Baltimore county in the State of Maryland, to wit, at the county aforesaid, made and signed his certain note in writing, commonly called a promissory note, bearing date the day and year aforesaid; and thereby six months after date of the said note, promised to pay to the said Andrew Mdridge and Ben- jamin D. Higdon, by the name of Mdridge and Higdon, or order, for f 695 40 for value received, by him the said Charles C, Eger- ton,jun. and then and there delivered the said note to the said CASES IN THE COURT OF APPEALS Aldridge & Higdon vs. Turner. 1829. Benjamin D. and Andrew, whereby, and by reason of which said promise, and by force of the statute in such case made and provided, the said Charles C. Egerton, jun. became liable to pay to the said Andrew and Benjamin D., the said sum of money mentioned in the said note, according to the tenor and effect of the said note, and thereupon afterwards, to wit, at the county aforesaid, in consideration of the premises and to secure the payment of the said sum of money, in the said note mentioned, to the said Andrew and Benjamin D., he, the " said Josiah Turner, upon himself assumed, and to the said Andrew and Ben- jamin D., then and there promised to guarantee the payment of the sum of money mentioned in the note herein before stated ; by signing with his own proper hand writing on the back of the said note, the following obligation : ' I hereby guarantee the ultimate payment of the within note. Josiah Turner.' And the said Andrew and Benjamin D. aver, that the said Charles C. Egerton, jun. hath not paid to them the said sum of money, in the said note mentioned, or any part thereof, at any time what- ever, but therein hath wholly failed and made default, and is not able to pay ; of all which said premises, the said Josiah Turner afterwards had notice at the county aforesaid, and by reason whereof, and according to the said guarantee and undertaking of the said Josiah, in form aforesaid made, he, the said Josiah, became liable to pay to them, the said Andrew and Benjamin Z>., the said sum of money, in the said note mentioned, when he should be thereunto requested, and being so liable, he, the said Josiah, in consideration thereof," &c. The defendant pleaded non assumpsit and won assumpsit infra tres annos. General replication to the last plea, and issues joined. At the trial of this cause, the plaintiff gave in evidence to the jury, the note of Charles C. Egerton, jun. to the plaintiffs', and the defendants' assumption thereon, as follows. "Baltimore, April 21f, 1820. $685 40. Six months after date, I promise to pay to Aldridge 8f Higdon, or order, six hundred and eighty-five dollars and forty cents, for value received. Charles C. Eger- ton, jun." On the back of the aforegoing note were the fol- OF MARYLAND. 429 Aldridge & Higdon vs. Turner. 1829. lowing endorsements, to wit: "I hereby guarantee the ulti- mate payment of the within note. Josiah Turner." " 1821, November 7. Received J. Turner fy Go's note, at sixty days, for $106 50." And proved the signatures of said Egerton and Josiah Turner thereon ; they also gave in evidence, the judg- ment of Jlldridge and Higdon against Charles C. Egerton, jun., obtained in March, 1824, on this note, and the proceedings thereon, two writs of fieri facias, returned nulla bona. The plaintiffs also read in evidence, a conveyance from Charles C. Egerton, jun, to Josiah Turner and Edward Jlfaddox, dated the 6th of February, 1824, reciting that the said Egerton was indebted to Josiah and Philip Turner, on two notes dated, &c., and that they had become security for said Egerton, in certain enumerated notes, " and in divers other cases, not at this time to be accurately enumerated and set forth ; also, that the said Maddox had become security for the said Egerton &LC^ whereby, in consideration of the premises, and of the sum of five dollars," the said Egerton conveyed to the said Turner and Maddox, sundry negro slaves, goods and chattels, &c. in trust for the said Turner and JWaddox, to sell and dispose of the said negroes, goods and chattels, &c. and apply the proceeds to the discharge of the debts due as before mentioned, and to indemnk fy them against suretyships, &c. the said conveyance was duly acknowledged and recorded according to law. Whereupon,, the defendant prayed the court to instruct the jury, that the plaintiffs were not entitled to recover ; because no liability at-. tached to the defendant in this cause, by the assumption endors-. ed on the aforesaid note, there being no consideration mention-, ed in said assumption; which instruction the court gave. The plaintiffs excepted ; and the verdict and judgment being against them, they appealed to this court. The cause was argued before BUCHANAN, Ch. J., EARLE and DORSEY J. Stonestreet for the appellants, contended that the defect in the plaintiffs cause of action should have been taken advan- tage of by demurrer. 130 CASES IN THE COURT OF APPEALS Turner, Adm'r of Wilder vt. Ann Egerton. 1829. A. C. Magnifier, for the appellee. BUCHANAN, Ch. J. delivered the opinion of the Court. We do not perceive any error in the opinion of the court be- low, and the instruction given at the trial to the jury, that the plaintiffs were not entitled to recover. The guaranty by Turner, written upon the back of the pro- missory note, given by Egerton to the plaintiffs, of the ultimate payment of the amount, appearing to be wholly without conside- ration, was clearly nudum pactum and void ; and the plea of non assumpsit which was filed by the defendant to the declara- tion founded upon that guaranty, properly let in the objection of the want of consideration. JUDGMENT AFFIRMED. TURNER, Adm'r of WILDER, vs. ANN EGERTON. December, 1829. The value of property delivered by an administrator to a distributee, as pay- ment of his portion of a deceased's estate, cannot be recovered back in a court of law, in consequence of such administrator being afterwards com- pelled by a recovery at law, to pay a debt due by the deceased, of which he was not aware when he distributed the estate ; or his having in part paid the debts of the deceased, out of his own private funds. The remedy for such claims is in a court of equity. It is not universally true, that where one is benefi tted by the payment of money by another, the law raises an assumpsit against the party benefitted, in fa- vour of the party paying the money. A stranger cannot at his pleasure make me his debtor, whether I will or not, by paying a debt due from me to another. Where one is compelled to pay the debt of another, he may recover against him in an action for money paid, upon the promise which the law implies, as in the case of money paid by a surety in a bond, which is considered as paid to the use of the principal, and may be recovered in an action against him for money paid. APPEAL from Saint Mary's County Court. This was an action of assumpsit, brought by the appellant, the plaintiff be- low, against the appellee. The declaration contained five counts, one for matters properly chargeable in account, for OF MARYLAND. Turner, Adm'r of Wilder vs. Ann Egerton 1829. money laid out and expended, for money lent and advanced, for money had and received, and on an insimul computas- sent. The defendant pleaded non assumpsit and issue was joined. At the trial, the plaintiff offered in evidence to the jury, and proved by competent testimony, that Edward Wilder, as admin- istrator of James Egerton, paid over to Jinn Egerton, the de- fendant, property (belonging to the estate of his intestate James Egerton, and with which he had charged himself in the invento- ry of the deceased estate) amounting by the appraisement, to the sum of $791 47, in February of the year 1812, and that he had paid over a like amount of property to the other distributees. He also proved that the said James Egerton left at his death, six children, his only heirs and distributees of his personal estate, all of whom are now living, and that Jinn Egerton, the defendant, is one of them : he also gave in evidence to the jury, the inventory and six accounts, exhibited and passed in the Orphans' Court of said county, by Edward Wilder as administrator aforesaid. The inventory referred to, was returned and proved on the 12th of June, 181 1 , amounting to $9348 96. The first account passed by said Edward Wilder on the 2d of June, 1812, charged him with the amount of the inventory and cash received from sundry per- sons, the whole amounting to $11,385 66, credited him with payments and disbursements amounting to $104 64, leaving a balance due of $10,342 01, the second account left a balance due of $10,154 70, the third account left a balance due of $7,285 89, the fourth account left a balance due of $500 36, the fifth account left a balance due of S2,095 18, and the sixth account left a balance due of gl ,503 80. He also proved that a large debt was recovered by judgment of Saint Mary's County Court, against the said Edward Wilder, as administrator of James Egerton, which he did not expect would be recovered at the time he made a distribution of the assets among the distribu- tees as aforesaid, and which judgment was paid by him; he also proved that the debts were in part paid by Wilder from his private funds, for the reinbursement of which, this action is brought ; upon this proof, the defendant then prayed the court to instruct the CASES IN THE COURT OF APPEALS Turner, Adrn'r of Wilder vs. Ann Egerton. 1829. jury, that under the pleadings and evidence in this cause, the plaintiff was not entitled to recover, which instruction the court gave. The plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed to this court. The 'cause was argued before BUCHANAN, Ch. J., EABLE and DORSEY, J. Stonestreet for the appellant contended. 1 . That the court below erred in giving an instruction against the plaintiff, upon the general prayer, that upon the pleadings and evidence, he was not entitled to recover. The particular objection should have been stated. Act 0/1825, ch. 117. 2. The plaintiff having proved an over payment might recov- er it back in this form of action. C. Dorsey, for the appellee. Insisted that an action at law cannot be sustained against a legatee or distributee, for money overpaid him by an executor or administrator. 2 Fonbl. 376. (Ed. 1820.) BUCHANAN, Ch. J. delivered the opinion of the Court. This is the case of an administrator who thinking he has paid off all the debts of the deceased, delivered over to the children of the deceased, the proportions of the residue of the personal estate, to which they were respectively supposed to be entitled as distributees. But being afterwards compelled by a recove- ry at law, to pay a considerable debt due by the deceased, of which he was not at the time aware, and having in part paid the debts of the deceased, out of his own private funds, brought his suit against one of the distributees to recover a just propor- tion of the amount so recovered against, and paid by him. The counts in the declaration for matters proper chargeable in ac- count, money lent and advanced, money had and received, and on an insimul computassent, are entirely out of the question, there being no evidence in the cause |in any manner or sense applicable to either of them; and the question is, whether, under the circumstances disclosed, the plaintiff is entitled to recover on the count for money laid out and expended. OF MARYLAND. 433 Turner, Adm'r of Wilder vs. Ann Egerton 1829. It has been urged, that where one is benefited by the pay- ment of money by another, the law raises an assumpsit against the party benefited, in favour of the party paying the money, but the universality of that proposition is not admitted. A stran- ger cannot at his pleasure make me his debtor, whether I will or not, by paying a debt due from me to another. Such a pay- ment might ordinarily be deemed to be for my benefit, yet the law does not in such a case raise an assumpsit. If it were so, it would be to put every man who owed a debt at the mercy of an enemy, who might choose to make himself his creditor with- out his concent or authority, for the purpose of harrassing and dis- tressing him : and to deprive him of defences which he might have had to a suit by his original creditor, but of which he would not be able to avail himself, against such newly created liability. It is true that where one is compelled to pay the debt of another, he may recover against him in an action for money paid, &c. upon the promise which the law implies, as in the case of money paid by a surety in a bond, which is considered as paid to the use of the principal, and may be recovered in an action against him for money paid, &c. But that is not this case. Here was no debt due from the distributee to the credi- tor of the intestate, no demand which could have been enforced at law against her; and the money paid by the plaintiff, though not voluntarily, but under a recovery against him in a suit at law, was in discharge of his own liability as administrator, and not of a debt due from the distributee, nor on account of his being placed in a situation of responsibility by any act of hers. It was not therefore a payment of /money to her use, for which the law will raise an implied promise of repayment, on account of there being in her hands a portion of the personal assets of the intestate. If in such a case as this, an action at law could be maintained on the ground of an implied assumpsit, it would be in the power of fraudulent or negligent executors and ad- ministrators, by covinously or carelessly suffering judgments to go against them, and constituting themselves creditors of lega- tees, and distributees without their knowledge or authority, so to change their predicament against their consent, as in suits VOL. 1. 55. 434 Turner, Adm'r Wilder of vs. Egerton. 1829. at law instituted upon such implied promises, to deprive them of the benefit of defences, that might be accorded to them in proceedings in Chancery against the'funds in their hands, by the original creditors of the deceased, which would be of mischiev- ous consequence to legatees and distributees. And it would be unjust to permit an executor or administrator, by thus consti- tuting a legatee or distributee his debtor, without his consent or knowledge, to place him in a worse situation in relation to that debt than he stood in before; which would be the case if he could pursue him for the recovery of it, on an implied assump- sit, in a court of law instead of a court of equity, where alone he could have been called upon before, where equity is ad- ministered, in a manner, in which it cannot be in a court of law. A court of law not being a fit tribunal to investigate and unra- vel accounts of executors and administrators, and not being so constituted as to be able, to take into consideration, in the man- ner that a court of equity would, how the funds were in fact appropriated, and the mode in which they might, and ought to have been applied. With this view of the subject, we think with the court below, that the plaintiff is not entitled to recover, and that in bringing his action in a court of law he mistook his tribunal, and ought to have sought his remedy in a court of equity, where matters of the kind are properly cognizable, and the interests of all parties equally protected. JUDGMENT AFFIRMED, TURNER, Adm'r of WILDER vs. EGERTON. December, 1829. An action at law cannot be maintained to recover back a payment in money, made by an administrator to the guardian of a distributee of his intestate. The remedy is in Equity. APPEAL from Saint Mary's County Court. This was an ac- tion of assumpsit, brought by the appellant against the appellee, who was guardian of E. Egerton. The declaration contained a count, for matters and articles properly chargeable in account, the money'counts, and a count on an insimul computassent. Plea non assumpsit and issue . OF MARYLAND. 435 Turner, Adm'r of Wilder, vs. Egerton. 1829. The facts of this were similar to those of the preceding case, with the addition here that the guardian, the defendant, had received a payment in money from Wilder, as administrator of James Egerton, on account of his ward, who was a distributee of James Egerton. The defendant prayed the court to instruct the jury, that the plaintiff was not entitled to recover for the following reasons : first, that the plaintiff had proved that the payment to the guar- dian was in specific property, negroes, &c. ; as in the receipt specified, and therefore he could not support this action upon the pleadings against the defendant for the recovery of the money, which instruction the court gave, the plaintiff excepted. And the verdict and judgment being aga'nst him, he appealed to the Court of Appeals. The case was argued before BUCHANAN, Ch. J., EARLE and DORSEY, J. Stonestreet for the appellant. C. Dorset/ for the appellee. BUCHANAN, Ch. J., delivered the opinion of the Court This case does not materially differ from that just decided, between the same plaintiff and Ann Egerton, and must be gov- erned by the same principles. There the supposed proportion of the personal assets of the deceased was delivered over to the distributee in specific property, and in this case the administra- tor settled up with the guardian 6f one of the children of his intestate, for the proportion to which the ward was supposed to be entitled as a distributee, and the two suits were brought to recover back proportionate parts of the same debt due by the intestate, which the administrator was compelled to pay, by a recovery against him at law, after he had made distribution of the assets. The evidence of the settlement with the guardian is a receipt, by which it appears that he received a part of his wards sup- posed proportion of the estate in money, and the residue in .130 CASES IN THE COURT OF APPEALS Turner, Adm'r of Wilder vs. Egerton 1829. specific property. And there being in the declaration in this case, a count for money had and received, it was urged in argu- ment, that under that count, the plaintiff would be entitled to recover on account of the money paid to the guardian, which it was supposed distinguished it from the other case, where no money was paid to the dibtributee, but specific property only delivered over. But there is no foundation for such a distinction. If where an executor or administrator has delivered over specific arti- cles of property to a distributee, and is afterwards made to pay debts due by the deceased, the law will not raise an assumpsit, on which an action can be maintained against the distributee for money paid; there is no reason, why an action at law for mo- ney had and received, should be sustained, where money has been paid to a distributee in lieu of the specific articles of pro- perty. The inconvenience and mischief to distributees would be the same in both cases, and the reasons why a court of law should not entertain an action, but the party be put to seek his remedy in Chancery, apply as well to one case as the other. In John- son vs. Johnson , 3 Bos. and Pull. 1 69, it is treated as settled, that if an executor thinking he has paid off the debts of his testator, pays the legacies, he cannot maintain an action in a court of common law, for money had and received against a legatee, but must seek his remedy in equity. The same principle ap- plies to the case of a distributee; and the circumstance that in this case the money was paid to the guardian of the distribu- tee, and not to the distributee himself, can make no difference. JUDGMENT AFFIRMED. OF MARYLAND. 437 Halkerstone's Executor vs. Hawkins 1829. HALKERSTONE'S Executor, vs. HAWKINS. December, 1829. In an action upon a bond, with condition that the obligor, the defendant, should exhibit all the papers concerning and touching the estate of the late W, deceased, to B, mutually appointed by the obligor and obligee to settle said estate, issue was joined upon a replication, which assigned as a breach, the failure to exhibit such papers. HELD, that it was competent for the plaintiff to offer in evidence, an inventory of W's personal estate, returned by the defendant as his administrator to the Orphan's Court, it be- ing a paper concerning the estate of W, necessary to its settlement, one which by the condition of the defendant's bond, should have been exhibited to B, and proper to enable the jury to ascertain the amount of damages to be awarded to the plaintiff. APPEAL from Charles County Court. This was an ac- tion of debt, brought by the appellant as executrix of Robert Halkerstone against the appellee, on a bond to the said Ro- bert, in the penalty of 200, dated on the 10th of June, 1812, with the following condition : "The condition of the above obligation is such, that if the above bound Samuel Hawkins, his heirs, executors, administrators or assigns, shall exhibit all the papers concerning and touching the estate of the late William Halkerstone, deceased, to Humphrey Barnes, Esq* who is mutually appointed by the above parties to settle said estate, and strike a balance, if any, and also pay or cause to be paid, such balance, if any, to the above Robert Halkerstone, his. heirs or assigns, that then the above obligation to be void, else to be and remain in full force and virtue in law." Signed, " Sam-* muel Hawkins, Seal." The defendant pleaded non est factum> and general performance. Issuj6 joined to the first plea, and replication, denying the exhibition of the papers mentioned in the condition of the bond to the second plea. Rejoinder per- formance, and issue joined. At the trial, the plaintiff offered in evidence to the jury, the inventory of the personal estate of William Halkerstone, de- ceased, returned and recorded in the Orphan's Court of Charks County, by Samuel Hawkins, the administrator, to the admissi- bility of which testimony the defendant objected, and the court sustained the same objection, and refused to let the said inventory be read to the jury; the plaintiff excepted. The 1 :{-i CASES IN THE COURT OF APPEALS ilulkcrstone's Executor vs. Hawkins. 1829. court then instructed the jury, that the plaintiff having failed to give testimony to prove the amount of the damages, the jury would give a verdict for nominal damages; the plaintiff except- ed, and the verdict and judgment being but for nominal damages, the plaintiff appealed to the Court of Appeals. The cause was argued before BUCHANAN, Ch. J., EARLE and DORSEY, J. Stonestreet for the appellant C. Dorsey for the appellee, cited Gaines vs. Griffith, I Saund. 58. (note.) BUCHANAN, Ch. J. delivered the opinion of the court The condition of the bond on which this suit was instituted is, that Haickins, the defendant, his executors, &c. " shall exhibit all the papers concerning and touching the estate of the late William Halkerstone, deceased, to Humphrey Barnes, Esq. who is mutu- ally appointed by the above parties, to settle said estate, and strike a balance, if any, and shall also pay or cause to be payed such balance, if any, to the above Robert Halkerstone, his heirs or assigns," &c. The plea is a plea of general performance. The replication assigns as a breach of the condition of the bond, that Hawkins, the defendant, did not exhibit all the papers concerning and touching the estate of William Halkerstone, deceased, to Hum- phrey Barnes, at any time previous to the impetration of the writ, although often requested, &c. pursuing the terms of the condition, to which there is a rejoinder by the defendant, that he did exhibit all the papers concerning and touching the estate of William Halkerstone, deceased, to Humphrey Barnes, previous to the impetration of the writ, &c. and issue. In this state of the pleadings, the parties went to trial, when the plaintiff offered in evidence to the jury, the inventory of the personal estate of William Halkerstone, deceased, which had been returned by the defendant, the administrator, and was re- corded in the Orphan's Court of Charles County, amounting to five hundred and thirty-four pounds nineteen shillings and six- OF MARYLAND. 439 Halkerstone's Executor vs. Hawkins. 1829. pence, which was objected to by the counsel for the defendant and rejected by the court as inadmissible. It does not appear why this paper was not permitted to go to- the jury, it was made out and returned by the defendant him- self to the proper office, it is a paper concerning and touching' the estate of William Halkerstone, deceased, necessary to the settlement of that estate, and one which by the condition of the defendant's bond, should have been exhibited to Humphrey Barnes. The issue joined by the parties in the pleadings presented to the jury the question, whether the defendant had exhibited to Humphrey Barnes all the papers concerning and touching the estate of William Halkerstone, deceased; the affirmative of which issue being held by the defendant, the burden of proof was im- posed upon him; and in the ahsence of proof to sustain the is- sue on his part, it became necessary for the plaintiff, who sesuit was brought for the recovery of damages sustained by reason of the breach assigned in the replication of the condition of the bond, to offer such evidence to the jury as would enable them to ascertain the amount of damages that he was entitled to recover. And as the amount of the personal estate of William Holker* stone, deceased, which had not been settled up, (to procure the settlement of which was the object of the bond,) was necessary to be shown in order to arrive at the damages proper to be recovered, the inventory regularly returned by the defendant himself, the administrator, would/seem to have been not only an important, but an essential link in the chain of evidence necessa- ry to the ascertainment of that amount. It did not lay in- the mouth of the defendant who as adminis- trator, had himself prepared and returned it under the requisite sanctions to the proper office, to object to the admissibility of it, and perceiving no reason why it should have been rejected. We think the court below erred in not suffering it to go to the jury, and that having thus thrown out important testimony of- fered by the plaintiff, for the purpose of showing the damages sustained, and whbh was pertinent to the issue joined in the I to CASES IN THE COURT OF APPEALS Dyer vs. Dorsey and Edelen. 1829. cause ; that court also erred in instructing the jury, " that the plaintitl' having failed to give testimony to prove the amount of damage, they could only give a verdict for nominal damages." JUDGMENT REVERSED AND PROCEDENDO AWARDED. DYER vs. DORSEY and EDELEN. December, 1829. In an action upon agreement, by which, after reciting that D had sold to W tracts or parcels of land, sold by A to C and R, and by their agents sold to D, and for which D had executed a deed to W; D covenanted with W, that a deed should be executed to him, conveying to him the said lands of C and R, by a given day, and to that, bound himself in a certain penalty; such penalty cannot be recovered as liquidated damages, it was only intend- ed by the parties as a security for the faithful performance of thfe con- tract. In this case, the sum of money which it might be necessary to pay, for ob- taining the title of C and R, would furnish the true measure of damages, for a breach of D's covenant, the proof of which sum was on the plaintiff; and it appearing that the plaintiff had not paid D the whole of the purchase money for the said lands, the jury were properly instructed that in esti- mating the amount of damages, they should, under the act of 1785, ch. 46, tec. 7; deduct whatever sum of money remained in the hands of the plaintiff on account of said purchase. APPEAL from Charles County Court. This was an action of covenant, brought on the 2d of February, 1824, by the appel- lant, (the plaintiff in the County Court) against the appellees, the defendants in that court, on the following agreement, to wit : C. Dorsey having sold to William C. Dyer, tracts or par- cels of land, sold by Henry Anderson to Campbell and Ritchie, and by their agent, Henry H. Chapman, sold to C. Dorsey, and for which lands the said, Dorsey has executed a deed to the said William C. Dyer. Now we hereby covenant and bind ourselves to the said Dyer, that a deed shall be executed to the said Dyer, conveying to him the said lands during the month of August, of Campbell and Ritchie, and to this we bind ourselves in the penalty of two thousand dollars. Witness our hands and seals this eleventh of June, 1822. OF MARYLAND. 441 Dyer vs. Dorsey and Edelen. 1829. The breach laid in the declaration was, that the defendants had not executed, or caused to be executed to the, plaintiff, a conveyance of the title of Campbell and Ritchie, at the time men- tioned for that purpose in the said agreement, before or since ; but that they had wholly neglected, and refused so to do. The defendants pleaded non infregit convenlionem. Issue joined. At the trial the plaintiff read in evidence, the covenant on which this action was brought, which the defendants ad- mitted was signed and sealed by them. He then read in evidence the following agreement : "Memorandum of an agree- ment, entered into on this 26th "day of April, 1822, between Clement Dorsey, of Saint Mary's county, and William C. Dyer of the other part ; the said Dorsey covenants and agrees to sell to the said Dyer the land which he bought of Henry H. Chapman, and which was conveyed to him by Henry Anderson, and to give him possession thereof at Christmas next, for which the said Dyer covenants to pay him twenty-five hundred dollars ; if the said Doraey request it, the said Dyer is to pay him one thousand dollars when called on, and the residue at Christmas next; the said Dorsey stipulates to give the said Dyer a good and legal title to the same in fee simple, with a general warranty; the said Dorsey has the use of the same this year, but is not to cut wood or timber therefrom, and is to permit the said Dyer to seed thereon ; the said sum of one thousand dollars is not to be paid till the deed is executed to the said Dyer. In witness where- of," &c. He then gave in evidence to the jury, that he had paid C. Dorsey, one of the defendants, the sum of fifteen hundred dollars. The defendants then proved, that (he plaintiff had held posses- sion of the land in question, since the original purchase up to this time, and gave evidence that the plaintiff admitted that he owed the defendant Dorsey, upwards of one thousand dollars, for the land purchased of the said Dorsey, of which the plain- tiff has had uninterrupted possession to this time. The plaintiff tjien prayed the court to instruct the jury, that from the plead- ings and the evidence in this cause, the plaintiff was entitled to recover the penalty of two thousand dollars, in the said agree j ment mentioned, upon which the action is brought, which opin- VOL. 41- CASES IN THE COURT OF APPEALS Dyer vs. Dorscy and Edelen. 1829. ion and direction the court refused to give, but were of opinion, and so instructed the jury, that the sum of money which it might be necessary to pay for the obtaining of the title of Campbell and Ritchie, would furnish the true measure of damages in this case, and that the proof of that fact was upon the plaintiff. They further instructed the jury that in estimating the amount of damages in this case, they should deduct whatever sum of mo- ney remained in the hands of the plaintiff, on account of the pur- chase made by him of Clement Dorsey the defendant; the plain- till' excepted, and the verdict and judgment being but for nomi- nal damages, be appealed to this court. The cause was argued before BUCHANAN, Ch. J., EARLE, ARCHER and DORSEY, J. Stonestreet for the appellant, referred to Cannell vs. JWLean, GHarr.fy Johns. 291. C. Dorsey, for the appellees, referred to the act of 1785, ch. 80, sec. 1 3. He contended that the case in 6 Harr. Sf Johns. was not applicable, as the party there was not in possession of the land. ARCHER, J. delivered the opinion of the court. The penalty cannot be recovered in this case as liquidated damages. It was only intended by the parties as a security for the faithful performance of the contract. The value of the land at the time of the breach of the con- tract ought not, as has been contended, to constitute the mea- sure of damages, for such a rule applied here, would work this injustice. The plaintiff would obtain the value of the land, and would moreover hold Dorset's right and title, having obtained a conveyance for the same, and would be left in possession of the land. Some outstanding right 1o these lands existed in Camp- bell and Ritchie, but its precise nature and character does not distinctly appear. Anderson was their original proprietor, who sold them to Campbell and Ritchie, and Chapman the agent of Campbell and Ritchie, sold them to Dorsey. The right, what- OF MARYLAND. 443 Clarke vs. Belmear. 1829. ever it was, which Dorsey acquired under these contracts, was conveyed by deed to the plaintiff. These facts shew how essen- tially this case varies from the case of Cannell vs. JJ/'Lean, 6 Hair. 8f Johns. 297. The rule laid down by the court below, as to the measure of damages, is the correct rule to be applied to this controversy. It completely secures the plaintiff, and in- demnifies him against the defendant's breach of the contract. We also concur with the court below in the opinion by them expressed, that the onus of proof in this respect, lies upon the plaintiff; for the plaintiff must always be prepared with proof to shew the extent of injury he may have sustained, by the breach of any contract, before he can be entitled to recover his mea- sure of damages. We perceive no error in the direction which the court gave to the jury, that they ought to deduct from the damages they should find, whatever sum of money remained in the hands of the plain- tiff, on account of the purchase made by him of Dorsey. The doctrine held out by this opinion, is maintained and settled by the Court of Appeals, in the case of the Baltimore Insurance Company vs. McFadon, 4 Harr. << Johns. 31, in which the court have given a construction to the act of 1785, ch. 46, sec. 7, in relation to set off. JUDGMENT AFFIRMED. CLARKE vs. BELMEAR/ December, 1829. / A return by the Sheriff to a writ of fieri facias, that he had levied upon "part of a tract of land called B, supposed to contain, &c." is not sufficient, would be quashed on motion, and unavailable in ejectment to prove title in a purchaser. A purchaser at a sheriff's sale is entitled to the benefit of that officer's re- turn, both to the fieri facias, and venditioni exponas; and when the description of the subject levied on, according to the schedule returned under the first writ, is defective, it may be amended and rendered certain, by the return of the sheriff's proceedings, under the second writ. So a levy under a fieri facias which is defective in the description of the pro- perty levied on, may be amended by the sheriff's return of the property sold 444 CASES IN THE COURT OF APPEALS Chirke vs. Bclrnear 1829. under such writ, the return of the sale describing the property Mith suffi- cient certainty. A purchaser under a judicial sale has a right to resort to the whole judicial proceedings, under which his title accrued, to ascertain it. The right of a party to obtain a writ of habere facias possessionem, under the act of 1825, ch. 103, does not relate to the time the execution was issued, but to the time when the lands were sold. APPEAL from Prince George's County Court. This was a motion to quash a writ of fieri facias, and a writ of venditioni exponas, and the returns, &c. On the 5th of December, 1822, a fieri facias issued out of Prince George's County Court, on a judgment rendered in the said court in favour of William Holmes against Walter S. Clarke, to which, at the return day, the sheriff made the following re- turn: " laid as per schedule, and not sold for want of time," the schedule returned stated, that he had taken part of Burgess' DeliglU, part of Clarke's Fancy and part of Hickory Thicket, supposed to contain two hundred and seventy-five acres. A writ of venditioni exponas, thereupon issued, commanding the sheriff to sell this property, which he returned " not sold for want of time." Alias writs of vendi. ex. were issued, the last of which was returnable to October term, 1825, of said court, to which similar returns were made. On the 13th of January, 1826, another writ issued, returnable to April term, 1826, to which the late sheriff made the following return, " made to the amount of five hundred dollars by a sale of the land in the sche- dule contained to Francis Belmcar on the 17th of June, 1826, the said lands consisting of part of a tract called Hickory Thicket, part of a tract called Clarke's Fancy, and part of a tract called Burgess' Deliglit, lying and being in Prince George's County, and beginning for the whole, at or near a stone near the main road that leads to the mill now occupied by Jacob Wheeler, thence a southerly course, so as to include the dwelling house lately occupied by Philip Green, and the orchard contiguous thereto, bounded on the south by a line drawn easterly to Patuxent river, then bounding on the said river, to the extent of said land, on the nort/iwith said land, to the begining, containing two hun- OF MARYLAND. 445 Clarke vs. Belmear 1829. dred and seventy-five acres, more or less, being the whole of the said several tracts, of which the defendant, Walter S. Clarke, was in possession, at the time of the sale, and the whole of his right, title and interest, in and to the same, being by the afore- said sale transferred by me to the said Francis Belmear, by whom one hundred dollars was paid to William Holmes the plaintiff in the judgment at the time, and the balance paid to me by said Belmear. Thomas Osbourne, Sheriff." And the said Thomas Osbourne at the time of making said return, filed in court here with the said writ, the following schedule, to wit: "A schedule of the property of Walter S. Clarke, taken by virtue of an execution issued out of Prince George's County Court, at the suit of William Holmes, the property, to wit, part of a tract of land by name Burgess"* Delight, and part of a tract of land called Hickory Thicket and Clarke's Fancy, lying in Prince George's County, containing two hundred and seventy-five acres, and appraised at ten dollars per acre. Two thousand seven hun- dred and fifty dollars. JVathan Waters, seal. Samuel Waters, seal. Appraised this 17th day June, 1826. Sworn appraisers." At April term of said court, 1827, Francis Belmear the pur- chaser, moved the court for a writ of habere facias possessionem, to put him in possession of the property so by him purchased, which was accordingly ordered, and issued returnable to Octo- ber term, 1 827, when the sheriff returned "possession delivered," which said writ at that term was on the motion of said Clarke quashed by the County Court, in consequence of not describing with sufficient certainty the lands/of which possession was to be delivered, the said Walter S. Clarke then moved the court, that said writs of fieri facias, and venditioni exponas, and the returns thereto be quashed, and at the same time filed the following rea- sons : 1. For that the description of the lands in the said writs and returns is uncertain, and consequently the executions are void. 2. Because the description of thelands in the return of the fi.fa. which was first sued out in this cause, upon which return, the v.e. is predicated, is uncertain, and the writ aforesaid consequent- ly void. \ if, CASES IN THE COURT OF APPEALS Clark vs. Belniear. 1829. T This motion was overruled by the County Court, and a se- cond kabcre facias ordered. The defendant Clarke appealed to the Court of Appeals. The'cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, ARCHER and DORSEY, J. jj. C. Magruder and J". Forrest, for the "appellant contended, 1. That the fieri facias was void for uncertainty, and that the court erred in adjudging a second writ of possession to be issued. 2. The court erred, because the act of Assembly upon which the writ of habere facias possessionem issued, was not in force, when the levy under the fieri facias was made, nor when the writ of venditioni exponas issued, and it would be giving an ex post facto operation to the law to make it applicable to cases of property already taken in execution. 3. Because the sale was made after the return day of the writ of vendit ioni expon- as. On the 1 st point they referred to Underhill vs. Devereaux, 2 Saund. 69, a (note 2.) Pulkn vs. Purbeck, 12 Mod. 355. Williamson vs. Perkins, I Harr. and Johns. 449. Hammond vs. JVorrts, 2 Harr. and Johns. 147. Berry vs. JYicholls, Ib. 508. Fitzhugh vs. Hellen, 3 Harr. and Johns. 206. Thomas vs. Tur- vey, I Harr. and Gill, 435. Fenwick vs. Floyd, Ib. 172. On the 3d point they referred to Barney vs. Patterson, 6 Harr. and Johns. 182. Stonestreet and J. Johnson, for the appellee. The sale took place on the 17th of June, 1826, and the writ of habere facias possessionem, under the act of 1825, ch. 103, was moved for, and ordered at April term, 1827, returnable to Oc- tober term, 1827. The act of 1825 gives the party one entire term, and four days of the succeeding term, to show cause against the issuing of the habere facias. This time expired before the writ was ordered. The act of 1825 says nothing about the time the issuing of the writ under which the sale is made. If the sale is made after the passage of the law, the purchaser is entitled to his habere, by the express terms of the statute; although the writ under which }t may be effected is OF MARYLAND. 447 Clark vs. Belmear. 1829. sued previously. On the first point, they contended, that the fieri facias, and their return thereto, the several writs of vendi- tioni exponas, and their returns, should be connected together, and so considered they present a perfect levy and sale, and the lands sold are sufficiently described. In Thomas vs. Tur- vey, 1 Harr. and Gill, 435, one of the schedules described the land correctly, and it was adjudged sufficient to cure the de- fects of the rest. It is the sale and not the return which trans- fers the title, 6 Harr. and Johns. 182. The return is only useful as evidence of the sale, and may be dispensed with if there be a note or memorandum in writing the sheriff may correct his return if he ask leave to do so in due time, Berry vs. Griffith, 2 Harr. and Gill, 337. But it is too late now to move to set aside the return to \hefierifacias, if it is defective the applica- tion should have been made immediately upon its return, or at all events upon the return of the first venditioni exponas. Dand vs. Barnes, I Serg. and Low, 291. (6 Taunt.) Fletcher vs. Wells, Ib. 352. (6 Taunt. 191.) Four years intervened between the issuing of the fieri facias and the venditioni exponas under which the sale was made, and eighteen months between the sale and the present motion. The County Court at April term, 1827, by ordering the habere, adjudged the sale and re- turns valid, it was therefore too late at the ensuing October term to bring the same question before them, they could not interfere with a judgment pronounced by them at a preceding term. Jacob L. D. tit. term, 212. JWunnikuysen vs. Dorsett, 2 Harr. and Gill, 374. MARTIN, J. delivered the opinion of the Court. After recapitulating the facts as set out in the commence- ment of the report of this case, the Judge proceeded to "state, that from these proceedings Clarke has appealed and contends, 1st. That the writs of fieri facias and venditioni exponas and the returns made to them are void for uncertainty ; and 2dly. If they are sufficient, Belmear was not entitled to the writ of habere facias possessionem under the act of 1825, as the lands were in execution prior to the passage of that act. 418 CASES IN THE COURT OF APPEALS Clark rs. Belmear. 1829. The description of the property contained in the schedule returned by the sheriff to the fieri facias was, "partof Burgess' Delight, part of Clarke's .Fancy, and part of Hickory Thicket, supposed to contain 275 acres." Did the case rest upon this return alone, we should not consider it open for discussion. It has been solemnly determined by many adjudications of this court, that such a return is not sufficient, that it would be quashed on motion, and would be unavailable in an ejectment to prove title in the plaintiff. Williamson vs. Perkins, 1 Harr. and Johns. 449. Hammond vs. JVorm, 2 Harr. and Johns. 147. Filz- hugh vs. Hellen, 3 Harr. and Johns. 206. Fenicick vs. Floyd, 1 Harr. and Gill, 172. Thomas vs. Turvey, 2 Harr. and Gill, 435. But it does not rest upon this return alone ; the sheriff having returned he had not sold the lands under the Jieri facias for want of time, a venditioni exponas was issued, commanding him to sell the lands before taken by him, under the fieri facias, to this venditioni he makes a special return, stating in substance, that he had sold the lands before taken in execution, under the fieri facias, gives a description of those lands by metes and bounds, and that Francis Belmear became the purchaser for $500, which sum had been paid by him. The question then arises, whether the purchaser is not entitled to the benefit of both those returns to shew the description of the lands he had purchased under them ? This was a judicial sale, and the pur- chaser claims title under the whole proceedings, embracing both writs and returns. The fieri facias is the effective writ in these cases, it not only authorises the sheriff to seize, but to sell, very different is the office of a venditioni exponas. That confers no new power to the sheriff; it does not authorise him to do any act, that he might not have done under the fieri facias. It is only a mandatory writ, and directs him to carry the fieri facias into effect, by selling the lands taken in execution under it, and when the lands are sold, the return to the venditioni re- lates to, and in legal effect, becomes part of the return to, the fieri facias. Suppose in this case the sheriff had sold the lands under the fieri facias without the aid of a venditioni exponas, and had returned that he had sold the lands in the schedule mention- OF MARYLAND. 449 State use Oyster vs. Annan. 1829. ed, which lands were contained within certain metes and bounds set out in the return to the sale, can there be a doubt that the return thus correctly describing the lands would not be sufficient, to give certainty to those mentioned in the schedule ? If then the description in the schedule might be corrected by the re- turn to the sale, if made immediately under the fieri facias, it cannot be perceived why it should not be received for that pur- pose, when made to a venditioni exponas, whose only office is auxiliary to the fieri facias and to carry it into effect. The pur- chaser claims title under the united effect, of both those writs, and if certainty is the object to be attained, he has a right to resort to the whole judicial proceedings, under which his title accrued to ascertain it. It has been contended that the description of the lands in the return to the venditioni exponas is not sufficiently certain, to ascer- tain the location of them. That they might have been described with more accuracy cannot be doubted, but we think there is sufficient certainty, to enable the party to make a true location of them. The second objection to the proceedings of the court, that these lands were taken in execution prior to the act of 1825, ch. 103, cannot avail the appellant. The right of the party to obtain a writ of habere facias possessionem under that act, does not relate to the time the execution was issued, but to the time when the lands were sold, and it appears from the record, the lands in this case were sold on the 17th day of June, 1826, long after the passage of the act. / JUDGMENT AFFIRMED. VOL. 1. 57. 450 CASES IN THE COURT OF APPEALS State use OysUr vs. Annan STATE use OYSTER vs. ANNAN. December, 1829. The bond of a Trustee appointed by the Chancellor to" sell the real estate of a deceased person, for the payment of his debts, is not liable to be put in suit, after the Trustee has sold the deceased's property, and received the money therefor, upon the order of the Chancellor distributing such pro- ceeds among the creditors, without notice to the Trustee of such distribu- tion. APPEAL from Frederick County Court. This was an action of debt on a Trustee's bond, under a decree of the Court of Chancery, brought by the appellant on the 18th of February, 1820, pleas general and special performance. The following statement of facts was agreed upon by the parties. "It is ad- mitted the defendant regularly made and executed the writing obligatory mentioned in the declaration in the following words, to wit:" Know all men by these presents, that we Robert L. An- nan, William Long, Jacob Winter and Philip Nunnamaker, all of Frederick County and State of Maryland, are held and firm- ly bound unto the said State of Maryland, in the full and just sum of four thousand pounds current money, to be paid to the said State, to the payment whereof we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the 28th day of January, 1808. Whereas by a decree, 5f the high Court of Chancery passed at December term, 1807, the above named, Robert L. Annan and William Long, were appointed trustees to sell the real^estate of Solomon Kephart late of Frederick County, deceased, for the payment of his debts, as by the said decree, reference being thereto had will appear; now the condi- tion of the above obligation is such, that if the said Robert L. Annan and William Long, do and shall well and faithfully per- form the trust reposed in them by the said decree, or to be re- posed in them by any future order or decree in the premises ; then the obligation to be void, &c. "That before the making the said writing obligatory to wit, on the 28th day of December in the year of our Lord one thousand eight hundred and seven, it was by the honourable the C/ww- OF MARYLAND. 451 State use Oyster vs. Annan. 1829. cellar of the State of Maryland on the petition of the creditors of a certain Solomon Kephart, deceased, upon a bill filed by them against his heirs at law, adjudged, ordered and decreed, that the real estate of the said Solomon Kephart, should be sold to pay his debts. And in the said decree, Robert L. Annan the defendant in this cause, and a certain William Long, were ap- pointed trustees for the purpose of selling the real estate of the said Solomon Kephart, deceased, to raise money to pay his debts, that the said Robert L. Annan and William Long, accepted the said trust, and executed and made the writing obligatory afore- said for their trust bond, which was filed in the Chancery Court and approved by the Chancellor, that in the said decree the said Robert L. Annan and William Long, were directed to pro- ceed to sell the said real estate of the said Solomon Kephart, deceased, and were also directed to bring the money arising from the said sale or sales, under the said decree, into the Chancery Court, to be applied under the directions of the Chancellor, or pay it away under the direction of the said Chancellor, after taking out the commission to be allowed the trustees, and the costs of the suit ; that the said defendant and the said William Long, on the 7th day of March, 1808, made sale of part of the said real estate of the said Solomon Kephart, deceased, amount- ing to $1437, and made a report thereof to the Chancellor. That upon the petition of the creditors of the said Solomon Kephart,be\ng again presented to the Chancellor, he did by ano- ther order and decree, direct the said Robert L. Annan and the said William Long, to make a further report of their pro- ceedings, and of the situation of /the said real estate of the said Solomon Kephart ; that the said Robert L. Annan and William Long, in obedience to the last mentioned order and decree of the Chancery Court, did on the 8th day of April, 1815, after the copy of the said order and petition was served on them, sell the balance of the real estate of ^the said Solomon Kephart, and made report thereof to the Chancery Court, amounting to the sum of $952. That the said Robert L. Annan and William Long, received the whole purchase money from the purchasers, both at the first and second sale, but never brought any part of CASES IN THE COURT OF APPEALS State use Oyster vs. Annan. 1829. it into the Chancery Court, and never paid any of it away under the direction of the Chancellor. That the Chancellor did re- gularly order and direct the auditor of the Chancery Court, to state and report an account between the estate of the said So- lomon Kcphart and the said Robert L. Annan, and the said Wil- Ihim Long; that the auditor of the said court in obedience to the said order of the Chancellor, did state an account as afore- said, and did report the same to the Chancellor, in which account after taking out the commission to the trustees, and their part of all expenses in both sales, and the costs of the Chancery Court, he did distribute the balance to the creditors according to their re- spective claims, which account, distribution and statement, was af- terwards confirmed, and the proceeds of the sales of the said real estate applied according to the statement and distribution made by the said auditor, as appears by exhibit C, made a part of this statement and contained in the following words viz." Here follows the auditor's report, shewing the claim of Jacob Oyster, marked No. 3, to amount to $346 36, his proportion as distributed by the auditor, amounting to $48 88, and the Chan- cellor's order thereon, confirming the same and directing the proceeds to be applied accordingly, dated January 18th, 1820. " That the said auditor in distributing the proceeds of the sales of the real estate of the said Solomon Kephart, deceased, has given to the plaintiff in this cause as one of the creditors of the said Solomon Kephart, as his dividend, the sum of $48 88, as appears in the paper marked C, and the Chancellor by his said order has directed the defendant Robert L. Annan, and also the said William Long, trustees as aforesaid, to pay to the plain- tiff in this action the said sum of $48 88, as aforesaid, with in- terest in proportion as it has been or may be received. That after all the proceedings aforesaid, the plaintiff in this action brought suit in the name of the State of Maryland for his use against the said Robert L. Annan, \hz defendant, on the said bond given by him as one of the said trustees for the faithful performance of his trust, to recover his distributive share of the proceeds of the sale of the real estate of the said Solomon Kephart, with interest thereon as aforesaid. It is admitted that OF MARYLAND. 453 State use Oyster vs. Annan. 1829. no part of the money due to the plaintiff as aforesaid has been paid by the defendant or any other person. It is admitted that the Chancellor of Maryland, at the time he passed said order on exhibit C, had full and competent authority to pass said or- der, and the same was legally passed by him. If upon this statement of facts the court shall be of opinion that the plaintiff is entitled to recover, judgment is to be entered up for the plain- tiff for the penalty of the bond to be released on the payment of the sum of $48 88, with interest in proportion as it has been or may be received, and costs of this suit. If the court shall be of opinion that the plaintiff is not entitled to recover, the judgment of non pros is to be entered. Both plaintiff and de- fendant reserves the right of taking an appeal to the Court of Appeals upon the judgment of the court." On the above statement, the County Court gave judgment for the defendant, and the plaintiff appealed to this court. The case was submitted on notes. Boyle and Pigman for the appellant. The only point in the cause, is whether the plaintiff was bound to give notice to the defendant, of the Chancellor's order to pay the money, and de- mand it, before he can maintain his action on the trustees bond? The case stands upon a statement of facts agreed to by the plaintiff and defendant. This case will settle a very important principle, and rule of practice, as to the right of suing on ad- ministration bonds. The bond will be found in the/record, and the courts atten- tion is called to the condition. It is the usual condition for the performance of duties imposed by the original decree, or that may be put upon the trustees by any future order by the Chan- cellor. The condition does not provide that notice shall be first given of the decree, or order, before action shall be maintained. It was therefore no part of the undertaking or contract, that no- tice should be given to enable a distributee to maintain his ac- tion. The Chancellor's order does not require notice to be given at all what then makes notice necessary to enable the plaintiff to maintain his suit ? There is no law requiring 454 CASES IN THE COURT OF APPEALS State use Oyster vs- Annan. 1829. it; you must amplify the law, the contract, and the order of the Chancellor, before you can require any, further notice of the cause of action, than was given by the writ of capiai which originally issued in the case. The rule as to notice to be given by one party to another before action, is this; where the thing is more in the knowledge of the plaintiff .than defendant, plaintiff is bound to give notice, but where each party have the same knowledge, notice is not necessary, for the cases on this point, the court is referred to 1 Chitty Pleadings, 320. Now the dispute in this cause is between trustees, officers appointed by the Chancellor, and one of the distributees. The Chancellor orders the auditor to state an account current between the trus- tees, and the estate of Solomon Kephart. This the auditor does, and after taking out costs, &c. distributes the money among the creditors, and reports to the Chancellor, who confirms his re- port. The plaintiff sees the sum of $48 88, distributed to him, as one of the creditors, he knows by enquiring, and the defendant might have known the same, by adopting the same means. It is true that it is usual, when the Chancellor intends to bring an individual into contempt for disobeying his order, to insert a pro- vision to give notice by serving the order. But the order in this case was to enable the distributees to sue the bond if the money was not paid. Cases may be found in England where notice is necessary to bring the party into contempt for diso- bedience, as for not bringing money into court, &c. But our form of trustees bond is peculiar, and the rights of the parties are defined in the condition, and the Act of Assembly under which it is given. F. A. Schley for appellee. In this case the defendant and William Long were appointed by the Chancellor, trustees to sell the real estate of Solomon Kepkart to pay his debts, and they executed their joint and several bonds with two securities, conditioned to perform the trust reposed in them by the decree, or to be reposed in them by any future decree or order in the premises. The decree directs the trustees to bring the money into court arising from OF MARYLAND. 455 State use Oyster vs. Annan. 1829. the sale, " or to pay it away under tJie direction of the Chan- cellor." The land was sold in 1815. The creditors being numerous, eighty-two in number, were litigating their claims in Chancery for years, and did not get them adjusted until 1820. On the 18th January, 1820, the auditor made his re- port, and it was finally ratified, and the trustees ordered to pay over the proceeds of sale accordingly. Of this order the trus- tees had no notice, whatever, they residing twenty miles beyond Frederick, and the order passed at Annapolis by the procure- ment of the counsel for the creditors, as soon as the order was passed, the counsel for the creditors to the number of eight or ten, got a copy of the auditor's report, and without informing the trustees of it, or affordiug them any opportunity to dis- charge their trust, he immediately issued four separate writs, in each case against the two trustees and their two securities, on behalf of each of these eight or ten claimants, making from thirty-five to forty suits, to recover the amount of these claims. The writs were issued on the 20th February, 1820. No notice was given to the trustees of the Chancellor's order, and no de- mand made upon them for the money. The service of the writs was the first notice they had that the plaintiffs were even creditors of Kephart, whose estate they had sold. Nor did they know this until they went to the plaintiff's counsel, to see a copy of the audit. The question is, were the trustees entitled to notice from, or a demand by the creditors before they were liable to be sued ? Or has the creditor the right, immediately on the ratification of the sale to institute a suit on th trustees bond, without any no- tice or demand, or any opportunity afforded them to pay with- out being sued? This question is -res Integra in Maryland. The court, and that too of the last resort, are now, for the first time called on to settle the law in this State, as to the liability of trustees appoint- ed by the Chancellor. It is an important question, as its decision will prescribe the duties, and fix the. liabilities of a numerous class of agents, which the interests of creditors, and the con- venience of our courts make necessary. 456 CASES IN THE COURT OF APPEALS State use Oyster vs. Annan. 1829. The sale of lands by trustees in the country, instead of a sale in the Chancery office, by a master in Chancery, is a great con- venience and of great advantage to the parties concerned. In- stead of being made in the Chancery office as in England and JVew-York, it is made on, or in the immediate neighbourhood of the property, where it is best known, and bidders most likely to attend. The court should therefore be cautious to establish no rule, which by its oppressive operation would be likely to deter persons from becoming trustees. "It is a rule of law foun- ded on the first principles of natural justice, that no judgment shall be pronounced against one who has not had notice given of the proceedings, and had an opportunity to defend himself." 2 Stark. Ev. 977. "Trustees acting bona fide, are always treated with liberality and indulgence." 4 Johns. Ch. Rep. 628, 629. Would the court establish a rule under which a trustee could by no ordinary and practicable diligence, and with fair bona fide intentions to execute his trust, protect himself from costs and losses which would be ruinous ? If such a rule is established, who would assume the unreason- able and ruinous responsibility of a trustee ? Creditors fre- quently become restless and querulous, when they can not get their claims adjusted in Chancery, and charge the delay on the trustee, although he has nothing to do with the adjustmeutof the claims. It is the duty and the act of the creditors. The ad- justment as to the trustee, is, res inter alias acta. He is no par- ty, and can in no way interfere. In this state of dissatisfaction all might sue the trustee, as soon as the order was passed, and ruin him by costs without affording him the opportunity to com- ply with the order although ready, willing and anxious. This would be strange indulgence and tenderness to trustees ! ! In England as in this State, a Court of Chancery enforces its orders, and decrees, by attachment, &c. The party, however, must first be in contempt, but he cannot be in contempt, until he refuses to perform the order or decree, and he cannot refuse until he is called on to perform. "And this must always be done by serv- ing a copy of the order or decree on him, to give him the oppor- OF MARYLAND. 457 State use Oyster vs. Annan. 1829. tunity to perform." Wyatfs Prac. Reg. 298. Hindes^ Prac. 494. 1 Harr. Ch. 443. 2 Harr. Ch. 141. This rule is founded on common sense and common justice. Money paid into court, cannot be withdrawn by the person enti- tled, unless under an order for that purpose, which must be serv- ed on the accountant general. Wyatt, 284. 2 Harr. Ch. Prac. 142. In Maryland, the money if deposited in bank, could not be drawn out by a creditor or person entitled, except by an appli- cation to the Chancellor, who would order a check on the bank, or rather, order the cashier of the bank to pay the money. This order or check, must be served or presented to the cashier, and is notice to the bank. If ready and willing to pay, he ought to have the opportunity, afforded him. Sheer justice demands this, to say nothing about equity. The party or creditor has two remedies ; he may either proceed by way of attachment against the trustee alone or he may sue on the bond and include the securities. In either case, however, the trustee must be in default. He must have done that which would amount to a refusal to obey the court's order, to a contempt of the court. If a suit is brought, there must be an averment in the pleadings that the trustee had notice of the Chancellor's order. See the pleadings in a similar case, in 3d Johnson* s Cases, 53, The People vs. Bryan. In all cases of a similar kind found in the books, notice of the order is averred, either in the declaration, or replication. An attorney, who is an officer of the court, cannot be sued for money in his hands as attorney /until a demand is made upon him, and he has thus an opportunity afforded him to pay out. 5 Cowen. Rep. 376. And in this case he is called a trustee by the court. He holds the money in his fiduciary character. Can the trustee be considered as any thing more than an agent of the court? The Court of Chancery have so decided, and have said, that in the sale of lands, he is the mere agent of the court, and the con- tract not binding on the court until they have ratified it. He is then nothing more than the agent to make the sale, and the agent to pay away the money. If so, then he is protected by the settled principles of law, that " an agent or factor selling VOL. I. 58. IV < v-KS IN THE COURT OF APPEALS State us Oyster vs. Annan. 1329. goods consigned to him, cannot be sued, until he is ordered how he is to pay it, to whom he is to pay it, and has refuted or ne- glected. 10 Johns. Rep. 285. See the precedent of a declara- tion in such cases, 3 Chitty Plea. 178, 179. If goods are con- signed to a factor to sell on commission, there must be a demand by the principal for the money of those sold, and for the goods old. And an action does not lie against him for not account- ing, till afttr a demand made for an account. 1 Taunt. 572. The condition of the bond is to perform the trust reposed in them, or to be reposed in them by any future order or decree the decree to pay away the money arising from the sale, under the direction of the Chancellor. How can the trustees know what \be further order of the court is, or what are their directions until such order or directions are shewn to them, and that too by the parties entitled to the benefit of the order, and competent to re- ceive and release. The trustees do not stand in the relation of debtors and creditors. They are the mere agents of the court. The hands by which the court for its own convenience, and the convenience, and very great convenience too of creditors, pay away funds under its coatroul. As before observed, the ad- justment of the creditors claim, is, as to them, "res inter alias oeta." They are not parties and can in no way interfere. They cannot even know who are the claimants, until the audit is closed and ratified. The argumentumab inconrenienti, applies with resistless force; for if the trustees are to be regarded as debtors to the creditors, then they must seek out the creditors. They must go to every county in the State, or every state in the Union, nay, to Europe itself, if the creditors are thus dispersed, to pay them; otherwise to be subjected to suits and costs. Costs that would be absolute ruin to them. In this case, we see the ruinous consequences which might be visited upon these trustees, although ready and willing to pay. There are eighty-two claims. Each claimant may bring four suits, the bond being several. This would make the aggregate of three hundred and twenty-eight suits, which at five dollars and fifteen cents to each, would produce an aggregate of costs OF MARYLAND. 459 State use Oyster vs. Annan 1829. equal to one thousand six hundred and ninety-eight dollars and twenty cents ! ! And this too is the Imcest amount of costs the trustees could escape with, if they were to go to each creditor and pay them as soon as the ^vrits were served. The court will see that the claim of Jacob Eversall in only $16 10. John Sawyer, $19 12, for which suits were brought, and if the trus- tees are compelled to pay the costs of these suits, they will amount to more than the principal, that is, the costs in each case will amount to $22 60. There is one of the claimants, named John Kennedy. This claim amounts to nineteen cents, now, can it be possible that the trustees could be compelled to ride over the State to find J\lr. Kennedy to pay him these nineteen cents, or be liable to be sued with four writs, and made to pay S22 60 costs. Impossible ! The whole net amount of sales is only $2075. Yet, if all the claimants had sued, as soon as the audit was ratified, the trustees might have been compelled according to the plaintiffs idea, to pay nearly the whole of this sum in costs. If the trus- tees are not entitled to notice, to the service of a copy of the audit, or the Chancellor's order, they cannot protect themselves from these ruinous consequences, no, not even though they take their seats at the Chancellor's elbow, and wait there for years, to know when the order will be passed ; for if they go to pay a creditor in Baltimore, Finley and Taylor, for instance, they may be sued while they are in the act of paying there, by the present very vigilant plaintiffs in Frederick. No willingness, no diligence, no readiness to pay can save them; it is morally im- possible for them to protect themselves from ruinous costs, if the creditors are so disposed, and yet, I have always understood it to be a maxim of the law of common sense and common justice, that lex neminem cogit ad impossibilia. If it be said that trustees may relieve themselves from these difficulties, these ruinous consequences, by paying the money into court. The answer is, that this would produce such great inconvenience to creditors, that all the benefit arising to creditors and others, from trustees residing near them and near the property sold, would be lost. The creditors, though residing in JIUeghany or Worcester, 460 CASES IN THE COURT OF APPEALS State use Oyster vs. Annan. 1829. would have, each one, to go to Annapolis to the Chancellor for a check or order, for the amount of his claim, however small. I cannot believe the court will establish a rule producing such se- rious inconveniences to suitors and claimants, when a rule obvia- ting every inconvenience to all parties, and based upon reason, equity, and sheer justice, is equally in their power. Surely a creditor ought to be satisfied, and can have no right to complain if he is paid his money when he asks for it. Surely a trustee ought to be protected, both by courts of law and courts of equity for they are both courts of justice when he has acted bona fide, when he is ready, willing and anxious to discharge his trust ; when he says, present me the order that I may know what it is,- and to whom I am to pay, and I am ready to per- form the money is in my pocket, and has been there for some time waiting for this order. The condition of the bond is, to perform the trust reposed in them. The court, in ascertaining whether they have violated the condition by not performing the trust, will give to their acts a reasonable construction. NThey will, before they will suffer a suit to be sustained, ascertain ond be satisfied that the trustees have been in^default, and although they do not, being a court of law, proceed by way of attach- ment, yet, as the Chancellor would not have granted an attach- ment until the trustees were in default, and he would never con- sider them in default for a disobedience to his order, until they know what that order was, so a court of law will construe the trust, and ascertain the duties and default of the trustees by the same rules of reason and justice, and will not consider the acts of the trustees as a breach of the trust, so as to subject them and their securities to suits on the bond for the penalty, unless on the same evidence, if they were sitting as Chancellors, they would grant an attachment. The court in ascertaining the duties and obligations of parties, are always governed by rules of justice and reason. Thus when a party endorses a note, he does not specify in his contract that he shall have notice of the non-pay- ment by the drawer, before he will be bound, yet the courts in fixing his liability, in construing his contract have said, it is reasonable that he should have notice, and if the holder does OF MARYLAND. 461 State use Oyster us. Annan. 1829. not give it to him, he is not bound by his endorsement he is not liable to be sued. So in the case of notes and accounts assigned to another in payment of debts, it has been held by the courts, that the assignee must use due diligence in the col- lection of them, or the assignor is not answerable on the original, because they say it is reasonable that such diligence should be used for the protection of the assignor. And so in many other analagous cases, the court in fixing liability, and ascertaining and determining what shall constitute a breach of duty, and what not, are influenced by the principles of reason and jus- tice. The trustees in this case only ask to have their duties ascertained by these principles, believing as they do, that they will not convict them of a breach of trust in the non- performance of an order, the existence of which they never knew, and the performance of which they never refused, and the knowledge of which they could not have procured by any ordinary diligence, to save themselves from the clouds of suits with which they are covered, every one of which they would have prevented, if the creditors had only called on them for their money, or given them notice that the audit was made out. The court are to say what were the duties of these trustees, in the proper discharge of their trust, what it was reasonable, and right, and equitable to expect of them. They are, by their bond, to perform the trust reposed in them. Did this trust re- quire them, as soon as the audit was made out, to take it in one hand and the trust fund in the other, and ride through the coun- try, State, or United States, as tKe creditors might be dispersed, to pay each one his claim ? 'If it did, then they are liable to this suit, and might be sued in one hour after the Chancellor's order, by one hundred creditors, if there were so many, and totally ruined, uno jlatu. But if, on the contrary, the trustees are en- titled to notice of the order ; if they are entitled to an opportuni- ty to pay, by having the order shewn to them by the person en- titled to receive, or his agent or attorney, who may be author!- *ir sed to give a receipt or release. If they are to be as much favored as the bank, which holds the funds of the Court of Chancery, if they are not to be required to do more than to use 462 CASES IN THE COURT OF APPEALS State use Oyster vs. Annan. 1829. ordinary diligence, to act bonajide, and to be ready and willing to pay whenever called on, or whenever the courts order, which they are to obey, is shewn to them by the party entitled to re- ceive and release. If, in truth, they are not to be required to per- form impossibilities, then they are not liable to the suits which have been brought against them, of which the present is one. EARLE, J. delivered the opinion of the Court. This suit was brought by a creditor on the bond of a trustee appointed by the Chancellor, to sell the real estate of a de- ceased person for the payment of his debts. The statement agreed on between the parties gives a full account of the pro- ceedings of the trustee in Chancery, from the acceptance of his trust, to the confirmed report of his sale, and the Chancel- lor's order of distribution of proceeds among the creditors. The action was instituted within a month after the order, and the complaint is that the plaintiff's proportion of the avails of the sale was sought without giving to the defendant, any previous notice of the final proceedings of the Chancellor. We have given to this case a further consideration, and after n examination of the authorities, we are inclined to think our first impressions of it were not correct. The trustee as to the suit is not in the situation of a common debtor, who knows his Jiability, and whose business it is to look to a compliance with his engagement; nor is his predicament like that of an executor pr administrator, who represents the deceased testator, or intes- tate, in all and each of his contracts, and to whom the creditors individually are to exhibit their claims for settlement. The creditors are known to the trustee but through the medium of the Court of Chancery, where they file their respective demands to be adjusted by the auditor,, and where disputes among them are disposed of by the Chancellor, who finally determines what proportion of the sum of money reported, is to be paid to each qf them. This proceeding as to the trustee, is res inter alias acfa, and it is but reasonable that when it terminates he shall be notified of the result, before any steps are taken against him, either by attachment, or by action on his trustees bond, against OF MARYLAND. 463 Crane vs. Meginnis. 1829. him, and his sureties. In the case of an order for distribution and payment, similar to this, to sustain the plaintiff's suit, it ap- pears to us therefore, that he ought to aver and prove a service of the order on the trustee, and a demand of payment of the sum specified therein; and that without this notice so averred in the proceedings, an action on the trustees bond cannot be maintained. Fid. 3 Johns. Cases, 53. The court mean to confine this decision to an order for dis- tribution and payment by the Chancellor, and with this under- standing the judgment of the court below is affirmed. JUDGMENT AFFIRMED. CRANE vs. MEGINNIS Court of Appeals, Eastern Shore y June term, 1829. The constitution of this State composed of the declaration of rights, and form of Government, is the immediate work of the people in their sovereign ca- pacity, and contains standing evidences of their permanent will. It por- tions out supreme power, and assigns it to different departments, prescrib- ing to each the authority it may exercise, and specifying that, from the ex- ercise of which it must abstain. The public functionaries move in a subordinate character, and must conform- to the fundamental laws or prescripts of the creating power. When they transcend defined limits their acts are unauthorised, and being without war- rant, are necessarily to be viewed as nullities. The legislative department is nearest to the source of power, and is mani- festly the predominant branch of the Government. Its authority is exten- sive and complex, and being less susceptible on that account of limitation, is more liable to be exceeded in practice. Its acts out of the limit of authority assuming the garb of law, will be pro- nounced bullities by the Courts of Justice ; it being their province to decide upon the law arising in questions judicially before them, and upon the con- stitution as the paramount law. The check to legislative encroachments is to be found in the declaration that the legislative, executive and judicial powers, ought to be kept sepa- rate and distinct; and the solemn obligations of fidelity to the constitution under which all legislative functions are performed. Divorces in this State from the earliest times have emanated from the Gen- eral Assembly, and can now be viewed in no other light, than as regular exertions of legislative power. The suit for alimony in this State is a distinct remedy from the proceedings to obtain a divorce, and for a series of years the wife's maintenance has been recoverable through the intervention of our judicial tribunals. mi CASES IN THE COURT OF APPEALS Crano vs. Meginnis. 1829. A divorced wife may recover, (having merits) a maintenance suitable to her station in life, and to quadrate with the situation of her husband, by a bill in Chancery. The 3d section of the act of 1823, ch. 95, by which the legislature required a husband to pay a trustee for the use and benefit of his wife, from whom such act divorced him, a sum certain annually, is an exercise of judicial authority , repugnant to the constitution of Maryland and void. APPEAL from Kent County Court. This was an action of Jlssumpsit, brought by the appellant as trustee of M ary Megin- nis, to recover the sum of $150, being the first semi-annual in- stalment of an annuity directed by an act of the General Assem- bly of Maryland, to be paid the said appellant by the appellee, for the use of the said Mary. The declaration stated, "that whereas heretofore, to wit, at a session of the General Assembly of Maryland, begun and held at the city of Jlnnapolis, on the first Monday of the month of December, in the year 1823, by a certain act of the said General Assembly, entitled 'an act for the relief of Mary Me- ginnis, it was amongst other things enacted, that the said Cas- parus Meginnis, should from the passage of the said act, be and he was thereby altogether deprived, of all and every inter- est, authority, power and control in, over, and to the person of Mary Meginnis, his wife, as fully as if she had never been married; and that the said Mary should be, and she was there- by declared capable to have, hold, take, receive, sue for, and recover, by compromise, suit or suits, in law or equity, proper- ty of any kind whatever, real, personal, or mixed, in as full, and ample a manner, as if she was a feme sole, and to use and enjoy, or dispose of the same, at her will and pleasure, and might in her own name sue and be sued as if she was a jcme sole; and the said Casparus should annually thereafter pay to the said John Crane, who was thereby made trustee in that be- half, to and for the use and benefit of the said Mary, the sum of $300, in two equal instalments, the first on the first day of March, and the second on the first day of September, in each and every year, during the joint lives of the said Casparus, and Mary, and the said trustee should be authorised to institute OF MARYLAND. 465 Crane vs. Meginnis. 1829. suit in his own name for any instalment, which should not be paid on the day on which the same was thereby declared to be due, and it should be the duty of the court before whom the suit was brought to try the same at the term to which the writ was made returnable; and that the said Casparus Meginnis, should not be liable for any debts to be thereafter contracted by the said Mary; and that the annuity thereby directed to be paid should cease on the death of the said Casparus or Mary, whichever of them should first die ; and that nothing therein contained should in any manner prevent the said Mary, if she should survive the said Casparus, from claiming the part or share of his estate, real, personal or mixed, which she would be entitled to, if the said act had not passed : And that if the said John should die or refuse or neglect to act as trustee, it should, and might be lawful for the Orphan's Court of Kent County, on the application of the said Mary, to appoint a trustee for her benefit, who should thereafter be invested with all the authori- ty thereby given to the said John, as by the record of the said act of Assembly remaining of record in the office of the Clerk of the Court of Appeals for the Western Shore, may more fully and at large appear ; and the said John in fact saith, that after making of the said act of Assembly, the said John took upon himself the execution of the said trusteeship, and that the said Casparus and Mary both continued in full life from and after the passage of the said act of Assembly, until the first day of March in the year 1824, and still are in full life, to wit: at Kent County aforesaid, by reason whereof, &c. To this declar- ation the defendant demurred generally, and^ the plaintiff join- ed in demurrer. A pro forma judgment was rendered by the County Court on the demurrer for the defendant, and the plain- tiff, appealed to the Court of Appeals. The cause was argued at June term, 1828, before EARLE, MARTIN, STEPHEN, ARCHER, and DORSEY, J. Chambers for the appellant, The objection urged against the act of 1823, ch. 95, in virtue of which the action was instituted, was understood to arise out of the 10th sect, of the 1st article of the Constitution of the VOL. 1. 59. 4(56 CASES IN THE COURT OF APPEALS Crano vs. Meginnis. 1829. United States, which prohibits the passage by a State Legisla- ture, of "any ex post facto law, or laws impairing the obligation of contracts." The act of 1823, is certainly not an ex post facto law. Such a law has relation to acts of a party, not to rights of property : an enactment which makes that a crime which was not a crime, at the period of its commission. Vid Celdon and wife vs. Bull and w/e, 3 Dal. 386. The exposition by Judge Chase and Judge Patterson as to this provision. Nor does this act impair the obligation of any contract with- in the meaning of the constitution. Contracts relating to money and property were those only which it was intended to include in these expressions. Marriage contracts were never contemplated. It has not heretofore been questioned, and is not now, that the le- gislature can grant a divorce, even a divorce a wnculo matrimonii, which not only impairs but destroys the marriage contract. It is one of those matters of internal police, which the interests of society require should be fit matter for legislation, and which the States never could have designed to transfer to the general government or to surrender. It has been exercised at all times, and in most, if not all the States. If then the right to grant di- vorces be vested in the legislature, it is necessarily an incident to its useful exercise, that there should also be power to express the terms of the divorce, to arrange matters of property for the future subsistence and comfort of an injured wife. The same solemnity, and the same obligation could be urged for the protection of the marital rights, which could be urged for the protection of the rights of property. The reason is not per- ceived why one may be invaded by legislative interposition, and the other be exempt. Accordingly, we find such to be the uni- form practice of the legislature, who have by the same act, as- sumed jurisdiction over the estates of individuals so far as to make proper provision for their future pecuniary comfort. Practice and acquiescence fix the construction, and courts will not after- wards allow it to be disturbed. 1 Cranc/i, 299, Steuart vs. Laird. A variety of laws from an early period of our history, will be found|in the statute book, and indeed, for many years, OF MARYLAND. 467 Crane vs. Meginnis 1829. the law of 1818, ch. 203, enacted when some of the most dis- tinguished legal characters in the State were members of the legislature, has been a sort of formula. Should it be urged that this act assumes powers, as'belonging to the legislative department of the government, which rightfully belongs to the judicial tribunals, and therefore opposed to the Maryland Bill of Rights, which declares they shall be kept separate and distinct, a great number of acts may be referred to, in which judicial power to the same extent has been exer- cised and sustained. In the case of Garrettson vs. Cole, 1 Harr. fy Johns, 391, the court paid respect to a law empowering the Court of Appeals to reinstate a cause after its decision. Should a difficulty be made, because of the summary pro- cess provided in this act, the court will find it obviated by the case of Bank of Columbia vs. Okely, 4 Wheaton, 235. Spencer and Bayly for the appellee, referred to 2 Burns Ecles. Law, 434. 3 Bla. Com. 94. 1 Fonb. Eq. 90, note 104. Duncan vs. Duncan, 19 Ves.Jr. 397. Galmith vs. Galmith, 4 Harr. $ McH. 477. The Act of 1777, ch. 12, sec. 4. Watkyns vs. Watkyns, 2 Atk. 97. 6 Article Bill of RigJits. 18 Article Bill of Rights. Whittington vs. Polk, 1 Harr. fy Johns. 236, 242. Vanhorne's lessee vs. Dorrance, 2 DalL 304 to 307. 1 Bay's Rep. 252, 382. 21 Article of the Constitution. Act of 1676, c/i.21. 1678, ch. 18. Carmichael on the same side,/contended, that the right of a court of judicature to review /a law, when the constitutional rights of a citizen had been thereby affected, had been solemn* ly established in Maryland, and being admitted by the coun- sel for the appellant, it became unnecessary to refer to author- ities to sustain the principle. In the sound and judicious exer- cise of this power the people found security. In questions of this nature it was necessary to refer to the country from which are derived the principles of our jurispru- dence. Claims for alimony were there cognizable in the spiri- 468 CASES IN THE COURT OF APPEALS Crane vs. Meginnis. 1829. tual courts, and under certain circumstances in thejCourt of Chancery of England obtained a hearing. The rules and principles by which the decision of cases of this nature were there regulated, might be found by reference to 1st Chitttfs Black. 441. 3 Ib. 94. Watkyns vs. Watkyns, 2 .fl/fc. 97. I Fonb. Eq. 94, note 104. Duncan vs. Duncan, 19, Fes. Jr. 396, 397. From the researches of counsel it did not appear in what court [under the colonial government, the claims for alimony were considered. That such causes were not heard and adju- dicated, by the Commissary General or his deputies, might be inferred from the silence of Valletta in his Deputy Commissary's Guide. Whether they were in the Court of Chancery was a question to which no evidence could be readily furnished. The only case that had been decided in the Province is to be found in Galmith vs. Galmith, 4 Hair, fy M'H. 477, in that case the County Court of Calvcrt had heard and given judgment upon a claim for alimony, which judgment was reversed by the Pro- vincial Court. By the declaration of Independence in 1776, Maryland be- came a sovereign, independent state with general powers; the limitations to the exercise of which existed only in the constitu- tion and bill of rights. At this period it could not be denied, that the claim for alimony was within the jurisdiction of the le- gislature. There was no other tribunal, before which it could be pre- sented. No such authority had then been imparted to the ju- dicial tribunals, or to the executive of the State. But in the next year, the cognizance of claims for alimony was given to the Court of Chancery. This will be found in the 14 sec. of the 12 cfc. of the Act of 1111. The right of the wife to alimony did not arise necessarily on separation from the husband. If under the influence of a per- verse and evil temper she absconds, or if she elope with an adulterer, she can sustain no claim for alimony. But wherever it is claimed, enquiries as to conduct of this nature, may be in- OF MARYLAND. 409 Crane vs. Meginnis. 1829. stituted; and in 1777 the legislature feeling that such investi- gations, comported not with the nature of the functions they were intended to discharge, and that justice to the parties could not be rendered, invested the Chancellor with authority to hear and decide all questions of this nature. Meginnis as a free ci- tizen of Maryland could not be deprived of his property, but by the judgment of his peers, or the law of the land. This was a security extended by the bill of rights to him, in common with the other citizens of the State. Before a claim of alimony could be established against him, he was entitled to a hearing of all the circumstances of the case, in the Court of Chancery. This was secured to -him by the act of 1777, ch. 12, sec. 14. This was the law of the land, and any act of the legislature depriv- ing him of this right was a direct violation of those first princi- ples upon which the government is based. It operated by rob- bing him of the protection of the law of the land; such is the act of 1 823, ch. 93. By this act the legislature clothed themselves with powers vested in the Chancellor by the act of 1777, and undertook to dispose of private rights which could be affected by them, only by a violation of the constitutional rights of a citizen. Among other evils that were felt under the colonial govern, ment, were those which arose from the exercise by the English colonial governors of all the functions of government, executive, legislative and judicial. The bill of rights regarding the abuses necessarily incident to the concentration of these powers, declar- ed that the legislative, judicial and executive powers, shall be kept for ever separate and distinct. In pursuance of this prin- ciple the act of 1777 was passed. Whether a modern legis- lature have the constitutional right to repeal this law, and clothe themselves with power to hear and adjudicate cases of alimony is not the matter to be decided; but it is whether this law being unrepealed, and in force, the legislature of 1823 had the right, to subtract this particular cause from the legal tribunals of the State, make the courts of a law a registry for their decisions, and impose upon them, the task of giving efficacy to a law, without the power of enquiring into its justice or legality. -170 CASES IN THE COURT OF APPEALS Crane vs. Meginnis. 1829. CJiambcrs in reply. The sixth article in the bill of rights, like the other declaratory articles in the same instrument, was int ended to assert a general principle. No government ever did, or ever can exist, in which a precise verbal and literal execu- tion of that article and others will be found. Those who framed, and those who enforced our admirable principles of government, so considered them. The 47th number of the Federalist, from the pen of Mr. Madison, shews this fully. It would be an endless task to cite to the court, the numberless instances in which the principle, if taken in the latitude now claimed has been impugned. In the very first session after the bill of rights was framed, and when no doubt the very men who adopted it were members of the legislature, we find laws to revive proceedings in court, to revive and aid proceedings in court, to direct tJie recording of a deed. In the next year, 1778, laws were made to empower persons to sell land, to authorize a deed to be recorded, to enable a widow and executrix to sell her testator's land. In 1779, to revive and aid proceedings in Talbot Court, to revive and continue actions and process in Worcester Court, same in Caroline Court, to enlarge the powers of an executrix, and to record deeds, and to take depositions. These are acts partaking of a judicial character, some in a greater degree, others less, but all more than the case at bar. In most of these cases, there was a plain and ample existing remedy through the judicial tribunals ; here there was no power but the legislature who could administer remedy for the principal evil, and in this exer- cise of exclusive power over the principal subject, they have legislated also for the accessory. The same system of legisla- ting, has been continued from our primeval history to this period, and the labor or the learning of the adverse counsel have not produced the evidences of the want of constitutional obligation in these laws. This case of Steuart vs. Laird, would seem to make them a contrary evidence of themselves, being a cotempo- raneous construction. The sole object of these declaratory principles, is to prevent the usurpation by one branch of the government, of such power and jurisdiction belonging to another branch, as would consolidate the one and annihilate the other, OF MARYLAND. 471 Crane vs. Meginnis 1829. at least to an extent which would encourage the use of arbitra- ry power. If this was a case of alimony, distinctly and exclusively, there would be reason for the objection urged. It is conceded, that the subject of alimony, is one of judicial cognizance, according to the laws of Maryland. But alimony is not recoverable in a case of separation without divorce. The twenty-first article of the bill of rights is subject to the same limitation, as before applied to the sixth. Such a case as the present, is not in its contemplation. Private property is taken for public service in seasons of war, for roads, canals, and other great exigencies, and taken against the will of its owner, and without any supposed violation of this article in the bill of rights. So private property, and private rights, must yield to the more imperative claims of public interest, and the proper police of the State. The marital rights acquired by the con- tract, are as solemnly secured, and as distinctly defined, and as important in their character, as the rights of real or personal property, and yet these are affected and destroyed, when their longer possession by the individual, conflicts with the great prin- ciples which regard the morals and well-being of society : and when affected, they require of necessity the incidental operation of the law upon the pecuniary rights of the parties. But in this case it is contended, the law of the land and the judgment of peers, are the instruments by which the party's property is to be taken away. The act of Assembly is the law of the land, and the trial by a jury is secured to him. There is no evidence in this Case, that the act passed without the consent of the husband, and to reject any presumption neces- sary to sustain the act of the legislature, would be in disobe- dience to the courtesy and respect, which are due from one branch of the government to the other, according to the princi- ples of both political and municipal law. If this power does not reside in the legislature, it exists no- where. The laws of Maryland have not conferred on any judi- cial tribunal, the power to divorce or separate husband and wife. The legislature alone, is competent to exercise jurisdiction on I7v! CASES IN THE COURT OF APPEALS Crano vs. Mcginnis. 1829. the subject, and being in possession of jurisdiction of the prin- cipal matter, can rightfully do whatever the peculiar circum- stances of a case may demand, and it is a most delicate office in an inferior or co-ordinate department of the government, to assume, that it has acted unadvisedly and without competent information of the facts, or to pronounce its enactment, in viola- tion of the constitution or bill of rights. EARLE, J. at this term delivered the opinion of the Court. A constitutional question is involved in the consideration of this case, and before we enter upon the solution of it, we will state some positions preliminary to the subject. The constitution of this State, composed of the declaration of rights and form of government, is the immediate work of the people, in their sovereign capacity, and contains standing evi- dences of their permanent will. It portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise, and specifying that from the exercise of which it must abstain. The public functionaries move then in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorised, and being without warrant, are necessarily to be viewed as nullities. If consider- ed as valid acts, the distinction between unlimited and circum- scribed authority is done away, the derivative exerts original power, and of constitutional law nothing is left but the name. The legislative department is nearest to the source of power, and is manifestly the predominant branch of the government. Its authority is extensive and complex, and being less suscepti- ble on that account of limitation, is more liable to be exceeded in practice. Its acts, out of the limit of authority, assuming the garb of law, will be pronounced nullities by the courts of jus- tice; it being their province to decide upon the law arising in questions judicially before them, and upon the constitution as the paramount law; but this is more in fulfilment of their own duty, than to restrain the excesses of a co-ordinate department of the government. The check to legislative encroachments is to be OF MARYLAND. 473 Cran vs. Meginnis 1829. found in the declaration, that the legislative, executive, and ju- dicial powers ought to be kept separate and distinct; and in the solemn obligations of fidelity to the constitution, under which all legislative functions are performed. With these general views of constitutional law, we proceed to consider the questions more immediately before the court. On the argument of the cause, the courts attention was directed to act of Assembly passed in 1823, entitled, "An act for the re- lief of Mary Meginnis," which the appellee's counsel asserted to be in violation, in some of its provisions, of the constitution of the State. Should it be found to be so, the judgment of Kent County Court will be affirmed, the appeal having been taken in a suit founded wholly upon this act of Assembly. Whether the act is then an infringement of the constitution, is the main ques- tion to be determined by this court, and it rests upon the two following points : Is the enactment of the third section of the act of 1823, an exercise by the legislature of judicial power ? Is the exercise by the legislature of judicial power, in the pas- sage of a law, repugnant to the constitution ? The act of 1823 is an act of divorce, separating Mary Me- ginnis from the bed and board of her husband, and its third sec- tion is clothed in this language : "And be it enacted, that the said Casparus Meginnis shall annually hereafter pay to John Crane of Queen Jinn's County, who is hereby made the trustee in that behalf, to and for the use and benefit of the said Mary Meginnis, the sum of three hundred dollars, in two equal instal- ments, the first on the first day of/March, and the second on the first day of September, in each /and every year during the joint lives of the said Casparus Meginnis and Mary Meginnis, and the said trustee shall be authorised to institute suit in his own name for any instalment which shall not be paid, on the day on which the same is hereby declared to be due, and it shall be the duty of the court before whom the suit is brought to try the same at the term to which the writ is made returnable." This grant of an annuity, is called a grant of alimony, and it is con- tended, that after the legislative separation, it might have been recovered by the wife in the Court of Chancery, pursuant to VOL. 1. 60. 171 CASES IN THE COURT OF APPEALS Crane vs. Meginnis. 1829. the laws of this State, if her case merited the interference of the Chancellor, and the circumstances of the husband justified the allowance of such a sum. The investigation of this point led us into a general review of the British law of divorce and alimony. From the research it has appeared to us, that they are both of judicial cognizance in the Ecclesiastical Courts of that country ; that the divorce a mensa et ihoro separates the parties for unfitness for the mar- riage state, and the separation is the remedy administered for the injury to the suffering party; that alimony is the maintenance afforded to the separated wife for the injury done her by her husband, in neglecting or refusing to make her an allowance suitable to their station in life, and is treated as a consequence drawn from the divorce a mensa et thoro; and that each of those matrimonial causes is dependent on different facts, and is re- dressed by different judgments, although both are within the jurisdiction of the same tribunal. In this State the act of di- vorcing man and wife has been performed by the legislature, for the want perhaps of ecclesiastical authority to effect it, or borrowing perchance the power from the parliament of Great Britain, which sometimes granted divorces a vinculo nwtrimo- rm, for supervenient causes, arising ex post facto, a thing that the spiritual courts could not do. However this may be, divor- ces in this State from the earliest times have emanated from the General Assembly, and can now be viewed in no other light, than as regular exertions of legislative power. The private acts passed for more that ten years back we have adverted to, and almost every divorce law has been found to be expressed in terms peculiar to itself. In some, the mere separation from bed and board is effected in the plainest and shortest way, as in the case of Francis B. MitcMl by the act of 1822, ch. 138, and in the case of Sarah Kerr by the act of 1824, ch. 118; and in other acts, separating the married parties, particular conse- quences of a continuing coverture are sedulously guarded against In none, not even in the act of 1818, ch. 203, referred to by counsel, is there any thing like a provision for the future maintenance of the wife, graduated to the circumstances of the OF MARYLAND. 475 Crane vs. Mcginnis. 1829. husband, and the station in life of the parties, as the act of 1823 would appear to be. On the other hand, the suit for alimony in this State, as in Great Britain, is a distinct remedy from the proceedings to obtain a divorce, and for a series of years the wifes' maintenance has been recoverable through the interven- tion of our judicial tribunals. So early as the year 1 689, in the case of Galnnth vs. Galwith, 4 Harr. 8f M i Hen. 477, it was asserted in the Supreme Court of the Province, that alimony is only recoverable in Chancery, or the Court of the Ordinary; and in the year 1777, the act of Assembly was passed, which expressly authorised the Chancellor to hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the Ecclesiastical Courts there. Since this last period, such caus- es have been continually acted upon by the Chancellor, and in some instances appeals have been taken to the Appellate Courts, and decided on by them. And we cannot permit ourselves for a moment to doubt, that if Mary Meginnis, like Francis B. Mitchell and Sarah Kerr, had obtained simply an act of divorce, she might have recovered, having merits, a maintenance suitable to her station in life, and to quadrate with the situation of her husband, by a bill in Chancery, or an application to the equity side of Kent County Court. If she could have been thus re- dressed by an exercise of judicial authority, we would ask, is it not fair to conclude that the redress granted to her by the le- gislature, is an exercise of judicial authority ? The nature of the power employed must be judged of, by having an eye to the like power exercised by a co-ordinate department. Should the executive try and sentence a felon to punishment, the judicial authority exercised could not be mistaken: and should the judi- ciary undertake to enact and promulgate a law, and exact obe- dience to it, the act would doubtlessly be pronounced, at once, an usurpation upon the functions of the legislature. The enactment of the third section of the act of 1823, being in our opinion an exercise by the legislature of judicial power, our attention will now be engaged for a short time with the en- 470 CASES IN THE COURT OF APPEALS Crano t>s. Mcginnis. 1829. quiry, whether the exercise by the legislature of judicial pow- er in the passage of a law, is repugnant to the constitution. The decision of this point must depend upon the sound con- struction of the sixth section of the bill of rights, which says, "that the legislative, executive, and judicial powers of govern- ment, ought to be forever separate and distinct from each other."' This political maxim made its appearance, in some form, in all the state constitutions formed about the time of the war of the revolution, and is said to have been borrowed by them of the celebrated Montesquieu's Spirit of Laws, vol. I. p. 181. In what- ever terms they have adopted it, in none of these constitutions are the several departments kept wholly separate and unmixed. In some of them, as in the constitution of this State, the execu- tive is appointed by the legislature, and the judiciary by the executive, and in others, the powers of the several departments are still more blended and mingled together. Upon a full con- sideration of each of them, it seems to us to have been the in- tention to ingraft this invaluable maxim of political science on their respective systems, only as far as comported with free go- vernment, and to prohibit the exercise by one department of the powers of another department, or to confine each department to the exclusive exercise of its own powers. This last is admira- bly expressed in the constitution of Massachusetts, and evinces a perfect acquaintance of its framers with the pages and doctrines of Baron Montesquieu. It is worded thus : "That the legislative department shall never exercise the executive and judicial pow- ers, or either of them : the executive shall never exercise the le- gislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them." The inhibition goes to the practical exercise of powers conferred by the constitution, and to be used after it is in opera- tion, and does not apply singly to the original distribution of pow- ers among the departments of the government. In the same sense : we construe the sixth article of our bill of rights, which has the same objects in view with the constitution of Massachusetts, al- though somewhat different terms are employed to express them. The one imitates the language, and the other dives into and ex OF MARYLAND. 477 Chappellear's Ex'rs. vs. Harrison 1829. presses the meaning of the venerated author from which they both copied. Their common purpose is to confine in'practice, the action of each department to its own appropriate sphere, by forbidding to it the use of powers allotted to the co-ordinate de- partments. We have already determined the first point, and we have now to add our perfect conviction, that the exercise by the le- gislature of judicial power in the passage of a law, is repugnant to the constitution. Our conclusion from all this reasoning is, that the third section of the act of 1823 is a nullity, and was rightly considered unavailable to support the plaintiffs action in the County Court where the suit originated, and that the judg- ment therefore ought to be affirmed. In acting upon this case, we wish to be understood to decide nothing but the points before mentioned only to adjudge that the exercise by the legislature of judicial power, is in opposition to the constitution, and that the enactment of the third section of the act of 1823, was an exertion of judicial power, and is neces- sarily a void act. JUDGMENT AFFIRMED. CHAPFELLEARS Ex'rs vs. HARRISON. December, 1829. In replevin the defendants avowed for rent in arrear due to them as Execu- tors of C, from the plaintiff as tenarft to their testator, for the term of two years ending on the 31st December, 1820; and averred that the plaintiff still remained in possession of the rented premises. The plaintiff pleaded 1st, that he did not possess and enjoy the premises under a demise from C. as his tenant, in manner, &c. 2d. That C did not demise the premises to him in manner, &c. 3d. No rent in arrear. Upon these pleas issues were joined, and on their trial in addition to proof of the avowry, it appeared that C died in March, 1820 that on the 1st January, 1821, the avowants rented the same premises to the plaintiff for the year 1821, and as executors of C made their distress for the rent of 1819-20 nineteen months after the ter- mination of C's lease, and while the plaintiff was in possession under the demise of the avowanta. The County Court instructed the jury, that the dfstress not having been made within six months next after ihe tormina- CASES IN TIM; COIIKT OK AIMM-.AI.S Chappolloar's Ex'rs rt. HarrUon. 182D. lion of iln demise by C, and the avowaiits having before ihe time of mak- ing their distress, made a new lea-.e to Hie olanilill', tin 3 mu^t liml a vcr- dirt fi-r him. It MM* lirl,l ii/mn appeal, lliat no question as to the right 'of the nvowanN a> exeeutors of C, to make a distress for rent fallin:'. due under a drmi-e l>> him, ritlier heforo or after his death a HIM-. unon this record; that whether the distress was made in duo time or not, was not in issue hy the pleadings, and that the instruction of the County Court was erroneous. APPEAL from Saint Mary's County Court. This was an action of replevin brought by the appellee (the plumtilV in the court below) against the appellants (the dd'c.nd- ants in that court.) This case which is ftilly stated by the Judge who delivered the opinion of the court, was argued before, BUCHANAN, Cli. J. EARLE and DORSEY, J.; Jl. C. Magnukr and Causin, for the appellants contended. 1. That no issue in the cause would have justified the court, in giving the instruction for the first reason, even if such had been the law, had the proper plea been pleaded. 2. That it was not necessary that the distress should have been made at an earlier period. 3. That the reduction of the rent, the following year could aiot take away the remedy by distress for the rent in arrear. ited Beavan vs, Ddatuty fy Lewis, 1 //. Blk. G, Ib. 7, (note) No counsel argued for the appellee. BUCHANAN, Ch. J. delivered the opinion of the Court. It appears from the pleadings in this cause, that the appellants avowed for five hundred dollars rent in arrear, due and owing to them as executors of John Chappcllcar, by the appellee as tenant to their testator, of a dwelling house which he held and enjoyed under him, for the term of two years ending on the thirty-first of December, 1820, by virtue of a demise at the year- ly rent of $250; and set out in the avowry that the appellee si ill remained in possession of the premises. To this it was pleaded, 1 st. That the appellee did not possess and enjoy the premises OF MARYLAND. 479 Chappellear's Ex'rs vs. Harrison. 1829. &c. under and by virtue of a demise from John Chappelkar as his tenant, in manner, &c. 2d. That John Chappelkar did not demise the premises, &c. to the appellee in manner, &c. and 3d, That the sum of five hundred dollars was not in arrear and un- paid to John Chappelkar, nor any part thereof at the time when, &c. upon which issues were joined. A witness examined on the pyjt of the avowants, who are the appellants here, proved the demise set forth in the avowry, by John Chappelkar their testator, to the appellee at the yearly rent of $250 : that the appellee entered upon the premises so demised as tenant to John Chappelkar, and occupied and enjoy- ed the same, for and during the years 181 9 and 1820, atthe stipu- lated annual rent of $250, and that the appellee continued in the occupation thereof until the first of January, 1 824. If the testi- mony had stopped here, we should probably not have heard of this case. But the same witness proceeded 1o prove, that John Chappelkar died in the month of March, 1820, that the appellants on the first of January, 1821, rented the same prem- ises to the appellee for the year 1821 for the sum of $90, and that the appellants as executors of John Chappelkar, made their distress for the rent due and in arrear from the appellee for the years 1819 and 1820, under the demise by John Chappelkar, on the 1st of August, 1822, nineteen months after the termina- tion of the lease by Chappelkar to the appellee, and when the appellee was in possession of the premises under and in virtue of a letting by the appellants. Upon this evidence, the court before which the cause was tried^ was of opinion and so instruct- ed the jury (as we understand the opinion and instruction set out in the bill of exception) that the distress not having been made, within six months next after the termination of the de- mise by John Chappelkar, and the appellants having before the time of making the distress, made a new lease of the premises to the appellee, they must find a verdict for the appellee, in which opinion and instruction we do not concur. No question as to the right of the appellants as executors of John Clutppcl- kar to make a distress for rent falling due under a demise by him, either before or after his death, arises upon this record. It does 480 CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' AdmV. D.B.Jf. 1823. not appear whether Chappcllear himself had more than a term in the premises; and whether the distress was made in due time or not, is a question that is not raised by the pleadings in the cause. If the appellee was desirous of making that question, he might, and ought to have raised it, by putting in a proper plea for that purpose. He might have pleaded that the distress was made after the expiration of six months, next after the termination of the demise by Chappcllear, and thus have put that matter in is- sue. He did not so plead, and there was no issue joined, to which evidence of that fact was applicable, or to entitle the ap- pellee to a verdict on that ground. The only questions present- ed to the jury by the issues appearing in the record, were 1st. Whether the appellee did possess and enjoy the premises in which, &c. under a demise from John Chappellear as his tenant. 2d. Whether John Chappcllear did demise the premises, &c. to the appellee. And 3d. Whether the sum of $500 or any part thereof was due and unpaid as rent in arrear to John Cliappcl- lear And the proof as stated in the bill of exception, appear- ing to be full in support of the issue joined on the part of the appellants, we perceive nothing to authorise the direction given to the jury to find a verdict for the appellee upon the issues joined in the cause, and which alone they were sworn to try. JUDGMENT REVERSED, AND PROCEDENDO AWARDED. THE MAYOR & CITY COUNCIL OF BALTIMORE vs. HUGHES'S Adm'r D. B. JY. December, 1829. Under the 2d. sec. of the act of 1797, ch. 54, the power given to the Mayor and City Council of Baltimore, "to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district," is not confined to any particular description of benefit such as the ordinary benefit and advantage of paved streets. The preservation of the health of such particular part of the city, is a benefit within the mean- ing and scope of the act. OF MARYLAND. 481 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. The legality of laying such tax, does not depend upon whether the paving does, or does not in fact, benefit the particular district taxed, but upon the object, the motive of the corporation in causing the paving to be done. IE. an ordinance providing for such paving, and the imposition of such a spe- cial tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district; if nothing appears to the contrary, such an exercise of the special taxing power will be taken to have been in pur- suance of the authority given by the charter. But where an ordinance provides for the paving of a street, &c. in a particu- lar district, and the imposition of a special tax for that purpose on such district, which paving appears from the ordinance to be for the general bene- fit of the city, and not for the benefit of the particular district, it is not in pursuance of the authority conferred by the charter, and is void. So upon the construction of the 13th sec. of the ordinance of the 9th March, 1807, which declares "that if the Commissioners of Health shall, at any time re- port in writing to the City Commissioners, that a nuisance exists in any street, lane, or alley in the city of Baltimore, which will endanger the health thejre- of," &c. it was held that the word thereof does not relate to the city of Bal- timore, so as to make it mean a nuisance which will endanger the city, but that it relates to any street, lane or alley, &c. and means a nuisance that will endanger the health of such street, &c. and the ordinance is clearly within the power conferred by the charter. A corporation must act within the limits of its delegated authority, and can- not go beyond it, yet it ought not by construction to be made to mean what is not clearly expressed, but when its ordinances will admit of two construc- tions, they should receive that which is consistent with the power given, and not that which is in violation of it. Where one board of commissioners, in the execution of their duties, were required to report in writing to another board of commissioners, who thereupon were to do certain acts; and these boards were subsequently united without any change being prescribed as to the mode of discharg- ing the trusts formerly confided to each of them, the formality of a written report as above directed, was necessarily dispensed with. Under the 13th section of the ordinance of the 9th March, 1807, the City Commissioners and Commissioners of 'Health, were required to form a posi- tive and decided opinion that "a nuisance exists" in some "street, lane, or alley in the city of Baltimore, which will endanger the health thereof" An entry in their books of their decision is not required. Certificates in their warrants, which they are directed to issue for the collection of the tax im- posed to remove the nuisance, of the existence of the nuisances and of their characters would be sufficient; but where they say in each warrant that they conceive the street mentioned, to be in a state of nuisance, which might endanger the health of the city, thus referring to the health of the city generally, not to that of a particular part, it is not such an opinion VOL. L 61. CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'rD. B. N 1829. as the ordinance requires, and the tax imposed under it cannot be enfor- ced. It is not competent to prove by oral testimony, the existence of facts to be ascertained by public commissioners, preparatory to laying a tax, which such commissioners are required to certify in writing. The action for money paid, laid out, and expended, must be founded upon a contract, express or implied. No person can by a voluntary payment of the debt of another, without his authority, make himself a creditor of the person whose debt is thus paid. If one is compelled, or is in a situation to be compelled to pay the debt of ano- ther, as in the case of a surety and does pay it, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained, for in such case it is not a voluntary, but a compulsory payment. A tax imposed by a municipal corporation cannot be recovered on a count for money paid, laid out, and expended, although such corporation has paid the cost of the improvement for which the tax was created. Nor can the cost of such improvement, or any part thereof, be recovered from a defendant, liable to pay tax therefor on a count for work and labor, where the ordinance under which the work was done, has not been properly pursued, so as to create a legal liability in the defendant. APPEAL from Harford County Court. This was an action of Assumpsit, originally brought in Baltimore County Court, but on suggestion, &c. of the defendant (the intestate of the appellee) was removed to Harford County Court. After the cause was so removed, the death of the original defendant was suggested, and the present appellee was made defendant, as his adminis- trator de bonis now. The action was brought to recover the sum of $1880 35, alleged to be due to the plaintiffs (the appel- lants) for certain paving taxes assessed upon the property of the intestate, by virtue of the corporate powers vested in the plaintiffs by certain acts of Assembly. The declaration con- tained six counts four special counts, and two general counts. The first count was for a paving tax, on application, &c. impos- ed the 24th of April, 1809, on Forrest street, &c. amounting to $656. The second count was for a paving tax to remove a nui- sance, imposed the 20th of July, 1812, on Barre street, between Light and diaries streets, amounting to $728.28. The third count was for a similar tax, imposed the 29th of July, 1812, on For- rest street, between Lee and York streets, amounting to $496 07. OF MARYLAND. 483 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. The fourth count was for paving taxes generally, amount- ing to $1880 35, being the aggregate of the sums mentioned in the three first counts of the declaration. The fifth count was ' for money paid, laid out and expended; and the sixth count was for work and labor. The defendant pleaded non assumpsit, and issue was joined. 1. At the trial the plaintiffs' gave in evidence an act of the General Assembly of this State, passed at November session, 1796, entitled, "an act to erect Baltimore town, in Baltimore County, into a city, and to incorporate the inhabitants thereof." (1796, ch. &8.) And also another act of the said General Assem- bly, passed at November session, 1797, entitled, "A supplement to the act, entitled,. An act to erect Baltimore town, in Baltimore county, into a city, and to incorporate the inhabitants thereof." (1797, cfo.54.) They further gave in evidence an ordinance of the Mayor and City Council of Baltimore, entitled, "An ordinance to appoint city commissioners, and prescribing their duties," approved March the 9th, 1807. And also gave in evidence ano- ther ordinance, entitled, "An ordinance to unite the powers and duties of the city commissioners and commissioners of health," approved 22d day of March, 1 807. They also gave in evidence, that during the year 1809, Henry Stouffer, John Bankson, William C. Gouldsmith, and Samuel A. Gatchell, were city commissioners, duly appointed and qualified, and that the said John Bankson, William C. Gouldsmith, and Samuel H. Gatch- ell, have been dead several years; and also gave in evidence, that Edward Johnson was in saidjear, the Mayor of the city of Baltimore, duly elected and qualified. That on the 13th of June, 1808, the following petition was presented to, and receiv- ed by the said Henry Stouffer, &fc. commissioners as aforesaid. "The City Commissioners, Gentlemen The subscribers, owners and occupiers of houses and lots situate on Forrest street, between the southernmost boundary line of the city and York ftreet, are desirous to have the same paved as soon as possible." Signed by a number of petitioners, and among others the origin- al defendant Hughes. 484 CASES IN THE COURT OF APPEALS The Mayor and City Conncil of Baltimore vs. Hughes' Adm'r D. B. N 1829. On the back of which said petition was thus endorsed: "No 1. Petition for paving Forrest street. Rec'd. 13th June, 1808. Ordered to he surveyed." They further gave in evidence the following entries made in the book containing the proceedings of the said commissioners, viz. Baltimore, 8 May, 1809. Com- missioners met. Present, full board. Issued warrant for the paving of Forrest street, $1584 87, $1503 57, $3088 44." They further gave parol evidence, that upon said application the said commissioners decided to pave said street, and obtained the ver- bal assent of the mayor of said 'city to such pavement; they also 5flered parol evidence, that the signers of said application or petition, constituted a majority of the proprietors and tenants inhabiting on said street, between the limits so required to be paved; and that Christopher Hughes, one of the proprietors, was the same Christopher Hughes who signed said application or petition; and also gave in evidence the following warrants : "City of Baltimore, set. The city commissioners having been requested by a majority of the proprietors of lots bounding on Forrest, between York street and the outlines of the city, and tenants inhabiting thereon, by their written application of the fifteenth day of June last, and having determined on the pro- priety of paving said street front of said lots, agreeably to their request, did cause to be made the following list of the names of the persons who are liable to pay the tax by law directed to be levied for paving the said street, it being the width of eighty two feet six inches." Here follows the names of sundry per- sons, and amongst others, ChnstopJier Hughes, $656. "City of Baltimore, to wit : By virtue of an ordinance, enti- tled, An ordinance directing the manner of collecting and ap- propriating the money levied for paving the streets, lanes and alleys, in the city of Baltimore, and also an ordinance, entitled, An ordinance for more equal assessing and levying the paving tax on the streets, lanes and alleys, in the city of Baltimore, we the subscribers, city commissioners, do hereby authorise and di- rect you to collect from the several persons whose names are hereto above annexed, the several sums of money opposite their respective names, being the street tax on Forrest street, between OF MARYLAND. 485 The Mayor and City Coancil of Baltimore vs. Hughes' Adm'r D. B. N. 1829. York street and the outlines of the city. That you will make col- lection aforesaid, and pay the same to the register of the city, agreeably to the directions of the ordinance aforesaid, and this shall be your sufficient warrant therefor. Given under our hands and seals this 24th day of April one thousand eight hundred and nine." Signed and sealed by Henry Stouffer, SfC. the city com- missioners. "8th May, 1809. Approved Edward Johnson. To the Collector of the City of Baltimore, Benjn. Fowkr, Esquire." On the back of which said warrant was thus endorsed : "War- rant for paving Forrest street, dated 8th May, 1809. Entered." They also gave in evidence that the said street then was, and still is, a public street in said city, and that the city commission- ers caused that part of the said street called Forrest street, be- tween York street, and the outlines of the city, to be paved, and that the proportion of the paving tax of the said Christopher Hughes for paving said part, amounted to $656, and that he paid on account thereof, when the paving was done, the sum of $500. They then offered in evidence that Henry Stouffer, $-c. were city commissioners, and commissioners of health, in the city aforesaid, in the year 1812, duly appointed and qualified as such; that Edward Johnson was then and during the said year, the mayor of said city, duly elected and qualified as such. The plaintiffs then gave in evidence the following entries made up- on the books of the commissioners aforesaid, viz. ''Baltimore, 29th June, 1812. Commissioners met. Present, full board. Barre, between Light and Charles streets, and Forrest, between Lee and York streets, declared by the board of health to be in a state of nuisance, which cannot ^>e removed without paving the same. Resolved, that the same be forthwith paved." And that the books in which said entries are found and taken from, are the books, and only books, of the commissioners of health and city commissioners, in which all their proceedings are entered. The plaintiffs further gave in evidence the following warrants : "City of Baltimore, set. We the city commissioners, as also commissioners of health, conceiving Barre street, between Clutrles and Liglit streets, to be in a state of nuisance, which might endanger the health of the city, and which nuisance in CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. our opinion cannot be removed but by paving, do adjudge and determine that the same be paved front of the lots bounding thereon, have caused to be made the following list of the names of the persons who are liable to pay the tax by law directed to be levied for paving said street front of said lots." In that list is the name of Christopher Hughes, $728. 28. "City of Baltimore, set. By virtue of an ordinance, entitled, An ordinance directing the manner of collecting and ^appropri- ating the money levied for paving the streets, lanes and alleys, in the city of Baltimore, as also an ordinance, entitled, An ordi- nance for the more equal assessing and levying the paving tax on the streets, lanes and alleys, in the city of Baltimore, and agree- ably to an ordinance respecting nuisances, we, the city commis- sioners, do hereby authorise and direct you to collect from the several persons whose names are hereto above annexed, the se- veral sums of money opposite their respective names, being the paving tax on Barre street, between Charles and Light streets. That you will make the collection aforesaid, and pay the same to the register of the city, agreeably to the ordinances aforesaid, and this shall be your sufficient warrant therefor. Given under our hands and seals this twentieth day of July, 1812." Signed and sealed by Henry Stouffer, &c. the city commissioners, "23d July, 1812. Approved Edward Johnson, Mayor." To the col- lector City of Baltimore. On the back of which said warrant was thus endorsed "Warrant for paving Barre street between Charles and Light streets. Dated 23d July, 1812. Ent." "City of Baltimore, set. We the city commissioners, as also commissioners of health, conceiving Forrest street, between Lee and York streets, to be in a state of nuisance, which might en- danger the health of the city, and which nuisance, in our opinion, cannot be removed but by paving, do adjudge and determine, that the same be paved front of the lots bounding thereon, and have caused to be made the following list of the names of the persons who are liable to pay the tax by law directed to be le- vied for paving said street." In that list Christopher Hughes 1 tax was $496 07. A similar warrant to that last mentioned was is- sued on the 29th of July, 1812, by the commissioners for collect- OF MARYLAND. 487 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. ing the tax, and which was approved by the mayor on the same day. On the back of which said warrant was thus endorsed "Warrant for paving Forrest street, between Lee and York streets. Dated 29th July, 1812. Ent'd." The plaintiffs also gave in evi- dence, that Barre street, between Charles and Light streets, and Forrest street between Lee and York streets, then were, and still are, public streets in the said city of Baltimore, and that said Christopher Hughes was in possession, and claimed title to the pro- perty on Barre and Forrest streets, for about thirty years, at the time the said streets were paved, and that the city commission- ers aforesaid, caused that part of Barre street, between Charles and Light streets, to be paved, and that the said proportion of the said paving tax therefor of the said Christopher Hughes, amounted to $728 28, as assessed to him by the city commission- ers; and that the said commissioners caused that part of Forrest street, between Lee and York streets, to be paved, and that the proportion of the said paving tax, as charged by the city com- missioners to the said Christopher Hughes, amounted to $496 07. The plaintiffs further offered in evidence, by Elisha T. Bai- ley, that he contracted with the said commissioners to pave the said parts of the said two streets last mentioned; that he did pave the same, and received payment therefor from the plain- tiffs, and that the said Christopher Hughes was frequently pre- sent on the said parts of streets, when the witness was so pav- ing the same, and requested a part thereof to be done in a par- ticular manner, by objecting to certain stones used as improper, and requesting him to put in othe/s, which the witness accord- ingly did : that the first part of ,6aid work was commenced in July, 1812, and finished either the last of July or first of Au- gust. Whereupon he immediately commenced the paving the other street, and finished the same in the fall of the year ; that the said Christopher Hughes, when the said paving was finished, offered to pay the said Baiky for paving on said streets, so per- formed by him, provided he would take unimproved lots in payment therefor, which the said Bailey refused to do. The plaintiffs further gave in evidence that the said Henry Stouffer, &c. mentioned as the city commissioners, are the same persons 1.-5S CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore us. Hughes' Adm'r D. B. N. 1829. who composed the board of health of the said city,, and were commissioners of health at the periods and in the year before mentioned; and they further gave evidence, that the several warrants herein before mentioned, were duly approved by the mayor of the city of Baltimore, before the same were issued and delivered to the collector of said city. The defendant then, prayed the court to instruct the jury that the plaintiffs were not entitled to recover for the pav- ing of Barre street, between Light and Charles streets, and For- rest between Lee and York streets 1st. Because there is no evi- dence that the commissioners of health, or board of health, did at any time ascertain that a nuisance existed in the said streets, which would endanger the health of the city of Baltimore; and also because there is no evidence that the said commissioners of health, or board of health, did at any time report in writing to the city commissioners, that a nuisance existed in the said streets, which will or would endanger the health of the city of Balti- more. 2d. And because the plaintiffs, by virtue of the thir- teenth section of their ordinance of the 9th of March, 1807, en- titled, "An ordinance to appoint city commissioners, and pre- scribing their duties," could not confer a power on the said ci- ty commissioners to assess or levy a tax on any particular part or district of the city of Baltimore, or the proprietors or owners of such part or district, for the purpose of preventing or remov- ing a nuisance, which will endanger the health of the city of Baltimore. 3d. Because it is in evidence, and uncontradicted, by the books and proceedings of the commissioners of health, or board of health, and of the city commissioners, that Barre street between Light and Charles streets, and Forrest street between Lee and York streets, were declared by the board of health to be in a state of nuisance, and that the commissioners of health had not declared the said streets to be in a state of nuisance, which will or would endanger the health of the city. Which instruction the court [Archer, Ch. J.] gave to the Jury. The plaintiffs excepted. 2. The plaintiffs, in addition to the evidence set forth in the preceding bill of exceptions, offered in evidence by Henry OF MARYLAND. 489 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. Stouffer, a witness sworn on the trial on the part of the plain- tiffs, that he was the only survivor of the board of city commis- sioners, and commissioners of health, for the year 1812 ; and the plaintiffs further offered in evidence, by the said witness, that i# the month of July, 1812, Barre street between Light and Charles streets, and Forrest street, between Lee and York streets, were en- tirely on made ground, and that a nuisance existed in the said part of the said streets, which endangered the health of the city of Baltimore, and that the same could not be effectually removed without paving the same. To the admissibility of which evi- dence, the defendant objected ; and the court were of opinion, that the said testimony was inadmissible, and refused to let the same go to the jury. The plaintiffs excepted. 3. The plaintiffs further prayed the court to instruct the ju- ry, that upon the evidence contained in the preceding bills of exceptions, the plaintiffs are entitled to recover in this action the proportion of the paving taxes chargeable to the said Chris- topher Hughes in his life-time, for the paving of Barre street, between Light and Charles streets, to wit, the sum of $728 28, and for the paving of Forrest street, between Lee and York streets, to wit, the sum of $496 07, under \hefifth and sixth counts, in their declaration for money paid, laid out and expended, and for work and labor done, and materials found and provided; which instructions the court refused to give. The plaintiffs ex- cepted; and the verdict for the plaintiffs being only for the sum of $318, and judgment thereon rendered, they appealed to this court. The cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN and STEPHEN, J. Taney (Attorney General) and J. Scott for the appellants, con- tended that the court below erred in giving the instructions pray- ed for by the defendant, as set forth in the first bill of excep- tions 1. Because the nature and character of the nuisances al- leged to exist in Barre, street, between Light and Charles streets, and in Forrest street, between Lee and York streets, were suffi- ciently ascertained by the proceedings of the board of health VOL. 1. 62. 490 CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. and city commissioners, according to the ordinance of the 9th of March, 1807, ( Foung's Ed. 60, sec. 1 3.) the board of health and city commissioners being composed of the same persons. 76. 165. 2. Because the powers and duties of the board of health and city commissioners, being united by the ordinance (Ib. 165,) that part of the 13th section, which requires a report in writing from the board of health to the city commissioners, of the ex- istence and nature of the alleged nuisance must be considered as repealed such a report being absurd and unnecessary. 3. Because the existence and character of the nuisance, be- ing ascertained by the tribunal competent to decide the question, and the plaintiffs having the power to tax as well as pave, by the act of 1797, c/i. 54, in the absence of proof to the contrary, it must be understood to be a lawful exercise of those powers. 4. Because the nature of the nuisance shows that it was for the benefit of those districts that it should be removed ; and the competent authorities had decided, that it could only be done by paving. 5. Because the powers to prevent and remove nuisances, to pave, and to tax for the said paving, have been properly exer- cised by the plaintiffs by their officers and servants. 6. Because the nature and character of the alleged nuisances are sufficiently ascertained by the commissioners of health and city commissioners, in the warrants issued by them, and no other ascertainment thereof was necessary. 7. The appellants also contended, that the court below er- red in refusing to grant the prayer of the plaintiffs, contained in the third bill of exceptions; because they offered evidence, proper to go to the jury under the fifth and sixth counts in the declaration, to show the assent of the defendants' intestate to the paring of Barre street, between Charles and Light streets, and of Forrest street, between Lee and York streets, and the pay- ment for the same by the plaintiffs ; and that upon such assent the plaintiffs were entitled to recover from the defendant for such paving, and for the money so paid, laid out and expended. They referred to the acts of Assembly and ordinances stated in OF MARYLAND. 491 The Major and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. the bills of exceptions. Also to The Mayor fyc. vs. Moore Sf Johnson, 6 Harr. Sf Johns. 380, and the Mayor fyc. vs. Howard, 76.91. R. Johnson for the appellee. 1 . The character of the nui- sance was not sufficient to justify the paving, under the ordin- ance of the 9th of March, 1807, sec. 13. 2. The paving was not such as authorised the imposition of the tax laid under the act of 1797, ch. 54. 3. The plaintiffs were not entitled to recov- er under the general counts in the declaration, for work and la- bor done, &c. BUCHANAN, Ch. J. delivered the opinion of the court. A recovery by the plaintiffs of the taxes imposed under the 13th section of the ordinance of the 9J/i of March, ^1807 , is re- sisted by the defendant on two grounds. 1st. That the power given by the ordinance has not been well executed. 2d. That the ordinance itself is not authorised by the char- ter. The second ground relied upon involves the construction both of the charter and the ordinance, and will be first examined. The second section of the act of 1797, ch. 54, a supplement to the act incorporating the city of Baltimore, gives to the corpo- ration power to pass all ordinances, necessary for paving and keeping the streets, &c. in repair, "and to tax any particular part or district of the city for paving the streets, lanes or alleys there- in, or for sinking wells, or erecting pumps, which may appear for the benefit of such particular part or district." In the case of The Mayor and City Council of Baltimore, vs. Moore and Johnson, 6 Harr. Sf Johns. 380, it was decided by this court, that the word which in that provision of the act, rela- ted as well to the paving the streets, lanes and alleys, as to the sinking of wells and erecting pumps, and that the corporation had authority to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, which might ap- pear for the benefit of such particular part or district. The rea- soning by which that conclusion was arrived at, need not be re- 1!>J CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adtn'r D. B. N. 1829. peated in this place. A different construction however would certainly be at war with the intention of the legislature, as it never could have been contemplated, to give to the corporation the power to tax any particular part or district of the city, for any paving which was for the general benefit, and not for the benefit of the immediate part or district taxed; which under a different construction, would be the effect of the second section of the act of 1797, taken altogether. Under this restricted construction, limiting the power of the corporation to tax any particular part or district of the city, for paving the streets, lanes and alleys therein, to a paving which shall be, or ap- pear to be for the benefit of such particular district, and not for the general benefit of the city, which ought to be paid for out of the general fund, and not by the imposition of a special tax upon any particular part of the city, we think the corporation is not confined to any particular description of benefit, such as the ordinary benefit and advantage of paved streets; and that the preservation of the health of such particu- lar part of the city, is a benefit within the meaning and scope of the act. The legality of levying the tax, does not depend upon wheth- er the paving does or does not in fact benefit the particular dis- trict that is taxed, but upon the object, the motive of the corpo- ration in causing the paving to be done. And in an ordinance providing for such paving, and the imposition of such a special tax, it is not necessary that it should be expressly stated to be for the benefit of the particular district: but if nothing appears to the contrary, such an exercise of the special taxing power, will be taken to have been in pursuance of the authority given by the charter. It will be presumed that the corporation did not exceed its powers, but imposed the tax for the purpose on- ly, for which the charter authorises it to be imposed, and that the paving appeared to the city council, to be for the benefit of the particular district. But where an ordinance provides for the paving a street, &c. in a particular district, and the imposition of a special tax for that purpose on such district, which paving appears by the or- OF MARYLAND. 493 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. dinance to be for the general benefit of the city, and not for the benefit of the particular district, such an ordinance is not in pur- suance of the authority conferred by the charter, and is void. And such it is contended is the character of the 1 3th section of the ordinance of the 9th March, 1807, providing for the imposi- tion of the taxes the recovery of which in this suit is resisted. The provision of that section is in these words, "that if the commissioners of health, shall at any time report in writing to the city commissioners, that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof, and the city commissioners upon a full examination thereof, should be of the same opinion, and that the same can- not be effectually removed, without paving such street, lane or alley, they are hereby authorised and required, to proceed to the paving of such street, lane or alley, and to issue their war- rant under their hands to the city collector, directing him to col- lect the tax which may be imposed for the paving the same, &c. It is supposed that, it appears upon the face of this ordinance, that the nuisance here authorised to be removed by paving the street, c. in which it may be found to exist, is such a nuisance only, as in. the opinion of the commissioners of health and the city commissioners, will endanger the health of the city generally, and not of the particular district in which the paving is author- ised to be done, and the tax to be imposed ; and that the pav- ing and taxing is intended for the general benefit of the city and not of the particular district. If such be the true construction of the ordinance, it. cannot be questioned, that it was unauthor- ised by the charter, and that provision of it nugatory and void. But to arrive at that conclusion, it must either be assumed, that a nuisance cannot exist in any particular part or district of the city of Baltimore, affecting or endangering the health of such particular part or district, without also so affecting or en- dangering the health of the whole city, or of the city generally, as to be a matter of such general concern, as that the means re- sorted to for removing it, can only be paid for out of the gen- eral fund, and not by a tax upon the particular district in which it may exist ; and consequently that the paving contemplated 101 CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. and provided for by this ordinance, could only have appeared to be, and been intended for the general benefit of the city, and could not have been considered to be and intended for the be- nefit of the particular district to be paved, or that the language of the ordinance is such, as to show the object of the paving provided for, to be the general benefit of the city, and not the benefit of the immediate district. With respect to the first of these positions, it by no means ap- pears to us, that a nuisance cannot exist in a particular part or district of the city of Baltimore, affecting or endangering the health of such part or district, without also affecting or endan- gering the health of the city generally, and that no paving can be authorised for the removal of a nuisance endangering the health of a particular district, without having for its object the general benefit of the city, and not the benefit of the district in which the nuisance may exist. And if such a nuisance may ex- ist, of which the corporation is competent to judge, it has au- thority, under the charter, to pass an ordinance for the removal of such a nuisance by paving, and to impose a local tax for that purpose, if it shall appear to be for the benefit of the particular district, in which the paving is authorised to be done. And if there be nothing expressed in this ordinance to the contrary, the presumption is, that the nuisance contemplated, is one endan- gering the health of the immediate district in which it exists, and that the sole object of the paving provided for, is the bene- fit of that particular district. Is there then any thing in the lan- guage of the ordinance to sustain the second position ? Is there any expression pointing to the preservation of the general health of the city, or to the general, and not a local benefit, as the mo- tive for authorising the paving provided for? This case has been argued, as if the language of the ordi- nance was, " which will endanger the health of the city." But whatever might be the effect of such words if used, that is not the language of the ordinance ; the commissioners in their war- rants say that they conceive the streets directed to be paved, "to be in a state of nuisance, which might endanger the health of the city." And it is probable that, the language of the war- OF MARYLAND. 495 The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. rants and of the ordinance, may have been confounded by the counsel. The words of the ordinance are, " that if the com- missioners of health shall at any time report in writing to the city commissioners that a nuisance exists in any street, lane or alley in the city of Baltimore, which will endanger the health thereof," &c. Not in terms the health of the city, but thereof; and the question is, whether the word thereof must he held to relate to the city of Baltimore, or may refer to the street, lane or alley in which a nuisance may be found to exist. The power given by the charter under which this ordinance was passed, is, "to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sink- ing wells or erecting pumps which may appear for the benefit of such particular part or district." Now it has never been pretended, that the word therein in that clause related to the city, and meant for paving the streets, lanes or alleys, in the city. But it has always been considered, (and properly,) that it rela- ted to the particular part or district of the city to be taxed, and meant for paving the streets, lanes or alleys in such particular part or district. And the only question raised on that clause of the charter, in the Mayor, 8fc. vs. Moore &f Johnson was, whe- ther the latter part of it, "which may appear for the benefit of such particular part or district," related to the sinking of wells and erecting pumps, or extended also to the paving the streets, &c. So here we think that the word thereof in the ordinance, does not relate to the citypf Baltimore, so as to make it mean a nuisance which will endanger the health of the city of Balti- more: But that it relates to ajny street, lane or alley, fyc., and means a nuisance that will endanger the health of such street, Sfc. The words in the city of Baltimore being only used as descriptive of where the street, &c. lies. And that there is nothing appearing upon the face of the ordinance, to show that the general benefit of the city, is the object of the paving pro- vided for, and not the benefit of the particular district to be taxed. This construction, brings the ordinance clearly within the power conferred by the charter, and although it is true, that a corporation must act within the limits of its delegated author!- 496 CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N 1829. ty, and cannot go beyond it, yet it ought not by construction, to be made to mean what is not clearly expressed; but when an ordinance will admit of two constructions, it should receive, that which is consistent with the power given, and not that which is in violation of it. The other ground relied upon by the defendant, is, that con- ceding the ordinance to be justified by the charter; yet the power given by it, has not been well executed, and two objec- tions are raised ; first, that by the ordinance, a report in writing is required of the existence of a nuisance, &c. by the commis- sioners of health, to the commissioners of the city, which does not appear to have been made. Second, that the ordinance re- quires the nuisance to be of such a character, as will, in the opinion of the commissioners, endanger the health, &c. and that the commissioners have not so stated. There is nothing in the first of these objections. The ordi- nance of the 22d of March, 1807, uniting the powers and duties of the city commissioners and commissioners of health, provides for the appointment of four persons to be city commissioners and commissioners of health, with all the powers and duties united in them, of the commissioners of health and city commissioners, and surely the formality of a written report by them to them- selves was necessarily dispensed with. Besides there would be an inconsistency between the two ordinances, the one uniting the two bodies into one, and the pther requiring the one to make a report to the other, when no such separate bodies existed, and the ordinance of the 22d of March, 1807, expressly repeals all such parts of the ordinance of the 9th of March, 1807, as are inconsistent with any thing contained in it. An entry in the books of the commissioners of their decision is not required, and the certificates in their warrants of the existence of the nuisances and of their characters, would have been sufficient, if in other respects the ordinance was complied with. But the ordinance has not been complied with ; the warrants of the commissioners should, to gratify the ordinance, have contained statements of the existence of nuisances in the respective streets specified, which would in their opinions endanger the OF MARYLAND. 497 Tfae Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. health thereof, and not that they might do so. A positive and decided opinion is required, and not the expression of a doubt, as to the dangerous character of the nuisance to be remov- ed. And it is evident from the terms used by the commis- sioners, that they had formed no decided opinion on the subject. They say in each warrant, that they conceive the street men- tioned, to be in a state of nuisance which miglit endanger the health of the city, apart from the danger they speak of to the health of the city, instead of the health of the particular street, which is of itself a departure from the provision of the ordi- nance; the opinion they express, is not such as the ordinance re- quires. The nuisance authorised to be removed, is required to be such, as in the opinion of the commissioners will be dange- rous, and not such as may by possibility be dangerous ; and the second objection is we think well taken. The second exception was properly abandoned at the argu- ment. The ordinance requiring the evidence of the existence of a nuisance, and of its dangerous character and tendency, to be in writing, the plaintiff was not competent to prove it by oral testimony at the bar. The action for money paid, laid out and expended, must be founded upon a contract express or implied, and it is a settled rule, that no person can by a voluntary payment of the debt of another, without his authority, make himself a creditor of the person whose debt is thus paid ; but if one is compelled, or is in a situation to be compelled to pay the debt of another, as in the case of a surety, and does pay it 5/ the law implies a promise on the part of him for whom the mopey is paid, on which an action may be sustained, for in such dase, it is not a voluntary but a compulsory payment. In this case there was no debt due by the defendants' intes- tate, and the payment made by the plaintiffs was on account of a contract entered into between the commissioners and the man who did the paving. But if there had been a debt due by the defendants' intestate to the workman who did the paving, which the plaintiffs were not compelled to pay, a voluntary payment VOL. I. 63. CASES IN THE COURT OF APPEALS The Mayor and City Council of Baltimore vs. Hughes' Adm'r D. B. N. 1829. by the plaintiffs without the authority or request of the defen- dants' intestate could not raise an assumpsit against him ; and there is no evidence of any such authority or request. Or if the defendants' intestate was indebted to the plaintiffs on ac- count of the taxes imposed, that liability would not sustain a count for money paid, laid out and expended, which is the fifth count in the declaration in this case. And we can perceive no ground on which the construction prayed for to the jury, that the plaintiffs were entitled to re- cover on the sixth count for work and labor done, &c. could have been properly given. The defendants' intestate was under no legal obligation imposed by the ordinance, to pay for the paving done ; and the work was not done at his instance, but by the plaintiffs, under and in pursuance of one of their own ordinances, and in the supposed exercise of their corporate powers. We concur therefore in opinion with the court below on all the bills of exceptions. JUDGMENT AFFIRMED. Abte. The doctrine that no person can by a voluntary payment of the debt of another, without his authority make himself a creditor of the person whose debt is thus paid, has been qualified by the Act 0/1829, chap. 51, which enacts "that any assignee or assignees, bona Jide entitled to any judgment, bond, specialty or other chose in action for the payment of money by assign- ment in writing, signed by the person or persons authorised to make the same, may by virtue of such assignment, sue and maintain an action or actions, ex- ecution or executions, in any court of law or equity in this State, as the case may require, in his, her, or their names or names against the obligor or obligors, debtor or debtors, therein named, saving and reserving to the defendant or de- fendants, all such legal or equitable defence as might or could have been had or maintained against the assignor or assignors at the time, and before'notice of the assignment, in the same manner and to the same extent as if no such assignment had been made." REPS. OF MARYLAND. 499 Dugan vs. The Mayor and City Council of Baltimore 1829. DUCAN vs. THE MAYOR AND CITY COUNCIL OP BALTIMORE. December, 1829. The imposition and assessment of a tax by the Mayor and City Council of Baltimore, under and in pursuance of their charter, creates a legal obliga- tion to pay such tax, on which the law raises an implied assumpsit by the person taxed. By the charter of the City of Baltimore, (act of 1796, ch. 68, sec. 10,) it is provided "that the person or persons appointed to collect any tax impos- ed in virtue of the powers granted by this act, shall have authority to col- lect the same by distress, and sale of the goods, and chattels, of the person chargeable therewith," and by the ordinance of the corporate authorities of that city of the 27th March, 1817, a tax was imposed, and the collector directed to deliver to each taxable person, an account of his assessment and tax in writing, before a given day; and if the tax should not be paid within a month thereafter, to proceed without delay to recover it agreeably to the mode prescribed by the act of incorporation. In an action brought by the Mayor and City Council of Baltimore to recover a tax imposed by the ordinance of 1817, it was held unnecessary to prove, that the Collector had delivered the account before mentioned to the de- fendant; and that his liability to be sued, in no manner depended upon the diligence or negligence of the collector. APPEAL from Baltimore County Court. Jlssumpsit to recover a sum of money claimed for taxes imposed by the appellees, (the plaintiffs in the court below) on the appellant, (the defen- dant in that court.) It was agreed, that the acts of Assembly and ordinances referred to in the bill of exceptions, might be read from the printed copies, witliout being inserted in the record. At the trial, the plaintiffs offered in evidence to the jury, an act of the General Assembly/ of Maryland, entitled : u An act to erect Baltimore town, in Baltimore county, into a city, and to incorporate the inhabitants thereof." Passed at Novem- ber session, 1796, ch. 68. And also offered in evidence, an ordinance of the Mayor and City Council of Baltimore, entitled: " An ordinance to impose a tax on the real and personal pro- perty within the city of Baltimore, and to provide for the col- lection of the same for the year 1817, and for other purposes." and also offered in evidence, that for the year 1817, the said defendant was duly and legally assessed with real and per- 500 CASES IN THE COURT OF APPEALS Dugan TS. The Mayor and City Council of Baltimore. 1829. sonal property in the city of Baltimore, liable to taxation, to the value of $16,388, and that the taxes properly charge- able to the said defendant for the said year, amounted to the sum of $160 93, to recover which sum this suit was brought. The plaintiffs further offered in evidence, that Thomas Rogers was the collector of taxes for the said year, and that Peregrine Welsh was employed by the said Thomas Rogers as a clerk and agent to assist in the collection of the same, and that some time in the year 1818, the said Peregrine Welsh called on the defendant and demanded payment of the said sum of $160 92, due as aforesaid, but that the said defendant refused to pay the same, alleging that the Mayor and City Council of Baltimore were indebted to him. Whereupon, the said defendant prayed the opinion and direction of the court to the jury, that the plain- tiffs having offered no evidence to prove, that the said collec- tor made and delivered to the said defendant, an account in wri- ting of the assessment and tax of the said defendant, containing the items hi words at length, and the amount thereof in figures, before the first day of June, in the year 1817, or at any time be- fore the commencement of this suit, were not entitled to recover in this action ; and the defendant further prayed the opinion and direction of the court to the jury, that upon the evidence given in this cause, the plaintiffs were not entitled to recover in this action; which opinions and directions the court refused to give to the jury, but were of opinion and so directed the jury, that if the jury believed the evidence given in this cause, the plaintiffs were entitled to recover. The defendant excepted, and the verdict and judgment being against him, he prosecuted this appeal. The cause was argued before BUCHANAN, Ch. J. EARLE, MARTIN and ARCHER, J. R. Johnson, for the appellant. J. Scott , for the appellee. BUCHANAN, Ch. J. delivered the opinion of the court By the 10th section of the act of 1796, the act of incorpora- OF MARYLAND. 501 Dugan vs. The Mayor and City Council of Baltimore 1829. tion of the city of Baltimore, authority is given to^the person or persons appointed to collect any tax imposed, in virtue of the powers granted by that act, to collect the same by distress and sale of the goods of the persons chargeable therewith ; with a provision, that if the tax imposed, shall be chargeable on real property, it may be recovered by action of debt, or attachment, in case no goods can be found liable to be distrained upon. This suit was brought to recover an amount of taxes, claimed to be due and owing by the appellant, for the year 1817, in virtue of an ordinance passed by the corporation on the 27th of March, in the year 1817 : " To impose a tax on the real and personal property within the city of Baltimore." It is not contended, that the corporation had not the power by the char- ter to impose taxes ; nor is it denied that the particular ordinance imposing the tax in question, was passed in pursuance of the powers derived under the charter. But it is urged, that unless the provisions of the fifth section of the ordinance, directing the collector to deliver to each taxable person, &c. an account in writing, of his assessment and tax, containing the items in words at length, and the amount thereof in figures, before the 1 st of June next, after the passage of the ordinance were pur- sued, no action would lie; and that there being no evidence of a delivery, &c. by the collector to the appellant, of such an account as is directed by the ordinance, this action cannot be maintained, and in support of this proposition, the stat. of 2d Geo. 2d, ch. 23, sec. 23, and the decisions under it are relied on. But the analogy insisted on is not perceived. The lan- guage of the stat. of 2d Geo. 2a, is imperative; it provides that no attorney or solicitor shall commence or maintain any action or suit, until the expiration of a month or more, after he shall have delivered a bill of his fees, &c. to the party to be charged, &c. thus expressly declaring, that no action shall either be brought or maintained, until the provisions of the statute have been first complied with ; but that is not the character of this ordinance ; it neither expressly forbids the bringing of a suit be- fore the delivery of the account, nor impliedly, by authorising or directing a suit to be brought, in the event of the tax not being 50 CASES IN THE COURT OF APPEALS Dugan w The Mayor and City Council of Baltimore. 1829. paid by the time prescribed. It has no relation to the bringing of a suit, but only to the summary mode provided by the charter of collecting the tax by a distress and sale of the goods. It is seen that by the 10th section of the charter, the person appoint- ed to collect the taxes, imposed by the corporation, is impow- ered to do so by distress and sale of the goods of the persons chargeable with them. The 4th section of the ordinance pro- vides for the appointment of a collector. And the 5th section, the office of which is to prescribe his duties, after providing that he shall deliver to each taxable person, an account of his assessment and tax in writing, on or before the first of June next, after the passing of the ordinance, goes on to direct him, if the tax should not be paid by the first of July following, to proceed without delay to recover it, agreeably to the mode prescribed by the act of incorporation, that is by distress and sale of the goods, and not by suit, which he had no authority either by the charter or ordinance to institute. It is true that the collector was not authorised to collect the tax by distress, and sale of the goods, without having first delivered an account of the assessment and tax to the party to be charged, according to the directions of the ordinance, who was entitled to that notice, before his property could be proceeded against in the summa- ry mode provided by the charter, and without such notice his property could not be distrained upon and sold. But though his goods would be protected from distress and sale by the collec- tor, it would not therefore follow, that he could not be sued by the corporation for the amount of the taxes due. His liability to be sued or not, in no manner depended upon the diligence or negligence of the collector in the discharge of his duty, as pre- scribed by the fifth section of the ordinance, which has no rela- tion to that subject. In the Mayor and City Council vs. Howard, 6 Harr. fy Johns. 383, it was decided by this court in relation to the 10th section of the act of incorporation, that the giving a remedy by distress or action of debt, was cumulative only, and did not take away the action arising by implication, on the legal obligation to pay a claim created by law. The tax for which this suit OF MARYLAND. 503 Warfield vs. Gambrill. 1829. . was brought was imposed by virtue of that act, the imposition and assessment of which created the legal obligation to pay, on which the law raised an implied assumpsit j independent of the notice required by the fifth section of the ordinance, as a foun- dation for a summary mode of recovery, and unaffected by the omission of the collector to do his duty which omission (if an account was not delivered as required by the ordinance,) though it caused the loss of the right to collect the tax by dis- tress and sale of the goods, left the right to recover on the ori- ginal implied assumpsit unimpaired an assumpsit raised by the law, on the imposition and assessment of the tax, and not to arise on the delivery by the collector of an account of the as- sessment and tax. JUDGMENT AFFIRMED. WARFIELD vs. GAMBRILL. December, 1829. To obtain a partition of land in equity, the complainant must allege and es- tablish a seisin in himself. To a bill praying for a partition of lands, alleging a seisin in the complain- ant with others, the defendant in his answer did not respond to the aver- ment of seisin: the cause being set down for hearing upon bill and answer, the silence of the defendant is no admission of that fact, and the complain- ant having taken no proof of it, his bill was dismissed. A respondent submitting to answer must answer fully, but if the answer be defective and insufficient to meet the allegations and interrogatories of the bill, the complainant desiring a fuller response must except to the answer; if he do not, he cannot rely upon the/silence of the respondent, in relation to any material allegation, but must prove it. Where G by his last will devised certain tracts of land to his three sons in fee, and also devised to his daughters, "the right, privilege and liberty of residing and living in the houses with, and using and cultivating with them- selves and their negroes, and of keeping their negroes, stock, and all their other property thereon, and with them, in common with my sons, all my lands during the term that my said daughters should remain single and unmarried," it was held that the daughters did not take an estate for life, or any other less estate, in common with their brothers, which was suscep- tible of partition; and that the devise to them was a mere charge for their benefit upon the lands of the testator, and incapable of alienation to a stranger. PER BLAND CHANCELLOR. 504 CASES IN THE COURT OF APPEALS War-field n. Gambrill 1829. APPEAL from a decree of the Court of Chancery dismissing the bill of the complainant (now appellant.) The bill filed on the 26th December, 1825, stated that the com- plainant, Launcelot Warfield was seized in fee of seven eighths of two tracts of land in Jlnnc Arundel county, called "Friend- ship" and " What you please" with remainder in fee of the other one-eighth on the death of the defendant Lydia Gambrill, who was entitled as tenant in common, with complainant during her natural life to one undivided eighth part. That the said Lydia was then in the possession of the whole, and prayed that a de- cree might pass for a partition of the same according to the rights of the parties. The answer of Lydia Gambrill states that her father Augus- tine Gambrill died in the year 1790, leaving three sons and five daughters. That to two of his sons together with his daugh- ters he left his dwelling plantation as tenants in common, and that they all to wit, Richard and Augustine the sons, and the five daughters held, and cultivated the same as such, until three of the daughters married, when this defendant, and the remain- ing sister believed they were entitled to one half of said planta- tion so long as they remained single. That in the year 1807, Richard, sold his interest to his brother Augustine, who as they believe was previously entitled to one fourth. The answer fur- ther states, that Susannah the only unmarried sister of the de- fendant died in the year 1824, and she submits to such decree as the Chancellor upon consideration of her fathers will may deem it just to pass. The will of Augustine Gambrill referred to in the answer, contains the following clauses. "I give and devise unto my sons Richard Gambrill, and Au- gustine Gambrill, and their heirs equally to be divided between them, my dwelling plantation, being parts of the tracts of land, called "Friendship," and " What you please" Item "I give and devise to my son William Gambrill, and his heirs forever, all my undivided part of the tract of land called " Young's Success.^ Item "I give and devise to my daughters Lydia, Susannah, Elizabeth, Margaret and Sarah Gambrill, the right, privilege, OF MARYLAND. 505 Warfield vr Gambrill. 1829. and liberty of residing and living in the houses with, and using and cultivating with themselves, and their negroes, and of keep- ing their negroes, stock, and all their other property thereon, and with them, in common with my sons Richard Gambrill, Au- gustine Gambrill, and William Gambrill, all my lands during the time that my said daughters shall remain single and unmar- ried." BLAND, Chancellor at July term, 1 826, passed an interlocu- tory decree for a par* ; tion, and ordered a commission in the usual form according to the act of Assembly, to divide the land in the proceedings mentioned, which commission accordingly issued, and was returned with a plat annexed, designating the manner in which the division had been made. Afterwards at September term, 1826, the following decree was passed by BLAND, Chancellor. This case standing ready for hearing, and the notes of the complainant's solicitor having been read, and the argument of the defendants solicitor having been heard, the proceedings were read and considered. This case was submitted at the last July term without argu- ment, or notes, or any opposition by counsel, and the interlocu- tory decree was accordingly signed by the Chancellor, under an apprehension, not only that a partition might be made, but that it was in reality the wish of the parties. The answer of the defendant is badly and obscurely drawn and expressed, in so much so, that even the defendant's present solicitor seemed by the course of his argument to be under an impression, that it had admitted a partition might be decreed. But it appears on a more careful consideration of the answer, that the defen- dant meant to state facts, and to assert, not to yield up, any of her claims, or pretensions, in any manner whatever. And in substance she has claimed all that the will of her father enti- tles her to, either at law or in equity. The whole case there- fore now rests upon what shall be considered to be the true in- tent and meaning of the last will of Augustine Gambrill deceased. VOL. 1. 64. 506 CASES IN THE COURT OF APPEALS Warfield vs. Gambrill. 1822. By that will the testator gave the lands in the proceedings mentioned to his two sons Rickard and Jlugustine, as tenants in common in fee; and to his son William he gave in fee another parcel of land ; and then he says, " I give and devise to my daughters Lydia, Susannali, FMzabcth, Margaret and Sarah Gambrill, the rigid, privilege and liberty of residing and living in the houses with, and using and cultivating with themselves, and their negroes, and of keeping their negroes, stock, and all their other property thereon, and with them, in common with my sons, Richard Gambrill, Augustine Gambrill and William Gam- brill, all my lands during the time that my said daughters, Lydia, Susannah, Elizabeth, Margaret, and Sarah Gambrill, shall re- main single and unmarried." The devises to his sons are in two separate and distinct par- cels, and the interest given to his daughters he declares they shall enjoy "in common with his sons, Richard, Jlugustine and William." But there is no community of estate or interest given to his three sons. Richard and Jlugustine, take as tenants in common, but William takes in severally. It is obviously not the intention of the testator, to blend that among his sons which he had so given to them in two distinct parcels. Hence he can only be understood to mean, that his five daughters shall take an interest in common with Richard and Jlugustine, in the lands given to them as tenants in common, and also an interest in com- mon with William in the lands given to him in severally. And consequently if the daughters were to be considered as tenants in common, of an estate for life defeasible by marriage as has been contended, they then must each of them be considered as a tenant in common, taking one seventh of the lands given to Richard and Jlugustine, "and one sixth of that given to William, and not merely one eighth of that given to Richard and Jlugus- tine and therefore for this reason alone the interlocutory de- cree of the twelfth day of July last, and the proceedings under it, are totally erroneous and cannot be allowed to stand. But these five daughters of the testator do not take an estate for life, or any other less estate in common with their brothers, RicliardanA Jlugustine, in the hnds in the proceedings mention- OF MARYLAND. 507 Warfield vs. Gambrill 1829. ed, which is susceptible of partition. The difference of the testa- tor's language and consequently in his intention, in the clauses of his will, in which he provides for his sons, and for his daughters is strong, and clear. To his sons Richard, and Augustine, he gives an estate as tenants in common in fee of his dwelling plan- tation; and to his son William he gives an estate in fee, and in several ty of another parcel of land, and he then, charges all his real estate thus fully disposed of, with certain uses, for the personal benefit of five daughters, as long as they continue un- married. In such case his meaning is expressed in terms pecu- liarly apt, suitable, and proper. "I give and devise (he says) unto my sons Richard and Jlugustine, and their heirs equally to be divided between them, my dwelling plantation and to my son William and his heirs forever my land called Young's Suc- cess." And he then gives and devises to his daughters, not an estate, of any kind, not an interest in any portion of his land for life, during their celibacy, or for any time or upon any condition; but as he himself perspicuously expresses it, "I give and devise to my daughters, the right, privilege, and liberty of living in the house with, &c. in common with my sons, all my lands, during the time they shall remain single and unmarried." The manifest object of the testator was to provide a home for his daughters, and for that purpose he has charged all his real estate, so far as was necessary to attain his object, and no far- ther ; in the dwelling in which he left them, or in any of the houses on his land, he gave to each of them, the right, privilege, and liberty of continuing to reside^or leaving, and returning to as a home, as they thought proper-, at any time during their ce- libacy. And that this habitation, which he had thus given them, might be made as comfortable as it had been, or as it was in their power to make it, he gave them the right, privilege and liberty, of using and cultivating all his lands, with themselves and their negroes, and of keeping their negroes, stock, and all their other property tlttreon, and with them, in common with his sons. It is a devise of a personal right, privilege and liberty, to each one of his daughters; a benefit which each one might take or abandon at pleasure, so long as she remained single. It is not a 508 CASES IN THE COURT OF APPEALS Warfield vt. Gambrill 1829. devise of any real estate, or of a diattel interest to the daughters, but it is a mere charge for their benefit; upon all the lands of the testator, which is inalienable, and indivisible in its nature. It is a benefit to be taken or relinquished only by the person to whom it is given, and with whose person it is inseparately con- nected. Each one of the daughters might release her privilege, or as the answer states, might rent her privilege to her brother, or the holder of the land for a certain sum per annum; but nei- ther of them could alien or transfer her privilege to a stranger, and thereby introduce a new and unwelcome inmate into her brothers household. Nor could any one of them use and culti- vate the lands, in any other manner than by themselves and their negroes, or put upon the lands, any negroes, stock, or other pro- perty, if she herself could reside ori no part of the lands, be- cause the testator has declared, it should only be "thereon and vnlh them" It is an intangible privilege, extended over the whole of the testator's real estate, vested in each one of his daughters. It cannot be confined to the lands given to Richard and Augustine, or to those given to William, because it has been spread without distinction over them all. Its extent cannot be designated by any metes and bounds, or represented by any number of acres. It is an incorporeal right vested in each one of five persons, in her character of daughter, and because of that character, to dwell in any house, and to put her stock to graze in any pasture upon the whole of the testator's lands. It is there- fore a mere charge, and not in any respect such an estate, in the land as is capable of being separated and partitioned off. These charges are incumbrances upon the testator's real es- tate, which it appears he contemplated would be lessened, or extinguished, by the relinquishment, marriage or death of the five claimants, it seems are now reduced to one only, that is Ly- dia the present defendant, who is at this time in the perception and enjoyment of this right, privilege and liberty, which her father gave her, and which this court has neither the power nor the disposition to diminish, or impair by partition, or in any other manner whatever. OF MARYLAND. 509 Warfield vs. Gambrill 1829. DECREED, that the bill of complaint be dismissed with costs. From which decree the complainant appealed to the Court of Appeals. The cause was argued before BUCHANAN, Ch. J. EARLE, MARTIN and ARCHER, J. Jl. C. Magruder and Shaw, for the appellant, contended, 1. That the appellee during her single life is entitled to one undi- vided eighth part of the land devised by her father, or if she is not so entitled, she is entitled to nothing in consequence of the devise to the daughters being unintelligible and therefore void. 2. A devise of the use of land, is equivalent to a devise of the laud itself they cited 3 Bac. Abrid. 391. 2 Blk. Cam. 20. R. Johnson for the appellee. The complainant has shown no right to ask for a partition of the lands. He shows no right or interest in himself in the land in question no exhibits or ti- tle papers of any kind are filed, and the answer so far from ad- mitting the title of complainant, affirms that the title is in ano- ther person. A party applying for a partition must show a title. Hopkins vs. Stump, 1 Johns. Ch.Rep. 111. If the answer does not deny the allegations in the bill, the complainant should have excepted to it, and he is not now at liberty to assume as true, what is not denied. Wilkin and others vs. Wilkin, 2 Harr. $ Johns. 301. Young vs. Grundy, 6 Cranch, 51. ARCHER, J. delivered the opinion of the court. The complainant seeks a pai-tition of the tracts of land de- scribed in the bill, alleging a seisin in seven-eights of said tracts, and that the respondent is in possession of, and exercising acts of ownership over the whole of the lands. The answer of the respondent states that Augustine Gam- brill, the father of the respondent, devised his dwelling planta- tion to his two sons, Richard and Augustine Gambrill, and to his five daughters; after which she states that by the intermar- riage of three of her sisters, and the death of one of them, and by a sale from her brother Richard, to her brother Augustine Gambrill, she considered that she became entitled to one-third 510 CASES IN THE COURT OF APPEALS Warfield vs. Gambrill. 4829. of the land, and her brother Augustine Gambrill, to two-thirds thereof. The cause is set down for hearing, and an interlocutory de- cree passes at July term, 1826, for partition, and commission- ers are accordingly appointed to make partition. Upon the re- turn of the commissioners at October term, 1826, the Chancellor dismissed the complainants bill, from which decree this appeal has been taken. We do not feel ourselves called upon to express any opinion on the will of Augustine Gambrill, but shall decide the cause upon the bill and answer. The bill alleges a seisin of seven undivided eighth parts of this land, and the seisin, should have been proved by the com- plainant, or admitted by the answer. The complainant rely- ing upon the answer exhibited no proof of seisin, but set the cause down for hearing upon the coming in of the answer. By a reference to the answer it will be found to contain no admission of any allegation in the complainants bill, except her possession of the land. Her answer is very defective and inar- tificial; and it is only indeed by inference that we can arrive at the conclusion, that she is speaking of the lands referred to in the bill, but considering what is only a matter of inference, as certain, and that the lands of which she speaks, are the lands of which the complainant seeks partition, there is not only no ad- mission of right or title in the complainant but an averment of title in herself, and Augustine Gambrill her brother. In this stage of the cause the complainant was called on for proof of his allegations, and exhibiting none, but setting the cause down for hearing, his bill was rightfully dismissed by the Chancellor. But supposing there is no denial of title in the answer, and that the material allegation in the bill, the seisin of the com- plainant is unanswered, this is clearly no ad mission of any unan- swered fact. Chancellor Hanson, 2 Harr. fy Johns. 301 , says, if any material matter charged in the complainants bill, has been neither denied nor admitted by the answers, it stands on the hearing of the cause for naught, and in 6 Cranch, 51, Young vs. Grundy, Ch. J. Marshall, in delivering the opinion of the court, OF MARYLAND. 511 Gowan vs. Sumwalt 1829. says, "that if the answer neither admits nor denies the allega- tions of the bill, they must be proved upon the final hearing. Upon a question of dissolution of an injunction, they are to be taken as true." A respondent submitting to answer must an- swer fully, but if the answer be defective, and insufficient to meet the allegations and interrogatories of the bill, the com- plainant desiring a fuller response must except to the answer. If he do not he cannot rely on the silence of the respondent in relation to any material allegation, but must prove it. DECREE AFFIRMED. GOWAN vs. SUMWALT. December, 1829. It is the common practice, where a purchaser under a decree in Chancery is kept out of possession by the former owner, for the Chancellor to inter- pose the authority of that court, and cause the possession to be delivered up. But where G purchased property at a sale under a decree, and gave his notes with S as his surety for the purchase money, which S was after- wards obliged to pay, and G then executed a deed of the same property to S, which however was left with I as an escrow, to be delivered upon a condition that did not appear to have been performed, G being in posses, sion, could not be ousted by the authority of the Court of Chancery; and even if a mortgage had been executed by him to secure S, the proceed- ings in Chancery should be of a different character. APPEAL from the Court of Chancery. The proceedings which took place on the petitioii which was filed in this case by the appellee, Frederick SumicbU, on the 12th of April, 1826, are sufficiently set forth in the opinion delivered by this court. BLAND, Chancellor, (March term, 1827.) This matter stand- ing ready for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered. The only question is whether in point of fact Sumwalt was with the consent of Gowan to take his place, and be considered as the purchaser from the trustees. I am satisfied from the proofs that Gowan did agree, that Sumwalt should be deemed the purcha- 512 CASES IN THE COURT OF APPEALS Gowan rt. Sumwalt. 1829. ser ; and having thus failed to shew sufficient, cause as required by the order of the 13th of April, 1826, it is therefore ordered that an injunction issue, commanding the said Gowan to deliver possession of the property in the proceedings mentioned, to the said Sumwalt, returnable forthwith. From this order the de- fendant appealed to the Court of Appeals. The cause was argued before BUCHANAN, Ch. J. and EARLE, MARTIN, STEPHEN, ARCHER and DORSEY, J. Flusser for the appellant, cited 4 Com. Dig. 473, (Am. Ed.) 274, (note r.) Rob. on Frauds, 108. Sugd. 68. JVetcZ. Pr. 339, 142, 150. Sugd. 40. Winchester for the appellee contended, that Gf wean's rights were not affected by the decision of the Chancellor; and that an appeal would not lie from an order to deliver possession. BUCHANAN, Ch. J. delivered the opinion of the court. The substance of this case as it is presented to us by the proceedings, appears to be this. A decree in Chancery being passed, aud trustees appointed for the sale of a certain lot or parcel of ground in the city of Baltimore; the premises were sold at public sale by the trustees, and purchased by Goican, the appellant, who passed his notes for the purchase money, with Sumwalt the appellee, and another, as his sureties. The sale was regularly reported by the trustees, and ratified and con- firmed by the Chancellor; and the purchase money not being paid, suits were brought, and judgments obtained against the purchaser, Gowan, and his securities. Sumwalt discharged the judgments obtained for the purchase money, and the trustees and Gowan united in an instrument of writing, purporting to be a deed to Sumwalt for the premises, which had been before sold to Gowan. Gowan continuing in possession, Sumwalt pre- ferred a petition to the Chancellor, alleging that he had been substituted as the purchaser, and that a deed for the premises had been made to him by Gowan and the trustees, and praying an order to compel Gowan to deliver up the possession. Gowan OF MARYLAND. 513 Gowan vs. Sumwalt 1829. in his answer positively denies that it ever was agreed or un- derstood, that Sumwalt should be substituted in his stead as the purchaser, or that he ever was so substituted; and states that it was agreed between them, that Sumwalt should take a deed of conveyance of the premises from the trustees, and execute a bond to reconvey to him, on being reimbursed the amount of the purchase money by a stipulated time; and alleges that when the deed was executed, it was left by him in the hands of a third person to be delivered to Sumwalt, on his executing and deliv- ering a bond to reconvey the property to him, on the terms be- fore agreed upon, and not otherwise; but that Sumwalt after- wards by fraud and artifice obtained possession of the deed, and then refused to execute a bond of conveyance, and expressed his determination to hold the property. Upon the proof taken in thecausethe Chancellor was of opinion, that Gowan did con- sent to SumwaWs being substituted in his stead, as the purchaser, and passed an order for an injunction commanding him to deliv- er possession; from which order the case is brought by appeal before this court. It is the common practice where a purchaser under a decree in Chancery is kept out of possession by the for- mer owner, for the Chancellor to interpose the authority of that court, and cause the possession to be delivered up. But that does not seem to us to be the character of this case. It is the case of one, who not being the purchaser himself, seeks to ob- tain the possession of the premises, by proceedings against him who was in fact the purchaser. How far this would be a fit case for this summary mode of proceeding, if it could be shown that Gowan did agree to permit/ Sumwalt to be substituted as the purchaser is not a question before us; there being nothing in the evidence in our opinion to establish that fact. The proof by Mr. Moak (one of the trustees) who prepared the deed is, that Gowan consented that the property should be convey- ed by the trustees to Sumwalt, but insisted on being permitted to redeem it, by paying the amount of the judgments, and that Sumwalt agreed to allow him sixty days, and promised to re- convey him the property if he paid him the money, at the ex- piration of that time. That Gowan repeatedly said Sumwalt VOL. I. 65. 514 CASES IN THE COURT OF APPEALS Qowan vs. Sumwalt 1829. u as ungenerous ; that sixty days was not enough, and that he ought to allow him a longer time, Mr. Harris one of the Jus- tices who took the acknowledgment, proves that there was somr hesitation on the part of Gowan about signing the deed, the particulars of which he docs not recollect, but that he final- ly signed it, with the understanding, that it was not to go out of the possession of Mr. Israel. Another witness swears that Sumwalt told him he never wanted the property for his own use, and was willing to give the time craved by Gowan for the pay- ment of the money, which he said was sixty days. And Mr. Israel, the other magistrate who took the acknowledgment, proves that when the deed was presented to Gowan for signa- ture, he hesitated about signing it, saying there was an under- standing between himself and Sumwalt relative to the property which ought to be reduced to writing, and stated in the presence of Sumwalt, something not recollected by the witness, about a right to be reserved to him to have a reconveyance of the pro- perty, on his paying the purchase money, to which Sumwalt assented. That he "the witness then proposed, that the deed should be executed, and left with him, until matters were satis- factorily arranged, to which Gowan agreed. That the deed was accordingly executed and left with him. That Sumwalt called for it once or twice in the course of a day or two after- wards, and that he refused to deliver it to him; but finally de- livered it to Mr. Moal-e, who said he would see the matter ar- ranged between the parties. There does not appear to us to be any thing in the whole of this testimony, tending to prove that Gowan ever agreed or intended that Sumwalt should be substituted in his room as the purchaser, or that it was so under- stood by Sumwalt himself, and all the evidence shows that the deed was not delivered by Gowan to Sumwalt as his deed, but was left with Israel, as an escrow, to be delivered on a condi- tion that does not appear to have been ever performed. It is not therefore, and cannot be taken as the deed of Gowan, and consequently is no evidence of any assent on the part of Gow- an to Sumwalt being taken as the purchaser. And all that can be collected from the parol evidence is, the intention of the par- OF MARYLAND. 515 Gowan vs. Sumwalt 1829. ties, that the property should be conveyed to Sumwalt) as a pledge only to secure the repayment of the purchase money, and not that he should be substituted, as the purchaser, which inten- tion was never carried into effect. And if it was ; if a mortgage had been regularly executed, and delivered, the proceedings in chancery on the failure, by Gowan to repay the amount of the purchase money, should have been of a different character. DECREE REVERSED. INDEX. ACCRETION. See Ejectment 2, 3. ACTION RIGHT OF. 1. When a bill of exchange is en- dorsed in full, all the legal interest is transferred to the endorsee, and having the legal interest, he alone is qualified to maintain an action on such bill. He cannot use the name of the payee ; because the payee having transferred his interest, can have no competency to maintain an action. Bowie use Ladd vs. Duvall, -------- 175 2. But if a note or bill endorsed in full, should in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would be competent for such person as the holder, to strike out the endorsement, and sue in his own name, - - - Ib. 3. The value of property delivered by an administrator to a distribu- tee, as payment of his portion of a deceased's estate, cannot be re- covered back in a court of law, in consequence of such administrator being afterwards compelled by a recovery at law, to pay a debt due by the deceased, of which he was not aware when he distributed the estate ; or his having in part paid the debts of the deceased, out of his own private funds. The re- medy for such claims is in a court of Equity. Turner vs. .flnn Egerton, 430 4. It is not universally true, that where one is benefitted by the pay- ment of money by another, the law raises an assumpsit against the party benefit ted, in favour of the party paying the money. A stranger can- not at his pleasure make me his debtor whether I will or not, by pay- ing a debt due from me to ano- ther /j. 5. Where one is compelled to pay the debt of another, he may recover against him in an action for money paid, upon the promise which the law implies, as in the case of money paid by a surety in a bond, which is considered as paid to the use of the principal ; and may be recover- ed in an action against him for money paid, - - . - - - Ib. 6. An action at law cannot be main- tained to recover back a payment in money, made by an administra- tor to the guardian of a distributee of his intestate. The remedy is in Equity. Turner vs. Egerton, - 434 7. The bond of a trustee appointed by the Chancellor to sell the real estate of a deceased person, for the payment of his debts, is not liable to be put in suit, after the trustee has sold the deceased's property, and received the money therefor, upon the order of the Chancellor distributing such proceeds among the creditors, without notice to the trustee of such distribution. State / use of Oyster vs. Jinnan, - - 450 '8. No person can by a voluntary pay- ment of the debt of another, with- out his authority, make himself a creditor of the person whose debt is thus paid. Mayor and City Coun- cil of Baltimore vs. Hughes, - 480 9. If one is compelled,or in a situation to be compelled to pay the debt of another, as in the case of a surety, and does pay it, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained; for in such case, it is not a voluntary, but a compulsory payment, - - Ib. See Insolvent Debtors. Asaumpsit, 2, 3, 4. 518 INDEX. ACTS OF ASSEMBLY. 1. In the construction of the statute of di-tributions, it has b.cn held, that although the creditors of the de- ceased, are the first and special ob- jects of its regard : yet that the next of kin, among whom the sur- plus is to be distributed, take an interest which vests in them imme- diately, in the nature of a present debt of an unascertained amount, payable at a future day ; and it is clear, they can only obtain posses- sion of their distributive shares, through and from the administra- tor. PER BLAND, CII'R. Hagthorp vs. Hooke, 270 2. The acts of Assembly of 1715, ch. 47, and 1766, ch. 14, being in pari materia, must be construed to- gether as one system. The first having embraced incorporeal tene- ments, and hereditaments, there is no reason why they should be ex- cluded from the second. The act of 1766, cannot be confined to con- veyances only by which the land itself passes, for the design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the public records. Hays vs. Richardson, - 366 3. If contradictions or incongruities exist between the preamble and en- acting clause of a statute, the latter shall prevail, ------ 16. 4. A cotemporaneous, unvarying construction of an act of Assembly, for sixty years, ought not to be dis- regarded but upon the most imperi- ous and conclusive grounds, - 76. Act of 1745, ch. 9. sect. 10, (Improv- ers on the water,) - - - - 249 Act of 1783, ch. 24, (Port wardens' grants,) ------- 76. Act of 1785, ch. 46, sect. 7, (Set off,) - 440 Act of 1795, ch. 54, (Charter of the City of Baltimore,) - - - - 480 Act of 179G, ch. 68, (Supplement to the Charter of the City of Balti- more,) 499 Act of 1805, ch. 110, (Insolvent Debt- ors,) 231 Act of 1823, ch. 95, sect. 3, (Alimony, grant of adjudged void,) - - 463 Act of 1825, ch. 123, (Writs of pos- session, to purchasers at Sheriff's Sales,) ' - 443 AGENT. See Shipping, 1 to 7. AGREEMENT. See Court of Chancery, 30, 31, 32, 33. Damages, 2, 3. Shipping, 2, 3, 7, 9. ALIMONY. The suit for alimony in this State is a distinct remedy from the pro- ceedings to obtain a ^divorce, and for a series of years the wifes' maintenance has been recoverable through the intervention of our ju- dicial tribunals. Crane vs. Megin- nis, -.. 463 ALLUVION. See Ejectment, 2, 3. AMENDMENT. See Execution, 2. ANSWER IN CHANCERY. See Court of Chancery, 12, 13, 14, 16, 18, 26, 42, 43. APPEAL. 1. After an injuntion had been grant- ed, prohibiting the defendant from obstructing a public road, the Com- missioners of Baltimore County au- thorised thesame road to be shut up. The defendant, who was the own- er of the land over which the road passed, without moving, or waiting for a dissolution of the injunction, shut it up. The Chancellor excu- sed this violation of the injunction, upon the ground, that the defendant had misapprehended his rights ; but ordered him to place the road in its former condition ; this not be- ing done, the defendant was brought before the Chancellor by attach- ment. The injunction was then ordered to be continued, until final hearing or further order ; and the defendant to remove the obstruc- tions, and for his contempt in not removing them since the previous order, was fined. From these pro- ceedings the defendant appealed. Upon a motion to dismiss the ap- peal, it was held, that the order of the commissioners, directing and authorising the old road to be shut up, placed the premises over which it formerly run, under the control of the defendant j and gave him the INDEX. 519 same right of user of the land of that road, that he had of the rest of his estate ; and that the subsequent orders of the Court of Chancery, so affected his rights and inter- ests therein, as to form a fit sub- ject of appeal. Williamson vs. Car- nan, -------- 184 2. In a cause which had been set down for hearing, the Chancellor, after argument of counsel, pro- ceeded to discuss many rules and principles of equity, and a great variety of facts, as applicable to the subject under consideration ; and announced his intention at some future day to decree accord- ingly. To enable him to do so, he referred the cause to the auditor, to state an account in conformity to his views, from the proceedings and proofs then in the cause ; or from such other proofs as might be adduced by the parties, which they were respectively authorised to in- troduce, upon notice, before a giv- en day. In this state of the cause, an appeal was taken ; and upon a motion to dismiss it, HELD, that the order in question did not so settle, or materially affect, all, or any of the rights or interests in controver- sy, as to make it a decretal order, from which an appeal would lie ; that it 'was a mere preparative to the decision of the cause, and not decretals and that it was only from what the Chancellor had done, that is, adjudged or decreed, and not from what he intends to do, that an appeal would lie. Hag- thorp vs. Hook, ----- 270 3. T died in a foreign country, leav- ing his partner K his executor there ; who, upon his return to / Maryland, renounced all right to/ administer upon T's estate here/ Letters of administration were then granted to the complainant, who filed a bill against K and D, pleaded in bar : " That he finally settled and adjusted with K, execu- tor of T,deceased, after the death of the said T, an account in writing ; and by said account, the balance due to the defendant by the estate of the said T on the 25th Oct. 1823, was admitted to be, &c. which ac- count is just and true." The com- plainant demurred. The Chancel- lor over-ruled the plea, and ordered the defendant to answer over. HELD, that an appeal did not lie from this order, which decided a mere question of pleading, and set- tled no right between the parties, and that this plea was void for uncertainty. Danels vs. Taggarfs Jldm'r, - - - . - - - - 311 ASSUMPSIT." 1. The action for money paid, laid out, and expended, must be found- ed upon a contract express or im- plied. Mayor and City Council of Baltimore vs. Hughes, - - - 480 2. A tax imposed by a municipal corporation, cannot be recovered on a count for money paid, laid out, and expended ; although such cor- poration has paid the cost of the improvement, for which the tax was created, ----- Jfo. 3. Nor can the cost of such an im- provement, or any part thereof, be recovered from a defendant liable to pay tax therefor, on a count for work and labor, where the ordi- nance under which the work was done has not been properly pursu- ed, so as to create a legal liability in the defendant, - - - Ib. 4. The imposition and assessment, of / a tax by the Mayor and C ity Council of Baltimore, under and in pursu- ance of their charter, creates a le- gal obligation to pay such tax, on which the law raises an implied assumpsit by the person taxed. Du- gan vs. The Mayor and City Council of Baltimyre, 499 requiring an account and settle- ment of various claims; some of which related exclusively to tfins- See Monc y had and ccived, 1. actions of a partnership which had Nudum Pactum, 1. subsisted between K, D, and T ; Shipping, 9. others, to demands of the intestate against both of his surviving part- ners; and others, to misapplications of the intestate's property, by both and each of them after T's death. The dates of these transactions were not alleged. To this bill, D BALTIMORE CITY OF. See Mayor and City Council of Balti- more. BILLS OF EXCHANGE. See Promissory Note, 3, 5. 120 INDEX. BILL OF RIGHTS. See Constitutional Law. BOND. 1. Obligations in which many per- sons are interested, may be taken in the name of the State, whenever the law is silent in naming the obli- gees to whom they are to be given. Kitrsted, Sfc. vs. The State use, Sfc. ------- 231 2. The bond of a Trustee appointed by the Chancellor, to sell the real estate of a deceased person for the payment of his debts, is not lia- ble to be put in suit, after the Trus- tee has sold the deceased's proper- ty and received the money therefor, upon the order of the Chancellor, distributing such proceeds among the creditors, without notice of such distribution. State use of Oyster vs. Jlnnan, ------- 450 BRITISH DECISIONS. 1. English decisions made since the revolution, have no authoritative force here. Bowie use Ladd vs. Duvall, 175 BRITISH STATUTES. Statutes 3 and 4 Anne, ch. 9, for effect of, see promissory note, 1, 2. CAUSE OF ACTION. See Action right of. CERTIORARI. See Inferior Jurisdiction, 1, 2, 3, 4, 5. CHANCERY. See Court of Chancery. CHARTER PARTY. See Shipping, 7, 8, 9, 10. COLLECTOR OF TAXES. See Mayor and City Council of Bal- timore, 10. COMMISSIONERS OF BALTIMORE COUNTY. See Court of Chancery, 1. COMPULSORY PAYMENTS. See Action, right of, 3, 5, 8, 9. CONSIGNEE. See Shipping, 5, 6, 7. CONSTITUTIONAL LAW. 1. The constitution of this State, composed of the declaration of rights and form of government, is the immediate work of the people in their sovereign capacity ; and contains standing evidences of thei permanent will. It portions out supreme power, and assigns it to different departments ; prescribing to each the authority it may exer cise, and specifying, that from the exercise of which it must abstain. Crane vs. Meginnis, - - - 4 63 2. The public functionaries move in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend de- fined limits, their acts are unautho- rised, and being without warrant, are necessarily to be viewed as nul- lities, -------- Ib. 3. The legislative department is nearest to the source of power, and is manifestly the predominant branch of the government. Its au- thority is extensive and complex, and being less susceptible on that account of limitation, is more lia- ble to be exceeded in practice, - Ib. 4. Its acts out of the limit of authori- ty assuming the garb of law, will be pronounced nullities by the Courts of Justice ; it being their province to decide upon the law arising in questions judicially^ before them. and uptiii the constitution as the paramount law, /&. 5. The check to legislative encroach- ments is to be found in the declara- tion, that the legislative, executive and judicial powers, ought to be kept separate and distinct; and the solemn obligations of fidelity to the constitution under which all legis- lative functions are performed, - Ib. 6. Divorces in this State from the earliest times, have emanated from the General Assembly ; and can now be viewed in no other light, than as regular exertions of legis- lative power, ------ Jl. 7. The 3d section of the act of 1823, ch. 95, by which the legislature re- quired a husband to pay a trustee for the use and benefit of his wife, from whom such act divorced him, a sum certain annually, is an exer- cise of judicial authority, repugnant INDEX. 521 to the constitution of Maryland, and void, -------- ib. CONSTRUCTION. 1. Obligations in which many per- sons are interested, may be taken in the name of the State, whenever the law is silent in naming the obligees, to whom they are to be given. Kiersted, &fc. vs. The State use, Sfc. 231 2. A consistent and uniform practice under various acts of Assembly, 'passed in relation to the same sub- ject, so fully establishes the con- temporaneous construction of the first act in the system, that after twenty years, it has too long obtain- ed, to be shaken and disturbed, - 76. 3. So bonds with condition for the appearance of insolvent debtors, made to the State as obligee, are sanctioned by the uniform prac- tice of twenty years, although the acts of Assembly, under which they are required to be executed, contain, no specific provision for making them to the State, and creditors may bring suits on them, for their use, though not expressly authori- sed by law to sue, - - - - Ib. 4. Where an agreement contains pro- visions, which by reason of some technical principle of law, cannot be carried into effect, according to its literal import, it is the duty of a Court of Equity for the sake of the intent, to give it that construction which the rules of law will tolerate, and the intention of the parties, to be collected from the whole instru- ment, will justify. Coale, et ux. vs. Barney, et ux. 324 5. The rule that a Court of Equity will sometimes adopt a more liberal and enlarged construction than pre- vails at law, can never be tolerated, unless it be necessary to effectuate the motives which induced a con- tract. Union Bank of Maryland us. Edwards, ------- 346 6. For the principles which govern those cases, in which the owner of a ship and cargo, exercises his right of breaking up or changing his ship's voyage ; and by which the effect of the action of that right upon the contract of the ship-master or su- percargo, is to be determined. See Shipping, 1, 2, 3. 7. For an instance of several agree- ments upon the subject of freight, 66 construed in connexion with each other, and with reference to the po- litical regulations of the country to which goods were to be carried. See Shipping, 7. See Act of Assembly, British Sta- tutes. CORPORATION. A corporation must act within the limits of its delegated authority, and cannot go beyond it ; yet it ought not by construction be made to mean that which is not clearly expressed ; but when its ordinan- ces will admit of two constructions, they should receive that which is consistent with the power given, and not that which is in violation of it. Mayor and City Council of Baltimore vs. Hughes, - - - 480 COUNTY COURT. The County Court have no power to review the judgment of the Levy Court, upon the question, whether the public convenience requires an alteration in a public road. PER ARCHER, J. Williamson vs. Carnan. 195 COURT OF CHANCERY. 1. After an injuntion had been grant- ed, prohibiting the defendant from obstructing a public road, the Com- missioners of Baltimore County au- thorised the same road to be shut up. The defendant, who was the own- er of the land over which the road passed, without moving, or waiting for a dissolution of the injunction, shut it up. The Chancellor excu- sed this violation of the injunction, upon the ground, that the defendant bad misapprehended his rights ; but ordered him to place the road in its former condition ; this not be- ing done, the defendant was brought before the Chancellor by attach- ment. The injunction was then ordered to be continued, until final hearing or further order ; and the defendant to remove the obstruc- tions, and for his contempt in not removing them since the previous order, was fined. From those pro- ceedings the defendant appealed. Upon a motion to dismiss the ap- peal, it was held, that the order of the commissioners, directing and authorising the old road to be shut up, placed the premises over which 5-2-2 INDEX. it formerly run, under the control of i he defendant ; and gave him tin- same right of user of the land of that road, that he had of the rest of his estate ; and that the subsequent orders of the Court of Chancery, so affected his rights and inter- ests therein, as to form a fit sub- ject of appeal. Williamson vs. Cm-- nan, 184 2. Where the Chancellor entertains a doubt as to the propriety of granting an injunction at all, or where, when granted, it operates in restraint of public commissioners for the opening a road, street, or the like; or it altogether stops, re- tards, or embarrasses the operation of a large manufacturing establish- ment, or restrains a public ferry, in these and some other cases of a very peculiar nature, it has been the practice in the first instance, or on application, to appoint a very early day for the hearing of the motion of a dissolution of the in- junction, and that too, either with or without answer. PER BLAND, CHAN'R, ---...- 184 3. But where upon a defendant's own shewing, the injunction operates in restraint of a right, which he has but recently acquired, or has not long decidedly and exclusively en- joyed, and there is nothing pecu- liar in the case, so as to require a departure from the general rule, it must, as in other cases where indi- viduals only are restrained, take the course of the court, IB. - Ib. 4. Whether an inferior tribunal with jurisdiction over a given subject, has proceeded to exercise it upon such subject correctly, or errone- ously, or has in any respect neglec- ted, or disregarded, its prescribed modes and forms, is not for the Chancellor to determine, where he has no revising or superintending authority over it, IB. - - - Ib. 5. Chancery will restrain a party from doing an act injurious to an individual, or which may be preju- dicial as a public nuisance, pend- ing any judicial proceedings before those tribunals, by which the au- thority to do the act, or its lawful- ness is to be determined, IB. - Ib. G. Where the facts charged in a bill were all admitted to be true by the pleadings, and there was no repli- cation, but the parties agreed that the Chancellor might take the pa- pers and decide the cause; by such agreement the cause is set down for hearing, and whether the pro- ceedinp of the defendant be re- garded as a plea, or as an answer, the question submitted, is on their legal sufficiency to bar the plain- tiffs claim. Tiernan vs. Poor, et MX. et al. ------- 216 7. When an instrument of writing is designed to operate as a transfer of property, and proper and apt terms are used, whereby the meaning of the parties can be clearly ascer- tained, if some circumstances are omitted to give it legal validity, which deprive it of its intended, specific operation, a Court of Equi- ty will set it up as a contract, or as evidence of a contract; and when the rights of innocent third parties would not thereby be affec- ted, will, as between the parties to such instrument, carry it into spe- cific execution ; provided it be foun- ded upon a valuable considera- tion, ---------/ft. 8. P and bis wife, in consideration that T would give up a lien which he held upon P's personal property, agreed to execute a mortgage of certain real property, which, by a post-nuptial settlement, had been conveyed to trustees for the sole use of the wife, with power to her to "sell, convey and dispose of the same, absolutely in such manner as she might think proper to di- rect, without the concurrence of her husband, and from and after her decease, such parts of the pro- perty as should be left undisposed of, by her deed or contract," was conveyed in trust to her children. In pursuance of such agreement, T gave up his lien, and P and his wife executed a deed to T, for some of the trust property. The deed was in the usual form of a mortgage, except that the wife was not examined apart from her hus- band, by the justice of the peace who took her acknowledgment, and according to the Acts of Assembly passed in relation to deeds execu- ted by femes covert grantors. Upon a bill filed by T, praying a sale of the mortgaged premises, the court held, that whether the instrument of writing which forms the basis of this call, for the interposition of a INDEX. 523 Court of Equity, be in fact a mort- gage, in its legal and technical sense, in consequence of its not hav- ing been acknowledged in the man- ner which the acts of Assembly re- quire, it was not necessary to de- termine; but it was clearly intend- ed to be a mortgage, and within the limits of the wife's disposing pow- er; and therefore decreed the pro- perty mentioned therein to be sold, ---------16. 9. The title to the assistance of a court must be exposed by the plead- ings; but the style and character of pleading in equity, has always been of a more liberal cast than that of other courts; as misplead- ing in matter of form there, has never been held to prejudice a par- ty, provided the case made is right in substance, and supported by pro- per evidence, ------ 76. 10. In a cause which had been set down for hearing, the Chancellor, after argument of counsel, pro- ceeded to discuss many rules and principles of equity, and a great variety of facts, as applicable to the subject under consideration ; and announced his intention at some future day to decree accord- ingly. To enable him to do so, he referred the cause to the auditor, to state an account in conformity to his views, from the proceedings and proofs then in the cause ; or from such other proofs as might be adduced by the parties, which they were respectively authorised to in- troduce, upon notice, before a giv- en day. In this state of the cause, an appeal was taken ; and upon a motion to dismiss it, HELD, that the order in question did not so settle, or materially affect, all, or any of the rights or interests in controver- sy, as to make it a decretal order, from which an appeal would lie ; that it was a mere preparative to the decision of the cause, and not decretal; and that it was only from what the Chancellor had done, that is, adjudged or decreed, and not from what he intends to do, that an appeal would lie. Hag- thorp vs. Hook, 270 11. A, by deed, conveyed certain real and personal chattels to I, up- on the proviso, that if I, his execu- tors, &,c. should absolutely omit, neglect and refuse to pay certain creditors of A, recited in the deed, their just demands, then the deed should be void. This property came to the hands of I, and after his death, passed to his administrators and the other defendants claim- ing under him, and them. Upon a bill filed by the administrator de bonis non of A, praying that the property may be accounted for, and together with the rents and profits delivered up, it appeared that some part of the chattels real was still in the hands of I's repre- sentatives, some claimed by those who had purchased with a refer- ence to the original conveyance, and the residue by those who offer- ed no proof of being purchasers for value without notice. The Chan- cellor decreed that the deed would be considered a mortgage, and nothing having occurred to destroy its redeemable quality but one of A's creditors having been paid, di- rected the auditor to state an ac- count, in which I's representatives must be charged with the value of the whole of the personal chattels, and interest thereon, from the date of the deed from A to I ; and with the rents and profits of the real chattels from the same date, and until the time when they passed in- to the hands of the other defend- ants ; who were responsible during the time they respectively had pos- session. And that I's representa- tives would be held liable for all rents, and profits, which the other defendants should fail, or be una- ble to pay, giving them credit for the debt paid. PER BLAND, CHAN- CELLOR, -------- Ib. 12. When the general replication is I put in, and the parties proceed to a ' hearing, all the allegations of the answers which are responsive to the bill, shall be taken for true, unless they are disproved by two witnesses, or by one witness with pregnant circumstances, IB, - Ib. 13. Every allegation of the answer, which is not directly responsive to the bill, but sets forth matter in avoidance, or in bar of the plantiff 's claim, is denied by the general re- plication, and must be fully proved, or it will have no effect, IB. - 16. 14. If a defendant submit to answer at all, he must answer fully and particularly ; not merely limiting INDEX. his responses to the interrogatories of the bill ; but respond to the whole and every substantial part of the plaintiff's case : he is not, how- ever, bound to go further, and to answer interrogatories asking a disclosure of matter, no way con- nected with or material to the case. IB. - - - - - - Ib. 15. In Equity, an executor or adminis- trator is considered as a trustee of the creditors, legatees, and next of kin of the deceased ; is expected and required to preserve the pro- perty of the deceased apart from his own; and if he does so, the court will do every thing that can be done to assist him, IB. - 16. 16. When the answer in the body of it, purports to be an answer to the whole bill, but the respondent de- clares, that he is entirely ignorant of the matters contained in the bill, and leaves the plaintiff to make out the best case he can, or uses language to that effect; and the plaintiff files the general replica- tion, all the allegations of the bill are thus denied, and put in issue ; and consequently all of them must be proved at the hearing, IB. - Ib. 17. The rule in relation to trusts by implication, or operation of law, is by no means so large, as to extend to every mere voluntary convey- ance, IB. ------ Ib. 18. Where the nature of the trans- action charged in the bill, is such a one as must have been altogeth- er within the knowledge of the in- testate, the administrator may an- swer as he is informed and verily believes, but the answer of an ad- ministrator must always be taken, as well with a reference to the reason given for his belief, as to the nature of the subject of which he speaks, IB. - - - - - Ib. 19. A purchaser for a valuable con- sideration without notice will not be disturbed in equity, IB. - Ib. 20. A purchaser with a knowledge of the trust becomes himself the trustee, and stands in the place of the vendor, under whom he claims, IB. Ib. 21. A purchaser with notice, from another purchaser without notice, may protect himself by the want of notice in his vendor, IB. - Ib. 22. When a purchaser cannot make title, but by a deed which leads him to a knowledge of the fact; and more especially, when the deed by virtue of which he takes, recites, or directly refers to the instrument, in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice, IB. - Ib. 23. Under the head of just allow- ances , it has long been the course of this court, to allow a trustee or mortgagee in possession, for all ne- cessary expenses incurred for the defence, relief, protection and re- pairs of the estate. And when a mortgagee thinking himself abso- lutely entitled, had expended con- siderable sums in repairs and last- ing improvements, he should be allowed the value of them, IB. 76. 24. The estimate of the value of such lasting improvements, is to be taken as they are, at the time of accounting, or passing the final de- cree; and in charging rents and profits the estimate must not in- clude those arising exclusively from such improvements, IB. - Ib. 25. T died in a foreign country, leav- ing his partner K his executor there ; who, upon his return to JMarylnnJ, renounced all right to administer upon T's estate here. Letters of administration were then granted to the complainant, who filed a bill against K and D, requiring an account and settle- ment of various claims; some of which related exclusively to trans- actions of a partnership which had subsisted between K, D, and T ; others, to demands of the intestate against both of his surviving part- ners ; and others, to misapplications of the intestate's property, by both and each of them after T's death. The dates of these transactions were not alleged. To this bill, D pleaded in bar : " That he finally settled and adjusted with K, execu- tor of T,deceased, after the death of the said T, an account in writing ; and by said account, the balance due to the defendant by the estate of the said T on the 25th Oct. 1823, was admitted to be, &c. which ac- count is just and true." The com- plainant demurred. The Chancel- lor over-ruled the plea, and ordered the defendant to answer over. HELD, that an appeal did not lie from this order, which decided a INDEX. 525 mere question of pleading, and set- tled no right between the parties, and that this plea was void for uncertainty. Danels vs. Taggarfs Adm'r,- - - . - - - - 311 26. The plea of an account stated to such a bill as the above cannot be sustained, unlesss it be suppor- ted by answer, denying the receipt of any part of the money, for which the defendant is called upon to ac- count, subsequently to the time when the account stated, was ad- justed. ------ - Jb. 27. By taking issue on a plea in equity, the plaintiff admits its suf- ficiency as a bar, if the facts which it asserts are established by proof; and if on such an issue, the matter of the plea is proved, the bar is complete, and the bill must be dis- missed. --- --- -ft. 28. Upon a merely equitable estate, no writ of partition can be main- tained at law. Coale, tt wx. vs. Bar- ney, et war. ------ 324 29. A failure to comply with an en- gagement to do a mere nugatory act, ought not to impair the rights of a complainant in equity to re- lief, when the facts of his case, otherwise concur, to sustain his bin. n. 30. An agreement was entered into, on the 27th November, 1813, be- tween the cestid que trusts for life, and remainder in fee, and the trus- tee, of a certain trust estate, held by the latter in fee, the object of which was to lease out the trust property then unimproved, and se- cure to the cestui que trusts in re- mainder, an immediate participa- tion in the rents. For that purpose it wa agreed, that the trustee/ should appoint an agent, to make leases for ninety-nine years, with liberty of renewal, for such rents as should be thought reasonable by the parties interested, payable annually during the terms, to the agent in trust, as follows : viz. one half to one c. q. t., in remainder, during her life; and after her death, to her children, their executors and admin- istrators; one fourth to another c. q. t., in remainder for life, with a similar reservation to her children, &c. The other fourth, to the c. q. t. for life, during her life, and after her death to the last above men- tioned c. q. t. in remainder, her ex- ecutors and administrators. On the 29th September, 1823, a bill was filed by two of the c. q. t., against the third, for a specific execution of the agreement, upon the ground that the defendant, since the year 1818, had prevented the execution of the leases, and refused to do any act, towards carrying the contract into effect. This charge being es- tablished, and it appearing that the parties were near relations, and that the complainants had made frequent efforts for an ami- cable arrangement, IT WAS HELD, that there was an adequate con- sideration to support this agree- ment, for the violation of which damages to the full extent of the injury sustained, might be recover- ed; that the complainants had not slept upon their rights in such a way, as to shew the contract had been abandoned; that Chancery has power to grant adequate re- lief, which could only be done by providing the means, necessary to carry into effect the leading object of the parties, the leasing the pro- perty at reasonable rents; and that in doing this, it was the duty of the court, to gratify the minor pro- visions of the agreement, so far as it could be done consistently, with the accomplishment of the grand design, - - - - - - - Ib. 31. The defendant, in this case, was deemed to have forfeited the right of fixing the reasonableness of the rents, to be reserved in the leases referred to in the preceding con- tract, by shewing her determination to act in such a way, as to render > her exercise of that right wholly inconsistent with the relief due to the complainants, and her right was therefore transferred to a trus- tee appointed for the purpose of executing the agreement; which trustee was enjoined to execute leases, for such rents, as he, to- gether with the complainants, should think reasonable, - - Ib. 32. Where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried into effect, ac- cording to its literal import, it is the duty of a court of equity, for the sake of the intent, to give it that construction which^the rules of 526 INDEX. law will tolerate; and the intention of the parties, to be collected from the whole instrument, will justify, Ib. 33. So the interests of the eeatui que trials, in remainder, in the proper- ty referred to in the preceding agreement being real, and not per- sonal estate, and as such, could not be limited to their executors atuUad- ministrators. The court decreed the rent to be paid to the c. q. t. and their heirs, and this as to all the parties entitled to such rents, - 15. 34. The rule, that a court of Equity will sometimes adopt a more libe- ral and enlarged construction than prevails at law, can never be tole- rated, unless it be necessary to ef- fectuate the motives which indu- ced a contract. Union Bank of Maryland vs. Edwards, - - - 346 35. Relief, by the doctrine of substi- tution, is never extended to a secu- rity, but upon the assumption that the creditor's debt has been, or is to be fully paid that his further detention of the mortgaged proper- ty, is against equity and good con- science, ------- /ft. 36. So where a mortgage was exe- cuted, for the purpose of securing the payment of all or every sum or sums of money, then owing, or which might thereafter be due and owing from the mortgagor to the mortgagee, upon any promissory note, or notes negotiated or to be negotiated with the mortgagee, of which the mortgagor might be drawer or endorser, or otherwise however, and upon sale of the mort- gaged premises, the proceeds be- ing insufficient to pay a note of the mortgagor's to the mortgagee, for which the latter had no other se- curity than the mortgage ; it teas held, than an accomodation endors- er on the note of the mortgagors, discounted by the mortgagee after the execution of the mortgage and before the sale, could not call upon a court of equity to distribute the fund above mentioned, rateably, in payment of both notes, - - - Ib. 37. A complainant filed an exception to an answer, and the County Court without deciding upon it, referred the case to the Auditor, who stated an account, rejecting a credit claimed by the defendant's answer ; to this, exceptions were also filed, and over-ruled, and the account ratified. Upon appeal, it teas held, that the County Court had acted prematurely, that after the exceptions to the answer had been decided ou, the case should have been set down for argument on bill and answer, or a replication to the answer put in, and an oppor- tunity afforded to the respondent, to make out his defence, by proof. Egerton, et al. vs. Reilly, et ux. - 393 38. A bill was filed in June, 1823, and the usual process of s\ibpcena and attachment issued, which were served on the defendant from term to term, until March, 1824. He failing to appear, the Chancellor passed an order to take the bill pro confesso, which was also served on the defendant the 1st of May fol- lowing. The cause was then pro- ceeded in to final decree in August, 1825, and a fieri facias issued, re- turnable to December term, 1825, at which term the original defend- ant with others alleged to be inter- ested in the decree, filed a bill to have the execution countermanded, the decree opened, and an answer of the defendant to the first bill ac- cepted. The grounds of this ap- plication were, that the claim was unfounded, that proper parties were not originally made, and that the defendant had been prevented by the omissions of his counsel prior to June, 1824, and by acci- dent in the transmission of his an- swer since that time, from putting in his answer as he designed and intended. Upon this the Chancel- lor countermanded the execution, and after answers were filed con- troverting this application, rescin- ded the decree of August, 1825, and all proceedings subsequent to July, 1824. Upon appeal it was held, not to be consistent with the salutary exercise of that sound dis- cretion which the Court of Chan- cery possesses, to open or dis- charge the enrollment, and vacate the decree in this case, for the pur- pose of enabling the defendant to make his defence. Lurch, et al. vs. Scott, 393 39. A decree of the Court of Chan- cery is to be considered and taken as enrolled, when 5t is signed by the Chancellor, and filed by llic register, and the term has elapsed during which it was made, - - Ib. 40. A divorced wife may recover INDEX. 527 ("having merilsj a maintenance sui- table to her station in life, and to quadrate with the situation of her husband by a bill in Chancery. Crane vs. Jtteginnis, - - - - 4 63 41. To obtain a partition of land in equity, the complainant must allege and establish a seisin in himself. Warfield vs. Gambrill, - - 503 42. To a bill praying for a partition of lands, alleging a seisin in the complainant with others, the de- fendant in his answer did not re- spond to the averment of seisin : the cause being set down for hear- ing upon bill and answer, the si- lence of the defendant is no admis- sion of that fact, and the complain- ant having] taken no proof of it, his bill was dismissed, - - Ib. 43. A respondent submitting to an- swer must answer fully, but if the answer be defective and insufficient to meet the allegations and inter- rogatories of the bill, the complain- ant desiring a fuller response must except to the answer ; if he do not, he cannot rely upon the silence of Ihe respondent, in relation to any material allegation, but must prove it, 76. 44. It is the common practice where a purchaser is kept out of posses- sion by the former owner, for the Chancellor to interpose the author- ity of that court, and cause the pos- session to be delivered up. Gotran vs. Sumwalt, ----- 511 45. But where G purchased property at a sale under a decree, and gave his notes with S as his surety for the purchase money, which S was afterwards obliged to pay, and G then executed a deed of the same property to S, which, however, was left with I as an escrow, to be deli-/ vered upon a condition that did not appear to have been performed ; G being in possession, could not be ousted by the authority of the Court of Chancery. And even if a mort- gage had been executed by him to secure S, the proceedings in Chan- cery should be of a different char- acter, -------- /ft. See Action right of, 3, 6. DAMAGES. 1. In an action on an insolvent deb- tor's bond for his appearance, the amount of the creditors debt is the measure of damages ; and neither the poverty of the applicant, nor the fact that no allegations were filed against the insolvent, consti- tutes a defence. Kiersted, Sfc. vs. The State use, Sfc. - - - - 231 2. In an action upon an agreement, by which, after reciting that D had sold to W tracts or parcels of land, sold by A to C and R, and by their agents sold to D, and for which, D had executed a deed to W ; D cov- enanted with W, that a deed should be executed to him, conveying to him the said lands of C and R, by a given day, and to that, bound him- self in a certain penalty ; such penalty cannot be recovered as liquidated damages, it was only in- tended by the parties as a security for the faithful performance of the contract. Dyer vs. Dorsey and Edelen, 440 3. In this case, the sum of money which it might be necessary to pay, for obtaining the title of C and R, would furnish the true measure of damages, for a breach of D's cove- nant, the proof of which sum was on the plaintiff ; and it appearing that the plaintiff had not paid D the whole of the purchase money for the said lauds, the jury were pro- perly instructed, that in estimating the amount of damages, they should, under the act of 1785,c/t. 46, sec. 7, deduct whatever sum of money re- mained in the hands of the plaintiff on account of said purchase, - Ib. See Evidence, 3. DECREE IN CHANCERY. A decree of the Court of Chancery, is to be considered and taken as en- rolled, when it is signed by the / Chancellor, and filed by the Regis- ter, and the term has elapsed dur- ing which it was made. Burch, r.l al. vs. Scott, 393 DECRETAL ORDER. Sec Appeal, 1, 2, 3. DEVISE. See Manumission of slaves, 1, 2. Wills. DISTRESS. See Replevin, 1. DISTRIBUTEE AND DISTRIBU- TION. Sec Acts of Assembly, 1. Executors and Administrators, 3. Action right of, 3, G. 5-.JS INDEX. DIVORCES. Divorces in this State, from the earli- est times, have emanated from the General Assembly ; and can now be viewed in no other light, than as regular exertions of legislative power. Crane vs. Meginnis, -463 EJECTMENT. 1. It is true, as a general principle, that the lines of a tract of land originally run by course and dis- tance, without calls, must be con- fined to the course and distance, and cannot be extended beyond them. Giraud's lessee vs. Hughes, etal. - 249 2. Where a tract of land lies adja- cent or contiguous to a navigable river or water, any increase of the soil, formed by the water gradually or imperceptibly receding, or any gain by alluvion in the same man- ner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the ad- jacent or contiguous land. It is not upon the principle that the land calls for the water ; but, because it ad- joins the water, that the owner ac- quires a title to the soil so formed, Ib 3. In ejectment it appeared, that the land, for which the action was brought, and which had been re- cently patented as vacant land, had been formed by the gradual recess of the waters on the shores of the river Patapsco ; and that another tract of land the lines of which ran into, though they did not call for the water, where the recession took place, had been pa- tented many years before. The defendant claiming title under the grant of this last tract, HELD that the action could not be sustain- ed, n. 4. The Port Wardens of Baltimore by the act of 1783, ch. 24, were au- thorized to grant permissions to make wharves, but in order to vest a title in any such wharf, it is es- sential by the provisions of the act of 1745, ch. 9, sec. 10, that the grantee should have completed it according to his permission, - Ib. 5. A return by the sheriff to a writ of fieri facias, that he had levied upon a part of a tract of land call- ed B, supposed to contain, &c. would be unavailing in ejectment to prove title in a purchaser. Clarke vs. Belmear, ------ 443 See Execution, 5. ENROLMENT. See Way right of, 1. Court of Chancery, 38, 39. EQUITY JURISDICTION. See Court of Chancery. Action right of 3, 6. EVIDENCE. 1. No person who is called as a wit- ness, not being a party to the suit, can refuse to give testimony on the ground, that he may thereby be- come liable to a civil action not of a penal nature ; or sustain pecunia- ry loss; or that the verdict may be used as evidence against him in some other civil proceeding then pending, or which may thereafter be instituted. Hays vs. Richard- son, --------- 366 2. A witness on the voir dire, may by the party objecting to his examina- tion in chief, for the purpose of shewing his interest, be called on to state the contents of written in- struments, which are not produced ; and the reason assigned is, that the party objecting, could not know previously, that the witness would be caUed, and consequently, might not be prepared with the best evi- dence to establish his objction, Ib. 3. In an action upon a bond, with condition that the obligor, the de- fendant, should exhibit all the pa- pers concerning and touching the estate of the late W, deceased, to B, mutually appointed by the obli- gor and obligee to settle said estate, issue was joined upon a replication, which assigned as a breach, the failure to exhibit such papers. HELD, that it was competent for the plaintiff to offer in evidence, an inventory of W's personal estate, returned by the defendant as his administrator to the Orphan'sCourt, it being a paper concerning the estate of W, necessary to its settle- ment, one which.by the condition of the defendant's bond, should have been exhibited to B, and proper to enable the jury to ascertain the amount of damages to be awarded to the plaintiff. Halkerstone's Ex. vs. Hawkins, ------ 437 INDEX. 529 4. It is not competent to prove by oral testimony the existence of facts to be ascertained by public commissioners, preparatory to lay- ing a tax, which such commission- ers are required to certify in writ- ing. Mayor and City Council of Bal- timore vs. Hughes, - - . - 480 See Jury, 1. Shipping, 7. Promissory Note, 6. Court of Chancery, 21. EXECUTION. 1. A return by the sheriff to a writ of fieri facias, that he had levied upon "part of a tract of land call- ed B, supposed to contain, &c." is not sufficient, would be quashed on motion, and unavailable in eject- ment to prove title in a purchaser. Clarke vs. Belmear, - - - - 443 2. A purchaser at a sheriff's sale is entitled to the benefit of that offi- cer's return, both to the fieri facias, and venditionl exponas; and when the description of the subject le- vied on, according to the schedule returned under the first writ, is de- fective, it may be amended and rendered certain, by the return of the sheriff's proceedings, under the second writ, ------ Ib. 3. So a levy under a fieri facias which is defective in the description of the property levied on, may be amended by the sheriff's return of the property sold under such writ, the return of the sale describing the property with sufficient cer- tainty, .---- A. 4. A purchaser under a judicial sale has a right to resort to the whole judicial proceedings, under which his title accrued, to ascertain it, - > 5. The right of a party to obtain a writ of habere facias possessionem, under the act of 1825, ch. !03, does not relate to the time the execu- tion was issued, but to the time when the lands were sold, - Ib. EXECUTORS AND ADMINISTRA- TORS. 1. According to the law of England an administrator d. b. n. cannot call the representatives of the pre- vious deceased administrator of his intestate to account, for any pro- VOL. I. 67 perty of the intestate that such pre- decessor may have converted or wasted; nor can he claim or reco- ver any thing but those goods and chattels and credits of his intestate which remain in specie, and are capable of being clearly and dis- tinctly designated and distinguish- ed as the property of the intes- tate. PER BLAND CHAN'R. Hag- thorp vs. Hook, - - - - - 270 2. In equity an executor or adminis- trator is considered as a trustee of the creditors, legatees, and next of kin of the deceased; is expected and required to preserve the pro- perty of the deceased apart from his own; and if he does so, the court will do every thing that can be done to assist him. IB. - - Ib, 3. The only remedy at present a- gainst an administrator or his re- presentatives for any waste or misapplication of the effects of the deceased, is by an action at law upon his administration bond, by any one interested. IB. - - - 16. 4. The authority conferred by letters of administration d. b. n. by our law is to administer all things de- scribed in the act of assembly as assets, not converted into money, and not distributed, delivered, or retained by the former executor or administrator under the direction of the orphans' court; and such administrator can only sue for those goods, chattels and credits which his letters authorise him to administer. IB. ----- Ib. 5. The legal title to the chattels real, and personal estate of an intestate, vests in his administrator, who alone is considered as to them his / legal representative j between the / death and the granting of letters, that title is suspended and vested in no one. IB. ----- Ib. See Manumission of slaves, 2. Action right of, 3,,6. FIERI FACIAS. See Execution, 1,2, 3. FREEDOM. See Manumission of slaves. FREIGHT. For an instance where a ship master was not permitted to retain money received as freight in a foreign 530 INDEX. country, when in point of law he INJUNCTION h:id not i-xnu-d it, though ho h;ul in c , , fact delivered his cargo- Sec ship- See C urt f C^anceiy, 1, 2, 3, 5. ping, 8, 9, 10. ~ A PP eal > L GUARANTY. See Nudum pactum, 1. HUJERE FAGIASPOSSESSIONEM See Execution, 5. Purchaser, 7. Court of Chancery, 44, 45. IMPROVEMENTS. See Court of Chancery, 22, 23. INCORPOREAL HEREDITA- MENTS. See Way right of, 1, 2, 3, 4. Acts of Assembly, 2. INFERIOR JURISDICTION. 1. Every inferior jurisdiction, whe- ther created by a public or a pri- vate law, is subject to have its proceedings inspected either by ap- peal or by certiorari and mandamus where such jurisdiction acts judi- cially. They will be coerced to perform their duties, and restrain- ed and confined within their pro- per limits as prescribed by law. PER ARCHER, J. Williamson vs. Car- nan, .--..-.. 196 2. Where these jurisdictions act in a summary manner, or in a new course different from the common law, a certiorari is the peculiar and appropriate remedy; as in such a case, a writ of error will not lie. PER ARCHER, J. ----- Ib. 3. A certiorari does not go to try the merits of the question, but to see whether the limited jurisdictions have exceeded their bounds. PER ARCHER, J. Ib. - - - - - 197 4. A certiorari will lie .after judg- ment, where the jurisdiction pro- ceeds in a summary manner, and in a course different from the com- mon law. PER ARCHER, J. - Ib. 5. A certiorari may issue even after judgment executed, where a limit- ed authority has been transcended by inferior jurisdictions, in cases where no writ of error lies, for the purpose of quashing their proceed- ings. PER ARCHER, J. - - - Ib. See Levy Court. Court of Chancery, 4. INSOLVENT DEBTOR. Where an applicant for a discharge under the acts relating to insolvent debtors, fails to appear according to the condition of the bond taken from him, an action in the name of the State, (the obligee) for the use of a creditor, may be maintain- ed thereon, against the applicant's security in the bond. The plead- ings must disclose, that the equita- ble plaintiff was a creditor of the insolvent, to a certain amount; and the applicant's failure to appear. The amount of the creditor's debt, is the measure of damages; and neither the poverty of the appli- cant, nor the fact that no allega- tions were filed against him by creditors, constitutes a defence thereto. Kiersted, Sfc. vs. The State, use Sfc 231 See Construction, 3. JUDICIAL POWER. See Constitutional Law, 5, 7. JURISDICTION. See County Court. Inferior Jurisdiction, 1, 2, 3, 4, 5. Court of Chancery, 4. Appeal right of, 1, 2, 3. Action, 3, 6. Constitutional Law. JURY. It is the unquestionable and ex- clusive right of the jury to decide on facts, of the existence of which, contradictory testimony is adduced. Paieson vs. Donnell, - - - - 1 JUST ALLOWANCES. 1. Under the head of just allowances, it has long been the course of this court, to allow a trustee or mort- gagee in possession, for all necessa- ry expenses incurred for the de- fence, relief, protection and re- pairs of the estate. And when a mortgagee thinking himself ab- solutely entitled, had expended considerable sums in repairs and lasting improvements, he should be allowed the value of them. PER BLAND, Cn. Hagthorp vs. Hook, 270 2. The estimate of the value of such INDEX. 531 lasting improvements, is to be taken as they are, at the time of account- ing, or passing the final decree; and in charging rents and profits, the estimate must not include those arising exclusively from such im- provements, IB.- - - - - Ib. See Court of Chancery, 22, 23. LANDLORD AND TENANT. 1. G, a feme sole, contracted with the plaintiff to let him sow a field in grain, and he agreed to give her one third of all the grain raised, as rent. The plaintiff went upon and sowed the field in rye. The defen- dant, who after the making the con- tract, intermarried with G, entered upon the field, refused the plaintiff permission to cut the crop, and af- terwards cut it himself and carried it away. In an action of trover for the value of the rye, it was held that the contract between G and the plaintiff, clearly constituted them landlady and tenant; and that the plaintiff was entitled to reco- ver. Hoskins vs. Rhodes, - - 266 2. The reservation of rent eo nomine necessarily constitutes a lease. 16. LEASE. The reservation of rent eo nomine necessarily constitutes a lease. Hoskins vs. Rhodes, - - - - 266 LEGISLATURE. See Constitutional Law. LEVY COURT. 1. The Levy Court is the sole and proper tribunal to which the laws have confided the adjudication of the question whether the public convenience requires an alteration in a public road. PER ARCHER, J. Williamson vs. Carnan, - - 196 2. The Levy Court of Baltimore Coun- ty, in their power to open and alter roads, is a tribunal of limited ju- risdiction, proceeding in a summa- ry method, and in a course un- known to the common law; in their confirmation of the return of the commissioners, under the act of 1821, ch. 152, in relation to roads, they act judicially and not ministerially. PER ARCHER, J. Ib. 197 3. Without the notice required by the act of 1794, ch. 52, they have no power to open, amend, alter, change, widen or straighten a road. IB. ------- Ib. - 4. Until a number of inhabitants pe- tition for a road under the act of 1821, ch. 152, they have no power to appoint a commissioner, or to pronounce a judgment on any re- turn of commissioners. IB. - - Ib. 5. The notice required by law of an intended petition to alter a road, should correspond with the time when a legal petition was first pre- ferred to the Levy Court. IB. - Ib. 6. The notice being to March term, and no petition within the meaning of the law until July, it was not such as is required by law. IB. 76. 7. A notice in conformity with law cannot be presumed, when the papers and record returned show an illegal and insufficient one. IB. 16. 8. Where there is no notice within the meaning of the law conferring power on the Levy Court, its whole proceedings are coram non judice and void. IB. ------ J6. See Inferior Jurisdiction, 1 to 5. LIQUIDATED DAMAGES. See Damages, 2, 3. MANUMISSION OF SLAVES. 1. By a devise in the following words, viz. "likewise my negro man Charles to be free on the 1st day of January, 1827, on condition that he pay the sum of ten dollars annually, to my before named sis- ter M, so long as he lives," it was the intention of the testator, who died in 1825, that the slave men- tidned in the devise should be free pn the 1st January, 1827; and it could not have been his intention that the condition mentioned, should have been performed by Charles, precedent to that day, as the acts to be done consists of pay- ments to be made by him annually, as long as he may live. Miller vs. JVegro Charles, ----- 390 2. Upon a petition for freedom by a negro claiming his right to manu- mission, under a last will and tes- tament, against the executor of his deceased master, the parties agreed upon a statement of facts, 632 INDEX. which did not disclose wlu-llicr the ti-stator left assets sudicicnt for the payment of his debts or not; held that the objection to the man- umission arising from the insuffi- ciency of assets was not before the court, ........ Jb. MAYOR AND CITY COUNCIL OF BALTIMORE. 1. Under the 2d sec. of the act of 1797, ch. 54, the power given to the Mayor and City Council of Bal- timore, "to tax any particular part or district of the city, for paving the streets, lanes or alleys therein, or for sinking wells or erecting pumps, which may appear for the benefit of such particular part or district," is not confined to any particular description of benefit such as the ordinary benefit and advantage of paved streets. The perservation of the health of such particular part of the city, is a benefit within the meaning and scope of the act. The Mayor and City Council of Baltimore vs. Hughes, 480 2. The legality of laying such tax, does not depend upon whether the paving does, or does not in fact, benefit the particular district tax- ed, but upon the object, the mo- tive of the corporation in causing the paving to be done, - - Ib. 3. In an ordinance providing for such paving, and the imposition of such a special tax, it is not neces- sary that it should be expressly stated to be lor the benefit of the particular district; if nothing ap- pears to the contrary, such an ex- ercise of the special taxing power will be taken to have been in pur- suance of the authority given by the charter, ------ Ib. 4. But where an ordinance provides for the paving of a street, &c. in a particular district, and the imposi- tion of a special tax for that pur- pose on such district, which paving appears from the ordinance to be for the general benefit of the city, and not for the benefit of the particular district, it is not in pursuance of the authority conferred by the char- ter, and is void, - - - - - Ib. 5. So upon the construction of the 13th sec. of the ordinance of thc'Jth March, 1807, which declares "that if the Commissioners of Health shall, at any time report in writing to the City Coirattoioner* t that a nuisance exists in any street, lane, or alley in the city of Baltimore, which will endanger the health thereof,' ' &c. it was held that the word tln-nnf does not relate to the city of Balti- more, so as to make it mean a nui- sance which will endanger the city, but that it relates to any street, lane or alley, &c. and means a nui- sance that will endanger the health of such street, &c. and the ordi- nance is clearly within the power conferred by the charter, - - Ib. 6. A corporation must act within the limits of its delegated authority, and cannot go beyond it, yet it ought not by construction be made to mean what is not clearly express- ed, but when its ordinances will admit of two constructions, they should receive Jhat which is consis- tent with the power given, and not that ^-Inch is in violation of it, Ib. 7. Y.nere one board of commission- ers, in the execution of their du- ties, were required to report in writing to another board of com- missioners, who thereupon were to do certain acts; and these boards were subsequently united without any change being prescribed as to the mode of discharging the trusts formerly confided to each of them, the formality of a written report as above directed, was necessarily dispensed with, ----- J&. 8. Under the 13th section of the ordi- nance of the 9th March, 1807, the City Commissioners and Commis- sioners of Health, were required to form a positive and decided opi- nion that "a nuisance exists" in some "street, lane, or alley in the city of Baltimore, which will en- danger the health thereof" An entry in their books of their deci- sion is not required. Certificates in their warrants, which they are directed to issue for the collection of the tax imposed to remove the nuisance, of the existence of the nuisances and of their characters would be sufficient; but where they say in each warrant that they con- ceive the street mentioned, to be in a state of nuisance, which might endanger the health of the city, thus referring to the health of the INDEX. 533 city generally, not to that of a particular part, it is not such an opinion as the ordinance requires, and the tax imposed under it cannot be enforced, ------ Ib. 9. The imposition and assessment of a tax by the Mayor and City Council of Baltimore, under and in pursu- ance of their charter, creates a legal obligation to pay such tax, on which the law raises an implied assumpsit by the person taxed. Du- gan vs. Mayor and City Council of Baltimore, ------- 499 10. By the charter of the city of Bal- timore, (act of 179 6, ch. 68, sec. 10,) it is provided "that the person or persons appointed to collect any tax imposed by virtue of the powers granted by this act, shall have au- thority to collect the same by dis- tress, and sale of the goods, and chattels, of the person chargeable therewith," and by the ordinance of the corporate authorities of that city of the 27th March, 1817, a tax was imposed, and the collector di- rected to deliver to each taxable person, an account of his assess- ment and tax in writing, before a given day; and if the tax should not be paid within a month there- after, to proceed without delay to recover it agreeably to the mode prescribed by the act of incorpora- tion. In an action brought by the Mayor and City Council of Baltimore, to recover a tax imposed by the ordinance of 1817, it was held un- necessary to prove, that the collec- tor had delivered the account be- fore mentioned to the defendant; and that his liability to be sued, in no manner depended upon the dili- gence or negligence of the collec- tor, - - - Ib- MONEY HAD AND RECEIVED. Whether ship owners are entitled in equity and good conscience, to re- tain money received on account of freight, is clearly a question not to be left to the jury; but proper only to be decided by the court, under the circumstances of each case. W.rgman's Mm'r vs. Mactier, 150 See Assumpsit, 1, 2, 3. MONEY PAID, LAID OUT, AND EXPENDED. See Assumpsit, 1, 2, 3. MORTGAGE. See Court of Chancery, 8, 36. MUNICIPAL CORPORATION. See Mayor and City Council of Balti- more. NEGROES AND SLAVES. See Manumission of slaves, 1, 2. NOTICE. Where the papers and record sent from an inferior to a superior tri- bunal, shewed an illegal and insuffi- cient notice to give such inferior tribunal jurisdiction of the cause, the superior tribunal is not at liber- ty to presume that a notice in con- formity to law was given. PER ARCHER, J. Williamson vs. Carnan, 196 See Pleas and Pleading, 3. Purchaser, 1, 2, 3, 4. NUDUM PACTUM. The endorsement of T on the pro- missory note of E payable to A, as follows, "I hereby guarantee the ultimate- payment of the within note," is void for want of consi- deration; and under the plea of non assumpsit to a declaration founded upon that guaranty, the objection to the want of consideration may be taken. Jttdridge &f Higdon vs. Turner, 427 ORDINANCES OF THE CITY OF BALTIMORE. See Mayor and City Council of Balti- more. PAROL EVIDENCE. See^Evidence, 2., 4. PARTITION. 1. Upon a merely equitable estate no writ of partition can be maintained at law. Coale, et ux. vs. Barney, et ux. 324 2. To obtain a partition of land in equity, the complainant must allege and establish a seisin in himself. Warfield vs. Gambrill> - - - 503 See Wills, 1. PENALTY. See Damages, 2, 3. PETITION FOR FREEDOM. See Manumission of slaves, 1, 2. INDEX. PLEAS AND PLEADING IN EQUI- TY. See Court of Chancery, 9, 1 1, 12, 13, I.'.. 17, -J4, 25,26,43. PLEAS AND PLEADING. 1. In an action against the maker of a note payable at the house of the payee and plaintiff, on a certain mimher of ilays after date, no de- maml of payment is necessary to be averred or proved. Bowie use of Ladd vs. Duvall, - - - - 175 2. A breach on an insolvent debtor's bond taken for his appearance un- der the act of 1805, ch. 110, which disclosed that the equitable plain- tiff was a creditor of the insolvent at the time of his application for relief, to a certain amount, and the applicant's failure to appear accor- ding to the condition of the bond is sufficient. Kiersted, &fc. vs. Tlie Stale use,Sfc. 231 3. In assigning a breach of the condi- tion of a trustee's bond for the sale of a deceased person's real estate, notice to the trustee of the Chan- cellor's distribution of the proceeds of sale, (where the action is by a creditor to recover his portion thereof,) must be averred. Clarke vs. Belmear, - - - - . - 450 4. In an action of replevin, where the defendant avowed for rent in arrear, the plaintiff cannot rely upon the fact that the distress was not made in due time after the ter- mination of the lease, unless it be pleaded as a defence. Chappellear^s JEx'rs vs. Harrison, - - - - 477 5. A tax imposed by a municipal cor- poration cannot be recovered on a count for money paid, laid out and expended, although' such corpora- tion has paid the cost of the im- provement for which the tax was created. Mayor and City Council of Baltimore vs. Hughes, - - 480 PORT WARDENS OF BALTIMORE The Port Wardens of Baltimore by the act of 1783, ch. 24, were au- thorised to grant permissions to make wharves, but in order to vest a title in any such wharf it is essen- tial by the act of 1745, ch. 9, sec. 10, that the grantee should have completed it according to his per- mission. Girawd'a lessee vs. Hughes, 249 POSSESSION. See Execution, 5. Purchaser, 7. Courl of Chancery, 44, 45. PRACTICE. It is the unquestionable and exclu- sive right of the jury to decide on facts, of the existence of which, contradictory testimony is adduced. Pawson vs. Donnell, - - - - 1 PRACTICE IN CHANCERY. See Court of Chancery, 1, 2, 3, 6, 10> 12, 13,14,16,25,26,27,37' 38, 42, 43, 44, 45. PRINCIPAL AND AGENT. As to ship masters, and supercargoes and consignees in foreign ports See shipping, -----Ito7 PROMISSORY NOTE. 1. The statute 3d and 4th Anne, ch. 9, declares that promissory notes shall be assignable or endorsable over in the same manner as inland bills of exchange arc, or may be, according to the custom of merchants; and power is by the same statute given to endorsees, to maintain actions against the drawers, or prior en- dorsers of such notes, in the same manner as in cases of inland bills of exchange. Bowie use of Ladd vs. Duvall, ------175 2. By this statute, bills of exchange and promissory notes are placed on the same footing, and the law applicable to bills, is in general applicable to promissory notes, 16. 3. When a bill of exchange is endors- ed in full, all the legal interest is transferred to the endorsee, and having the legal interest, he alone is qualified to maintain an action on such bill. He cannot use the name of the payee, because the payee having transferred his inte- rest, can have no competency to maintain an action, - - - - Ib. 4. So where it appeared that the note of the defendant, payable to B or order, had been endorsed as follows, "I assign the within for value received, to L;" signed B, but which endorsement was erased just before the jury was sworn ; it was held that an action in the name of B, originally instituted for the use of L, could not be maintained, upon. INDEX. 535 the note, as there was no evidence from which the jury could infer that the payee and plaintiff was the holder of the note; neither could an action be maintained on the money counts, although there was proof of an express promise to pay the sum demanded in such suit, as that must be considered as enuring to the benefit of him who had a right to the note, - - 16. 5. If a note duly endorsed in full, should, in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it would be compe- tent for such person as the holder, to strike out the endorsement, and sue in his own name, - - - Ib. 6. In an action against the maker of a note, payable at the house of the payee and plaintiff, on a certain number of days after date, no de- mand of payment is necessary to be averred or proved, - - - - Ib. 7. The endorsement of T, on the pro- missory note of E payable to A, as follows: "I hereby guarantee the ultimate payment of the within note," is void for want of conside- ration ; and under the plea of non assumpsit to a declaration founded upon that guaranty, the objection to the want of consideration may be taken. Aldridge 8f Higdon vs. Turner, 427 PURCHASER. 1. A purchaser for a valuable consi- deration, without notice, will not be disturbed in equity. PER BLAND, CHAN'R. Hagthorp vs. Hook, - 270 2. A purchaser with a knowledge of trust becomes himself a trustee, and stands in the place of the ven- dor under whom he claims. IB. 76. 3. A purchaser with notice, from another purchaser without notice, may protect himself by the want of notice in his vendor, IB. - Ib. 4. When a purchaser cannot make title, but by a deed which leads him to a knowledge of the fact; and more especially, when the deed by virtue of which he takes, recites, or directly refers to the instrument, in which the trust is declared, or from which it arises, he shall be deemed cognizant of the fact, and a purchaser with notice, IB. - Ib. 5. A purchaser at sheriff's sale is en- titled to the benefit of that officer's return both to' the fieri facias and venditioni exponas ; and when the description of the subject levied on, according to the schedule returned under the first writ is defective, it may be amended and rendered cer- tain by the return of the sheriff's proceedings under the second writ. Clarke vs. Belmear, - - - - 443 6. A purchaser under a judicial sale has a right to resort to the whole proceedings under which, his title accrued, to ascertain it, - - Ib. 7. It is the common practice where a purchaser under a decree in Chan- cery is kept out of possession, by the former owner, for the Chancel- lor to interpose the authority of that court, and cause the possession to be delivered up. Gowan vs. Sum- wait, 511 See Execution, 5. RENT. See Landlord and tenant, 1. Replevin. , REPLEVIN. In replevin the defendants avowed for rent in arrear due to them as Exe- cutors of C, from the plaintiff as tenant to their testator, for the term of two years ending on the 31st December, 1820 ; and averred that the plaintiff still remained in possession of the rented premises. The plaintiff pleaded 1st, that he did not possess and enjoy the prem- ises under a demise from C, as his tenant, in manner, &c. 2d, that C did not demise the premises to him in manner, &c. 3d. No rent in ar- rear. Upon these pleas issues were Xoined, and on their trial in addi- I tion to proof of the avowry, it ap- peared that C died in March, 1820; that on the 1st January, 1821, the avowants rented the same premises to the plaintiff for the year 1821, and as executors of C made their distress for the rent of 1819-20 nineteen months after the'termina- tion of C's lease, and while the plaintiff was in possession under the demise of the avowants. The Coun- ty Court instructed the jury, that the distress' not having been made within six months next after the termination of the demise by C, and the avowants having before the 536 INDEX. time of making their distress, made a new lease to the plaintiff, they must find a verdict for him. It was held upon appeal, that no question as to the right of the avowanta as ex- ecutor's of C, to make a distress for rent falling due under a demise by him, either before or after his death arose upon this record ; that whether the distress was made in due time or not, was not in issue by the pleadings, and that the instruc- tion to the County Court was erro- neous. Chappellear's Ex'rs vs. Har- rison, - - 477 RIPARIAN PROPRIETOR. See Ejectment, 2, 3. ROADS. See Levy Court. SET-OFF. See Damages, 2, 3. SHERIFF. See Execution, 1, 2, 3. SHIP MASTER. See Shipping, 1 to 7, 9, 10. SHIPPING. 1. The owner of the ship and cargo has the uncontrolled power of breaking up, or changing the voy- age. Pawson vs. Donnell, - - 1 2. The principles which should go- vern such a case in the absence of all commercial usage on the sub- ject, and by which the effect of its action on the contract of the ship master or supercargo with the ship owner is to be determined are, 1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity. 2nd. If by the change of the voy- age the captain or supercargo be necessarily discharged from the performance of all the duties for which a remuneration has been stipulated, his claim to such remu- neration is thereby extinguished. 3d. If a part of the duties have been executed, then such a propor- tion of the stipulated compensation should be allowed, as appears just, on comparing the services render- ed, with those which remain un- performed. For the interpolated part of the voyage, the usual com- pensation must be paid. The par- ties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage as changed been entered into be- tween them. To all the customa- ry emoluments of a captain, or su- percargo, on such a voyage, are. those officers respectively enti- tled, n, 3. A ship master who was also the supercargo, was directed to pro- ceed with his ship to several ports; his compensation, in. addition to monthly wages, was to be a sum certain, with the privilege of bring- ing home a specific quantity of merchandize from one of such ports. After a part performance of the voyage, the ship owner changed its direction, and short- ened it; so that the port at which the privilege might have been ex- ercised was not visited by the ship; before the termination of the voy- age the ship master died. HELD, that the privilege was so insepara- bly connected with the vessel's des- tination to the particular port at which it was to have been exercis- ed, that upon its ceasing to be one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to be paid the captain had relation to the voyage as originally contem- plated, and was therefore subject to abatement in the discretion of the jury. First, for the alteration of the voyage, if they believed, that the ship master's labor and respon- sibility were thereby lightened; and secondly, for that portion of his contemplated services, which were lost by his death, - - Ib- 4. The misconduct of a captain or supercargo which produces neither injury nor inconvenience to his employer, forms no defence to the payment of his wages, - - 76. 5. The consignees selected by a ship master or supercargo in a foreign port, according to the usual course of trade, and in good faith, are so far the agents of the owners of the ship and cargo, that upon the death of the captain or supercargo, his representatives are not responsible for the consequences of the neglect or misconduct of such consignees, INDEX. 537 in the execution of their agency after his death not imputable to instructions given in the life time of such captain or supercargo, 76. 6. A shipment of merchandize whose exportation is prohibited, made by a supercargo for account of his prin- cipal, is at his own risk, and if seized and condemned at the place of exportation, the supercargo must bear the loss, ------ /ft. 7. The acceptance by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such a rati- fication of the acts of those agents, as would throw a loss arising from the seizure of merchandize export- ed against the laws of the port of shipment by them, for his account, upon such ship owner, - - - Ib. 8. The owner of a ship after she was laden at Baltimore, on the 14th May, 1810, agreed with the ship- pers of the cargo, in writing, that their goods were "to be landed in a permitted port on the continent of Europe, (meaning that they were not to be landed at the Island of Sylt,) before the freight should be earned, but should the whole of the continent be shut, the freight, with an addition as arbitrators might determine, would be earned, should the property be landed in England, agreeably to the custom of the country." On the 25th April, 1810, a charter party had been entered into for the same ship, by which the owner covenanted to proceed with his ship from Baltimore, north about, for the Island of Sylt, thence to Hamburg or Bremen, if open to American ships, if not, the cargo to be landed at Sylt, if permitted, and in case of refusal there, thence to such permitted port in the North Sea or Baltic, as the master and supercargo might direct; and should the Baltic be closed against the admission of American vessels, then to such other port as the mas- ter and supercargo might again di- rect. The freight was to be paid agreebly to the bills of lading, pro- vided the cargo was discharged at a port in the North Sea; but if deli- vered at any port in the Baltic, an advance in the freight was cove- nanted for; and should the Baltic be shwt,a further advance in the freight to be settled by arbitration. On VOL. I. 68 the 8th May, 1810," a bill of lading was also signed for the plaintiff's goods, which stated the ship to be bound from Baltimore for Sylt, and a permitted port in the Nortk Sea or Baltic, the goods to be delivered at the aforesaid permitted port, unto P of Hamburg, who was not the supercargo of the ship. In an action where the plaintiff claimed under these contracts, he offered testimony to establish that certain ports in Europe, not on the North Sea or Baltic, were open to .Imeri- can vessels, but the court held, that looking to the historical facts and occurrences of the time, it was manifest that the voyage was un- dertaken, and the charter party, bill of lading, and agreement en- tered into, with a view to the then political state of affairs in Europe, and should be construed with a view thereto that the permitted port on the continent of Europe, in which, the goods were by the agree- ment to be landed, before freight could be earned, was intended to be a permitted port in the North Sea or the Baltic; and also that all the said instruments must be construed in connexion with each other, and the general terms in the agreement of the 14th May, restricted to the North Sea and Baltic; and therefore rejected the testimony offered, as inadmissible and irrelevant. Wirg- mari's Miners vs. J\Iactierj - - 150 9. Whether ship owners are entitled in equity and good conscience, to retain money received on account of freight, is clearly a question not to be left to the jury; but proper only to be decided by the court, /under the circumstances of each / case, - - - Ib. '10. So where in an action of asswnp- sit brought by the owner of mer- chandize shipped in the defendant's vessel, to recover a sum which the defendant had received and retain- ed for freight, it appeared that the shipment was made under the char- ter party, bill of lading, and agree- ment above referred to, and that the master was furnished with in- structions from the plaintiff, as fol- lows, "on account of the i:;> -cltlcd state of affairs on the continent of . Europe, 1 have thought proper to request my friends Messrs. P. V of Hamburg, in the event of the 638 IXDEX. of the, ship brine: denied en- trv ;it their port, to consult with \ i t!n> i'!:ri!i