UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library REPORTS OF CASES IN THE COTJRTOF APPEALS MARYLAND. BY RICHARD W. GILL, C L E 11 K OF THE COURT OF APPEALS. VOL. II, CONTAINING CASES IN 1844 & '45, ANNAPOLIS: GEO. JOHNSTON, PRINTER. 1847. y \iu~L\ij 3- ENTERED, according to the Act of Congress, in the year one thousand eight hundred and forty-seven, by RICHARD W. GILL, in the Clerk's office of the District Court of Maryland. NAMES OF THE JUDGES, &c. DURING THE PERIOD COMPRISED IN THIS VOLUME. OF THE COURT OF APPEALS. Hon. JOHN BUCHANAN, Chief Judge. Hon. STEVENSON ARCHER, Chief Judge. Hon. JOHN STEPHEN, Judge. Hon. THOMAS BEALE DORSEY, Judge. Hon. E. F. CHAMBERS, Judge. Hon. ARA SPENCE, Judge. Hon. WILLIAM B. STONE, Judge. Hon, SAMUEL M. SEMMES, Judge. Hon. ALEXANDER C. MAGRUDER, Judge. Hon. ROBERT N. MARTIN, Judge. OF THE COURT OF CHANCERY. Hon. THEODORICK BLAND, Chancellor. OF THE COUNTY COURTS. FIRST JUDICIAL DISTRICT St, Mary's, Charles and Prince George's counties^ Hon. JOHN STEPHEN, Chief Judge. Hon. WILLIAM B. STONE, Chief Judge. Hon. ALEXANDER C. MAGRUDER, Chief Judge. Hon. EDMUND KEY, Associate Judge. Hon. CLEMENT DORSEY, do. SKCOND JUDICIAL DISTRICT Cecil, Kent, Queen Anne and Talbot counties. Hon. E. F. CHAMBERS, Chief Judge. Hon. PHILEMON B. HOPPER, Associate Judge. Hon. JOHN B. ECCLESTON, do. iv NAMES OP JUDGES, &c. THIRD JUDICIAL DISTRICT Culvert, Anne Arundel, Montgomery and Carroll counties. Hon. THOMAS BEALE DORSEY, Chief Judge. Hon. THOMAS H. WILKINSON, Associate Judge. Hon. NICHOLAS BREWER, do. FOURTH JUDICIAL DISTRICT Caroline, Dorchester, Somerset and Worcester counties. Hon. ARA SPENCE, Chief Judge. Hon. WILLIAM TINGLE, Associate Judge. Hon. BRICE J. GOLDSBOROUGH, do. FIFTH JUDICIAL DISTRICT Frederick, Washington and Allegany counties. Hon. JOHN BUCHANAN, Chief Judge. Hon. SAMUEL M. SEMMES, Chief Judge. Hon. ROBERT N. MARTIN, Chief Judge, Hon. RICHARD H. MARSHALL, Associate Judge. Hon. THOMAS BUCHANAN, do. SIXTH JUDICIAL DISTRICT Baltimore and Harford counties. Hon. STEVENSON ARCHER, Chief Judge. Hon. RICHARD B. MAGRUDER, Associate Judge. Hon. JOHN PURVIANCE, Associate Judge. Hon. JOHN C. LE GRAND, Associate Judge. OF BALTIMORE CITY COURT. Hon. NICHOLAS BRICE, Chief Judge. Hon. ALEXANDER NISBET, Associate Judge. Hon. W. G. D. WORTHINGTON, do. ATTORNEY GENERAL. JOSIAH BAYLEY, Esquire. NAMES OF THE CASES REPORTED IN THIS VOLUME. Addison, Edmund B., vs. Andrew Hack, . - 221 Aldridge, Andrew, ex. of B. D. Higdon, vs. John T. Boswell, - 37 Alexander, Ashton, and Sarah Rogers Alexander, and Margaret Walter, et al., lessee, - .204 Baltimore and Susquehanna Rail Road Company, vs. Tilghman G. Compton and others, - 20 Barrell, Samuel B., vs. James Glover, et al., ... 171 Bayless, Zephaniah, and the Philadelphia, Wilmington and Baltimore Rail Road Company, . . . . 355 Beall, William M ., and Theresa McElfresh, adm'r of John H. McEl- fresh, vs. George Schley, David and Christina Barr, - - 181 Bell, Peter, et al., vs. William Webb and Peter Mong, . 163 Belt, Trueman, and Joseph J, Jones, - - . 106 Bennington, Jeremiah, vs. Samuel Dinsmore, adm'r of Samuel Dins- more, ...... 348 Benson, Cephas R., vs. Richard Boteler, - - 74 Berry, Z., and wife, and Jonathan Prout, ... 147 Berry, W. F., and R. W. Brooke and wife, and others, - 83 Besore, C. H., and S. Etnyre, and Frederick Byer, - 150 Boswell. John T., and Andrew Aldridge, ex. of B. D. Higdon, - 37 Boteler, Richard, and Cephas R. Benson, - - 74 Brooke, Robert W., and Mary Ann, his wife, and others, \Ss, William F, Berry, - 83 Brown, David, and John H. and Margaret Harlan, . 475 Burgess, Thomas, vs. Arthur Pue, Jr., . . .11 Burgess, Thomas, Collector of Primary School Tax, Howard District, vs. Arthur Pue, Jr., - ... 254 Byer, Frederick, vs. S. Etnyre and C- H. Besore, 150 Callan, John T., and John O. W barton , Abraham Barnes aud Melchior B. Mason, - . . - 173 Charleston Insurance and Trust Company, vs. James J. and Thomas Corner, . - - - .410 vi NAMES OF CASES. Clarke, Caleb, and Richard W., Isaac and wife's lessee, . 1 Compton, Tilghman G., and others, and the Baltimore and Susquo- hanna Rail Road Company, - 20 Compton, Barries, us. Wilson Compton, - - 241 Compton, Wilson, and Barnes Compton, - 241 Corner, James J. and Thomas, and the Charleston Insurance and Trust Company, ... 410 Crosby, Joseph, and Nicholas Phelan, and Robert Bogue, - 462 Dawson, F. and P. T., and the Georgia Insurance and Trust Company, 365 Dinsmore, Samuel, adm'r of Samuel Dinsmore and Jeremiah Ben- nington, - - 348 Drakely, Thomas, and M. A. Gist, and T. P. Scott, adm'rs of William Gist, - - - 330 Frey, Elizabeth, and James M. Hopkins and others, - 359 Georgia Insurance and Trust Company, vs. F. Dawson, and P. T. Dawson, ... - 865 Gist, M. A., and T. P. Scott, adm'rs of William Gist, vs. Thomas Drakely, . - 330 Glenn, John, and Beale Randall, . 430 Glover, James, et al., and Samuel B, Barrell, - 171 Hack, Andrew, 0s. Edmund B. Addison, - . 221 Hannon, Walter W., and others, vs. The State, use of William G. Robey and Grace Ann, his wife, - - 42 Harlan, John H. and Margaret, vs. David Brown, . 475 Hardesty, John and Matthew, vs. John F. Wilson, - - - 481 Henderson, John and Gustavus, vs. William E. Mayhew and others, 393 Hopkins, James M., and others, vs. Elizabeth Frey, - 359 Hoye, John, vs. Edward Johnston, . -. ..; 291 Isaac, Richard W., and wife's lessee, vs, Caleb Clarke, 1 Johnston, Edward, vs. John Hoye, . 291 Jones, C. M., and M. C., survivors of Mary E. Ford, and the State, use of J. B. Welch and wife, 49 Jones, Joseph J., vs. Trueman Belt, ... - 106 Jones, Washington, et. al., vs. William Plater, adm'r of John R. Plater, . . . . 125 Keller, Thomas, and David Ridenour, - - 134 Lawson, John B,, John Matthews and John B. Wills, vs. State, use of Creecy, use W. A. Moale, - . -62 Mayhew, William E., et al., and John and Gustavus Henderson, - 393 Mayhew, William E., President of the Farmers and Planters Bank of Baltimore, and the State of Maryland, . . 487 NAMES OF CASES. vii Mayor and City Council of Baltimore, vs. Henry White, - - 444 Mitchell, Sarah E., vs. Elizabeth A. Mitchell, ex. of James D. Mitchell, . . .230 Mitchell, Elizabeth A., ex. of James D. Mitchell and Sarah E, Mitchell, - .230 Parran, John, et al., and Robert Welch, of Benjamin, . - 320 Phelan, Nicholas, and Robert "Bogue, vs. Joseph Crosby, . 462 Philadelphia, Wilmington and Baltimore Rail Road Company, vs. Zephaniah Bayless, - . . . 355 Plater, William, adm'r of John R. Plater and Washington Jones, 125 Prout, Jonathan, et al , vs. Z. Berry and wife, - 147 Pue, Arthur, Jr., and Thomas Burgess,- - - - 11 Pue, Arthur, Jr., and Thomas Burgess, Collector of Primary School Tax, Howard District, - 254 Randall, Beale, vs. John Glenn, . . 430 Richardson, Charles, a. d. b. n. of Robert R. Richardson.es. the State, use of Thomas Rawlings, - 439 Ridenour, David, et al., vs. Thomas Keller, - 134 Rogers, Charles, and Samuel Marficld, vs. Thomas Severson, - 385 Savage, John, and Henry Tiffany, - 129 Schley, George, David and Christina Barr, and William M. Beall and Theresa McElfresh, adm'r of John H. McElfresh, - 181 Seidenstricker, John B., vs. the State of Maryland, - - 374 Severson, Thomas, and Charles Rogers and Samuel Marfield, - - 385 State, use of William G. Robey and Grace Ann, his wife, and W. W. Hannon, et al., 42 State, use of J. B. Welch and wife, vs. Caleb M. and Mordecai C. Jones, survivors of Mary E. Ford, - 49 State, use of James R. Creecy, use of Win. A, Moale and John B. Law- son, John Matthews and John B. Wills, - 62 State, use of John Holton, vs. Garrett Barke, John Dulaney and Benedict J. Fenwick, . 79 State, vs, John B. Seidenstricker, - . 374 State of Maryland, vs. William E. May how, President of the Farmers and Planters Bank of Baltimore, - 487 State, use of Thomas Rawlings and Charles Richardson, a. d. b. n, of R. R. Richardson, - - - 439 Tiffany, Henry, vs. John Savage, - 129 Walter, Margaret, et al., lessee, vs. Ashton Alexander, and Sarah Rogers Alexander, - - 204 Walter, John, use of Susanna Walter, vs. Daniel Warfield, and others, 216 Warfiold, Daniel, and others, and John Walter, use of Susanna Walter, - - 216 viii NAMES OF CASES. Webb, William, and Peter Mong, and Peter Bell, et al., - . 163 Welch, Robert, of Benjamin, vs. John Parran, et al,, - . 320 Wharton, John O., Abraham Barnes and Melchior B. Mason, vs. John T. Callan, 173 White, Henry, and the Mayor and City Council of Baltimore, - 444 Wilson, John F., and John and Matthew Hardesty, - 481 CASES ARGUED AND DETERMINED tti O'HE COURT OF APPEALS OF JUNE TERM, 1844. RICHARD W. ISAAC AND WIFE'S LESSEE vs. CALEB CLARKE. June, 1844. Where it appeared that the defendant, in an action of ejectment, had convey ed his lands to R, who had died intestate, and that one of the jurors crm panneled to try the cause was his brother and heir-at-law, the fact of the conveyance being unknown to the plaintiff when the jury was sworn, the court will permit the juror to execute a deed of re-conveyance and release to the defendant, for the purpose of restoring his competency. A sale of land made by a sheriff, under execution, to his own agent, is not necessarily void at law. It is Voidable for fraud in fact. The jury alone is the proper tribunal to pronounce on the fact of fraud 5 and the circumstance that the purchaser is an agent of the sheriff will be re- garded with much suspicion. A plaintiff in ejectment cannot offer in evidence a record of the proceedings upon the bill of the defendant in Chancery against him, which bill had been dismissed for want of due prosecution upon the motion of the plain <= tiff, for the purpose of precluding the defendant from questioning the plaintiff's title at law, though the object of the bill was to vacate such title. A bill dismissed under a rule for further proceedings, does not preclude the complainant from using any defence at law Which he might otherwise have used. The general rule is that a party consenting to hold as lessee, cannot after wards deny the title of his acknowledged landlord. 1 v.2 CASES IN THE COURT OF APPEALS Isaac and wife's lessee vs. Clarke. 1844. There are exceptions to this rule ; but they do not rest on the fact that the acknowledgment was made by the tenant subsequent to his coming into possession, or that he originally had possession under another title. The circumstances of deception, mistake, or other grounds, which exempt n tenant from the influence of the rule, apply as well to the case of admis- sions after his possession commenced, as before. Where a party is in possession, and enters into an agreement with another claiming the land, to become his tenant, ho is within the general rule, which forbids the tenant from questioning the landlord's title. A relation thus created does not, per se, constitute one of the exceptions to that rule. The court cannot say that a description in a deed for land is too vague, and the deed void for uncertainty, when the vagueness and uncertainty are not obvious from an inspection of the instrument. A deed capable of a certain location is sufficiently certain in the description to pass title. APPEAL from Prince Georges County Court. This was an action of ejectment, commenced on the 25th March, 1835, to recover all those tracts of land called "Bur- gess' Delight," "Clarke's Fancy" and "Hickory Thicket" The date of the demise was ]st January, 1835. The tenant appeared, pleaded not guilty, and took defence on warrant. I ST EXCEPTION. During the trial of this cause, after the jury were empanneled, and before the case was argued to the jury, and before the several bills of exceptions taken in this case were signed by the court, it was discovered for the first time by the plaintiff's counsel, that the defendant, Caleb Clarke, had conveyed the lands in controversy to a certain Richard Peach, by deed bearing date the 13th November, 1829, and which is in the following words, to wit, &c. And it was then proved that Richard Peach was dead and intestate, and that one of the jurors, to wit, Samuel Peach, was his brother and heir-at-law, and as such had an interest in the result of the suit, and it was contended by the plaintiff's coun- sel that the said Samuel Peach\\as on that account an incom- petent juror to try this cause, and thereupon the plaintiff, by his counsel, having first satisfied the court that said deed to Richard Peach was unknown to them or the plaintiff when the said Samuel was sworn as a juror, prayed the court to with- draw the said juror, and to have a new jury empanneled to OF MARYLAND. Isaac and wife's lessee vs. Clarke. 1844. try the said cause, but the court refused said application, and permitted the said Samuel to execute a deed of re-conveyance and release of said lands to Caleb Clarke, for the purpose of restoring his competency as a juror, in open court, as follows, viz : &c. And directed the trial of the said cause to proceed before the said jury thus etnpanneled; to which opinion of the court (STEPHEN, C. J. and DORSEY, C. J.) and their refusal to per- mit said juror to be withdrawn, the plaintiff excepted. SND EXCEPTION. At the trial of this cause, the plaintiff to maintain the issue joined on his part, offered in evidence to the jury the locations and explanations made by him upon the plats, and then read in evidence the patents of Burgess' De- light and Hickory Thicket) anc' proved that said tracts are properly located upon the plats, and that all those parts of said tracts which are included in the lines drawn upon the plats shaded yellow, were regularly conveyed by divers mesne con- veyances to one Walter S. Clarke; and then read in evidence the record of a judgment recovered by William Holmes against the said Walter S. Clarke, at April term, 1814, of this court, and the record of a fat on a scire facias on the said judgment of April term- 1814, and also a transcript of the record of the Court of Appeals, which is as follows, to wit, &c. This was the record of a fieri facias issued upon a judg- ment recovered by William Holmes against Walter S. Clarke, at April term, 1814, revived in 1821. The execution bore date the 5th December, 1822, and was followed by various writs of venditioni exponas, and return of a sale on the 17th June, 1826, to Francis Belmear, of a defined parcel of the lands mentioned in the declaration in this cause, and of a writ of habere facias possessionem awarded to said F. J3., which was affirmed upon appeal. And it was admitted by the parties that the aforesaid judg- ments, rendered in Prince George's county court, in favor of said Holmes, are correctly recited in the writs of executions contained in the said transcript of the record from the Court of Appeals, and then read in evidence the following deed from 4 CASES IN THE COURT OF APPEALS Isaac and wife's lessee vs. Clarke. 1844. the sheriff who made the sale recited in the said transcript to the said Belmear, who is therein returned as the purchaser of the property, which deed is as follows, to wit, &c. This deed comprised the land returned as sold. And then offered and read in evidence a deed from said Francis Belmear, the purchaser of said property, to Eliza Isaac, one of the lessors of the plaintiff, and the wife of Rich- ard W. Isaac, the other lessor, and proved the correctness of the location of said title papers, as made upon the plats by the plaintiff. The defendant then to maintain the issue on his part, read to the jury a mortgage deed from the said Walter S. Clarke to the defendant and one John Perkins, dated 14th August, 1820, conveying the said lands. Also a deed from Joshua T. Clarke to the defendant, of the said lands, dated the 2nd Oc- tober, 1827, and from Philip Green to Joshua T. Clarke, dated the 2nd March, 1812, and proved the correctness of the loca- tion of said deeds upon the plats. He further proved that Walter S. Clarke, the defendant in the said judgment, at suit of William Holmes, died intestate, sometime in the year 1828 or 1829, without issue, leaving a widow and the defendant his brother, and several other brothers and sisters his heirs at law. And the defendant then called several witnesses, by whom he proposed to prove, that at the sheriff's sale before mentioned, R. W, Isaac, one of the lessors of the plaintiff, officiated as the deputy ot the high sheriff of the county, and as such sold the aforesaid lands to the said Belmear, And he further offer- ed to prove various declarations and assertions made by the said Belmear, to the effect, that at the said sale, and in the purchase of said property, he the said Belmear. was buying said property for the said Isaac, and as his agent ; and also offered evidence of similar declarations made by said Isaac. And after the plaintiff had offered evidence, going to rebut the effect of the evidence thus offered by the defendant, the plaintiff by his counsel prayed the opinion of the court, and their instruction to the jury, that even though the jury might be of opinion, from the evidence, that the saiu Belmear, in OF MARYLAND. Isaac and wife's lessee vs, Clarke. 1844. purchasing said land, acted as the agent of said Isaac, and bought for him, yet still in this court, such facts constitute no defence in the present action, and the remedy of the parties, for a sale under such circumstances, is only in a court of equity. But the court (C. DORSEY, A. J.) refused the prayer thus made by the plaintiff, being of opinion, and so directing the jury, that if they should find from the evidence, that Belmear, in making said purchase, acted as agent of said Isaac, and bought for him, and that the said Clarke is one of the heirs of said Walter S. Clarke, the sale is void, and is a good defence to the present action. To this refusal to give the instruction as prayed by the plaintiff, and to the instruction as given, the plaintiff excepted. SRD EXCEPTION. After the evidence in the previous ex- ceptions, which by agreement constitute parts of this excep- ception, the plaintiff further to maintain the issue joined upon his part, offered to read to the jury the following transcript of a record from the Court of Chancery, for the purpose of laying before the jury the statements contained in the bill and answers, and for the further purpose of showing that a court of compe- tent jurisdiction had dismissed a bill filed by the present de- fendant against one of the present plaintiffs and F. Belmear, impeaching the validity of the sale relied upon by the plaintiffs in support of their title to the land for which the present ac- tion is brought, and that consequently the defendant cannot now question that title. The object of the bill filed by Caleb Clarke, on the 12th April, 1827, against Richard W. Isaac and Francis Belmear, was to impeach the sale made by Isaac, under the writ of venditioni exponas mentioned in the bills of exceptions, and to restrain them by injunction, &c. The defendants answered the bill, and at July term, 1827, the complainant was laid un- der a rule to take further proceedings on or before the fourth day of the next term of the Court of Chancery, and at the fol- lowing term the bill was dismissed by the Chancellor, undtn that rule, with costs to the defendant. CASES IN THE COURT OF AiVEALS Isaac and wife's lessee vs. Clarke. 1844. But the court upon the objection of the defendant's counsel refused to permit the answers in the said record to be read to the jury, and were of opinion that the dismissal of the bill in the record contained, in the manner in which the same was dismissed, did not prevent the complainant there, who is the defendant here, fiom contesting the validity of said sale. To which refusal to suffer the said record to be read to the jury for the purpose aforesaid, and to the opinion of the court so given, the plaintiff excepted. 4xH EXCEPTION. After the evidence contained in the pre- ceding bills of exception, and which by agreement is made a part of this exception, the plaintiff further to maintain the issue joined on his part, proved to the jury that the mortgage from W. S. Clarke to the defendant and John Perkins, of the 14th of August, 1820, was given without consideration, and then proved that after the affirmance of the judgment of the Court of Appeals, at June term, 1829, the transcript of the record of which is set forth in the plaintiff's second exception, a writ of habere facias possessionem issued, returnable to the December term, 1829, of that court, which was returned "not executed." That another similar writ issued to June term, 1830, of that court, which was also returned "unexecuted." And thereafter, laying the proper foundation for that purpose, and for the purpose of proving that said Walter S. Clarke had, after the affirmance of the said judgment by the Court of Ap- peals, become the tenant of the said Belmear, offered to prove by a competent witness that some time in the year 1830, the said Belmear called upon the witness, and showed him a pa- per signed by the said W. S. Clarke, and dated, as he thinks, in 1830, in which the said Clarke acknowledged himself to be in possession of said land, as the tenant of said Belmear, and agreed to pay him a rent for the use of land ; and thereupon the plaintiff prayed the court to instruct the jury, that if they find from the evidence that the deed of mortgage from W. S. Clarke to the defendant and John Perkins, of June, 1820, was given without consideration, that it passed no title to the mort- gagees, and the title to the property therein mentioned, not- OF MARYLAND. Isaac and wife's lessee vs. Clarke. 1844. withstanding such mortgage, remained in the mortgagor, W. S. Clarke; of which opinion the court was. And the plaintiff prayed the court to instruct the jury, if they further find that after the sale by the sheriff to Francis Belmear, and the pay- ment of the purchase money by him, if they find such pay- ment and sale were in fact made, the said W. S. Clarke ac- knowledged himself in writing to be the tenant of the said Belmear, and agreed to pay him rent for the said land, then neither the said Clarke, nor any one claiming under him by title subsequent to the sale to said Belmear, can dispute his title to said land. But the court was of opinion, and so in- structed the jury, that if the jury shall find from the evidence, the said Clarke was in possession of the said land at the time when the said contract and agreement was alleged to have been entered into, and that he did not originally enter thereon as tenant to the said Belmear, that then such agreement does not prevent the defendant from contesting the title of the lessors of the plaintiff, To which refusal of the court to give the in- struction as prayed by the plaintiff, and to the instruction as given by the court, the plaintiff excepted. STH EXCEPTION. After the evidence in the preceding ex- ceptions, which by agreement is made a part of this excep- tion, and when the plaintiff was about reading to the jury the following deed from Joshua T. Clarke to said Walter S. Clarke, of the 17th of September, 1813, which is as follows, to wit : This indenture, made this 17th day of September, in the year of our Lord one thousand eight hundred and thirteen, between Joshua T. Clarke, of Prince George" 1 's county, and State of Maryland, of the one part, and Walter S. Clarke, of the county and State aforesaid, of the other part, witnesseth, that the said Joshua T. Clarke, &c., hath granted, &c., unto the said Walter S. Clarke, his, &c., part of a tract of land called Burgess* Delight, part of a tract of land called Hickory Thicket, and part of a tract of land called Clarke's Fancy, beginning 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 8 CASES IN THE COURT OF APPEALS Isaac and wife 'slessee PS. Clarke. 1844. Green, and the orchard contiguous thereto, bounding on the south with a line drawn easterly to Patuxent river, thence bounding on and with said river to the extent of the said land, on the north with the said land to the beginning, so as to in- clude two hundred acres of land, more or less, on the east side of said southerly line from the beginning, together with all, &c. The defendant, by his counsel, prayed the court to instruct the jury, that no title could be derived to the grantee in the said deed, because the description of the property therein con- tained was too vague, and that said deed was void for uncer- tainty; and the court being of opinion that said deed is void for uncertainty, refused to suffer the plaintiff to read the same in support of his claim and pretensions. To which opinion and refusal of the court to suffer the said deed to be read, the plaintiff excepted. GTH EXCEPTION. At the trial of this cause, and after the giving the evidence contained in the preceding bills of ex- ceptions, and which is agreed to be incorporated and made a part of this exception, the plaintiff, by his counsel, upon said evidence, prayed the court to instruct the jury, that if they believed from the evidence that the mortgage from Walter S. Clarke to Caleb Clarice and John Perkins, was executed with- out any consideration being paid for the same, by the grantees therein, that then the said mortgage was fraudulent and void, as against the creditors of said Walter S. Clarke, and that if the jury further find from the evidence, that some time after the sale of said land to Belmear, under the judgment of Holmes , by the deputy sheriff of Prince George's county, if the jury further find from the evidence, that sometime after the sale of said land to Belmear, under the judgment of Holmes, by the deputy sheriff of Prince George^ county, if the jury should find such sale to have been raadej the said Walter S. Clarke, with a knowledge of the circumstances under which the sale was made, acknowledged himself in writing to be the tenant of said land of said Belmear, and agreed to pay him a rent for the same, that then said written agreement, if the jury finds the existence of the same as aforesaid, is evidence to the jury OF MARYLAND. Isaac and wife's lessee vs. Clarke. 1844. that the said Walter S. Clarke acquiesced in the said sale, and the regularity or validity of the same cannot be impeached by any person claiming title to said land under said Walter S. Clarke, and who entered in possession under said title after the date of said written contract for rent. But the court re- fused to grant the said prayer and instruction to the jury ; from which refusal to grant said instruction to the jury, the plaintiffs excepted. The verdict and judgment being against the plaintiffs, they prosecuted the present appeal. The cause was argued before BUCHANAN, C. J., ARCHER, DORSEY, CHAMBERS and SPENCE, J. By J. JOHNSON and T. S. ALEXANDER, for the Appellant. Who cited on the question of restoring the jurors competency 6 Wendel 389, 3 Chit. G. P. 795, 3 Harr. $ McHenry, 101. On the question of sale by sheriff to his agent, 4 Gillfy J. 376, 4 Ran. Va. Rep. 199. On the relation of landlord and tenant, 1 Cain. JV*. Y. Rep. 444, 7 John. Rep. 186, 3 John. 223, 10 John. 301, 6 Law Lib. 293, Comyn on L. % T. 519, 7 Term Rep. 488, 10 East 350, 12 John. 427, 37 E. C. L. Rep. 93, 15 Ib. 267. Effect of sale under judicial process as against the defen- dant, and those in under him. 3 Cain. 188, 1 Wendel, 418, 10 John. 224. The statement of a fact by a judge in the progress of a cause will be taken as true, 6 H . # J- 407, 9 G. $ /. 71. Error in the description of land, 1 G. fy J. 443. Effect of dismissal of bill in chancery, 2 H. & G. 374. By C. C. MAGRUDER and A. C. MAGRUDER, for Appellee. In relation to the competency of the juror, cited 3 Bnc. Jury 764, Let. .,21 Viner M., 274 Trials, 8 Barn. $ Cres. The sheriff's sale to himself a nullity, void, Story on Agen. 30, 31, 198, 199, 2 Camp. 203, 5 Barn, ^ Aid. 333, 7 E. C. L. 120, 3 John. Cas. 29, 4 Cowenlll, 7 John. 252, 16 John. 197, 3 Bacon 605, 1 J. C. R*. 140. 2 v.2 10 CASES IN THE COURT OF APPEALS Isaac and wife's lessee vs. Clarke. 1844. A defendant in ejectment may show fraud or collusion be- tween sheriff and purchaser, and hence the plaintiff, purchaser, has no title. 4 Harr. Sf McH. 398, 5 Har. & J. 54, 7 G. Sf J. 494, 2 Cow. Phil. 62, 6 Taun. 202, 7 Wendell 401, 9 E. C. L. 294. Deed void for uncertainty, 10 G. $' J. 7. Effect of bill dismissed, UG.fyJ. 173, 1 Sto. Eg. PL 610. CHAMBERS, J., delivered the opinion of this court. Under the peculiar circumstances of this case, the compe- tency of the juror was restored by his conveyance of all his interest in the property in contest. In this opinion, however, the court is not unanimous. The first exception is therefore affirmed. We think the instruction given in the second exception was erroneous. A sale made by a sheriff to his own agent is not necessarily void at law, but voidable for fraud in fact. The jury alone is the proper tribunal to pronounce upon the fact of fraud, and the circumstance that the purchaser is an agent of the sheriff will be properly regarded with much suspicion. The opinion expressed in the third exception is entirely ap- proved. Such a proceeding in Chancery as the appellant of- fered could not, upon any received principle, preclude the ap- pellee from using any defence at law which could otherwise be urged. We think the court below erred in the opinions contained in the fourth and sixth exceptions. The general rule is that a party consenting to hold as lessee cannot afterwards deny the title of his acknowledged landlord. There are exceptions to this rule ; but they do not rest on the fact, that the acknow- ledgement was made by the tenant subsequent to his coming into possession, or that he originally had possession under an- other title. The circumstances of deception, mistake, or other grounds which exempt a tenant from the influence of the rule, apply as well to the case of admissions after his possession, as before. We cannot concur with the County Court in the opinion given in the fifth exception. After an attentive consideration OF MARYLAND. 11 Burgess vs. Puo. 1844. of the deed, \ve cannot perceive on its face the obvious uncer- tainty and vagueness which must make it impossible to locate it. On the contrary, it appears to us, looking, as we must do, to the face of the deed, to be quite capable of a certain loca- tion, according to the metes and bounds expressed; and a deed capable of a certain location is, for that reason, sufficiently certain to pass the title. Differing with the court below in the second, fourth, fifth, sixth exceptions, we must reverse the judgment, with costs to appellant, and issue procedendo. JUDGMENT REVERSED AND PROCEDENDO AWARDED. ARCHER and CHAMBERS, J., dissented on the first excep- tion. THOMAS BURGESS vs. ARTHUR PUE, JR. June 1844. By the act of 1828, ch. 169, sec. 5, mere formal objections to the legality of the pioceedings of the meeting of the inhabitants or trustees of any school district for the public instruction of youth in primary schools, or irregu- larity therein, are to be disregarded. By the act of 1825, ch. 162, sec. 8, the collector of the school tax is to be appointed by the taxable inhabitants of the district, and by the llth sec- tion he is required to give bond, with security, to the satisfaction of the trustees, for the faithful discharge of his official duties. The election to be valid must be made by the taxable inhabitants. The act of 1839, ch. 90, makes no change in the power of appointing such a collector. A collector of taxes not selected by competent authority, although he gives bond for the discharge of his duties, has no legal warrant to act, and all his proceedings are tortious and unlawful. The legislature may delegate the power of taxation to the taxable inhabi- tants, for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools, within their respective school districts. Grants of similar powers to other bodies, for political purposes, have been co. evil with the Constitution itself, and no serious doubts have ever been en- tertained of their validity. APPEAL from Howard District Court. This was an action of Replevin, commenced on the 8th Feb- ruary, 1843, on the following warrant: CASES IN THE COURT OF APPKALS Burgess vs. Pue. 1844. HOWARD DISTRICT OF ANNE ARUNDEL COUNTY, to wit : Whereas, on the sixth day of February, eighteen hundred and forty-three, instant, before the subscriber, one of the justices of the peace of the State of Mar) land, in and for the said district, Arthur Pue, jr., of the said district, made oath, that one yoke of pied oxen, belonging to him, have been illegally and un- justly seized in execution for school taxes, for district No. 30, by Thomas Burgess, the'collector, which affidavit is hereto an- nexed, whereby it appears to me that it is necessary for the purposes of justice, that a replevin should issue ; you are here- by empowered and directed to issue a replevin for the follow- ing chattels, taken as aforesaid, to wit, one yoke of " pied oxen," and this shall be )our warrant for the same. Witness my hand and seal, this sixth day of February, 1843. JOHN FORREST, (Seal.) HOWARD DISTRICT OF ANNE ARUNDEL COUNTY, to wit : Be it remembered, that on this sixth day of February, eighteen hundred and forty-three, before me, the subscriber, one of the justices of the peace of the State of Maryland, in and for said district, personally appeared Arthur Pue, jr., of the said dis- trict, and made oath on the Holy Evangely of Almighty God, that a yoke of pied oxen have been illegally and unjustly sei- zed by the collector, Thomas Burgess, for school taxes, for pri- mary school district No. 30, of said district. Sworn before, JOHN FORREST, Seal.) To John L. Moore, clerk of Howard District of*/?. JJ. county. The appellee having filed a replevin bond, the writ issued, and the goods so taken were replevied and delivered to the appellee, who filed his declaration claiming the same. The case was then submitted on the following statement of facts : Under the provisions of the act ior the public instruction of youth in primary schools throughout the State, and the several supplements thereto, Anne Arundel county was divided into primary school districts ; the locus in quo constitutes part of primary school district No. 30, of said county, in that division. In the year 1832, a primary school was organized in said school district, and has ever since been kept up in fact. ' OK MARYLAND. Burgess ca. I'ue. 1844. The regularity and legality of such organization and con- tinuance, are denied by the plaintiff, but affirmed by the de- fendant. At an annual meeting of taxables of the district, held in the district in July, 1842, certain proceedings were held, of which the following is a copy : " July 30,. 1842. The twelfth annual meeting of the taxa- ble inhabitants of primary school district No. 30, Howard Dis- trict, Jl. Jl. county, convened, and on motion, George Ellicott was called to the chair, and McLane Brown appointed secre- tary. On motion, the secretary read the trustees' annual re- port. Mr. Ijams moved the adoption of said report ; deter- mined in the affirmative. McLane Brown moved a levy of eight cents on the $100. C. S. W. Dorsey moved as a substitute, four cents ; determined in the negative. The vote was then taken on McLane Brown's motion, and determined in the af- firmative. Mr. Wright nominated George L. Stockett, J. P. Ijams and George Ellicott, as trustees for the ensuing year. Henry H. Pue nominated Lcvi Chaney, William Smith, and Anthony Smith. The question was then taken on the nomi- nation of George L. Stockett, unanimously elected ; J. P. Ijams and George Ellicott, unanimously elected. Ijams nominated George L. Stockett, as clerk elected unanimously. On mo- tion, C. S. W. Dorsey, resolved, that the trustees report to the next annual meeting the number and names of the children at- tending school, and who pay capitation tax, and the time of their attendance. On motion of A. Smith, the meeting adjurned to meet the last Saturday of July, 1843, at 10 o'clock A. M. Signed, McLane Brown, Sec'ry. GEO. ELLICOTT, Ch'n. A true copy : George L. Stockett, Clerk." That the trustees were elected viva voce,and not by ballot, the plaintiff being then present and voting ; that the said meeting was held after due notice thereof; that after the adjournment of the meeting, the trustees placed in the hands of defendant, on the 12th December, 1842, who was at that time sheriff and collector of Howard District, a list of the taxables and pro- 14 CASES IN THE COURT OF APPEALS Burgess vs. Puo. 1844. perty liable to taxation of said District, with a warrant lor col- lection thereof, as follows : "Copy 'of tax list for primary school district No. 30, Howard District, A. Jl. county. 1842. 1 Brown, McLane, - $1.71^, &c. HOWARD DISTRICT OF A. A. COUNTY, to wit: To Thomas Burgess, collector of Howard District, A. A. county, greeting: You are hereby required and commanded, to collect from each of the inhabitants of said district, the several sums of money written opposite to the name of each of said inhabitants in the annexed tax list, and within sixty days after receiving this war- rant, to pay the amount of the monies by you collected, in'.o the hands of the trustees of said district, or some one of them, and take their or his leceipt therefor, and if any of said inhab- itants shall neglect or refuse to pay the same, you are hereby further commanded to levy on the goods and chattels of each delinquent, and make sale thereof according to law. Given under our hands and seals, this 12th day of December, 1843. GEO. L. STOCKETT, (Seal.) J. P. IJAMS, (Seal.) GEO. ELLICOTT, (Seal.) Trustees." That the defendant, at the time of receiving such list, gave bond in proper form for collection of said taxes ; that he never was elected, selected or appointed collector by the taxables of school district No. 30, of Howard District, but was selected and elected by the trustees ; that the clerk elected as aforesaid, did not give bond as such, as required bylaw ; that the plain- tiff, in July, 1842, was and ever since has been a taxable in- habitant of said district, and named in said tax list, and be- cause of his failure to pay the said taxes, assessed against him as aforesaid, the defendant, as collector as aforesaid, levied on and took in execution the property in the declaration mention- ed, for the purpose of raising the tax, so assessed against the plaintiff. The original act, for the public instruction of youth in primary schools throughout this State, and the sup- plements thereto, and all other acts applicable to primary schools in Anne Arundel county and Howard District, shall be OF MARYLAND. 15 Burgess vs. Pue. 1844. treated as part of this statement, and read from the printed books. It is insisted by the plaintiff, that no evidence out of the re- cord book of the proceedings of taxables, is admissible to shew that notice of the meeting as aforesaid was given, and the admission herein, that such notice was in fact given, is made subject to such exceptions. On the part of the defendant it is objected, that no evidence out of said record, is admissible for the purpose of shewing that the said meeting was illegally or irregularly held, or con- ducted with a view of charging him in this action ; that all admissions of facts by him, not shewn by said record book, are to be taken, as made subject to such objection ; that the act, entitled, an act to provide for the public instruction of youth in primary schools, throughout this State, is unconsti- tutional and void, because the validity and operation of the same, in any county of the State, was dependent on the votes of a majority of the voters of each county, and if the majority of the said voters of any county should be in favor of the es- tablishment of primary schools, as is therein provided for, then and in that case the said act should be valid for such county or counties, otherwise of no effect whatever, and if a majority of the voters of any county in this State should be against the establishment of primary schools, as established by this act, then in that case the said act should be void as to that county ; that the act aforesaid, and the act entitled an act to provide for the public instruction of youth in primary schools in Jinne. Arundel county, are unconstitutional and void, as far as the said acts authorise one or more of the taxable inhabitants of any school district in Jinne Jlrundel county, to vote a tax on the assessable property of said district, to build school houses, furnish them with the necessary fuel, books, stationary and appendages, and for payment of the salary of a teacher in said district ; that the act, entitled, an act regulating the manner of levying on the assessable property in Jinne Arundel county, for the support of primary schools in said county, passed the 14th February, 1830, is unconstitutional and void, as lar as it 1C CASES IN THE (JUUKT OK APPEALS Burgess vs. Pue. 1844. authorises the trustees of any primary school district in Jlnne Jlrundel county, to require from any child attending school the payment of any sum of money not exceeding twenty-five cents a month, to be applied to the payment of the expenses of the school ; that the above acts of Assembly, are in other respects, contrary to the Bill of Rights and Constitution of this State, and therefore null and void : 1st. Because said acts destroy all accountability for the pow- er of taxation, contrary to the fourth section of the Bill of Rights. 2nd. Because the arts aforesaid impose taxes without the consent of the Legislature, contrary to the 12th section of the Bill of Rights. That the assessment and levy for primary school district No. 30, of Howard District, under and by virtue of which the pro- perty of the plaintiff in this action was taken and distrained, was illegal and void : 1st. Because the meeting at which said levy was made, was not a legal district meeting, the same being held without any notice being given to the taxable inhabitants of said district, in writing, at least ten days before the time appointed for said meeting, by the district clerk, and there is no legal evidence that any notice was given. 2nd. Because at said annual meeting the clerk of said dis- trict was not elected by ballot, and did not give bond as re- quired by law. 3rd. Because the trustees of said school district were not elected according to law, i. e., by ballot. 4tb. Because the trustees of said school district did not make a rate bill or tax list, according to law, and annex to such tax list or rate bill a warrant, and deliver the same to the collector of the said school district. 5th. Because the taxable inhabitants of said school district did not elect, by ballot, a district collector at their last annual meeting, and Thomas Burgess has never been elected collec- ted of said school district. OF MARYLAND. 17 Burgess vs. Pue. 1844. 6th. The collector of said school district did not give bond with security, to the satisfaction of the trustees, for the faith- ful discharge of the duties of his office. 7. Because the defendant in this action is not the collector of the saiil school district, and has no authority in law, for col- lecting the tax assessed for the same. Upon the foregoing statement and reasons, the court is re- quested to enter such judgment as may be right, subject to the appeal of the party against whom the judgment may be rendered. The counly court rendered judgment for the plaintiff in re- plevin, and the defendant appealed to this court. The cause was argued before STEPHEN, ARCHER and CHAMBERS, J. By T. S. ALEXANDER, for the appellant, and By R- I. BOWIE, for the appellee. STEPHEN, J., delivered the opinion of this court. This action of replevin was instituted in the court below to recover certain property which had been taken by the appel- lant, as collector, for a school tax alleged to be due by the ap- pellee, and which had been imposed by the taxable inhabitants of a school district, under the system of primary schools as es- tablished by law. The judgment of the court below was in favor of the plaintiff in that court, and defendant appealed to this tribunal to obtain a reversal of that judgment, on the ground that it was erroneous, and that the suit ought not to have been sustained. In support of the decision which was rendered in his favor, the appellee has taken several exceptions to the legality of the proceedings of the meeting of the inhabitants by which the levy was made, and also to the validity and regularity of the meeting itself. Mere formal objections are cured by an act of Assembly which was passed for the express purpose of healing all such informalities. Under the operation of that act, which passed in the year 1828, ch. 169, all matters of form are to 3 v.2 18 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. be disregarded, and matters of substance alone to be attended to; its language is, " that the aforesaid act (meaning the act for the public instruction of youth in primary schools through- out the State,) and this act be, and the same are hereby de- clared to be, public and remedial acts, and shall be construed by all courts of justice according to the equity thereof, and no proceedings of the inhabitants or of the trustees of any school district, shall be set aside or adjudged to be void, for defect of form, or for any irregularity therein, so as the requisitions of said acts are substantially complied with." But the objec- tion to the legality of the appointment of the collector is, we think, fatal and well founded, notwithstanding the provisions of that act. His power to act was not legitimate, because he was not elected by the competent authority. The act of 1825, ch. 162, sec. 8, expressly vests the power of appointing the district collector in the taxable inhabitants of the district, and by sec. 11, he is required to give bond, with security, to the satisfaction of the trustees, for the faithful discharge of the duties of his office. The same section further provides that the collector of the county charges may be eligible as the dis- trict collector, but the election, to be valid, must still be made by the taxable inhabitants, as the power of the trustees is lim- ited to the taking of the bond, with security. By an act of Assembly passed in the year 1837, ch. 90, it is made the duty of " any sheriff or county collector, in Anne Arundel county or Howard District, in the event of being selected or appoint- ed a collector for any or all of the school districts, to accept of the appointment, or forfeit for each refusal the sum of one hundred dollars ;" but no change in the mode of appointment is provided for or authorised by that act. The collector in this case, not being selected by the competent authority, that is to say, by the taxable inhabitants of the school district, had no legal warrant or authority to act, and all his proceedings being tortious and unlawful, the action of replevin was properly sustained by the court below. This defect renders it unne- cessary to inquire whether other objections, which have been taken to the proceedings, are fatal. OK MAKYLAIN'D. Burgoss vs. Pue. 1844. We think there was no validity in the constitutional question which was raised by the appellee's counsel in the course of his argument, relative to the competency of the legislature to del- egate the power of taxation to the taxable inhabitants for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. The object was a laudable one, and there is nothing in the Constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it ; we may say that grants of similar powers to other bodies, for political purposes, have been co- eval with the Constitution itself, and that no serious doubts have evei been entertained of their validity. It is therefore too late at this day to raise such an objection. The ground of the objection taken in the argument to the constitutionality of the tax, seemed to be, that the act of the legislature delega- ting the power of taxation to the taxable inhabitants was a violation of the fourth and twelfth sections of the Bill of Rights, the first of which provides "that all persons invested with the legislative or executive powers of government, are the trustees of the public, and as such accountable for their conduct ;" and the last, "that no aid, charge, tax, fee or fees, ought to be set, rated or levied, under any pretence, without consent of the legislature." It is not perceived how the act in question can be deemed a violation of either of those principles of the funda- mental law. The tax was certainly levied with the consent of the legislature, because the power to impose it emanated from the legislative department of the government, and was expressly given by a law passed for that purpose, and there is nothing in it which can be considered as in the slightest degree im- pairing the icsponsibility of the law-making power to their constituents, for the due and faithful execution of the trust confided to them, because if deemed to be unwise or inex- pedient, an expression of the popular will to that effect was all that was necessary to procure its repeal. Some other objections to the regularity of the proceedings, connected with this case, were made by the counsel for the appellee in the course of his argument, which it is deemed 20 CASES IN THE COURT OF APPEALS B. and S. Rail Road Co. r*. Compton and others. 1844. unnecessary to consider, (his court being of opinion that the judgment of the court below was correct, and that the same ought to be affirmed. JUDGMENT AFFIRMED. THE BALTIMORE AND SUSQUEHANNA RAILROAD COMPANY VS. TlLGHMAN G. CoMPTON AND OTHERS. June, 1844. Whore an inquisition was taken, returned, and ratified, according to law, upon proceedings by a railroad company, which found that a piece or par- cel of land was wanted by the company for the construction of their road, and assessed the damages which the owner of the fee would sustain by the use and occupation of his land for the purpose aforesaid, at, &c., all questions having relation to the damage done by the location and con- struction of the road are terminated and concluded by such inquest. And hence in an action brought by the owner of a fee against the company for having, after the construction of the road through his land, (the bene- fits of which construction to the plaintiff had been submitted to the jurors upon the inquisition aforesaid,) abandoned the same, and constructed the road anew in another location, off the plaintiff's land, the plaintiff cannot give evidence of the damage which would accrue to him from such ori- ginal construction independent of the inquisition. After a railroad company had constructed its road by authority of law, through the plaintiff's land, condemned for that object, they were author- ised to alter the location of their road between two given points. They re -constructed their road, and abandoned that part which had been made through the plaintiff's land, HELD: that the authority derived from the legislature to alter the location, did not exempt the company from liability to the plaintiff for the loss sustained by him by reason of such abandon- ment. Where a railroad company had constructed a road, then abandoned it in part, and changed the location pro tanto, a plaintiff through whose land the road orginally passed, having sustained no damage or injury in fact, by the alteration, cannot maintain an action for such change of location. An inquisition to condemn land for the use of the B. and S. Railroad Com- pany, in Baltimore county, out of the limits of the City of Baltimore, ought not to bo held upon the warrant of a justice of the peace appointed for said city. Per Baltimore county court. Under the act of 1827, ch. 72, resident jurors in the city of Baltimore may be summoned to act in any part of Baltimore county. Ib. The description in an inquisition of land condemned, ought to be sufficiently certain. The omission to insert the namo of the tract is not fatal. A OF MARYLAND. 21 B. and S. Rail Road Co. vs. Compton and others. 1844. description is sufficient when it calls for stones, trees, planted boundaries, fixed objects, or where it takes for the beginning of the land intended to be described, any spot or point of beginning on land either conveyed to the company and recorded, or on land theretofore condemned by inquisition, recorded. Ib. The description in an inquisition beginning for the land condemned at sta- tion No. 147, on the location of said railroad, and running thence to sta- tion No. 170, being 23 stations of 100 feet each in length, and occupying a space of 66 feet in width, is not sufficiently accurate to authorise its rati- fication. Ib. Under the charter of the B. and S. Railroad Company, the inquisition for the condemnation of land should state that it was for the construction of the road, in that event the entire interest is condemned. Ib. APPEAL from Baltimore County Court. This was an action of Trespass upon the case, commenced on the 21st December, 1839, by the appellees against the ap- pellants. The declaration of the plaintiff alleged : IST COUNT. That whereas by an act of the General Assem- bly of Maryland, entitled "An act to incorporate the B. & S. R. R. Co." it was amongst other things enacted, that the sub- scribers of the stock therein mentioned, their successors and assigns, should be, and they were thereby declared to be, in- corporated into a company, &c.; and amongst other things in the said act mentioned and enumerated, the president and di- rectors of the said company were invested with all the rights and powers necessary for the construction and repair of a rail- road from the City of Baltimore to some suitable point or points on the Susquehanna, river , to be by them determined, not ex- ceeding sixty-six feet wide ; and whereas by the said act of Assembly, it was also enacted, that the president and directors of said company, or a majority of them, or any person or per- sons authorised by a majority of them, might agree with the owner or owners of any land, earth, &c., or any improvements which might be wanted for the construction or repair of any of said roads, or any of their works, for the purchase or use and occupation of the same, and if they could not agree, or if the owner or owners, or any of them, be afeme covert, un- der age, non compos mentis, or out of the county in which the property might be, when such land and material may be want- 2'2 CASES IN THE COURT OF AITKAL3 B. and S. Rail Road Co. vs. Cornpton and others. 1844. eel, application might be made to any justice of the peace of such county, who should thereupon issue his warrant, under hand and seal, directed to the sheriff of said county, requiring him to summon a jury of twenty inhabitants of said county, &c., to meet on the land, or near to the other property or ma- terials to be valued, on a day named in said warrant, not less than ten, nor more than twenty days, after the issuing of the same; and if at said time and place any of said jurors sum- moned should not attend, &c., that before they should act as such, the said sheriff should administer to each of them an oath or affirmation, as the case might be, that he would justly and impartially value the damages which the owner or owners might sustain by the use and occupation of the. same, required by the company, and that the jury in estimating such damages should take into the estimate the benefits resulting to the said owner or owners from the conducting such railroad through, along, or near to, the property of said owner or owners, but only in extinguishment of the, claim for damages, and that the said jury should reduce their inquisition to writing, and should sign and seal the same, and that it should then be returned by said sheriff to the clerk, &c., and should be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and when confirmed should be recorded by the said clerk, &c.; but if set aside, the said court should direct an- other inquisition to be taken in the manner above prescribed, and that such inquisition should describe the property taken, or the bounds of the land condemned, and the quantity of du- ration of the interest in the same, valued for the company, and such valuation, when paid or tendered to the owner or owners of said property, or his. her or their legal representatives, should entitle the said company to the estate and interest in the same, thus valued, as fully as if it had been conveyed by the owner or owners of the same; and whereas, one Thomas Compton, late of Baltimore county, deceased, who was the father of the plaintiffs in this action, was, in his life-time, to wit, on the first day of March, in the year of our Lord one thousand eight hundred and thirty-one, and at the time of his death, at the OF MARYLAND. 23 B. and S. Rail Road Co. vs. Compton and others. 1844. county aforesaid, seized in fee simple of a certain tract, or part of a tract, or parcel of land, situate, lying, and being in said county, called Ridgely's Whim; and whereas, on the day and year last aforesaid, at the county afoiesaid, the president and directors of the said company, or a majority of them, did determine to locate and construct the B. r S. R. R. through, along, over and upon the said lands of the said Thomas Comp- ton; and whereas, the president and directors of said company could not agree with the said Thomas Compton, for the lands so wanted for the location and construction of the said rail- road, and the said Thomas Compton would not consent to the location and construction of the said road through, along, over, and upon his said lands, the president and directors of the said company caused the said railroad to be located, made, and constructed, through, along, over and upon the said lands of the said Thomas Compton, for the length of twenty-three hundred feet, and of the breadth of sixty-six feet, using and occupyirg therefor three acres one rood and thirty-eight perch- es of land, without his permission and consent, and without making or allowing him any compensation whatever therefor. And the said plaintiffs further say, that in the making and con- structing of the said road through, along, over and upon the said lands of the said Thomas Compton, as aforesaid, the pre- sident and directors of the said company caused an embank- ment, consisting of earth, stone and gravel, to be made, of the length of two thousand feet, of the breadth of thirty feet, and of the height of ten feet, on one part of the said land, and that the president and directors of the said company also caused to be made, an excavation, of the length of two hun- dred feet, of the breadth of sixty-six feet, and of the depth of twenty feet, on another portion of said land, to the great dam- age and injury of said Thomas Compton. And the said plain- tiffs further say, that afterwards, to wit, on the sixteenth day March, in the year eighteen hundred and thirty-one, at the county aforesaid, the jB. fy S. R. R. Co. made application to Henry Brice, esquire, a justice of the peace of the State of Maryland, in and for the city of Baltimore, to issue his war- 24 CASES LN THE COURT OF APPEALS B. and S. Rail Road Co. vs. Compton and others. 1844. rant, under his hand and seal, directed to the sheriff of said county, requiring him to summon a jury of, &c., as the jury of inquest of damages in the matter of the said Thomas Comp- ton, in pursuance of the said act of Assembly, and that the said warrant was accordingly issued, directed to Henry Green, Esq. the then sheriff of said county, and executed and returned to Baltimore county court, and that afterwards, to wit, on the 30th April, 1833, the said inquisition, so taken and reUnned, was quashed and set aside by the court, and the said sheriff was ordered and directed to summon a new jury, which was done, and a new inquisition taken, executed and returned, and con- firmed by the said court, and that the said Thomas Compton was allowed one cent for his damages, and no more. And the said plaintiffs further say, that the B. fy S. R. R. Co. continued from the 16th March, 1831, until the 1st September, 1838, at, &c., to use, occupy, possess and enjoy that portion of the said tract or parcel of land hereinbefore mentioned, and the rail- road thereon made and constructed, without paying or allow- ing any compensation whatever therefor. And that said plain- tiffs further say, that the said Thomas Compton departed this life on or about the 1st December, 1833, at, &c., and that his real estate descended to the said plaintiffs, as his heirs-at-law. SND COUNT. And the said plaintiffs further say, that after- wards, to wit, by an act of the General Assembly of Maryland, passed at, &c., entitled " A further supplement to an act en- titled an act to incorporate the B. 8? S. R. R. Co." it was en- acted that the B. $ S. R. R. Co. be, and they were thereby authorised to alter the location of their road between Balti- more and Timonium and Owings' mills, and in making such alteration have and exercise all the powers conferred by the act of incorporation for the purpose of originally constructing said road. And the said plaintiffs further say, that afterwards, to wit, on the 1st September, 1838, at, &c., the B. & S. R. R. Co., in pursuance of the powers in them vested as aforesaid, altered the location of their road between Baltimore and Ti- monium, and abandoned all that part of their said railroad which had been located and constructed upon the lands of ike said OF MARYLAND. B. and S. Rail Road Co. vs. Compton and others. 1844. Thos. Compton) as aforesaid, and made and constructed their said railroad from and off the lands of the said plaintiffs, and have ceased to use and travel upon that part of their said road which was originally made and constructed upon the lands of the said plaintiffs^ and have thereby entirely deprived the said plaintiffs of the benefits resulting to the said plaintiffs from the conduct- ing of the said railroad through, along, and upon their said lands, to their great loss and injury, and without making and al- lowing to them, the said plaintiffs, any compensation whatever therefor. And the said plaintiffs further say, that since the passing of the several acts of Assembly hereinbefore mention- ed, and since the condemnation of the lands of the plaintiffs, for the uses and purposes aforesaid, and since the original lo- cation and construction of the said railroad, and since the ma- king of the said embankments and excavation hereinbefore mentioned, and since the making and constructing of their said railroad anew, between Baltimore and Timonium^ and the abandonment of the original location and construction thereof upon the lands of the said plaintiffs, and the discon- tinuance of the travel thereon, to wit, on the 1st January, 1840, at, &c., and ever since, the B. fy S. R. R. Co. well knowing the premises, but not regarding their own duties, nor the rights of the said plaintiffs, have not removed the said embankment, nor the earth, stone and gravel wherewith the same was made and constructed, nor have the B. # S. R. R. Co. filled up the said excavation hereinbefore mentioned, as they ought to have done, but have permitted the same to remain as made, to the great loss and damage of the said plaintiffs. By all which said premises, the said plaintiffs say that they are injured, and have sustained damage to the value of, &c. To this declaration the defendants pleaded not guilty on the first count, on which issue was joined ; and by consent of parties leave was given generally to offer special matter in evidence. The defendants demurred to the second count, and the coun- ty court rendered judgment thereon for them. As to both 4 v.2 26 CASES IN THE COURT Of APPEALS B. and S. Rail Road Co. vs. Compton and others. 1844. counts, however, all "errors in pleading" were waived by consent. At the trial the jury found a verdict for the plaintiffs, of $1,643, with interest from the 25th May, 1841. 1 ST EXCEPTION. The plaintiffs, to support the issue on their part, offered in evidence the charter granted to the defendants by the General Assembly, and proved that they were the chil- dren and heirs-at-law of Thomas Compton, in whose life-time, at the instance of the defendants, the following proceedings took place for the condemnation of a part of a tract of land, belonging to him in fee, and lying in said county, about three and a half miles from the city of Baltimore) and at the time of this action owned by and in the possession of the said plain- tiffs, as his heirs-at-law. " THOMAS COMPTON : Inquisition, condemnation and con- firmation of part of his lands, for the use of the Baltimore and Susquehanna Railroad Company : " Be it remembered, that on the 11th April, 1831, H. G., Esq. sheriff of B. Co., in pursuance of an act of the General Assembly of Maryland, &c., entitled "An act to incorporate the B. f S. R. R. Co." made return to the court here of the fol- lowing warrant, inquisition and return, to wit : " MARYLAND, Baltimore county, to wit : "To Henry Green, Esq., sheriff of said county: Whereas application has been made to me, a justice of the peace of, &c., by the P. Sf D. of the B. $ S. R. R. Co., stating that the said company cannot agree with T. C. for the purchase or use and occupation of a certain tract or parcel of land, lying in said county, belonging to the said T. C., and contained within the following metes and bounds, courses and distances, to wit : Beginning for the same at station No. 147, on the location of said railroad, and running thence to station No. 170, being twenty-three stations of one hundred feet each in length, and occupying a space of sixty-six feet in width, containing three and a half acres, and which said tract is wanted by the said company for the construction of a railroad from the city of B. towards the S. river, under and in conformity to the provisions OF MARYLAND. 27 B. and S. Rail Road Co. . Compton and others. 1844. of an act of Assembly, passed, &c., entitled "An act," &c. Now, therefore, I, the said justice, under and by virtue of the said act and application aforesaid, do hereby authorise and command you to summon a jury of twenty inhabitants of said county, not related to said T. C., nor in any way interested, to meet on the land, on Monday the 28th day of March instant, the date hereof. Herein fail not, and this shall be your war- rant and authority therefor. Witness ray hand and seal, this 16th March, 1831. HENRY BRICE, (Seal.)" " I hereby certify and return, that by authority and in pur- suance of the commands of the within warrant to me directed, I summoned R. D., &c., being a jury of twenty inhabitants of said county, not related to the within named T. C., nor in any wise interested, to meet on the lands on Monday the twenty- eighth day of March, 1831, at which time and place did ap- pear the above named persons, being the jurors aforesaid, from which pannel the president of the company did strike off, &c. leaving twelve jurors to act as a jury of inquest of damages, to wit, R. D., &c.; and before the said jurors proceeded to act as such, I administered to each of them the following oath or affirmation: (as they respectively swore or affirmed,) " You do swear, (or, solemnly, sincerely and truly declare and affirm,) that you will justly and impartially value the damages which T. C. will sustain by the use or occupation of the tract of land required by the B. Of S. R. R. C, for the construction of a railroad from the city of B. towards the S. river." Whereupon, having shown to the said jury the tract of land within descri- bed, and directed the said jury to take into the estimate of damages the benefits resulting to the said T. C. from the pas- sage of such railroad through and along said property, but only in the extinguishment of the claim for damages, the said jury did reduce their inquisition to writing, and did sign and seal the same in manner and form as by the original of the said in- quisition, hereto annexed, and made part of this return, doth appear. Whereupon, I hereby return the said inquisition to William Gibson) the clerk of the said county, as directed by the act of Assembly, entitled "An act to incorporate the Baltimore 28 CASES IN THIS, COURT OK APPEALS B. and S. Rail Road Co. v*. Compton and others. 1844. and Susquehanna Railroad Company" Witness ray hand and seal. HENRY GREEN, (Seal,) Sheriff of Baltimore County." INQUISITION. Maryland, B. county : An inquisition taken at the said county, on the 28th March, 1831, before H. G., sheriff, &c.,on the oath of R. D., &c., who, having been sum- moned by said sheriff, and sworn justly and impartially to value the damages which T. C. will sustain by the use and occupa- tion of that piece, parcel or tract of land, owned by the said T. C., situated in said county, being part of a tract called , and contained within the following metes and bounds, courses and distances, to wit : Beginning for the same at station No. 147, on, &c., as before described in the justice's warrant ; which said piece, parcel or tract, is wanted by the B. fy S. R. R. C. for the use of a railroad from the city of Baltimore to- wards the Susquehanna river, upon their oaths do say, that the said T. C. is not entitled to any damage by the use and occu- pation aforesaid. In testimony whereof, we, the subscribers, being the jurors aforesaid, have hereunto set our hands and seals, on the day and year first above written. RICH'D DORSEY, (Seal.) &c. I do hereby certify and return to the clerk of Baltimore county court, the within inquisition, taken before me, on the oaths of the jurors within named; as herein set forth and re- duced to writing, and signed and sealed by the said jurors, in my presence, agreeably to the directions of the Act of Assem- bly, entitled, an act to incorporate the Baltimore and Susque- hanna Railroad Company. HENRY GREEN, Sheriff of Balto. County, (Seal.) Which said inquisition was quashed by Baltimore county court on the motion of the said T. C. 1st. The court is of opinion that the issuing of the warrant by H. B., he being "a justice of the peace of the State of Maryland, in and for the city of Baltimore," was irregular, and affords proper ground for quashing the inquisition. 2nd. The court is of opinion that the summoning of jurors OF MARYLAND. 29 B. and S. Rail Road Co. vs. Compton and others. 1844. resident in the city of Baltimore, is not contrary to law, for the purposes contemplated by the act of 1827, chap. 72, and within its intent and meaning, jurors may be taken from any part of the entire county, of which county, for that purpose, the city of Baltimore is a part. The jurors summoned must be disinterested within the intent and provisions of the said act. 3rd. The court is of opinion that the description of the land condemned is not sufficiently certain, but that the omission to insert the name of the tract of land is not a fatal defect. The description would have been sufficiently accurate if it had called for stones, trees, or any boundaries planted, or other fixed objects, or if it had taken for the beginning of the land intended to be described, any spot or point of beginning on land either conveyed to the railroad company, and therefore rendered certain by the record of the deed of conveyance, or on land theretofore condemned by inquisition, for the use of the company, if the inquisition was recorded. 4th. The court is of opinion, also, that the inquisition ought to have set forth thvit the land was condemned for the use of the company, for construction , which woulJ have been suffi- cient, but the statement of that fact in the warrant, does not, in the opinion of the court, comply with the requisition of the law, that it should appear in the inquisition. 5th. The court is of opinion that it is not necessary for the inquisition, in order to comply with that part of the law which requires the jury to state "the quantity of duration of interest," to set forth whether the land is condemned in fee, for life, or years, or otherwise, but that the inquisition will be good if it sufficiently appear on its face, as it will do if the land be stated to be wanted "for construction" of the railroad, that the entire interest in the land condemned is intended to be taken. The county court, on the 30th April 1833, ordered and de- creed, that th sheriff of Baltimore county summon a jury of twenty inhabitants of said county, not related to the said de- fendant, nor in any wise interested in the said matter, to meet on the said lands of the said T. C, required by the said plain- 30 CASES IN THE COURT UK APPEALS B. and S. Rail Road Co. r*. Compton and others. 1844. tiffs for the uses, purposes and operations of the said plaintiffs, or near thereto, on the 18th day of May next, and if, at the said time and place, any, &c., from which panel each of the said parties, his or their agent or attorney, may strike four ju- rors, and in the absence of the said parties, or either of them, or their agent or attorney, the said sheriff shall strike four per- sons for each or either of said parties from said panel, and the remaining twelve jurors shall act as the jury of inquest of damages in the said cause, but before they act as such, the said sheriff shall administer to each of them an oath or affir- mation, as the case may be, that he will justly and impartially value and assess the damages which the said defendant will sustain by the use and occupation of his lands and premises by the said plaintiffs, and the said jury, in estimating such damages, shall take into the estimate the benefits resulting to the said defendant from constructing such railroad through, along or near to the property of said defendant, but only in extinguishment of damages, and the said jury shall sign and seal their said inquisition, and deliver it to the said sheriff, and the said sheriff shall forthwith return the same to this court. The inquisition returned by the sheriff under the order of Baltimore county court, after reciting the proceedings, stated that the jurors were sworn justly and impartially to value and assess the damages which T. C. will sustain by the use and occupation, for the purpose of construction of the railroad, of that piece, parcel or tract of land owned by the said T. C., situated in said county, being part of tract called "Ridgely's Whim" or by whatsoever name or names the same may be called or known, and contained within the following metes and bounds, courses and distances, to wit : beginning for the same at a stone placed in the ground, forty seven feet from a Hickory tree, being on the boundary line of said tract, marked with three notches, and at a station stake numbered 147, on the line of the B. Sf S. R. 12., and running thence, north 26 30' east, one hundred feet, thence north 18 30 7 east, one hundred feet, thence north 7 30' east, seven hundred OF MARYLAND. 31 B. and S. Rail Road Co. ra. Compton and others. 1844. feet, thence north 5 30' east, one hundred feet, thence north 1 30' east, one hundred feet, thence north 2 30 7 west, one hundred feet, thence north 8 30' east, one hundred feet, thence north 14 west, one hundred feet, thence north 18 west, one hundred feet, thence north 19 west, one hundred feet, thence north 21 west, one hundred feet, thence north 25 west, one hundred feet, thence north 23 west, one hundred feet, thence north 14 SO' west, one hundred feet, thence north 3 west, one hundred feet, thence north 4 east, one hundred feet, thence north 3 west, one hundred feet, to station No. 170, on the line of said road, supposed to be the termination of the land owned and occupied by the said T, C., containing, by the above described courses, and a constant width of 66 feet, three acres, one rod, and thir- ty-eight perches of land, more or less, which said piece, parcel or tract is wanted by the B. $' S. R. R. Co. for construction of a railroad from the city of B. towards the S. river, upon their oaths do say, that they value and assess the damages which the said Thomas Compton will sustain by the use and occupa- tion aforesaid, at the sum of one cent. In testimony whereof, we, &c. The inquest was ratified and confirmed on the 6th Novem- ber 1833. This plaintiffs further offered in evidence, that under and by virtue of such condemnation, the said defendants took pos- session of the parcel of land in said proceedings described, and proceeded to make an excavation and embankment there- on, and completed upon the same their railroad, and used and travelled said road ; and further offered in evidence from the printed statute book, a supplement to the charter of the defen- dants, granted by the General Assembly at December session 1835, chap. 371, in pursuance of the provisions of which, the defendants, on the 1st January 1838, abandoned all that por- tion of their railroad which had been so as aforesaid construct- ed on the land of said T. C., and took away the rails there- from, and wholly ceased to use and travel such part of their said road; and further offered to prove by Henry McElderry, John W. Ward and William McLanahan, witnesses produced 32 CASES IN THE COURT OF APPEALS B. and 8. Rail Road Co. cs. Compton and others. 1844. and sworn on their part, that, at the request of the said T. C., and prior to the construction of the said road upon his land, they had examined said land, and had estimated the damage to accrue to him from such construction at the sum of $1 ,100, and that, in their judgment, the damage done to the land by the said road, as originally constructed, amounted to that sum, for the purpose of proving which damage, said evidence was offered. To the admissibility of which evidence, the defendants ob- jected, upon the several grounds following : The defendant, by its counsel, objects to the admissibility of the evidence offered by the plaintiffs, to prove the damage done to their land by the original location of the defendants* railroad. 1st. Because the action (as appears from the plaintiffs' de- claration,) is brought to recover damages for changing the location of the railroad, which, heretofore, was constructed through the land of the plaintiffs, and if they are entitled to recover any thing, the measure of damages is the injury in- flicted by such change, and not what may have been suffered from the first location of the road. 2nd. Because, if proof is admissible of the damage sus- tained by the original location and construction of the rail- road of the defendant upon the lands of the plaintiffs, then that the inquisition of damages upon said land, in the lifetime of their ancestor T. C., taken and returned to Baltimore coun- ty court, and by it confirmed, and which has been given in evidence by the plaintiffs, is conclusive as to the amount of such damages. 3rd. Because, if proof of such damage, other than, or in addition to, said inquisition, is admissible, the evidence so offered is not the best which the nature of the case admits. The court (R. B. MAGRUDER, A. J.,) refused to sustain said objections, and the evidence was admitted accordingly, and went to the jury. The defendants excepted. 2ND EXCEPTION. The defendants then, to support the issue on their part, offered in evidence, that on the 1st January 1838, OF MARYLAND. 33 B. and S. Rail Road Co. vs. Compton and others. 1844. under the supplement to their charter as proved, they had re- constructed off the lands of the plaintiffs, and at the distance of about two hundred yards from its old location thereon, all that portion of their rail road which had been originally locat- ed on the lands of the plaintiffs, and had completed and were using and travelling the same, and that said rail road, as so re-constructed, was of equal benefit and convenience to the said plaintiffs, as it had been where originally constructed ; and further proved that the parcel of land described in the proceedings of condemnation, given in evidence :by the plain- tiffs, had been .in the possession of tb.e plaintiffs from the time of the i Q construction of said rail road, and was claimed and admitted ^o Belong to them ; and further gave in evidence, that the .sa.nxe, .at an .expense of not more than five hundred dollars, .might b,e rendered as .valuable for cultivation, as it had been before the original Construction of the rail road thereon. Thje, defendants then prayed the court to instruct the jury as follows : 1st, That the plaintiffs are not entitled to recover in this action, Because the altered Iqcation of the rail road through the land of the plaintiffs, though it has removed the same from said land, has been by authority of, and pursuant to, and with- in the provisions of the act of Assembly of 18'45, ch. 371, entitled a further supplement to the act entitled, an act to incorporate the B. # S. R. $. Co. 2nd. That the plaintiffs are not entitled to recover in this action for the removal from their land of the rail road of the defendant, unless they, find some actual damage to the plain- tiffs, growing out of such removal. 3rd. That if the plaintiffs are entitled to recover in this action, the measure of the damages to be awarded them, is the damage sustained by them, in having the rail road of the defendants in its present position, instead of having it upon its original location on their land, and that if the jurors find the plaintiffs to have sustained no injury from such change, then that they are not entitled to recover. 5 v.2 34 CASES IN THE COURT OF APPEALS B. and S. Rail Road Co. vs. Compton and others. 1844. The plaintiffs likewise prayed the court for other instructions, as follows : The plaintiffs ask the court's instruction to the jury, that they are entitled to recover the damage done to the land and other property of the plaintiffs, by the original location of the defendants road over the same, and the abandonment of such location at the time of such abandonment, provided, the jury shall find such damage, location and abandonment, and also, that the present location of said road is on the eastern side of Jones' Falls, entirely off of the plaintiffs* land, with- out any deduction whatever for the benefit or advantage which the jury may find from the evidence, the plaintiffs derive from the present location of defendants road. The plaintiffs in this case claim, as a measure of damages, to recover what from the evidence in the cause the jury may find to have been the value of the land originally taken under the condemnation offered in evidence by the plaintiffs, and such other of the land as was directly injured by the making of said road, at the time the defendants totally abandoned the said location, and made and used the one on the western side of the Falls off the plaintiffs land, if the said land had never been taken by the defendants, less what the jury may find to be the value to the plaintiffs of said lands at the time of such final abandonment ; and for the purpose of proving said facts, they offered in evidence to the jury, that twenty acres of the said land, worth $200 an acre, were by said first location, and the making of said road, ren- dered totally valueless, except for the purpose of said road, and as evidence thereof, offered to prove by a competent wit- ness, Capt. De La Roche, as civil engineer, who had carefully examined said part of said road, that to restore the said land to its said original value of $200 an acre, would cost at least $5,000. The court (R. B. MAGRUDEB, A. J.) refused to instruct the jury as prayed, and gave the following direction : If the jury shall find that the defendants originally located their rail road through the lands of the plaintiffs, and made the embankments and excavations, and completed and used the OF MARYLAND. 35 B. and S. Rail Road Co. . Compton and others. 1844. said road in the manner set forth in the evidence, and that defendants then abandoned the said road, and shall also find that the present location of the road is on the eastern side of Jones' Falls, entirely off the plaintiffs land, then the plaintiff are entitled to recover the damage done to the land and other property of the plaintiffs, by the original location of the de- fendants' road through and over the same, without any de- duction whatever for any benefit or advantage which the jury may find from th evidence, the plaintiff derived from the pre- sent location of the road. And the court further instruct the jury, that the price paid by the plaintiffs for the benefit of the road, as originally located, or the amount which was charged to, or assessed upon, the plaintiffs, at the time of the taking of the inquisition given in evidence in this cause, as benefit resulting lo the plaintiffs from the location of the road through his land, and which was de- ducted by the jury who made the inquisition from the whole amount of damage done to the land and other property of the pbintiffs by said original location, if the jury shall find from the evidence such price or assessment and deduction, together with legal interest thereon, from the time of the abandonment of the road by the defendants, is the proper rule to regulate the jury in estimating the damages sustained by the plaintiffs. To which direction, as given by the court, and the refusal of the prayers offered on their part, the defendants excepted. SRD EXCEPTION. After the parties to this cause had gone before the jury under the direction of the court, as stated in the second bill of exceptions, the defendants, by their counsel, insisted that the jury were entitled to take into their estimate of damages, the sum for which the lands of the plaintiffs, occupied by the road, as originally constructed, might be ren- dered as valuable for cultivation as they had been prior to such original construction, and were not bound to consider said land as totally destroyed, to which the plaintiffs objected as contrary to the true construction of the direction aforesaid, and thereupon the court decided, that by the true construction of said direction, the jury were bound to consider said land as wholly destroyed. The defendants excepted. 3(5 CASES 1I\ THE COURT OK APPEALS B. and S. Rail Road Co. vs. Compton and others. 1844. The judgment being against the Baltimore and Sus. R. R. Company, they prosecuted the present appeal. The cause was argued before BUCHANAN, C. J., DORSEY, CHAMBERS and SPENCE, J. By B. C. PRESTMAN and CAMPBELL for the appellants, and By T. P. SCOTT and REVERDY JOHNSON for the appellees. DORSEY, J., delivered the opinion of this court. The testimony offered by the plaintiffs, in the first bill of ex- ceptions on the part of the defendants, to prove the damage done by the location and construction of the rail road through their lands, was obnoxious to the objection taken to its reception. All questions in relation to such damage were terminated and concluded by the inquisition previously found by the jury. They formed no part of the issue then on trial. The question to be tried by the jury empannelled in the county court, was the extent of the injury which resulted to the plain- tiffs by the abandonment arid discontinuance of the railway on thc-ir lands,- arid its location and construction on the lands of another person. Trie county court therefore erred in admitting the testimony thus objected to by the defendant. A majority of this court are of opinion that the county court were right in rejectirig the defendants first prayer, in his se- cond bill of exceptions ; that the plaintiffs could not recover, inasmuch as the removal of the railway complained of was made under the authority and pursuant to the provisions of the act of Assembly of 1835, ch. 371. From this opinion I have dissented ; but, as no reasons have been assigned in support of it, I do not deem it necessary to slate the grounds of my dissent. The defendant's second prayer in the same exception, to wit: "that the plaintiffs are not entitled to recover in this action, for the removal from their land, of the rail road of the defendant, unless they find some actual damage to the plain- tiffs growing out of such removal ;" and his third prayer, to wit : "that if the plaintiffs are entitled to recover in this action OK MAUYLAMJ. 37 Aldridge, executor of Higdon, vs. Boswell. 1844. the measure of the daniage to be awarded them, is the damage sustained by them in having the rail road of the defendant in its present position, instead of having it, upon its original lo- cation on their land ; and that if the jurors find the plaintiffs to have sustained no injury from such change, then that they are not entitled to recover ;" we think both ought to have been granted : and that in failing to do so, the county court erred. In the third bill of exceptions, the county court was right in its construction of the instruction it had given to the jury as stated in the second bill of exceptions. The error of that court consisted in its giving the instruction, not in its interpreta- tion of it. This court concur with the county court in its construction' of its instruction as slated in the third bill of exceptions. And a majority of this court approve of the refusal of the county court to grant the defendant's first prayer in his second bill of exceptions. But this court, dissenting from the county court's decision in the first bill of exceptions, and in its refusal W grant the defendants' second and third prayers in his second bill of exceptions, and from its instruction given in that ex- ception to the jury, reverse its judgment. LET A PROCEDENDO ISSUE; ANDREW ALDRIDGE, EXECUTOR OF B. D. HIGDON, vs. JOHN T. BOSWELL. Jane 1844. Where a testator devised all the rest, residue arid remainder oThis estate unto' all the children of his sister and his late brother, that are now in existence, to be equally divided amongst them per capita, share and share alike, one of his neices alive at the date 6f the will, married, and died before the tes. tator. The sister and late brother had each five children alive at the date of the will. HELD : that the surviving husband of the deceased neice, was entitled to one-tenth of the testator's personal estate in the hands off his executor. APPEAL from the Orphans court of Baltimore county. 38 CASES IN THE COURT OF APPEALS Aldridge, executor of Higdon, vs. Boswell. 1844. On the 4th October 1842, the appellee filed his petition al- leging, that on the 28th February 1830, the late Benjamin D. Higdon of Baltimore city, duly made and published his last will and testament, by which said last will and testament, after making several specific bequests, he devised the residue of his estate in the following manner, to wit : "I give, de- vise and bequeath all the rest, residue and remainder of my estate and property, real and personal, not hereinbefore disposed of, unto all the children of my late brother John R. Higdon, and of my sister Phebe E. Lambert ', of Prince George's county, that are now in existence, to be equally divided between and amongst them per capita, and share and shore alike, to hold to them their heirs and assigns forever;" and that by said will said testator Higdon^ also ap- pointed Andrew Aldridge and Stewart Brown, of the city of Baltimore, the executors thereof. Your petitioner further states that afterwards, and in the year 1841, the said Benjamin D. Higdon died, without having in any manner altered or revoked said will, and leaving the said will and the aforesaid devise of the residue of his property unrevoked and in full force at his death, and that said will has been duly admitted to probate by this court; that letters testamentary thereon have been granted by this court to Andrew JUdridge, the surviving executor. That at the period of the execution of said will, to wit, on the 28th February 1830, there were then in existence the fol- lowing children of the said brother John S. Higdon, and the said sister Phebe E. Lambert, mentioned in the aforesaid resi- duary clause of said will, to wit : the following five children of his said brother John S. Higdon, namely, John B. Higdon ; Ann, who intermarried with Charles A. Ely ; Elizabeth, who intermarried with Urbane B. Oglesby ; Augusta, who inter- married with Stoddard W. Smith; and Mary Jane, who intermarried with Matthew JV. Shields; and the following children of his said sister Phebe E. Lambert, to wit: Benja- min H. Lambert, John J. Lambert, Elizabeth, the wife of Peter D. Hatton, Nancy who intermarried with John B. Spalding, and Mary or Polly Lambert, who was the wife of your peti- tioner. That the said Mary or Polly Lambert, one of the said OF MARYLAND. 39 Aldridge, executor of Higdon, vs. Boswell. 1844. ten children of the said brother and sister of t! e said testator, in existence at the period of the execution of his aforesaid will, became the wife of your petitioner in the year 1831, and so continued until death, in the year 1833. Your petitioner further states, that by virtue of the said will, and of the acts of Assembly in such case provided, he is, as he conceives and is advised, entitled, as the husband of the said Mary Lambert, to have and receive of the said executor her share, or the one-tenth part of the residue of the personal estate of the said Benjamin D. Higdon, but that the said ex- ecutor declines paying over to him, or accounting to him, for said share, except under the order of this couit. Your petitioner therefore prays, &c. The will of Benjamin D. Higdon, of, &c., devised as fol- lows, viz : I give unto my friend and partner Mr. Andrew Aldridge, my pew in St. Paul's church, and also the sum of one thou- sand dollars, in trust for, &c. To Mrs. Ann Elizabeth Higdon, of, &c. widow of my late brother John S. Higdon, I give and bequeath the sum of five hundred dollars. I will and desire that ray executors hereinafter named, place in the hands of my nephew Benjamin H. Lambert, of Alexandria, in the District of Columbia, without requiring of him any security therefor, the sum of $1,000 ; the interest, &c. I give and bequeath to my aforesaid friend Jlndrew Al- dridge, the sum of three hundred dollars, in trust, to be by him applied to the use and benefit of the Episcopal Sunday school, very lately incorporated, but by what particular name I do not know. I give, devise and bequeath all the rest, residue and remain- der of my estate and property, real and personal, not herein before disposed of, unto all the children of my late brother John S. Higdnn, and of my sister PhebeE. Lambert, of, &c., that are now in existence, to be equally divided between and amongst them, per capita, share and share alike: to hold to them, their heirs and assigns forever. 40 CASES LN TH:<: COUIIT OF Aldridge, executor of Higdon, t?. Boswell. 1844. Whereas, Peter D. Hatton, who married one of the (laugh- ter? of my aforesaid sister Lambert, stands indebted to the firm of Aldridgefy Higdon, between two and three hundred dollars upon a note, which I desire to be charged to me on the book of the concern, but that the amount thereof be considered as .constituting a portion of the residuum of my estat.e, and be deducted from that part or share thereof which my neice, the wife of said Peter D. Nation, shall appear to be entitled to in jtJve distribution of such residuum. 'For the purpose of division and final settlement of my es- tate, I authorise anJ require my executors to sell and dispose of, either publicly or privately, as to them may seem fit, my interest, being a moiety, of and in th.e house and lot situate on the south side of Baltimor.e street, between South street and Tripolefs alley, in the aforesaid city of Baltimore, owned by Mr. Aldridge and myself, and on receipt of the consideration .money therefor, to execute a good and valid conveyance to the purchaser or purchasers of such interest, to hold the same ; to him, her or them, their heirs and assigns forever. And lastly I constitute and appoint my aforesaid friend and partner .Andrew Aldridge, and my friend Stewart Brown, of the ,city of Baltimore, executors of this my last will and testament, which I again declare to be my last. In witness whereof, I, Ahe said Benjamin D. Higdon, have hereto set my hand and seal, this twenty-eighth day of Febru- ary, in the year of our Lord one thousand eight hundred and thirty. The answer of Andrew Aldridge executor, Alleged that he admits that the said deceased executed his last will and testa- ment in his lifetime, as is stated in said petition, and devised the residuum of his estate to the children of his late brother John S. Higdon and his sister phebe E. Lambert, i\\en in ex- istence, in the manner in said petition mentioned, and thereby .appointed your respondent and the late Stewart Brown, ex- ecutors thereof, and that letters testamentary were granted to respondent alone, the said Brown having departed this life before the death of the said testator; that said testator de- OF MARYLAND. 41 Aldridge, executor of Higdon, vs. Boswell. 1844. parted this life without having revoked said will and testament, that the same has been duly admitted to probat, and that he believes the copy thereof exhibited with said petition, marked A, to be a true copy of said will and testament. Your respondent further states, that he has always under- stood that at the date of said will and testament, there were in existence of the children of testator's brother and sister, ten persons, five of each branch, but he has no other knowledge thereof, than that he is acquainted with or has seen some of them, but not all; that he has never seen Mary or Polly Lam- bert, stated ircsaixl petition' to have Been the wife of petitioner^ and does not know when he died, or was married to petitioner,' and therefore leaves him to prove that she was a niece of the testator in existence at the date of the Said will and testament,- and that she afterwards became the wife of petitioner, and died as in said petition is stated. That having been warned by several of the residuary devisees, not to pay any part of the' estate of the deceased to said petitioner, on the allegation-' that he is not entitled to any part thereof; your respondent therefore declines paying the same to petitioner, until he shall' have fully proved his rights thereto. On the 18th July 1843, the orphans Court afte^r proof taken,; decreed that the said John T. Boswell, who intermarried with Mary or Polly Lambert, one of the children of Phebe E. Lam- bert, sister of the said deceased, is entitled by virtue of his' marital rights to one-tenth part of the residue of the personal estate of the said Benjamin D. Uigdon, deceased, in the hands of the said executor, and payment accordingly. The executor appealed to this court. The cause was ai'gued before BUCHANAN, C. J., STEPHEN/ ARCHER, DORSE*, and CHAMBERS, J. By S. I. DONALDSON and REVERDV JOHNSON for the ap- pellants, who waived all objections as to want of parties, &c. By McMAHON for the appellees/ BY THE COURT JUDGMENT AFFIRMED. 6 v.2 42 CASES IN THE COURT OF APPEALS Hannon et al vs. The State, use of Robey and wife. 1844. WALTER W. HANNON AND OTHERS, vs. THE STATE, USE OF WILLIAM G. ROBEY AND GRACE ANN, HIS WIFE. June 1844. Where no question is jaised upon the admissibility as evidence of a paper road in the county court to tho jury, this court, under the act of 1825, ch. 117, will not consider that question. Where the defendant pleaded general performance, and after tho plaintiff re plied assigning a breach of the condition of a bond, the defendant rejoined generally, on which the issue was made up. This rejoinder under such circumstances can only be considered a general traverse of the plaintiff's replication. It only puts in issue the facts stated in the replication. In an actions on a testamentary bond, the equitable plaintiff claimed under a residuary clause in the will of H, executed in 1838, and admitted to probat in the same year, one-third of the residue of the testator's personal estate of which he might die possessed. Upon an issue denying the facts of the replication, tho defendant gave in evidence an indenture made by the tes- tator in the year 1832, conveying to his executor, the defendant, one-half of all his personal property at which he might die possessed, and which had also been admitted to- probat by the orphans court as a testamentary paper of H. HELD : that the indenture was evidence, material, competent, and necessary to the finding of a proper verdict on the matters in contro- versy, as a part of the will of H. This court, in reviewing the judgments of the county courts, cannot exercise the powers of a court of probat as to last wills and testaments of person al property. When the orphans court admits two papers of different dates to probat as testamentary instruments of the same party, and holds that one is not a revocation of the other, this court will presume that the orphans court acted correctly, and not disturb their judgment when such papers are inci- dentally offered in evidence. The orphans court may receive evidence of an error in the date of a will offered for probat. Where the plaintiff assigned his breaches in a special replication, it is the duty of the defendant to rejoin specially, and a general rejoinder of gene- ral performance to such a plea, to give it any operation at all, can only be considered as a general traverse of the facts of the replication. APPEAL from Charles County Court. This was an action of Debt, commenced on the 13th Janu- ary 1840, upon the bond of the appellants, executed 18th September 1838, with condition that Walter W. and Henry M. Hannon, should well and truly perform the office of execu- OF MARYLAND. 43 Han nou et al *. The State, use of Robey and wife. 1844. tors of Walter W. Hannon, senior, late of Charles county, deceased, according to law. To the declaration on this bond, the appellants pleaded per- formance generally by the executors, and the plaintiff below replied, that the said W. W. H., did in his lifetime, to wit, on the 16th day of May 1838, make, and in due form of law sign and execute his last will and testament in writing, in the words, letters and figures following, to wit : In the name of God, amen. I, Walter W. Hannon, Sr.> of, &c. After my debts and funeral charges are paid, and after sev- eral devises of real and personal property, the testator proceed- ed as follows : Item. I also give and bequeath to my said daughter Grace Ann Robey, one-third part of my personal property, I die possessed of, and not otherwise willed or dis- posed of. Item. I give and bequeath to each of my grand children, Francis Oscar and Martha Jinn Hannon, children of my son William H. Hannon, $250, to be paid to them on their arrival to lawful age, and no more. And lastly, I do hereby constitute and appoint my two sons, Walter W. and Henry M. Hannon, my executors of this my last will and testament, revoking and annulling all former wills by me here- tofore made, ratifying and confirming this and none other, to be my last will and testament. In testimony whereof, I have hereunto set my hand and affixed my seal, this 16th day of May, in the year of Christ 1838. The replication, after setting out the probat of the will be- fore the orphans court and certificate thereof, alleged that after making, signing, and executing the said last will and testament, the said Hannon died, at, &c., by which said will, W. W. H. and H. M. H., were appointed executors thereof; by effect and virtue of which said last will, the said Grace Jinn therein mentioned, who had previous to the death of said testator, in- termarried with the said William G. Robey, was entitled to one-third part of the personal estate of the said testator, and one-fourth of the other two-thirds, as one of the heirs of said Hannon, the said Walter W. having died, leaving as his heirs and representatives, two sons, to wit, Walter W. t Henry M., 44 CASES IN THE COURT OF APPEALS Hannon et al vs. The State, use of Robey and wife. 1844. the said Grace Ann, two children of a deceased son, William H. Hannon, to wit, Francis 0. and Martha Jinn Hannon, each entitled to one-fourth part of said two-thirds, which re- mained after all legacies, bequests and charges by the said will before particularly and specifically devised, together with all debts due and owing from the said testator, and all necessary charges, expenses, allowances and disbursements upon the administration of the estate of the said testator, were paid, satisfied, discharged, and allowed to be paid and delivered to the said Grace Jinn, by said executors. And the said state in fact saith, that on the 20th day of November, in the year 1838, in the county aforesaid, there remained in the hands of said executor the sum of $7,035.26, clear personal estate, which was of the said Walter W., after all payments, allowances, disbursements, specific and particular legacies and charges whatsoever, deducted to be paid and administered by the said executors as aforesaid, according to law, and the true intent and meaning of the said last will, of which sum of $7,035.26, the said William G. Robey and Grace Jinn, his wife, were and still are entitled to one-third, amounting to the sum of $2,345.08^, and to one-fourth of the residue or other two thirds, amounting to the sum of $1,175.04^, and in the whole to the sum of $3,520.52, according to the tenor and effect of the said last will and testament. And the said state further in fact saith, that the said executors did not, to wit, at the county aforesaid, render any final, just and true account of and con- cerning their administration of the estate of the said Walter W. Hannon, Sr. to the justices for the time being, of the orphans court, to be examined and adjudged, and each parcel, part and portion of the said estate so owing and belonging to said William G. and Grace Ann, his wife, under and in virtue of the said last will and testament of the said Walter W., and the laws of the land, and also pay and satisfy to the said William G. and Grace Jinn, his wife, the said sum of $3,520.- 52, or any part thereof; and also that lh.e said .executors, although often thereunto required by the said William G. and Grace ./?., his wife, did not pay or satisfy to the said Wil- OF MARYLAND. 45 Harmon et al vs. The State, use of Robey and wife. 1844. Ham G. and Grace A., the said sum of $3,520.52, or any part thereof, but the same or any part to pay, or in any man- ner satisfy to the said William G. and Grace St., his wife, the said executors have hitherto altogether refused, to wit, at, &c., all of which the said state is ready to verify; where- upon it prays, &c. To this the defendants rejoined, that the said W. W. H. and H. M. H.) in the condition of the writing obligatory aforesaid mentioned, from the time of making the said writing obliga- tory aforesaid, have well and truly observed, performed, ful- filled and kept all and singular the matters and things to be done and performed, according to the condition of the said writing obligatory aforesaid, and did make a true and perfect inventory of all and singular the goods and chattels, rights and credits of the said Walter W. Harmon, Sen., deceased, in the condition of the said writing obligatory mentioned, and of this the said Waller W. Hannon, Henry M. Hannon, Samuel H. Beall and Peter Dent, put themselves upon the country. On this rejoinder, the issue was made up, and the jury found a verdict for the plaintiff. Al the trial of this case, the plaintiffs to support the issues on their part joined, read in evidence to the ju r y, the will of Walter W. Hannon, and the probat thereof from a certified copy of the same, under the seal of the orphans court of Charles county ; and also read to the jury, the inventory and accounts of the administrators of the personal estate of Walter W. Hannon, Sen., also duly certified as aforesaid. The defendants then read in evidence on their part, an in- strument of writing, executed by the testator Walter W. Han- non, 8th September 1832, and proved that said paper had been admitted as a testamentary paper to probat, and recorded among the records of the Orphans court of Charles county. This indenture made this 8th day of September, in the year of our Lord one thousand eight hundred and thirty-two, be- tween Walter W. Hannon, Sen., of Charles county, in the State of Maryland, of the one part, and Walter W. Hannon, Jr., and Henry M. Hannon, sons of the said Walter W. Hannon, Sr., 46 CASES IN THE COURT OF APPEALS Hannon et al vs. The State, use of Robey and wife. 1844. of the county and State aforesaid of the other part, witnes- seth : that the said Walter W. Hannon, Sen., as well for and in consideration of the natural love and affection which he the said Walter W. Hannon, Sen., hath and beareth unto the said Walter W. Hannon, Jr. and Henry H. Hannon, as also for the belter maintenance, support, livelihood and preferment of them the said Walter W. Hannon, Jr., and Henry M. Hannon, hath given, granted, aliened, enfeoffed and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm, unto the said Walter W. Hannon, Jr. and Henry M. Hannon, their heirs and assigns, one-half of all my personal estate of which I may die possessed, to the only proper use and be- hoof of them the said Waller W. Hannon, Jr. and Henry M. Hannon, their heirs and assigns forever. In witness whereof I have hereunto subscribed my name and affixed my seal, the day and year first before written. W. W. HANNON, (Seal.) Signed, sealed and delivered in the presence of Thomas Rogerson, Thomas L. Lucke.it. STATE OF MARYLAND, Charles County, Set: On this 8th day of September, in the year of our Lord one thousand eight hundred and thirty-two, personally appears Walter W. Hannon, Sen., party grantor, before the subscribers, two of the justices of the peace of the State of Maryland for Charles county, and acknowledges the said within deed or instrument of writing to be his act and deed, and the properly therein mentioned to be the right and estate of Walter W. Hannon, Jr. and Henry M. Hannon, party grantees therein mentioned, their heirs and assigns forever, according to the true intent and meaning of the said deed or instrument of writing, and the acts of As- sembly in such case made and provided. Acknowledged be- fore and certified by THOMAS ROGERSON, THOS. L. LUCKETT. STATE OF MARYLAND, Charles County, Set: I hereby certify that the aforegoing instrument of writing, is truly copied from one of the record books of the orphans court for Charles county. OF MARYLAND. 47 Hannon et al vs. The State, use of Robey and wife. 1844. In testimony whereof, I have hereunto subscribed ray name, and affixed the seal of said court, this 20th day of (Seal.) August, in the year of our Lord one thousand eight hundred and forty-one. Test, AQUILLA BATEMAN, Reg. of Wills for Charles County. The defendants then prayed the oourt to instruct the jury, that by the construction of said papers or instruments of writ- ing, Walter W. Hannon and Henry M. Hannon were entitled to one-half of the balance of the personal property of the in- testate, remaining after payments of debts and administration expenses, and that Grace Jinn Robey, as legatee under the will of Walter W. Hannon, was only entitled to one-third of the remaining half, which instruction the court refused ; but were of opinion and so instructed the jury, that the plaintiff was entitled to one-third of the balance of the testator's estate remaining after the payment of the testator's debts and the costs of the administration and commission to the executors and the legacies to the widow of the testator and to the chil- dren of William H. Hannon; to which instruction of the court (C. DORSEY, A. J.,) the defendant excepted. The judgment being against the defendants, they prosecuted the present appeal. The cause was argued before STEPHEN, DORSEY, CHAM- BERS and SPENCE, J. By CHAIN and ALEXANDER for the appellants, and By W. H. TUCK for the appellees. DORSEY, J., delivered the opinion of this court. In support of the instruction given by the county court to the jury, as set forth in the bill of exceptions, it has been urged that the testamentary paper read by the defendants in evidence to the jury was inadmissible upon the pleadings and issues in the cause. Upon the admissibility of this paper as evidence, no question was raised, in the court below, none can arise here under our act of Assembly of 1825, ch. 117; the evidence now objected to, went to the jury without objection. But had 48 CASES IN THE COURT OF APPEALS Hannon et al vs. The State, use of Robey and wife. 1844. the objection been taken in the county court, it ought to have been overruled. To this action upon the testamentary bond the defendants pleaded general performance ; to which plea the plaintiff re- plies and sets out in words, letters and figures, what he al- leges to be the last will and testament of the testator ; and states that there remained in the hands of the executors, after all disbursements and payment of debts, legacies, &c., a balance of $7,035. T Y ff , of which Grace Ann Robey, as lega- tee and distributee of the testator, was entitled to the sum of $3,520. T Vir- To this replication the defendants, instead of rejoining specially as they ought to have done, put in a ge- neral rejoinder of general performance which, according to the interpretation given to such pleadings, in the loose and inartifi- cial mode of pleading prevailing in the first judicial district of the State, means, if we give to it any operation, a general traverse of all the allegations contained in the replication. The rejoinder then puts in issue the facts, whether the paper recited was the only true and last will and testament of the deceased ; whether the balance of the testator's estate was as stated in the replication, and whether Grace AIM, Robey was entitled to the portion thereof which she therein claims. On such issues, it surely cannot be denied that the testamentary paper read by the appellants, in evidence to the jury, was ma- terial and competent testimony, and necessary to the find- ing of a proper verdict, on the matter in controversy. But it has been insisted that this paper is inadmissible as evidence as a part of the last will and testament of the deceased, be- cause bearing date in 1832, it is revoked and annulled by the revoking clause of the testator's will, exhibited by the plaintiff, which bears date in 1838. This argument would be entitled to great, if not conclusive weight, if urged before the orphans court, by which this paper was admitted to probat as. part of the last will and testament of the deceased. Whilst sitting here reviewing the judgments of the county court, we cannot exercise the powers of a court of probat, as to last wills and testements of personal property. What the orphans court has- OF MARYLAND. 49 State, use of Welch and wife, vs. Jones, et al. 1844. done upon this subject is conclusive upon this court, as far as concerns this question of express revocation. Omnia presu- munturrite adafuisse, and for aught that appears to this court, it may have been satisfactorily proved to the orphans court that there may have been an error in date as to one of the testamen- tary papers admitted to probat, and that the one offered in the evidence by the defendants was of posterior execution; or that it was re-published by the testator after the sixteenth of May 1838. Having sustained the paper offered in evidence by the de- fendants, as part of the last will and testament of W. W. Hannon, it is unnecessary for us to inquire how far this paper, if rejected as testamentary, would be operative as a deed of conveyance of one-half of the personal estate of which he might die possessed. JUDGMENT REVERSED AND PROCEDENDO AWARDED. DECEMBER TERM, 1844. STATE, FOR THE USE OF JOHN B. WELCH AND WIFE, vs. CALEB M. JONES AND MORDECAI C. JONES, SURVIVORS OF MARY E. FORD. December 1844. The confession of a judgment, to be released on payment of what F shall say is duo, cannot be considered as a reference under the act of 1778, ch, 21. It is a final judgment. The various provisions of that act, all contemplate a case still pending in court, and awaiting the return of the award before a judgment is to be rendered. The words payment and due in such a confession import that a sum of mo- ney, was alone in the view of the patties, and hence no other authority- was given by it, but to ertify the sum of money on payment of which the judgment should be released. Under such a confession, the party who was to ascertain the sum has no authority to award or determine, that the judgment should be released on payment of, &c., in negro property, at the original appraisement, belong, ing to the estate of H. APPEAL from St. Manfs county court. 7 v.2 50 CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, et al. 1844. This was an action of Debt, commenced on the 25th June 1839, by the appellants. The plaintiffs declared on the bond of Mary E. Ford, and the appellees sealed on the 14th June 1836, with condition the that said M. E. F. should perform the duties of administratrix of Ignatius Ford, deceased. The defendants pleaded general performance by M. E. F. To which the plaintiffs replied 1st. That before the making and execution of the writing obligatory aforesaid, to wit, on, &c., at, &c., at a county court begun, &c., on the first Monday of August in the year 1824, the State of Maryland, for the use of Ignatius Ford, then and there in his lifetime recovered against a certain Caleb M. Jones, in an action of debt then pending between the said parties in the said county court, as well the sum of three thou- sand pounds, being the penalty of a certain writing obligatory, then and there in such as aforesaid, a certain debt and the damages and costs in the said action, then and there assessed by the said court, to be released upon the payment of what James Forrest shall say is due, and costs ; and then and there at the same court, the said State, at the like instance and re- quest of the said Ignatius in his lifetime, recovered the same judgment with the same release thereof against Mordecai C. Jones ; and then and there at the same court, the said State, at the like instance and request of the said Ignatius in his lifetime, recovered the same judgment with the same release thereof against William Armstrong, which said several judg- ments, then and there were of record in the said county court, and thereafter being in said court remaining, "the record thereof" was then and there by accident burnt and destroyed, and which said judgments yet remain in full force ; and the said State in fact saith, that afterwards, to wit, on, &c., the said James Forrest, to whom the said judgments were so as aforesaid referred, did then and there make and file his award, and then and there did award and determine that the said an- nexed judgments be released on payment of $1,016.52, in negro property, at the original appraisement, belonging to the estate of Vitus G. Herbert, deceased, with interest thereon OF MARYLAND. 51 State, use of Welch and wife, vs. Jones, et al. 1844. from the 19th November 1824; and the said Stale, in fact saith, that before the making, executing; and passing of the said writing obligatory by the said defendants, the said Igna- tius Ford, then and there, to wit, on, &c., departed this life in said county, intestate, leaving a widow, the said Mary ., and four children, to wit, Harriet E., who afterwards inter- married with the said John B., at whose instance this action is brought, Lewis, Jinn S. and Mark, and leaving the said judgment and award, and other debts due, with other personal assets in said county to a large amount, to wit, twenty negroes of great value, to wit, the value of, &c., and a large sum of money, to wit, &c., due to the said Ignatius, in his lifetime, to be administered and distributed among the said widow and children. And the said State, in fact saith, that the said ne- groes, debts and money so due and owing, and belonging to the said Ignatius, amounting to a great value, to wit, the value of, &c., over and above, and after making all just allowances and deductions for debts, legacies and charges upon said per- sonal estate, is bylaw to be distributed to the said widow, so that the said widow receive one-third part thereof, and each of the said children, one-fourth of the remaining two-thirds thereof, so that the said John B. and Harriet E., in right of said Harriet E., his wife, are entitled to one-fourth of two thirds of the said negroes and money, and other assets of great value, that is to say, of the value of three thousand dol- lars, current money. And the said State, in fact saith, that the said Mary E., administratrix as aforesaid, did not collect and receive the said negroes and money, and other assets of the said Ignatius, and of which the said Ignatius died pos- sessed and entitled. And the said State, in fact saith, that the said Mary E., as administratrix as aforesaid, has not account- ed for, distributed, or paid over to the said Harriet E., while sole and unmarried, nor the said John B. and Harriet E., his wife, since their intermarriage, but so to do, has wholly refus- ed, &c. 2nd. That a certain Ignatius Ford, late of Saint Mary's county, deceased, departed this life, to wit, at, &c., intestate, HPRRfCK & CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, ut al. 1844. leaving behind him a widow, the said Mary E., an'J four children, to wit, &c. And the said State, in fact saith, that afterwards, and before the impetration of this suit, there was in the county aforesaid, a large amount of personal property of the said Ignatius then and there remaining in the said coun- ty, to be administered according to law ; that is to say, twenty negroes of the value of five thousand dollars, and debts due the said Ignatius, of the value of five thousand dollars, which the said Mary E., as administratrix as aforesaid, might and could have collected, received and administered according to law, the said Mary E., well knowing the same. And the said State, in fact saith, that the said Mary E., as administratrix as aforesaid, did not at any time return to the said orphans court, an inventory of the property and assets of the said Ignatius, deceased, nor make any settlements in said court ; but afterwards, to wit, on the day and year aforesaid, returned a list of debts amounting to $1,016, with interest from the 20th day of November 1824. And the said State, in fact saith, that the property, debts and other assets of the said Ignatius, deceased, amounted in the whole above, all payments and allowances for the debts, charges, &c., upon said estate, to a large sum of money, to wit, whereof the said widow was entitled to one-third, and the said John B. and Harriet E., in right of said Harriet E., one of the children of the said Ignatius, deceased, was entitled to, &c., of all which the said Mary E., as administratrix, then and there had no- tice. And that the said Mary E., as administratrix aforesaid, did not at any time distribute and pay over to the said John B. and Harriet E., his wife, the said distributive share and proportion of the said estate and property ; but so to do hath wholly refused, to the damage of the said John B. and Har- riet E., his wife. 3rd. That heretofore, to wit, on, &c., and before the impetra- tion of the writ original in this cause, a certain Ignatius Ford, of the said county, then and there departed this life intestate, and leaving the said Mary E., his widow and four children, to V?it, &c.; that afterwards, and after the death of the said Ig- OF MARYLAND. 53 State, use of Welch and wife, vs. Jones, et al. 1844. natius, the orphans court of St. Mary^s county, then and there, to wir, on the day and year aforesaid, appointed the said Ma- ry E., &c.; that of the goods and chattels, rights and credits of the said Ignatius, there came in the hands of the said Mary E., as administratrix as aforesaid, a large sum, to wit, to the value of ten thousand dollars, over and above all payments and discounts, which said sum was and is distributable and payable to the said Mary E., widow, to the amount of one- third part, and to each of the said four children, one-fourth of two-thirds thereof. And that although the time limited by law for the settlement of estates by executors and administra- tors has long since expired, and in which the said Mary E., as administratrix, was bound to settle and distribute the said estate, yet the said State, in fact saith, that the said Mary E., as administratrix, hath not at any time settled, distributed or paid over the said sum of money, or any part thereof, to the said John B. and Harriet E., his wife, and to the damage of, &c. The defendants rejoined, that there was no such judgments as the said estate has thereon alleged, rendered in St. Mary's county court against the said defendants, or either of them, for the use of the said Ignatius, or against the said William Armstrong. And that the said James Forrest did not make and file his award in manner and form as the said State has above alleged ; that since the last continuance, the said Mary E. Ford hath departed this life, to wit, on, &c., and without having received or recovered any of the said judgments, or any other sum of money alleged by the said plaintiff, to be due and owing to the estate of the said Ignatius, and that no letters of administration de bonis non on his estate had been sued out. And that the said Ignatius departed this life, leav- ing five children and heirs at law, and the said Mary E. Ford, his widow, and that he left no negroes or other assets to be administered as alleged by the said State, beyond the sum ne- cessary to pay the debts of said estate, and that the said Mary E. Ford, in her lifetime, did return a true and perfect inven- tory of the estate of the said Ignatius, fully administered, the estate of the said Ignatius, and did and performed all the acts 54 CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, et al. 1844. and things required by law to be performed by her as such administratrix. And that as to the said recited judgments and awards, that letters of administration were granted to the said Mary E., on the estate of the said Ignatius, on the 14th day of June 1836, and that the said recited judgments first came to the knowledge of the said Mary E., on the day of Sep- tember 1836, and that the said recited judgments were barred by the statute of limitations, on the 13th day of November 1836, and so the said defendant avers, that in failing to collect the said judgments so alleged to be due and owing, the said Mary E. was guilty of no such laches as to entitle the said State therefor to maintain its said action. And that after the rendition of the aforesaid judgments, it was so proceeded in, in St. Mary's county court, sitting as a court of equity, in a case in which Mary E. Ford by M. C. Jones, her next friend, was complainant, and Ignatius Ford and the said Caleb M., were defendants; that on the ISth day of March ]826, it was ad- judged, ordered and decreed by said court, that the said defendant Caleb M., should pay over to the said Mary E. for her own use, the amount of the said judgments so released, as alleged by the said plaintiffs, and that the said Ignatius should credit the said Caleb M. for the said amount, which said sum yet remains in full force unrecovered and of record in the said court; and all these things the said defendants are ready to verify. The plaintiff sur-rejoined : 1st. That there is no such record in St. Mary's county court, sitting as a court of equity, as by the defendants in manner and form in their rejoinder is alleged ; and this the said State is ready to verify, 2nd, Says that the said Mary E. in her lifetime, did not well and truly perform, fulfil and keep the said matters and things by her to be done, performed and kept, according to the condition of the said writing obligatory, as she above al- leged, and did not well and truly administer the goods and chattels, rights and credits of the said Ignatius, as the said defendants have above alleged ; and this the said State is OF MARYLAND. 55 Stale, use of Welch and wife, vs. Jones, et al. 1844. ready to verify, &c. On which sur-rejoinclers issues were joined. The verdict was for the defendants. IST EXCEPTION. The plaintiff, to support the issues on his part joined, gave in evidence to the jury, that Harriet, wife of the plaintiff, was one of the legal representatives of Ignatius Ford, on whose administration bond the present defendant was security, and then read in evidence to the jury the origi- nal inventory and list of debts due the estate of Ignatius Ford, returned by Mary E. Ford, her administratrix in her lifetime. An inventory of all the debts owing to Ignatius Ford, late of St. Mary's county, deceased, so far as they have come to the knowledge of Mary E. Ford, administratrix, viz: C. M. Jones, administrator of Vitus G. Herbert, deceased, on special judgment bearing interest from 20th day of Novem- ber 1824, to be paid in negro property, at the original appraisement, .... $1,016 52 Sworn to and filed 13th September 1836. Having first proved that said list of debts was returned in the handwriting of Caleb M. Jones, the present defendant. The defendants having first proved the destruction of the original papers by fire in the destruction of the court house, then read in evidence, the docket entries of a case in St. Mary y s county court, at August term of said court, in the year 1824, in the name of the State, at the instance and for the use of Ignatius Ford against Caleb M. Jones, Mordecai C. Jones and William Armstrong. STATE OF MARYLAND, at the instance and for the use of Ignatius Ford, vs. Caleb M. Jones. St. Mary's county court, August term, 1824. Debt, Nar and Oyer. Spl. Impl. and leave. Perf. repl. Rejoinder and issue. List of outstanding claims. Jury sworn and withdrawn. Proceedings stayed by injunction. Plead, withdrawn. Judgment 13th November 1824, for penalty and costs. To be released on payment of what James Forrest shall say is due, and costs. James Forrest's award filed 20th November 1824. Test, Jo. HARRIS, Cl'k. Plaintiff's costs, $12.85. 56 CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, et al. 1844. STATE or MARYLAND, at the instance and for the use of Ignatius Ford, vs. MORDECAI C. JONES. Same as preceding. STATE OF MARYLAND, at the instance and for the use of Ignatius Ford, vs. WILLIAM ARMSTRONG. Same as preced- ing. By which it appeared that a judgment was confessed in favor of the plaintiff for penalty and costs, to be released on the payment of what James Forrest shall say is due, and costs; and then gave in evidence the administration bond of the said Caleb M. Jones, on the estate of Vitus G. Herbert, dated 16th May 1820, with M. C. Jones and W. Armstrong as sureties. And the said Caleb M. Jones was the administrator of Vitus G. Herbert; and then offered to read to the jury, for the pur- pose additionally of showing that the judgment returned by Mary E. Ford, administratrix of Ignatius Ford in 1836, in the handwriting of Caleb M. Jones, was the judgment referred to James Forrest in this case, and the award of James Forrest, filed in the case, on the 20th November 1824. An inventory of all the debts owing to Ignatius Ford, as above, and also the above short copies of judgments with the following cer- tificates thereto annexed, viz : I do award and determine that the annexed judgments be released on payment of $1,016.52, in negro property, at the original appraisement, belonging to the estate of Vitus G. Her- bert, deceased, with interest thereon from this 19th Novem- ber 1824. JAS. FORREST. True copy, Jo. HARRIS, Cl'k. The plaintiff then gave in evidence that James Forrest died in 1826. The defendant then prayed the court to instruct the jury, that if they find from the evidence, that the debt returned in the list of debts by Mary E. Ford, as administratrix of Ignatius Ford, was the same in the judgment against Caleb M. Jones, recited in this bill of exception, then that the de- fendants are not responsible in this action for the same, because the award made by James Forrest, was not within the terms of the reference, and the sum upon which the judgment OF MARYLAND. 57 State, use of Welch and wife, vs. Jones, et al. 1844. was to be released, was not legally arbitrated or liquidated by him. Which opinion the court (STEPHEN, C. J., and KEY, A. J.,) gave. The plaintiff excepted. 2ND EXCEPTION. The plaintiffs, upon the evidence incorpo- rated in the first bill of exceptions, prayed the court to instruct the jury, that if they find from the evidence in ihe cause, that Ibe judgment was entered for the debt, to be released on payment of what James Forrest shall say is due, and that James Forrest did make an award. And the award so made, was adopted by Caleb M. Jones, one of the defendants, that the said award so made by Forrest, to whom the judgment was referred, was binding upon Caleb M. Jones, and that the de- fendants are responsible for said debt, if they find that said debt was returned by Caleb M. Jones, one of the defendants in this cause, in his handwriting, and recognised by Mary E. Ford, the administratrix of Ignatius Ford; which instruction the court refused to give. The plaintiff excepted. SRD EXCEPTION. In the trial of this cause the plaintiff, in support of the issues on his part joined, in addition to the evi- dence given to the jury in the former bills of exceptions, which is here incorporated and made a part of this, further offered to read in evidence from the records of the orphans court of St. Mary^s county, the final account of Caleb M. Jones, (who is one of those defendants,) as administrator of Vitus G. Her- bert. The fifth and final account of Dr. Caleb M. Jones, adra'r of Vitus G. Herbert, late of St. Mary's county, deceased. This accountant chargeth himself with the balance due at his last settlement, the 10th day of Novem- 1824, amounting to $372 71 Also with cash received from the following persons : William Herbert, Sen. - $961 00 John Clarke, - - 1 75 Thomas Clarke, Sen. - - 1 01 Nelson White, - 1 50 Samuel Gibson, - 4 00 S v.2 58 CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, et al. 1844. William Dunbar, - - - 2 00 Lewis Smith, - - 50 Caleb M. Jones, - 24 $1,369 29 And this accountant prays to be allowed for the following pay- ments and disbursements, to wit: Thomas Clarke, ... Peter U. Thompson & Co., use W. Floyd, judg- ment, ..... Dr. Caleb M. Jones, for money due from Igna- tius Ford for hire of negroes, Same for property purchased by Mary Herbert at sale, one dark bay mare, - Ten per cent, commission allowed on $996. 57|-, Register of Wills' fees to be paid James Forrest, $352 77 Balance due and distributable, - 1,016 52 $1,369 29 This account on the 19th November 1824, was sworn to by Dr. Caleb M. Jones, administrator of Vitus G. Herbert, as just and true, and that he hath bona fide paid or secured to be paid, the particular sums for which he claims an allowance, which thereupon, after due examination, is passed by the register of wills for St. Mary's county. And also offered to prove by a legal and competent witness, that said Mary E. Ford lived in the family of said Caleb M. Jones, from the year 1822, until the time of her death ; and also that said Caleb M. Jones paid fees against said Mary E. Ford after her death, which fees were due before her death, for the purpose of showing the indebtedness of said Caleb M. Jones, as administrator of Vitus G. Herbert, and that the bal- ance in his hands of said estate, due and distributable, corres- pond? n amount with the award of James Forrest aforesaid, and the list of debts due to the estate of said Ignatius, as re- turned by his administrator aforesaid, and also for the purpose OF MARYLAND. 59 State, use of Welch and wife, vs. Jones, et al. 1844. of proving that said Caleb M. Jones and said Mary E. Ford, as administratrix as aforesaid, acquiesced in the said award, and said C. M. /., consented to pay the said sum of money to said M. E. F., as administratrix as aforesaid ; and prayed the court to instruct the jury, that if from the evidence they find that said Caleb M. Jones and Mary E. Ford did acquiesce in said awaid, and said Caleb M. did consent and agree to pay the said sum of money to said Mary E , administratrix as aforesaid, that then the said plaintiff is entitled to recover his proportion of said sum of money; which opinion and instruc- tion the court refused to give, but were of opinion, and so instructed the jury, that there was no legally sufficient evidence offered to prove that said Caleb M. Jones and Mary E., did acquiesce in said award, or that said Caleb M. Jones did con- sent and agree to pay the said sum of money to the said Mary E. Ford. The plaintiff excepted. 4rH EXCEPTION. The plaintiff prayed the court to instruct the jury upon the whole evidence, that the award of James Forrest so returned, was valid and binding, as it does not ap- pear from the papers in the case, that he exceeded his authority in designating the manner in which the sum ascertained should be discharged by the defendant ; which instruction the court refused to give. The plaintiff excepted. The plaintiff below appealed to this court. The cause was argued before ARCHER, CHAMBERS and SPENCE, J. By GRAIN for the appellants and By T. S. ALEXANDER for the appellees. CHAMBERS, J., delivered the opinion of this court. The first exception involves the validity of the certificate, or as it is termed in the record, the award signed and returned by James Forrest. This cannot be considered as a reference under the provi- sions of the act of 1778, ch. 21. The various provisions of that act, all contemplate a case still pending in court and 60 CASES IN THE COURT OF APPEALS State, use of Welch and wife, vs. Jones, et al. 1844. awaiting the return of the award before a judgment is to be rendered ; whereas in this case, a judgment has been entered, which according to the case of Turner vs. Plowden, 5 G. fy J. 52, is a final judgment, without the further action of the court. It would seem not to be possible in such a case to give judg- ment on the award, according to the direction of the act of 1778, ch. 21, sec. 8, without which the objects of that act cannot be attained. See Shriver vs. State, use of Devilbiss, 9 G.fyJ. 1. The words "payment" and "due" would seem to import, that a sum of money was alone in view of the parties, and we must conclude that no other authority was given to J. Forrest but to certify the sum of money, on payment whereof the penalty and costs should be released ; and then the ques- tion arises whether he has pursued the authority thus given? We think not. It is most obvious that the payment of any specific amount of money in specie would not be an execution of his direction. Payment is not only to be made in negroes, but in negroes belonging to a particular estate, and at a value estimated by a designated standard, and the plaintiff was not entitled to demand, nor could the defendant claim to discharge the debt in any other mode than the one mentioned in the cer- tificate, and no execution could therefore issue. If instead of the judgment, a reference had been made in terms broad enough to authorise such an award, and a judgment had been entered thereon, all difficulty in that respect would have been removed. 9 G. # J. 1 ; 10 G. # J. 192. The object intended and di- rected by the certificate cannot be effected by striking from it so much as relates to the negroes, and allowing it to remain as if it had directed the payment of the specific sum of $1,016. /flV Assuming the negroes to have been appraised at a fair value in 1820, when the administration bond on the estate of S. G. Herbert appears to have been given, and when we must suppose the appraisement and inventory were made, it was nearly, if not quite, impossible, the negroes could have remained of precisely the same value, until the letters of ad- ministration to Mary E. Ford in 1836, at the expiration of sixteen years, or at any later period; and if there was any OF MARYLAND. 61 State, use of Welch and wife, vs. Jones, et al 1844. difference in such value at the time when the payment of the $l,Ol6. T Yuj*>* money was enforced, either more or less would be paid than the certificate required, as the appreciation or de- preciation of the negroes should determine. It was therefore necessary to the essential merits of the case, that the payment should not he required in money. Whether this be regarded as an award, or as in the nature an of award, we are of opinion, that upon principle or analogy, the certificate could not entitle the plaintiff to claim in money, the amount therein stated. We therefore concur with the court in the opinion given in the first exception, and also in the opinion given in the fourth ex- ception, which raises the same question. In the second exception, the plaintiff asked the court to instruct the jury, that the defendants were responsible for the nominal amount of the said certificate, if they should find that it was mentioned in the list of debts due to the estate of Ignafius Ford, returned by Mary E. Ford, the administratrix, and which return was in the handwriting of Caleb M. Jones. We are of opinion that the court were right in refusing the in- struction. The claim is stated in the list of debts as payable in negro property at the original appraisement. The return is a report by the administratrix, M. E. Ford, of the fact that such a judgment existed, but we have before said it did not enable her to collect the amount of money mentioned in the certificate, and of course she was not responsible for that amount, as for so much money lost by her neglect. The additional facts set forth in the third exception, do not in any degree relieve the case of the difficulties and objections which oppose the right of the plaintiff to recover upon this certificate the sum of money which he claimed in this action, nor indeed do we perceive how the administration account brought into the case, can be made to bear upon the issue. Whether the balance stated to be due on that administration account, was due to Ignatius Ford, or was recoverable by his administratrix, or any portion of it, or to whom due, the record does not disclose. Finding no error in any of the opinions to which exception has been taken, we must affirm the judgment with costs to appellee. JUDGMENT AFFIRMED. 62 CASES IN THE COURT OK APPEALS State, use of Creecy, vs. Lawson ct al. 1844. STATE OF MARYLAND, FOR THE USE OF JAMES R. CREECY, USE OF WlLLTAM A. MoALE, VS. JOHN B. LAWSON, JOHN MATTHEWS AND JOHN B. WILLS. December 1844. The courts of Maryland have, for a long period, sanctioned the abbreviated form of a return, cepi, by the sheriff, to the writ of capias ad satisfacien- dum. Sucli a return is in legal effect, a declaration by the sheriff on oath, that by virtue of the writ, he had taken the body of the defendant, and him had ready to produce before the court, at the time and place, as commanded by such writ. The sheriff's return is prima facie evidence of the truth of the facts which it discloses. In this State, anterior to the acts of 1811 ch. 161, sec. 2, if the sheriff made an arrest under a capias on final process, and suffered the party arrested to escape, he could not again arrest the same party, on the same process, without rendering himself obnoxious to an action of trespass for false im- prisonment. This disability was removed by that act, and the power conferred on the sheriff to make a second arrest, of the same party, by virtue of the same process. But it did not protect the sheriff against the demand of the plain, tiff in the process for an escape. The act of 1828, ch. 50, sec. 2, declared that if the sheriff produced the body of the defendant at the return day of the writ, he should not be liable for any intermediate escape. This act is not confined to arrests on mesne pro- cess, but applies to final process, attachment as well as capias. Before the act of 1828, the sheriff on mesne process was authorised to arrest the defendant a second time ; and the reason and policy of the law was by it extended to arrests on final process. Where a sheriff arrests the defendant on final process, and has him ready to be delivered up at the return day of the writ, on the demand of the plain- tiff, this in law is a performance of his duty. In an action on a sheriff's bond, for an alleged permissive escape by the sheriff of a party arrested on a ca. sa., which that officer had returned cepi, the plaintiff may show that such return is untrue in point of fact, and that the sheriff had not the body of the defendant in court, at the return day of the writ, ready to be delivered up on the demand of the plaintiff. After an arrest under a ca, sa., and a permissive escape before the return day has been proved, the burthen of showing, that the sheriff had the body of the defendant in court, according to the exigencies of the writ and his return of cepi thereto, is upon the sheriff. In an action on the case at common law against the sheriff for an escape, he may offer evidence in mitigation of damages. The amount recovered against the party arrested, is not conclusive on that question. OF MARYLAND. 63 State, use of Creecy, vs. Lawson et al. 1844. The statutes of 13 Edw. 1, ch. 11, and 1 Rich. 2, ch. 12, first gavo the action of debt against a gaoler or sheriff for an escape. Where the statutable remedy is pursued, the sheriff is put by the statute in the same situation in which the original debtor stood, and the jury cannot give a less sum than the creditor would have recovered against the defendant in the original suit. The action on the sheriff's bond to recover damages for an escape, is neither the common law action on the case, nor the remedy granted by the statutes of Edward and Richard. In an action on a sheriff's bond, conditioned for the faithful discharge of his duties, the defendant is liable to no more damages for an alleged escape under final process, than the plaintiff has actually sustained, to be ascer- tained by the verdict of a jury, and hence the sheriff and his sureties may show under such a breach, in mitigation of damages, the insolvency of the original defendant from the time of the issue of theca. sa. until its return. There are many instances in which, on the assignment or suggestion of breach- es under the Stat. 8 and 9 Will. 3, the measure of damages is fixed and certain, but they arise from the peculiar circumstances of each case, and not from any general rule, On a judgment by default in a suit on a sheriff's bond for an escape, the court would not assume the power of assessing damages and giving final judg- ment. The act of 1768, ch. 10, sec. 1, enables any plaintiff in an execution to call upon the sheriff to produce the body of the defendant before the court, and on his default, on motion, to cause judgment to be entered up for the full amount of his claim, principal, interest and costs. Where such a course is adopted, in an action on the sheriff's bond, assigning as a breach the non-payment of such a judgment, that officer and his sure- ties would be liable for the full amount of the judgment- The act of 1768, ch. 10, is not merged in the act of 1794, ch. 54, but is now in full force and frequently practised under. The failure of a plaintiff in a ca. sa., to call on the sheriff at the return of the writ to produce the body of the defendant in court, does not furnish any ground of presumption, in an action against the sheriff for a default, that the defendant was discharged out of the custody of the sheriff by the con- sent of the plaintiff. The failure of a plaintiff to pursue one legal remedy against a sheriff in de- fault, ciinnot be construed into the abandonment of another legal remedy against that officer, for the same default. APPEAL from Charles County Court. This was an action of Debt, commenced on the 13th March 1828, by the appellee on the bond of the appellants, dated 29th December 1835, with condition that /. B. L., as sheriff of Charles county, should discharge the duties of that office. 64 CASES IN THE COURT OK APPEALS State, use of Creecy, vs. Lawson et al. 1844. The defendants pleaded general performance, and the plain- tiff assigned as a breach : 1st. The recovery of a judgment by James R. Creecy against John Tucker, at August term 1835 of Charles county court; the issue of a ca. sa. thereon on the 26th September 1836, returnable on the 3rd Monday of March 1837: the arrest and custody of J. T. under said writ, and his escape therefrom; and 2nd. A default in not returning the writ according to its command, though called, &c. The defendants rejoined, that the said John B. Lawson has well and truly fulfilled and performed the duties of sheriff of the said county of Charles, and hath well and truly executed and returned all writs, process and warrants to him directed and delivered, which, according to the form and effect of the said condition of the writing obligatory aforesaid, he ought to have done, which they pray may be enquired of the country, &c. IST EXCEPTION. In the trial of this cause, the plaintiff', to support the issues on his part joined, read in evidence to the jury the record of a judgment obtained in Charles county court, as stated in the replication, and also the writ of ca. sa., issued and returnable as before stated. On the back of which said writ of capias ad satisfaciendum is thus written, to wit : "Cepi, John B. Lawson, sheriff." And also gave in evidence to the jury, by legal and compe- tent witnesses, that after the day of the issuing of the said ca. sa., to wit, in October 1836, the said John Tucker, in the judgment and ca. sa. mentioned, was seen by the witness in and residing in Charles county aforesaid; that after the issuing of the said writ of ca. sa., to wit, in February 1837, the said Tucker was seen at and was residing in Vicksburg, in the State of Mississippi. The plaintiff also gave in evidence that the said Tucker was seen and conversed with by plaintiff's attor- ney in December 1836, at Annapolis; and further gave in evidence to the jury, by legal witnesses residing in Charles county aforesaid, that they never saw the said Tucker in Charles county since January 1837. OF MARYLAND. 65 State, use of Creecy vs. Lawson et al. 1844. The defendant then proved, that the March term of Charles county court, commencing on the third Monday of March 1837, was continued over until the first Monday of June 1837, and that ample time, according to the usual course of communica- tion and conveyance, existed for said John Tucker to come from Vicksburg to Port Tobacco, from the time he was last seen in Vicksburg, so as to be before Charles county court at March term 1837; and thereupon, the plaintiff prayed the court to instruct the jury, that if they find from the evidence that John Tucker aforesaid, was in Charles county after the issuing of the said ca. sa , and before its return, to wit, in October 1836, and that the said writ was served upon him, and that after- wards, to wit, in February 1837, he was seen and residing in Vicksburg, in Mississippi, then, that the plaintiff is entitled to recover, unless the defendants prove to the satisfaction of the jury that the defendant, Lawson, the sheriff, had the body of the said Tucker before Charles county court, at March term 1837, to render him in execution for the debt before men- tioned, according to the exigency of the said writ of ca. sa.; which instruction the court (C. DORSEY, A. J.) gave to the jury. The defendant excepted. 2ND EXCEPTION. After the evidence in the first bill of ex- ceptions was given, which is also here incorporated, the de- fendants offered to prove to the jury by legal and competent witnesses, that at the time of the issuing the ca. sa. up to the time of the return thereof, the said Tucker was wholly insol- vent and unable to pay the judgment and execution aforesaid, or any part thereof, for the purpose of mitigating the amount of damages which might be found by the jury in this action in favor of the plaintiff; but the court, upon the plaintiff's objection to the introduction of the said proof under the plead- ings in the case, refused to permit the said proof, for the pur- pose aforesaid, to be given to the jury, and were of the opinion and so instructed the jury, that the sura recovered in the judg- ment above mentioned, with interest thereon up to the present time, with all costs awarded to the plaintiff in the said judg- ment, was the true measure of damages which the-plaintiff was 9 v.2 66 CASES IN THE COURT OF APPEALS State, use of Creecy vs. Lawson et al. 1844. entitled to recover in this action, if they, from the evidence given in the cause, should find for the plaintiff; to which re- fusal and opinion and instruction, the defendant excepted. SRD EXCEPTION. After the evidence already given in the former bills of exceptions, which is here incorporated, the defendants, by their counsel, prayed the court to instruct the jury, that it was incumbent upon the plaintiff to satisfy them by legal evidence, that the ca. sa. aforesaid had come to the hands of the said Lawson, as sheriff, and had been served upon the said Tucker before the said Tucker was seen in Vicksburg, and that the said sheriff had not the body of the said Tucker in his custody, so that he could have brought him at any time during the continuance of the March term 18S7, before the court to be committed in execution, if called upon so to do. The defendant also prayed the court to instruct the jury, that if they find from the evidence in the cause, that said Tucker was going at large and out of the custody of the said sheriff in December 1836, and the said sheriff was not called upon to return said ca. sa.) or have the said Tucker before the court, that then they may presume that the said Tucker was, by the consent of said plaintiff, discharged out of the custody of the said sheriff, and that the plaintiff, in that event, is not entitled to recover; which instruction the court refused to give. The defendant excepted. 4xH EXCEPTION. After the evidence in the previous bills of exceptions was given, which is here also incorporated and made a part of this exception, the defendant read in evidence to the jury the record of proceedings of Charles county court, at March term 1837, in the case aforementioned of James R. Creecy against John Tucker, upon the execution docket thereof, also the record of proceedings of said court at August term 1837, in the case aforementioned : James R. Creecy, use of William A. Moale, vs. John Tucker. Charles county court, March term 1837. 2 ca. sa. "Cepi." James R. Creecy, use of William A. Moale, vs. John Tucker. Charles county court, August term 1837. August 22. On motion of plaintiff's attorney, rule on John B. Lawson, Esq., OF MARYLAND. 67 State, use of Creecy vs. Lawson et al. 1844. late sheriff of Charles county, to produce the body of the de- fendant; motion overruled. Test, JOHN BARNES, Clk. And prayed the court to instruct the jury, if they find from the evidence in the cause that the said Lawson, the sheriff, was not called upon to return the said ca. sa. at March term 1837, and he was not called upon to have the body of the said Tucker before the said court at the said term, but that the said plaintiff forbore or neglected to call upon the said sheriff to return the said writ and have the body of the said Tucker before the said court, and afterwards, at August term 1837 of said court, did move the said court to compel the said sheriff to have the body of said Tucker before the said court, to be committed in execution, and that said court then and there refused to grant the said motion and order, that then they find for the defendants, unless they find that the ca. sa. aforesaid came to the hands of the said sheriff, and was served upon the said Tucker before he the said Tucker was seen in and residing at Vicksburg, and that the sheriff had not the body of the said Tucker in his custody at any time during the contin- uance of March term 1837 of said court, so as to bring him before the said court at that term, if failed upon so to do; which instruction the court refused to give, and to which refu- sal the defendants excepted. STH EXCEPTION. After the aforegoing evidence was given, mentioned in previous bills of exceptions, which is also here inco r porated, the defendants by their counsel prayed the court to instruct the jury, that if they find from the evidence in the cause that the plaintiff refused or neglected to call upon the sheriff aforesaid to return the said writ of ca. sa., and to have the body of the said Tucker before the said court, to be com- mitted in execution, during the continuance of the March term 1837 of the said court, that then the plaintiff is not entitled to recover; which opinion and instruction the court (C. DOR- SEY, A. J.) refused to give; to which refusal the defendant excepted. 68 CASES IN THE COURT OF APPEALS State, use of Creecy vs. Lawson et al. 1844. The verdict and judgment being for tiie plaintiffs, the de- fendants prosecuted this appeal. The cause was argued before ARCHER, CHAMBERS, and SPENCE, J, By GRAIN and McMAHON for the appellants, and By GLENN and ALEXANDER, for the appellees. SPENCE, J., delivered the opinion of this court. This was an action of debt on a sheriff's bond, brought to recover damages for an escape of a party, arrested by the sheriff on a capias ad satisfaciendum. The capias was returned to the March term of Charles county court, by Lawson, the sheriff, endorsed, "Cfepi." The sanction of the courts of Maryland, so long, of this abbrevi- ated form of return, we deem conclusive of its correctness. Let us next consider the purport of such a return. We understand this return to be a declaration by the sheriff on oath, that, "by virtue of this writ, he had taken the within named Tucker, whose body he had ready before Charles county court within named, at the day and place within contained, as he was within commanded." In the language of Watson on Sheriff, 68, "returns are nothing else but the sheriff's answers, touching that which they are commanded to do by the king's writ, and are but to ascertain the court of the truth of the matter." "Credence is given to the return of the sheriff, so much so, that there can be no averment against the sheriff's return in the same action." "Even in another action, the sheriff's return is prima facie evidence of the facts contained in it." Watson on Sheriff, 52, 53. Thus we see that the sheriff's return is prima facie evidence of the truth of the facts which it discloses. But it was insisted in the argument, that the strict requirements of the law, in relation to escapes, voluntary or otherwise, on the part of the sheriff on final process, was not modified by the 2nd section of the act of 1811, ch. 161, and the act of 1828, ch. 50. OF MARYLAND. 69 State, use of Crcecy, vs. Lawson et al. 1844. These acts, it is insisted, have application to attachments and capias on mesne process only. From this construction of these statutes we must dissent. In Maryland, anterior to the act of 1811, ch. 161, sec. 2, if the sheriff made an arrest under a capias on final process, and suffered the party arrested to escape, he could not again arrest the same party on the same process, without rendering himself obnoxious to an action of trespass for false imprison- ment. This disability the second section of the act of 1811, ch. 161, removed, by conferring the power on the sheriff to make a second arrest of the same party, by virtue of the same process. But this statute, while it protected the sheriff against the party so arrested a second time, did not protect him against the demands of the plaintiff in the process, for an escape. Thus the law stood until the act of 1828, ch. 50, which act, in all probability was passed in consequence of the case of Koones vs. Maddox, 2 Harr-. fy Gill, 106, which case was de- cided by this court at June term 1827, and the act of 1828, ch. 50, was passed at the next succeeding session of the Le- gislature. The statute of 1828, ch. 50, re-enacts the second section of the act of 1811, ch. 161, and in the second section of the act of 1828, ch. 50, there is this additional provision : "that, if such sheriff or officer shall produce the body of such person, so nrrested, on the return day of such attachment or capias, or during the term of the court to which the writ is or may be returnable, then, and in such case, the said sheriff, or other officer, shall not be liable for any intermediate escape, &c." By what rule of construction this act is to be confined to arrests and returns on mesne process only, we are at a loss to discover. The language is any attachment or capias. Finding no expression in the statute of 1828, ch. 50, which limits and confines it to a capias on mesne process, the letter and reason of the statute, and the policy of the law, making it as applicable to final, as mesne process, we can see no rea- son for such a construction ; and what is conclusive, such was the law in relation to arrests on mesne process before the pas- sage of the act of 1828, ch. 10. 70 CASES IN THE COURT OF APPEALS State, use of Croe.jy, vs. Lawson et al. 1844. The return then of cepi by the sheriff, (if true in fact,) not- withstanding the party arrested had been seen going at large and residing at Vicksburg in February, provided the sheriff had him in his custody ready to be delivered up at the return of the writ, on the demand of the party at whose instance the capias was issued, was in law a performance of his duty, and exonerated him from liability in an action on his bond for an escape. But at the trial below, the plaintiff alleged that the return was not true in fact; that the sheriff had not the party so arrested in court; and offered evidence to prove that the return of the sheriff was not true, and upon the evidence thus submitted to the jury, prated the court to instruct the jury, that they must find for the plaintiff, "unless the defendants proved to the satisfaction of the jury that the defendant, Lawson, (the sheriff,) had the body of the said Tucker (tie party arrested on the capias,} before Charles county court at March term 1837, to render him in execution for the debt before mentioned, ac- cording to the exigency of the writ of ca. sa." This instruc- tion the county court gave, and we think, correctly gave. The sheriff's return was only prima facie evidence of the truth of the facts which it averred, and the plaintiff having offered proof admissible to the jury for the purpose of rebutting the prima facie evidence of the truth of the sheriff's return, the court did right to give the instruction which they did give. At the trial of the cause, the defendants offered to prove to the jury by competent witnesses, (for the purpose of mitigat- ing the damages,) that Tucker, for whose escape the action was brought, was, at the time of issuing the capias, and so continued to be, insolvent and unable to pay his debts. To the admissibility of which testimony the plaintiff objected, and the court sustained the objection, and refused to permit the evidence for that purpose to go to the jury, and instructed the jury that the sum recovered in the original judgment, with interest thereon to that lime, together with all costs, was the proper measure of damages which the plaintiff was entitled to recover, if they from the evidence should find for the plain- tiff. To this refusal and instruction, the defendant excepted. OF MARYLAND. 71 State, use of Creecy, vs. Lawson et al. 1844. This instruction and exception present the question, whe- ther in an action on the official bond of a sheriff' for an escape of a party arrested by him on capias ad satisfaciendum^ it is competent for him to offer in evidence any facts to mitigate the damages, and, whether the proper and only measure of damages is the amount of the judgment, interest, and costs, on which the capias ad satisfaciendum issued ? It is settled by authority, that, in an action on the case for an escape at common law, it was competent for the defendant to offer such evidence for such a purpose. Vide Sel. JV*. P. 504, tit. Debt, for this position. This was the only remedy a plaintiff had at common law, until the statute of West. (13th Ed. 1, ch. 11.) and 1 R. 2, ch. 12. These statutes first gave the action of debt against a goaler or sheriff for an escape. Where this remedy is employed under the statutes, the sheriff is put in the same situation in which the original debtor stood, and the jury cannot give a less sum than the creditor would have recovered against the defendant in the original suit. This is the penalty which the statutes referred to, annexed to such a default on the part of the sheriff. But the remedy employed in this case is neither the action on the case at com- mon law, nor of debt under the statutes of West. $f Richard; but an action of debt on a bond with a collateral condition, for the faithful discharge of official duties as sheriff. The bond, it is true, is a statutory bond, but the remedy on the bond is the common law remedy of action of debt on a bond with a penalty. At common law, where judgments were rendered on such bonds, they were for the penalty, and the plaintiff could take out execution for the same, although the penalty far exceeded in amount the damages which he had sustained by the breach of the condition of the bond. The only relief which a defendant could have was from the interposition of a court of equity, which would direct an issue of quantum damnificatus, and prevent an execution being en- forced for more than the actual damages. To remedy this 72 CASES IN THE COURT OF APPEALS State, use of Creecy, . Lawson et al. 1844. hardship and to avoid this circuitous mode of relief to which defendants thus situated were driven, the Stat. 8 and 9 William 3, ch. 11, was enacted. This statute has been adopted in Maryland, and this case being within the equitable provisions of the statute, the defendant is liable to no greater damages than the plaintiff has actually sustained, to be ascertained by the verdict of a jury under the 8th sec. of the llth ch. of the stat. 8 and 9 William 3 ; Perkins et al vs. Giles, governor, 9 Leigh 1 s R. 397. We cannot see the force of the argument of the appellee's counsel, which insisted that the judgment and costs on which the writ of ca. sa. issued, was the only measure of damages, and which could not be mitigated by any testimony; or in other words, that any evidence for such purpose was inadmissible. The object of the statute which requires the sheriff's bond and prescribes its condition, was to provide more ample security to all persons interested in its faithful performance; not to in- crease his obligations, or to render a more summary redress for his defalcations, than existed by action on the case at common law, and therefore not to conclude him from any defence which he had in that action. If, in a suit before the bond wns required, actual damages only could be recovered, unless the action, under the statutes of West. 13 Ed. 1, ch. 11, and 1 R. 2, ch. 12, was adopted, why should the amount to be recovered be different after the bond? A suit on the bond is no more a pursuit of the remedy prescribed by the statutes, than was the action on the case. The argument derived from the fact, that, in certain cases the damages are certain, and must be measured by a certain standard, does not prove that such must be the case here. There are many instances in which, on the assignment or sug- gestion of breaches under the statute 8 and 9 William 3, the measure of damages is fixed and certain ; but they arise from the peculiar circumstances of each particular case, not from any general rule, which can be applied to this case in common with them, and where no such particular reason exists for the exact measure of damages, the party can only recover what OF MARYLAND. 73 State, use of Creecy, vs. Lawson, et al. 1844. the jury shall believe he may have actually sustained, after a full investigation of all the facts. There are also cases referred to, in which the court will assess the damages without requiring the forms to be pursued which the statute 8 and 9 William 3, prescribed, in assigning breaches, and the cases of bail bonds, and others, have been instanced. But it will hardly be contended, that on a judg- ment by default in a suit on a sheriff's bond for an escape, the court would assume the power of assessing damages, and giving final judgment, assuming that the cases respecting bail bonds, &c., are recognised as the law and practice of the courts in Maryland, which we by no means intend to assert. There appears to be less reason for considering the plaintiff necessarily entitled to recover in this action the full amount of his debt, because there is a perfect remedy afforded him by the act of 1768, ch. 10, sec. 1, which enables any plaintiff in an execution to call upon the sheriff to produce the body of the defendant before the court, and on his default, on motion to cause judgment to be entered up for the full amount of his claim, principal, interest,, and costs. If the plaintiff had thought proper to adopt this remedy he could have had his remedy on the bond, and on assigning as a breach the non-payment of such a judgment against the sheriff the securities would clearly be liable for the full amount, as in such case the judgment against the sheriff would be the proper measure of damages ; and as the plaintiff in this case has forborne to pursue this mean of redress, he cannot com- plain. It has been erroneously supposed this act of Assembly was merged in that of 1794, ch. 54. This act is now, and always since its passage, has been in full force and frequently pursued in practice. By the decision on the first bill of exceptions, it has been determined that it was incumbent on the defendant to shew that he had the body of Tucker before Charles county court at March term 1837. The first instruction of the third prayer could not therefore be granted. 10 v.2 74 CASES IN THE COURT OF APPEALS Benson vs. Boteler. 1844. We also think the court were right in refusing the second instruction in the third prayer; for, although the sheriff may not have been called on to return the ca. sa. against Tucker y such failure on the part of the plaintiff would furnish no ground for any presumption that the defendant was discharged out of the custody of the sheriff by the consent of the plaintiff. The failure of the plaintiff to pursue one legal remedy against the sheriff, could not upon any sound principle be construed into an abandonment of another, or into a consent to Tucker's discharge. We think our reasoning and conclusions are alike applicable to the fourth as the third exception. We concur with the county court in the fifth exception. The instruction therein asked, if granted, would make the sheriff's return, whether true or false, conclusive. The case is therefore reversed on the second exception, aud procedendo awarded. JUDGMENT REVERSED AND PROCEDENDO AWARDED. CEPHAS R. BENSON vs. RICHARD BOTELER. Dec. 1844. The condition of B's bond of the 30th May, 1835, recited, that in conside- ration of $500, and three promissory notes amounting to $500, he would convey to R. a certain house and lot, when all the conditions of his bond should be complied with at the foot of this bond was a receipt for $500 : another paper signed by B., dated in 1841, certified, that he had taken back the house and lot, for the same amount of money which R. agreed for and purchased of him, and "feel myself bound for the same amount." R. took possession of the house in 1835 ; and remained there until 1840 ; the rent of which was worth $90 per annum. In an action brought upon the agreement of 1841, to recover the $500, HELD : that the defendant was bound to return to the plaintiff the amount, if any, which the jury should find was paid by him to the defendant, under the contract of 1835; that the value of the use and occupation was not to be deducted from such sum ; and that the contract of 1841 was a re-purchase. The possession by the plaintiff cf a paper signed by the defendant, and on which the former had brought an action at law, is sufficient evidence from which the jury might find it to be the agreement of the parties. OF MARYLAND. 75 Benson r. Boteler. 1844. APPEAL from Prince George's county court. This was an action of trespass upon the case, brought on the 18th May, 1842, by the appellant against the appellee. The plaintiff declared upon the sale of the house, &c., and the agreement of the defendant to take the property back, and a special assumpsit to repay, as mentioned in the bill of exceptions. The defendant pleaded non assumpsit, on which issue was joined. The verdict was for the plaintiff. At the trial of this cause, the plaintiff to maintain the issue on his part, read to the jury the following papers, to wit : " Know all men by these presents, that I, Cephas R. Ben- son, of &c., am held and firmly bound unto Richard Butler, in the full and just sum of two thousand dollars, current money of the United States, to be paid to the said Richard Butler, his heirs or assigns, for which payment well and truly to be made and done, I, the said C. R. B., bind myself, my &c. Sealed with my seal and dated this 30th May, 1835. The condition of the above obligation is such, that if the above bound C. R. B. shall, for and in consideration of $500, as aforesaid, paid in hand, and one promissory note of the date aforesaid, payable two years after the date aforesaid, for $166. 66|, with legal interest thereon from the date aforesaid, until paid, and one promissory note payable in four years from the date aforesaid, for $166. 66, with legal interest thereon, until paid, as aforesaid, and one promissory note for $166. 66, payable in six years from the date aforesaid, with interest thereon as aforesaid, then the said C. R. B. shall convey unto the said R. B., a certain house and lot by good and sufficient deed, lying and being in the town of Queen Ann, in &c., con- taining one acre of land, more or less, and generally known as Sparrow's Tavern, when all the conditions of this bond or obligation are complied with ; then this obligation to be void and of none effect, otherwise, of full force and virtue in law. CEPHAS R. BENSON, (Seal.) Witness, John Claytor. Queen Ann, May 30th, 1835. Received of Richard But- ler the sum of five hundred dollars, the same being the cash payment mentioned in the annexed bond. C. R. B." 76 CASES IN THE COURT OF APPEALS Benson r. Boteler. 1844. And proved the same to be in the hand writing of the said defendant ; and also read to the jury the following paper, to wit : " I hereby certify, that I have taken back the house and lot in Queen Ann for the same amount of money which Richard Butler agreed for, and purchased of me, and feel myself bound for the said amount. Given under my hand and seal this 24th day of August, 1841. C. R. BENSON. Test,S. H. B." And proved the same to be iu the hand writing of the defendant. The defendant then proved to the jury, that the plaintiff R. 5., took possession of the said house and lot mentioned in the said bond of conveyance, on or about the date thereof, and remained in the possession thereof until the year 1840. And then proved to the jury, that the sum of ninety dollars was the fair and reasonable value of the said house and lot per annum, from the said 30th April, 1835, to the said year, 1841. Thereupon the defendant prayed the court to instruct the jury, that if they find from the evidence in the cause, that trora the time of the contract of sale from defendant to plain- tiff in 1835 to the year 1840, the said plaintiff was in the pos- session of the said house and lot, or received the rents and profits thereof under the aforesaid contract of sale, that then by the legal construction of the agreement or instrument of writing relied on and declared upon in the present action, the plaintiff is only entitled to recover the difference in his favor, if any, between the original cash payment of five hundred dollars, and the value of the use and occupation of the said house and lot for the time it was so sold by the plaintiff; which opinion and instruction the court (STEPHEN, C. J.) refused to give; but were of opinion and so instructed the jury, that by the legal construction of said instrument of writing, the de- fendant was bound to refund to the plaintiff the amount, if any, which the jury shall find was paid by him to the said defendant for said house and lot, provided they find the con- OK MARYLAND. 77 Benson us. Boteler. 1844. tract of August 1841 to have been made between the parties. To which opinion of the court as given to the jury, and to their refusal to grant the defendant's prayer, the defendant excepted. The defendant appealed to this court. The cause was argued before ARCHER, CHAMBERS, SPENCE, STONE and SEMMES, J. By TUCK for the appellant, and By PRATT for the appellee. STONE, J., delivered the opinion of this court. The county court having referred to the jury the evidence offered of the facts, that the paper of August 1841, was the agreement of the parties ; that is, that the paper was made and delivered by the defendant, and accepted and assented to by the plaintiff; and also, the amount of money to be paid by the defendant to the plaintiff, and predicating their opinion upon the hypothesis that these facts might be found by the jury, proceed in the instructions given to construe the paper of August 1841 as a memorandum of an agreement between the parties for a re-purchase of the same property at the same price it had been in 1835 contracted to be sold by the defen- dant to the plaintiff, and therefore, that the amount to be refunded was subject to no abatement for the value of use and occupation while held under the first contract. It is insisted, that by the true construction of this paper of August 1841, it is only an agreement to rescind the contract of 1835, and that when the money paid upon a rescinded contract is sought to be recovered back, an abatement or de- duction is to be made from that amount, for the value of use and occupation while the property was held under the contract of sale. It is further insisted, that there was no legally suffi- cient evidence offered, tending to prove the paper of August 1841 was the agreement of the parties, and therefore, the finding of that fact ought not to have been submitted to the 78 ''AMES IN THK COUKT OK APPKALS Benson v. Boteler. 1844. In construing written instruments, the first and chief object is to ascertain the meaning of the parties, and the intention as expressed, unless contravening some rule of law, is to be carried into effect, 9 Gill fy John. 77. The paper of August 1841, referring to the contract of 1835, to ascertain the amount and designate the property, and declaring an agreement had been made to take back the same property, contracted to be purchased in 1835, at the same amount paid at that time, shows clearly that the first contract of sale was not rescinded, but that a new contract to purchase back the same property at a fixed price had been then made, to take effect from its date. The first contract stood in full force until the agreement of August 1841 was made, and all the rights acquired under the contract of 1835 remained unimpaired up to August 1841. The use and occupation of the property so contracted for in 1835, was a right thereby acquired; he could not, therefore, be liable to the defendant for the value of such use and occupa- tion. As to the second objection, after the opinion above expressed, it is only necessary to say that the paper of August 1841, being proved to have been signed by the defendant, the pos- session thereof by the plaintiff and, pursuit of his remedy there- on, was sufficient evidence from which the jury might find it to be the agreement of the parties. The possession of the obligee in a bond is evidence of its delivery, 1 H. fy /. 323. This agreement contains an obligation on the part of the de- fendant to pay the same amount of money which had been received by him on the contract of 1835. It also states the consideration for this obligation. The consideration being the taking back from the plaintiff the property contracted to be sold to him in 1835, the inference is irresistible, that the pay- ment was to be made to the plaintiff: he therefore stands in the same attitude as an obligee in a bond, and it would have been error in the court to take from the jury a fact of which there was evidence legally sufficient offered, 10 G. # J. 346. Con- curring in opinion with the county court, we affirm the judg- ment. JUDGMENT AFFIRMED. OF MARYLAND. 79 State, use of Holton, vs. Burke, et al. 1844. THE STATE, USE OF JOHN HOLTON, vs. GARRET BURKE, JOHN DULANY AND BENEDICT I. FENWicK. December 1844. By tho act of 1834, ch. 336, (passed 21st March 1835,) any surety for the appearance of an insolvent petitioner is authorised to bring him into court, or before any judge thereof, as special bail may bring their principal into court, and when brought in, to surrender and commit him, provided that he be so surrendered before or at the first term to which suit shall bo brought upon the bond for the appearance of such petitioner. HELD : 1. That such bonds are now assimilated to bail bonds. 2. That the surety of such insolvent petitioner may surrender him at or be- fore the first term of suit brought on such appearance bond. 3. That the act applied to a bond executed on the 12th March 1835, the con- dition of which was not broken at the date of the passage of the act of 1834, ch. 336, and modified the remedy thereon. 4. That the surety is only called upon to exert his privilege under the act of 1834, after he is sued. APPEAL from Si. Mary's County Court. This was an action of debt, commenced on the 19th Septem- ber, 1839, by the appellants, who declared upon the bond of the appellees, dated the 12th March, 1835, containing the fol- lowing recital and condition : " Whereas the above bound Garret Burke hath obtained his discharge from the common jail of St. Mary^s county, by virtue of the provisions of an act of the General Assembly of the State of Maryland, passed at November session, eighteen hundred and five, entitled, an act for the relief of sundry insolvent debtors, and the several supplements thereto. Now the condition of the above obligation is such, that if the above bound Garret Burke do, and shall well and truly make his personal appearance at the county court, to be held at Leonard town, in and for St. Mary^s county, on the first Monday of Jlugust following the date hereof, before the judges of said court, from day to day, and not depart therefrom without leave of the said court first had and obtained, and do and shall make his personal appearance at all such other times and places as shall by the said court be directed and appointed, then this obligation to be void and of none effect." 80 CASES IN THE COURT OF APPEALS State, use of Holton, vs. Burke, et al. 1844. The defendants pleaded general performance of the condi- tion of the bond, and the plaintiff replied, that the said Garret Burke did not make his personal appearance before the judges of, &c., at August term of St. Mary's county court, held on the first Monday of August, 1835, according to the condition of his bond ; nor at March court, 1836, although so required to do by order of said St. Mary's county court ; nor at March court, 1838; nor at August court, 1838; nor at March court, 1839 ; although so required to do by order of St. Mary's county court; to which said several terms of St. Mary's county court, the petition of the said Garret was continued, and his appearance required by the orders of the said court passed in the premises, which will more fully appear by reference to the records of said court, now in said court remaining, as by the condition of the said writing obligatory, he was required to do ; whereupon the said State avers, ihat the said Garret Burke has not done all and every thing he was required to do and perform by the condition of the said writing obligatory ; and the said State further saith, that at St. Mary's county court, held at Leonard town on the first Mon- day of August, 1837, a certain Thomas Jones, by judgment of the said court, recovered against the said Garret Burke and John Holton, survivors of Thomas R. Johnson, the sum of. &c. ; which said judgment, the said State avers, was for a debt due before the execution of the said writing obligatory ; and the said State further avers, that ihe judgment aforesaid, was rendered against the said Garret Burke and John Holton as co-securities of the said Thomas R. Johnson, and that the said John Holton, at whose instance and for whose use this suit is instituted, paid and satisfied the whole of said judg- ment, and the same is assigned to his use ; and, except by him, the said judgment remains in St. Mary's county court no way satisfied or reversed ; and this, the said State, is ready to verify : wherefore the said State prays judgment for the debt aforesaid, and damages to the said State for the detention of that debt, to be adjudged, &c. OF MARYLAND. 81 State, use of Holton, rx. Burke, et ul. 1844. The defendants rejoined, that at the first term to which they were sued, to wit, the March term of St. Mary^s county court 1840, the said defendants delivered up the said Garret in dis- charge of the liability on the said bond under the provisions of the act of Assembly in such case made and provided, and that the said Garret was so surrendered in court, and by order of the court, and on the 2nd day of March 1840, committed to the custody of the sheriff, and this the defendants are ready to verify; wherefore, &c. The plaintiffs demurred generally to the rejoinder, in which the defendants joined, and the parties agreed that all errors in pleading shall be and are hereby released. The county court rendered judgment on the demurrer for the defendants, and the plaintiffs below prosecuted this appeal. The cause was argued before ARCHER, CHAMBERS, SPENCE and STONE, J. By GRAIN for the appellants, and By ALEXANDER, for the appellees. STONE, J., delivered the opinion of this court. The question presented upon this appeal is whether the sur- render by the securities of Burke, the principal in the bond, and his commitment to the sheriff by order of St. Mary^s county court, is such performance of the condition of said bond, as discharges the securities from its liability. According to the provisions of the acts of Assembly of this State for the relief of insolvent debtors prior to 1834, a peti- tioner for the benefit of these laws might be compelled to give bond, with security, for his appearance before the court of the county in which the petition was filed, or the commissioners in Baltimore city, as the case might be, at a time specified ; and give notice to creditors of his application, as to enable them to resist, if they saw fit, his final discharge ; and in case the final discharge was successfully resisted, the petitioner being present in court, his creditors might have such remedies affect- ing his personal liberty, as are provided by law. 11 v.2 82 CASES IN THE COURT OF APPEALS State, use of Holton, *. Burke, et al. 1844. The object and character of these bonds have been assim- ilated to bail bonds; if the petitioner failed to appear at the lime specified, the bond was forfeited, and his securities became bound to each creditor for the amount of his claim. This was found to press with rigor upon securities, who were like bail, bound for the appearance of the principal in the bond, but had none of the power to relieve themselves which bail enjoyed, until by the act of 1834, the legislature passed an act for their benefit, and thereby gave similar power and authority to the securities which special bail had, to surrender the petitioner at any time at or before the first court to which suit was brought upon the bond. This act was passed before a breach of the condition of the bond in this case had occurred. The right of the creditor to sue did not attach until the petitioner had failed to appear according to the condition of the bond, and the remedy upon the bond was subject to be controlled and modi- fied by the provisions of the above mentioned act of Assembly. The facts alleged in the rejoinder being admitted by the demurrer, and all errors in pleading being by consent released, it is evident, that the surrender by the securities of the peti- tioner, and the order of court committing him to the custody of the sheriff, are within the provisions of the act of Assembly, and the securities are entitled to the benefits thereby provided for them. They have proceeded according to the power and authority conferred, and so far as the act is directory to the court, "omnia rite acta prcesu rmttttur," and although years had elapsed after the time specified in the condition of the bond for the appearance of the petitioner, and although he did not in fact appear, yet this lapse of time is attributable to the cred- itor in not pursuing his remedy, and when at the first court suit was brought upon the bond, the petitioner was surrender- ed, he had all the remedies affecting the person of the peti- tioner provided by law. He is therefore not injured, and has no cause of complaint. JUDGMENT AFFIRMED. OF MARYLAND. 83 Brooke, et al. vs. Berry. 1844. ROBEBT W. BROOKE, AND MARY ANN HIS WIFE, AND OTHERS, vs. WILLIAM F. BERRY. Dec. 1842. A conveyance obtained by a general agent from his principal, will be vacated for fraud in its obtention ; or, because of the principal being a man of such feeble intellect, as to be incompetent to the management of his own busi- ness ; or in consequence of the terms being so unjust and unequal, as therefore to be unconscientious. Exceptions to proof taken under a commission, will not avail the party making them, where the only tendency of the proof excepted to, is to establish facts admitted in the defendant's answer, or satisfactorily proved by other testimony which stands exempt from all objection. A general exception to all the testimony taken under an ex parte commis- sion, on the ground that it was vacated and set aside by an order of court rescinding an interlocutory decree, to let in a defendant's answer, cannot be sustained, when the proof was taken prior to the rescision of such decree. The act of 1820, ch. 161, sec. 3, provides, that the filing of an answer, after an interlocutory decree is rescinded under that act, shall in no case affect the validity of any commission previously issued to take testimony, or the proceedings under it, or of any testimony previously taken and returned under any such commission : the efficacy of the proof is the same, whether previously or subsequently returned into court. Notice of the execution of an ex parte commission, under the act of 1820, need not be given to the defendant He has no power, either to offer proof under such commission, or to cross-examine the complainant's witnesses. Where a deed to a party is impeached as fraudulent, he cannot offer evidence of his good character and general upright conduct, in support of such deed. The feeble intellect of a grantor; the relation of principal and general agent between him and the grantee ; inadequacy of price for land conveyed by such a grantor to such a. grantee ; are all circumstances calculated to impeach a deed, as constructively fraudulent. Where there is great contrariety of evidence as to the feebleness of a grantor's intellect, as twelve witnesses for it and nine against it, the admission of his grantee, his general agent, that such grantor was incapable of trans- acting his own business, will corroborate the affirmative of that issue. Such evidence is sufficient to control a defendant's answer, denying the fact of mental incapacity. The effect of the averages of witnesses as to value of lands and rents, stated and discussed. The value of land ascertained by considering its annual rents, as equal to five per centum on such value. Gifts procured by agents, and purchases made by them from their principals, should be scrutinized with a close and vigilant suspicion. 84 CASES IN THK COURT OF AITKALS Brooke, et al. vs. Berry. 1844. Agents arc not permitted to deal validly with their principals in any caso, except where there is the most entile good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition. Circumstances in the conduct, action and life of a grantor, stated and dis- cussed, from which a court of equity will infer his mental imbecility, or, that undue influence had been exercised towards him by his general agent. Where a general agent obtains from his principal a conveyance of lands at a price greatly below their value, this will, of itself, induce a court of equity to set aside the contract ; unless it appeared to have been entered into, in a way and under circumstances, that there had been no abuse of confidence, no undue influence, no imposition, or material concealment practised by the agent on his principal, which could cast a shade of doubt as to the fairness and honesty of the transaction. In valid contracts between principal and agent, the parties should meet on equal terms ; and the agent is bound to protect the interest of his princi- pal, with the same care and circumspection, that he would his own ; if he does not thus deal with his principal, his contracts with him are tainted with suspicion, and will be set aside. Where a court of equity vacated a conveyance of land from a principal to his general agent, on the ground of constructive fraud, and of which land the grantee had possession, and decreed a sale of the premises, it also decreed an account between the parties, in which the grantee was to be charged with the rents and profits of the land, and cre- dited for his improvements thereon, during the time he held and enjoyed the lands, under his alleged purchase ; and with all sums by him bona fide paid, on account of his principal, or which should be justly due and owing from him to his agent. APPEAL from the Court of Chancery. The bill in this cause was filed on the 27th January, 1841, by Elishn Berry ; Robert W. Brooke and Mary Ann, his wfe ; Louisa, William, Nancy and Eliza Berry, (the three last named being infants,) and alleged, that the said E. B., who is the father of all the other complainants, except the said R. W. B., being seized and possessed of considerable property and estates, both real and personal, lying, &c. ; and being naturally of a feeble and weak mind and intellect, and there- fore, incapable of managing the same with profit or advantage to himself and family, or to take care thereof, or to transact business generally with prudence, or even safety, was induced on or about the 7th May, 1836, by the artful persuasion and management of a certain William F. Berry, the defendant, OF MARYLAND. 85 Brooke, et al. vs. Berry. 1844. and who is the natural brother of the half blood of the said Elisha, in whom he had the most unlimited confidence, and who possessed the most unbounded influence over him, to commit and entrust to him, the said W. F. B., the sole and exclusive charge, management and control, of all of the said property; and made and constituted him the agent for the transaction of all the business concerns of him, the said E., whatsoever. That in virtue of the confidence thus reposed in him, and the authority and power so conferred on him by the said jE., as his agent, the said W. F. B. continued to manage and control the property of the said E, y as aforesaid, from the period of time above stated, until about the 24th February, 1840; when the said E. having just grounds to apprehend and believe that the said W. F. B. had greatly abused the confidence he had reposed in him, and was seeking to enrich himself at the expense of, and out of the substance and pro- perty of the said E., he determined to revoke the agency which he had conferred on the said W. F. 5., as aforesaid, and to withdraw the said property from* his management and control, which was accordingly done ; that the numberless impositions which before this time had been practiced upon, and the advantages which had been taken of the said E., in relation to his said property, as well by the said W. F. B. as by other persons, rendered it then but too apparent and evi- dent, that the said property was altogether insecure, and would be wholly lost to the said E. and his aforesaid children, by the fraudulent and artful contrivances of any who might be disposed to take the advantage of or deceive him, if the said property were suffered to remain in a situation in which it could be bound or affected by his acts or contracts. That the said E., himself, was finally convinced of this, and being disposed and minded to provide for his said children, as ?lso to secure support for himself in after life, did, on or about the 24th February, 1840, execute and acknowledge in due form of law, a certain deed or indenture in writing, whereby he conveyed to the said Robert W. Brooke, who had before that time intermarried with the said Mary Jinn, one of the daugh- 86 CASES IN THE COURT OF APPEALS Brooke, et al. vs. Berry. 1844. ters of the said ., all his property of every description what- soever, in trust for the use of his said children ; and he the said E., to be well supported out of the same as long as he should live. All of which will more fully and at large appear, refer- ence being had to an authenticated copy of the said deed, which is herewith filed, marked A., as a part of this their bill of complaint ; that soon after the execution of this deed, the said R. W. B., the trustee therein named, and the husband of the said M. A., the oldest child of the said .E., called on the said W. F. B., who, on his having been appointed by the said E. as his agent, aforesaid, had taken possession of, and gone to reside on an estate of the said E., composed of the follow- ing parcels of land, in the said deed specified, to wit: " Chil- leno Castle" and " Belfast," or, "Addition to Charles' Gift," and "John's Choice Diminished" and continued to reside thereon, at that time, and apprized him of the execution of the said deed, and in virtue thereof, demanded of him, the said W. F. B., a surrender of the possession of the land of which he had thus possessed himself; but this the said W. F. B. refused to do, informing the said R. W. that he claimed a title thereto in fee simple, by virtue of a deed of conveyance before that time executed, by the said E. to him. That thereupon, the said R. W. communicated this to the said E., who posi- tively denied all knowledge of any such deed ; but, upon search being made among the land record books of said county, it was discovered, that such a deed had in point of fact been executed by the said E. y on '.he 21st June, 1839 ; and the said Elisha Berry avers, that the first intimation which he ever had of the existence of this last mentioned deed, was from the said R. W. in manner aforesaid ; that he never contracted or agreed to sell or convey, any land to the said W. F. B.; never received from him the consideration money, in the said deed expressed and mentioned, or any other valuable consideration for the said deed, but most solemnly asserts, that the said deed was procured from him by the said W. F. B., by fraud, decep- tion, and misrepresentation ; and, as well as the said E. can recollect, it must have been in the following manner: That OF MARYLAND. 87 Brooke, et al. vs. Berry. 1844. about the time the said deed bears date, the said W. F. B. called on him, the said E., when the latter too had not recovered from the effects of a violent attack of epilepsy which he bad had then within a day or two before, and assured him that it was indispensably important, and for the interest of him, the said E., that the sum of fifteen hundred, or two thousand dollars, should be raised immediately, for the use and benefit of his estates ; that he, the said W. F. ., could effect this very readily, if he, the said E., would execute the paper which he, the said W. F. B. had had prepared, or would have prepared for that purpose. That if he would do so, his property would be relieved of some difficulties, and that the money which was to be raised on the paper, which he the said E. was required to sign, could be speedily returned to the lender, when the said paper would be returned to him, the said W. F. B., who would certainly destroy or cancel it: and he, the said E., should never again hear of it. That having the most unlimited confidence in the said W. F. B., and in the truth of his said representation, and owing to the highly fiduciary relation in which the said W. F. B. at that time stood to him, the said ., weak and feeble as he then was, con- sented to accompany him to Upper Marlborough, for the purpose aforesaid, which he could only accomplish, being carried thither in a carriage ; and there, under the circum- stances stated, executed a paper or instrument of writing, which he now believes to be the deed, a copy of which is herein before referred to, as exhibit B. The said E. avers, that the said deed was not read to him, or by him, prior to the execution thereof, and even if it had been it is extremely doubtful, whether in his then state both of body and mind, he should have been able to comprehend it, and that he executed it under a belief, that it was such a paper as the said W. F. B. represented it to be, and to raise money for his use. That although the land mentioned in and conveyed by this deed, is worth a much greater sum than the consideration money therein expressed, (four thousand dollars,) the said W. F. B. still is, (without the aid of the said land,) and always has 88 CASES IN THE COURT O-' APPEALS Brooke, et al. vs. Berry. 1844. been, utterly unable to pay or raise so large a sum of money ; that he was, indeed, at the time of the execution of this deed, in very indigent circumstances, and without even any employ- ment or visible means of support, for himself and family, except what he might derive from the aforesaid agency, and the property of the said J2., which, in virtue thereof, was in his hands and under his managrment. That the said deed, so as aforesaid made and executed by the said ., to the said W. F. jB., being, as they are advised and insist for the reasons stated, fraudulent and utterly void, your orators have by the said R. W., as their trustee aforesaid, applied to the said W. F. B., and requested him to deliver up and convey to the said R. W., to be held by him for the purposes stated in the deed, hereinbefore first mentioned, and referred to as exhibit A, the land embraced in the said deed, from the said E. to to the said W. F. B. But now, so it is, may it please your honor, that the said W. F. B. combining, &c., and contriving bow to wrong and injure your orators in the premises, he, the said W., absolutely refuses to comply with the reasonable requests of your orators, pretending and asserting, that the said deed executed by the said E. to him^ was for a fair bona Jide and full consideration, and procured by no undue and fraudulent means on his part ; whereas, your orators charge, that the said W. F. B. well knows, that the same was pro- cured by the misrepresentation and deceit, hereinbefore stated, in gross violation of the confidence reposed in him by the said ., and without the payment of a single dollar for the land therein embraced; all which actings, doings, refusals, and pretences, are contrary, &c. Prayer, that the said W. F. B. may answer this bill, and that the said deed bearing date the 21st June, 1839, may be set aside and cancelled, by a decree of this court ; and that an account may be taken of the rents, issues and profits, received by the said W. F. .B., from the lands embraced in the said deed, since the date thereof, and that he may be decreed to pay the same to the said R. W. 5., as trustee aforesaid. And that your orators may have such other and further relief in the OF MARYLAND. 89 Brooke, et a!, vs. Berry. 1844. premises, as the nature and circumstances of this case may require, and to your honor seem meet, and for subpoeiia, &c. With this bill the complainant filed various exhibits, as follows : A. Indenture dated 24th February, 1840. Elisha Berry to Robert W. Brooke, for " Good Luck," or " Springfield ;" for " Provincial" "Enclosure, or Enclosures" "Fife Enlarged" " Chilleno Castle" and " Belfast, or Addition to Charles' Gift," " Centreville," together with all his slaves that I have now in my possession ; all his household and kitchen furni- ture, farming utensils and plantation stock ; " all his interest in the estate of the late JVancy Berry" in trust, &c. B. Indenture of 21st June, 1839. Elisha Berry to William. F. Berry, in consideration of $4000; for "Chilleno Castle," 194 acres, 1 rood ; " Belfast," or " Addition to Charles' Gift," 37 acres ; John's Choice Diminished," 1 If acres : in fee, with a general warranty. The defendant was summoned, and appeared, but not answering the bill, on the 19th July, 1841, an interlocutory decree was passed against him, and an ex parte commission was ordered and issued. At the same term, July 1841, the defendant filed his peti- tion praying, to set aside the interlocutory decree, and receive his answer; which was ordered on the 2d September, 1841, and leave given to the defendant to file his answer. The answer was then filed, and alleged, that prior to the filing of the bill of complaint, a bill was filed in the High Court of Chancery, by or in the name of Elisha Berry, one of the above named complainants against this defendant, which was answered by the defendant, and which he prays may Betaken and considered as a part of his answer to this bill of com- plaint, so far as the same is applicable to the allegations therein contained. As this defendant's answer to the former bill, filed as aforesaid, in the name of E. B., against him, gives a full and detailed account of the appointment of this defendant, as the agent of the said E. B., and of the manner 12 v.2 90 CASES LN THE COURT OK APPEALS Brooke, et ul. t. Berry. 1844. in which said agency was conducted by him ; and the state of the account between him and the said E. B. ; of the termina- tion of said agency, this defendant refers to his said answer, as his answer to the similar allegations in this bill of com- plaint. Further answering, this defendant says, that on the 9th December, 1836, he purchased of the complainant, E. 5., a tract of land called ''Chillcno Castle;" also, one other parcel of land, called " Belfast," or, "Addition to Charles* Gift;" and also, part of one other tract of land, called " John's Choice Diminished ;" and on the same day, to wit, the 9th day of December, 1836, the said E, B. executed to this defendant a bond of conveyance, for said lands, a copy of which is herewith filed, marked exhibit, No. 1 ; and is prayed, &c. That this defendant agreed to pay the said E. 5., for said lands, the sum of $3700, that being the sum which the said E. B. had given for said lands, some two or three years prior to the sale to this defendant. That on the 5th December, 1836, being four days prior to the execution of the said bond of conveyance, and the time at which this defendant first contracted for said lands, this defendant paid to the said E. B., the sum of $2000, in part payment of said lands ; as will appear by a copy of the receipt for the same from the said E. B. to this defendant, herewith filed, marked exhibit, No. 2. This defendant further answering, says, that he has since paid the balance of the purchase money of said lands, in the manner and at the times specified, in an account herewith filed, marked No. 3 ; and that the said E. J2., in accordance with his bond of conveyance, on the 21st June, 1839, executed the deed, conveying said lands to the defen- dant, of which, the complainants' exhibit B, is admitted to be a correct copy. And this defendant here expressly alleges, that the said account, marked No. 3, exhibits a full, just, and fair state of the account, between him and the said E. .B., that said account contains all the credits, to which the said E. is in any manner whatever entitled ; and that the advances made by this defendant, as exhibited by said account, were made by this defendant, under, and by virtue of an understanding OF MARYLAND. 91 Brooke, et al. vs. Berry. 1844. had with ihe said E. .B., that this defendant should make said advances in payment of the balance of the purchase money of said lands. Further answering, this defendant says, that the said E\ B. being unable to procure the relinquishment of dower by his wife, as he had by his aforesaid bond of convey- ance contracted to do, did on the 21st June, 1839, the same day on which he executed said deed, execute to this defendant a bond, conditioned to indemnify this defendant from all claim of dower on the part of his said wife ; as will also appear by a copy of said bond, herewith filed, marked No. 4. This defendant further answering, says, that the allegation in said bill of complaint, that the said E. B, was induced by this defendant to execute said papers improperly or fraudulently, and when the said E. was in a weak and feeble state of health, and incapable of judging of their true import and meaning, is wholly untrue. This defendant, in answer to said allegations, says, that the said E. had not been sick for a long time prior to the execution of said papers, and that the said E. B. never had an epileptic fit, nor any other fit, until the marriage of his daughter with the complainant, R. W. B., and until long after the execution of said papers. That the said E. B. was, on the day he executed said papers, in good health, and was through the whole day, entirely sober, and free from the influence of liquor. This defendant further says, that the said E. B. was, when sober, fully capable of guarding his own interest, and was as difficult to deal with, or get a bargain out of, as any man in the community. This defendant further says, that the sum which he contracted to pay, and has paid, for said land, was fully the value of the said land, at the time this defendant contracted to buy it ; that it was the same price which had been given for said lands some short time before by the said E. B. This defendant further says, that the com- plainant E. B., has, since the filing of the said bill of com- plaint, departed this life, having previously, in due form of law, executed his last will and testament, appointing this defendant his sole executor, as will appear by a certified copy thereof, herewith filed, marked No. 5. That said will ha* 92 CASES IN THE COURT OF APPEALS Brooke, et al. vs. Berry. 1844. been admitted to probat, by the Orphans' Court of Prince George's county. It will thus appear to your honor, that the complainants claiming under a deed from the said E. B., executed without any valuable consideration, are seeking in a court of equity to set aside a deed executed by the said E. B. for a full money consideration. This defendant further answering, denies all, and all manner of fraud, deceit, imposition, or undue influence, with which he stands charged, in and by the said bill of complaint. This respondent further says, that from the time he contracted for said lands, as herein before stated, he has been in the quiet, peaceable possession of the same, &c. The defendant with his answer filed various exhibits, as follows, viz : No. 1. Bond of E. B. to W. F. J5., dated 9th December, 1836, to convey the land on which W. F. B. then resided, consisting of several named tracts. No. 2. Receipt. "Received 5th December, 1836, of William F. Berry, $2000, for the property he, the said W. F. B., now resides on, with appurtenances thereunto, which money is depo- sited in bank, to be checked for by the said W. F. B., and applied to the payment of my debts. E. BERRY." "Witness, E. D. Ferguson." No. 3. Account. Dr. E. B. to W. F. B. Cr. The account commenced 8th January, 1839, and concluded 20th May, 1840 ; including in its debits $175, for W. F. B's services as agent. The debits amounted to $2289.68. The credits, $378.95, for August, 1839; leaving E. B. in debt, $1910.13. No. 4. E. B's bond of indemnity, 21st June, 1839, to W. F. B., against the dov/er right of Deborah Berry, in lands conveyed by deed of this date : penalty, $5000. No. 5. Will of E. B., devising to W. F. B. t farm called "Springfield ;" 500 acres; various negroes and farming uten- sils ; with devises to other children ; dated July, 1843, with probat. OF MARYLAND. 93 Brooke, et al. vs. Berry. 1844. Then followed the answer in chancery, sworn to on the 14th July, 1840, referred to in the answer in this cause, with the various exhibits originally filed therewith, viz : No. 1. Sales of 4 hhds. of tobacco, 24th August, 1842, to A. C. Casinove fy Co., by E. Berry. Amount, $158.37. No. 2. Account. Elisha Perry bought of Elishn Berry, 6th April, 1836, $158.98; settled by various credits to E. P. No. 3. Sales of tobacco to A. C. C. # Co., by R. Wright; $449.41. 6th November, 1838. No. 4. Same as previous exhibit, No. 1. Bond of In- demnity. No. 5. Indenture of 21st June, 1839. E. B. to W. F. B. : consideration, *4000. Conveying various tracts of land in Prince George's county, and all the estate of E. B. therein, in fee, with general warranty. Recorded 18th July, 1839. No. 6. Bond of indemnity against dower, as before men- tioned. No. 7. Articles of agreement, under seal of 1st January, 1837. Between E. B. and W. F. B., by which the former agreed to furnish the latter, with certain property, viz: eight slaves, two plough horses, two oxen, ploughs, carts, and other plantation utensils ; all which is to remain with the said W. F. B. on the land where he now resides, for, and durinp; the w - * O term often years, and pay him $150, annually ; and the said W. F. B. on his part, agreed to pay E. B., the one-half of the crops made by him, the said W. F. jB., for and during the said term, after deducting the expenses of making the said crops ; and W. F. B. also agreed to superintend and look after all the said E. JB's business. No. 8. Acknowledgment of E. B., that on settlement with W. F. B., 8th January, 1839, he owed him $440.32. No. 9. Account. Dr. E. B. to W. F. B. Cr. Debits between 8th January, 1839, (including above balance,} and 20th May 1840, of cash paid to various persons : for carriage horse, harness, bridge tolls, pork, beef, flour, store accounts, attorney's fees, and for services as agent, from 1st January, 1839, to 2nd March, 1840, in all $2889.08, and credits for 94 CASES IN THE COURT OF APPEALS Brooke, et al. ts. Berry. 1844. wheat made at Springfield, and cash received for rent and judgments, $378.95. Balance in favor of W. F. B., $1910.13. The complainants filed, a general replication at Septem- tember term, 1841, and on the 22nd October, 1841, a com- mission to lake proof, was issued by consent. The ex-parte commission issued on the 19lh July, 1841, was then returned, under which, various witnesses had been examined. That commission was closed on the 30th Sep- tember, 1841. Another commission was issued on the 25th October, 1841, which was closed 21st February, 1843. Under these com- missions a great variety of evidence, documentary and other- wise, was taken, and returned into the court of chancery. This is sufficiently adverted to, in the opinion of this cour'.. On the 15th November, 1843, the death of the complainant, Elisha Berry, was suggested on the record. The complainants excepted to the admissibility of portions of the proof, taken under the commission, which issued on the 25th October, 1841 ; and which was returned on the 28th February, 1843. 1st. To the answer of Benjamin Duvall to the defendant's third interrogatory : upon the ground, that evidence of the defendant's character, is irrelevent and inadmissible. 2nd. To the answers of Enos D. Ferguson and others, to the same interrogatory : upon the same ground. 3rd. To that portion of the answer of Thomas G. Pratt, to the defendant's fourteenth interrogatory : which speaks of the belief and impression of the witnesses. 4th. To the answer of Jesse Talbot to the defendant's eleventh interrogatory : upon the ground, that the declarations of the defendant to the witness, are not testimony in his favor. 5th. To the admissibility of the evidence of Thomas F. Bowie. 1st. Because he speaks of conversation with the defendant. And 2nd. Because he refers to the contents of paper writings, which are not shown to be out of the reach of the defendant, or lost or destroyed. OF MARYLAND. 95 Brooke, et al. vs. Berry. 1844. 6th. To the answers of all the witnesses examined on the part of the defendant : because the interrogatories, to which those answers are responses, are all and each of them, lead- ing interrogatories. 7th. To the answer of Elisha Perry to the defendant's nineteenth interrogatory: upon the ground, that the declara- tions of Elisha Berry, and more particularly his declarations after the execution of the deed to Robert W. Brooke, are not evidence against the complainants. And they also except to the depositions of all the witnesses of the same character. 8th. To the answer of Enos D. Ferguson to the defendant's tenth interrogatory : because the paper therein referred to, was not produced, or its absence accounted for. The defendant excepts to the averments and allegations in the complainants bill, and to their sufficiency. 1. That there is no averment or allegation that the defen- dant committed a fraud upon his principal E. J3., in the pur- chase of the land in controversy, as agent or trustee. 2. That there is no averment or allegation, that the said purchase of the land in controversy, was made in breach and violation of the said defendant's duty #nd relation to the said Elisha, as agent or trustee. 3. That there is no averment or allegation, that the said pur- chase was made within the scope of the defendant's agency or trusteeship, or in the exercise of the power delegated to him by complainant, E. B. 4. That there is no averment or allegation in the bill, that the said defendant was authorised to sell the said land by the complainant, E. B. The defendant also excepts to all proof taken by the com- plainants under both commissions ; because, the interrogato- ries, each and all of them, are leading in answer to which the said proof is taken. The defendant, also, excepts to the admissibility of all the complainants' proof, taken under the special and ex parts. commission, that issued in this cause. 96 CASES IN THE COURT OK AITKALS Brooke, et al. vs. Berry. 1844. 1st. Because all the interrogatories propounded 1o the witnesses, were leading interrogatories, particularly the 2nd, 3rd, 4th, 5th and 9th interrogatories, and the proof is there- fore inadmissible. 2nd. Because the said proof was obtained in reply to inter- rogatories, which were leading, and is therefore inadmissible. 3rd. Because the Chancellor by his order, passed on the 2nd September, 1841, cancelled and sqt aside the interlocu- tory order, under which the said proof was taken. 4th. Because all of said proof and testimony was taken, without any notice having been given to the defendant, or to his solicitors. On the 27th November, 1843, the Chancellor (BLAND,) dismissed the bill with costs, being of opinion, that there was no sufficient evidence of the incompetency of the said Elisha Berry to contract, at the time of making the contract, which this suit seeks to have set aside, nor is there any sufficient proof of the said contract having been obtained by any fraud or mistake. From which decree the complainants appealed to this court. The cause was argued before ARCHER, DORSEY, CHAM- BERS, SPENCE, STONE and SEMMES, J. By J. JOHNSON, for the appellants, and By 0. C. MAGRUDER and PRATT, for the appellees. DORSEY, J., delivered the opinion of this court. We do not think that the exceptions taken by the defen- dant to the averments in the bill of complaint can be of any avail to him; regarding the bill as sufficiently charging, if established by proof, that the defendant's title to the land in controversy was obtained by fraud; that if not obtained by fraud, it was acquired from Elisha Berry, a man of such fee- ble intellect as to be incompetent to the management of his own business, by William F. Berry, the defendant, his agent for the transaction of all his business, in whom he reposed entire confidence, under such circumstances of abused confi- OF MARYLAND. 97 Brooke, et al. vs. Berry. 1844. fidence or practised imposition, or under terras so unjust and unequal, as would affix to it the seal of condemnation, when brought to the view of a court of equity. Neither can the defendant be benefitted by his exceptions to the proof taken under the commissions, issued for that pur- pose, because the only tendency of the proof, elicited under those portions of the complainants' interrogatories which are justly obnoxious to the exceptions taken to them, is to estab- lish facts admitted in the defendant's answer, or satisfactorily proved by other testimony in the cause, which stands exempt from all objection. Nor is there any force in the defendant's exception to all the testimony returned under the ex parte com- mission on the ground that it was vacated and set aside by the Chancellor's order rescinding the interlocutory decree for the purpose of letting in the defendant's answer. The third section of the act of 1820, ch. 161, expressly providing that "the filing of such answer or answers shall in no case affect the validity of any commission previously issued to take tes- timony, or of the proceedings, or any of them, under such commission, or of any testimony previously taken and returned under any such commission." All the proof under the ex parte commission was taken prior to the rescission of the interlocu- tory decree on which it issued, and its efficacy is the same, whether previously, or subsequently returned. There is no ground for the defendant's exception to the tes- timony under the ex parte commission, that it was taken with- out any notice having been given to the defendant or to his solicitor. No such notice was requisite. The defendant having no power of offering testimony before the commissioner, or of cross examining the witnesses produced on the part of the complainant. The exceptions of the complainants to the testimony, on the part of the defendant, offered to prove the good character and upright conduct of William F. Berry, we think were well taken. Such evidence being inadmissible in this cause. As authority for which, see note 339 of 2 Cowen's Phil, on Ev. 456. 13 v.2 98 CASES IN THE COURT OK APPEALS Brooke, ct al. r*. Berry. 1844. These preliminary questions being disposed of, we are brought to the consideration of the real merits of this contro- versy, as they appear upon the record before us. The allega- tion of actual fraud, as charged in the bill, has not been proved, and was not insisted on in the argument for the appellants. But it is contended that the feebleness of the intellect of Elisha Berry ; the condition in which he stood in relation to the ap- pellee, his agent for the transaction of all his business; the inadequacy of the price alleged to have been paid for the land conveyed, and all the circumstances surrounding the transac- tion, are of such a character, that they can receive no counte- nance from a court of equity; and that the deed complained of ought to be vacated. And in this view of the case we entirely concur. The agency of William F. Berry in the transaction of all the business of Elisha Berry is admitted by the answer and proved by not less than eight witnesses. As to the feebleness of Elisha Berry^s intellect and his incapacity to transact his own business, there is a great contrariety of evidence, twelve witnesses having deposed to the existence of such feebleness and incapacity and nine against it. But the opinion of the twelve are corroborated by the declarations of William F. Berry himself, who, at different times, to three different individuals, whose testimony is before us, and to one of them on more occasions than one, stated that his brother Elisha was incapable of transacting his own business. Look- ing then to this testimony only, and the number of witnesses testifying for each party upon the simple question of mental capacity, there would be perhaps a sufficiency of evidence, not only to control the positive denials in the answer, but also to entitle the appellants-to the relief which they have sought. And when we connect this testimony with the relation in which the appellee stood to Elisha Berry, as his agent for the trans- action of all his business, and with the fact that the land has been purchased greatly below its value, we cannot see how, consistently with the well established principles of equity, we can withhold relief from the appellants. By averaging the valuations fixed, on the land in question, by the eighteen wit- OF MARYLAND. 99 Brooke, et al. vs. Berry. 1844. nesses who have deposed as to its value, instead of being sold, according to the alleged contract, for three thousand seven hundred dollars, six thousand five hundred and twenty dollars ought to have been paid for it. And this estimate of its value is strongly sustained by the nine witnesses who were examined as to what was a fair yearly rent for the land. By an average of their testimony the yearly rent would be $347.21 ; the cap- ital to raise which, by an investment in land producing an in- terest of five per cent, (which is deemed a remunerating income from investments in land in the country,) would be $6,944. And fixing the rate of interest to be derived from such an in- vestment at six per cent, per annum, would be $5,787. The guards and limitations which a system of enlightened jurisprudence has cast around the dealings of principal and agent, have been so accurately defined by Justice Story, in his 1st vol. of Commentaries on Equity, 310, section 315, that we deem it, in this case, unnecessary to cite any other authority on the subject. After treating in the preceding section of the connexion between guardian and ward, trustee and cestui que trust, &c., and of what transactions between them shall stand: In the 315 section, in speaking of the relation of principal and agent, he says: "this is affected by the same considerations as the preceding, founded upon the same enlightened public policy. In all cases of this sort, the principal contracts for the aid and benefit of the skill and judgment of the agent, and the habitual confidence reposed in the latter, makes all his acts and statements possess a commanding influence over the former. Indeed, in such cases, the agent too often so entirely misleads the judgment of his principal, that, while he is seek- ing his own peculiar advantage, he seems, too often, but con- sulting the advantage and interests of his principal." "It is, therefore, for the common security of all mankind, that gifts procured by agents, and purchases made by them from their principals, should be scrutinized with a close and vigilant sus- picion. And indeed considering the abuses which may attend any dealings of this sort between principals and agents, a doubt has been expressed, whether it would not have been 100 CASES IN THE COURT OF APPEALS Brooke, et al. vs. Berry. 1844. wiser for the law in all cases to have prohibited them, since there must always be a conflict between duty and interest on such occasions. Be this as it may, it is very certain that agents are not permitted" "to deal validly with their principals in any cases, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage, or imposition. >} If these principles of Justice Story be correct when applied to dealings between principal and agent, where the mind of the principal is exempt from all imputation of imbecility, what must be their influence when applied to a case like that, now before this court. But in arriving at the conclusion we have formed in refer- ence to the case before us, we are not compelled to rely solely on the oral testimony in the cause to convince us of the inca- pacity of Elisha Berry to transact his own business; of the excess of confidence reposed by him in the appellee, and the undue influence exerted over him by the latter. The acts of Elisha Berry and William F. Berry, as shown by the docu- mentary evidence and oral testimony in relation thereto, irre- sistibly impel us to the opinion we have before expressed. Elisha Berry, it appears, has been in a state of wardship from the time of marriage till his death. If possessed of sufficient intellect to transact his own concerns, why should this have been? In 1829, William F. Berry for the first time became his agent for the transaction of all his business, and so con- tinued until 1833, when he was superseded by Richard H. Marshall being appointed his successor. The first act of the administration of William F. Berry, which has been brought to our notice, is the obtaining from Elisha Berry the deed of the 21st of June 1831, for Springfield or Good Luck, containing upwards of five hundred acres of land (being his dwelling plan- tation) and ten negroes, all his household and kitchen furniture, plantation utensils and all the stock belonging to Elisha Berry, with a general warranty. Such a deed, for a merely nominal consideration, from a farmer, having a wife and children de- pendent on him for support, without any explanatory circum- OF MARYLAND. 101 Brooke, et al. vs. Berry. 1844. stances to sustain it, would bear, upon its face, internal evidence of mental imbecility in the grantor almost amounting to idiocy or lunacy; or that he had been the victim of undue influence; or been so overreached or imposed upon that the interposition of a court of equity, for his relief, would follow as a matter of course. And the presumptions against this deed are strongly fortified by the inconsistent conduct of the appellee, who, when superseded in his agency by the appointment of Richard H. Marshall in 1833 to a bill filed against him, in Prince George's county court, by Elisha Berry and Richard H. Marshall to set aside the said conveyance, though denying almost every alle- gation in the bill, insisted on the said conveyance as a fair and bona fide deed of gift from his brother Elisha Berry, volunta- rily and freely made, and at his own instance and suggestion. Whilst to his solicitor he stated, notwithstanding the imputa- tions cast upon him by the bill, that he had no design to keep the property against Elisha Berry's children, but only wished to prevent Richard H. Marshall from having any control over it. And yet, instead of going to his brother and having a full explanation upon the subject, and re-conveying the property to him, or some other person, other than the said Richard H. Marshall, we find the said William F. Berry, a few months after the filing of his answer, voluntarily reconveying the whole of the property, both real and personal, mentioned in the said alleged deed of gift, to Richard H. Marshall, in trust for Elisha Berry and his heirs. If this deed to William F. Berry was, as stated in his answer, a fair and bona fide deed of gift, made at the instance and suggestion of Elisha Berry, why was the property given by it suffered to remain in the hands of the donor from the date of the deed in 1831, till the filing of the bill for its recovery in 1833, without the slightest evidence, as far as the record discloses, of any demand of possession or assertion of title on the part of William F. Berry (then very poor according to all the proof,) to any portion of the property conveyed to him. As fraud is expressly denied by his answer, we can only account for his conduct by supposing him con- scious of the mental imbecility of his brother, and of the in- validity of the conveyance executed in his favor. 102 CASES IN THE COURT OF APPEALS Brooke, et al. vs. Berry. 1844. In 1836, Richard H. Marshall having been dismissed from the service of Elisha Berry , he restored to his favor and confi- dence William F. Berry, and clothed him with his former plenary powers, as agent : who, as stated in his answer in the case now under consideration, purchased of his brother, in the beginning of the month of December of that year, two hundred and forty-two and a half acres of land, as is alleged, at its full value ; that is, $3,700. For which, however, Elisha Berry had three years before paid $3,750, and had been offered for it by Benjamin Duvall, the person of whom, by his agent Richard H. Marshall, he had previously purchased it, the sum of $6,112.50, which offer had been rejected by Elisha Berry. Connecting this testimony of Benjamin Duvall, the appellee's witness, with the average value of the lands, as derived from all the witnesses sworn on that subject, it can hardly be insisted, that the appellee has not, in a contract with his prin- cipal, obtained a conveyance of his lands at a price greatly below their value. Which of itself would induce a court of equity (apart from the mental incapacity of the principal,) to set aside the contract, unless it were shown by competent tes- timony, that the contract was entered into in away and under circumstances, which made it apparent, that there had been no abuse of confidence; no undue influence; no imposition or material concealments practised by the agent upon the princi- pal, which could cast a shade of doubt as to the fairness and honesty of the transaction. In this case, the contract is supported by no such conservative testimony. And, cast in the scale of objections to it, the reasonable doubt, if not the established fact, of the great mental imbecility of Elisha Berry, and this contract of 1836, cannot stand the scrutiny of a court of equity. If, as is alleged in the answer of the appellee, the land was designed to be sold to him for its full value, how can we, consistently with Elisha Perry's mental capacity for the trans- action of business, his exemption from undue influence or imposition, account for his selling his land for $3,700, to his agent, when be had been offered for it $6,112.50, by another OF MARYLAND. 103 Brooke, et al. vs. Berry. 1844. person ; and there is nothing in the record to induce a belief, that he could not still have obtained it? But if all other testimony were wanting on the subject, it is difficult to con- ceive how the written instruments exhibited by the appellee himself, to establish the contract of 1836, can be read without exciting the strongest suspicions, if not a confident belief, in the mental incapacity of Elisha Berry for the transaction of his own business ; or that this contract of 1836, was obtained from him by an abuse of confidence, undue influence, or some objectionable means. The first of these instruments is Elisha Berry's receipt to William F. Berry, for $2,000 in advance, for the lands now in dispute, which money, the receipt states, is deposited in bank, to be checked out by William F. Berry, in payment of the debts of Elisha Berry. This sum of $2,000, one of the witnesses proves, was, about the 1st of December, 1836, deposited in his own name by William F. Berry in the Bank of the Metropolis. If Elisha Berry had been capable of transacting his own business, would he have been content that the receipt which he had signed, should be the only receipt signed in relation to this $2,000? Would he not have taken some receipt or written evidence from William F. Berry, that $2,000 had been placed in his hands, to be applied to the payment of Elisha Berry^s debts. Suppose William F. Berry had been unfaithful to his trust, and applied the $2,000 to the payment of his own debts ; or had denied its receipt, and retused to account for it in any way, what written evidence had Elisha Berry to show the accountability of his agent ? None. Would a man of capacity to transact his own business thus deal with an agent, when placing thousands in his hands? If he would, it shows that he reposed a blind confidence in his agent, which should taint with suspicion all contracts, between them, for the purchase of the principal's property. The contracting parties do not meet on equal terms. Nor would an agent, discharging his duties with fidelity to his principal, and protecting, as he ought to do, the interests of his principal with the same care and circumspection that he would his own, thus deal with him. 104 CASES IN THE COURT OF APPEALS Brooke, et al. *. Berry. 1844. The next written instrument relied on by the appellee, as showing the fairness of his title under the purchase from Elisha Berry, is the bond of conveyance of Elisha Berry, bearing date four days after his receipt for the $2,000, viz : on the 9th day of December, 1836. It is not pretended, on the contrary, the answer of the appellee disproves it, that when the bond of conveyance was executed, there had been any other payment made on account of the land, except the two thousand dollars. And yet, by the explicit terms of this bond of conveyance, without any condition as to the payment of the balance of the purchase money, or any thing else; and without the said Elisha Berry 1 s receiving any bond, note, or written acknowledgment for such balance, he is bound in a penalty oi ten thousand dollars, on or before the first day of November next, thereafter, to make a conveyance in fee simple, clear of all incumbrances, to William F. Berry. This bond of con- veyance is virtually an acknowledgement that the whole pur- chase money had been paid ; and in case of the death or infidelity of the appellee, Elisha Berry, as far as the record informs us, had not the semblance of evidence, on which he could rely, for the recovery of that portion of the purchase money remaining unpaid. Can it be believed, that a man capable of transacting his own business, would have placed himself in such a situation ? It is no excuse for it to say, that this money was thus left in the hands of the agent, to be appropriated to the use of the principal, as occasion might require. No principal who knew what was due to himself, nor agent, who looked to the interest of his principal, would have assented to such an arrangement. It evinces a degree of mental incapacity, or unbounded confidence on the part of the principal, or undue influence by the agent, that prima facie, should infect and invalidate all contracts and transac- tions between them. There are other facts in reference to the written instruments, exhibited by the appellee, which, if weighed separately, would be esteemed of little import, but when viewed collectively and in connexion with the testi- mony and other facts of the case, tend to strengthen the views OF MARYLAND. 105 Brooke, et al. vs. Berry. 1844. hereinbefore expressed. The deed of 1831, though asserted to be a voluntary deed of gift, contains a general warranty ; which is rather an unusual ingredient in such a conveyance. The bond of conveyance makes the penalty for its breach ten thousand dollars ; and this bond is retained by the obligee, instead of being delivered up to the obligor, at the time of his executing the deed of conveyance. This deed states the pur- chase money paid for the land to be $4,000, instead of $3,700, as shown by the answer, and contains a covenant of general warranty, whilst at the time of its execution, Elisha Berry is made to execute a bond of indemnity, against the claim of dower, in the penalty of five thousand dollars. In these trans- actions between William F. Berry and Elisha Berry, it is impossible not to see, that whilst the rights and interests of the former were provided for, and protected by every guard which could be thrown around them, the rights and interests of the latter, were disregarded and abandoned, as it were, to take care of themselves. In pursuance of the foregoing views, this court will sign a decree reversing with costs the decree of the Chancery Court ; and remanding this cause thereto, that a decree may be there passed for the annulling and cancelling the said bond of conveyance, and bond of indemnity, and the two deeds of conveyance, from the said Elis/ia Berry to the said William F. Berry, which said deeds bear date on the 21st day of June, in the year 1839 ; and for the sale of the lands and premises therein mentioned ; and for an account between the appellants and the appellee, in which the appellee shall be charged with the rents and profits of the said lands, and be credited for his improvements thereon, during the time he shall have held and enjoyed the said lands under his alleged purchase thereof; and shall be credited with all the sums of money by him bona fide paid, on account of the said Elisha Berry, or which shall be justly due and owing from him to the said William F. Berry. The sum of $2,000 depo- sited in the Bank of the Metropolis, and for which Elisha Berry gave a receipt, is not to be credited to him, the said 14 v.2 106 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. William F. Berry, until additional proof is offered, to shew that the same has been properly applied in discharge of the liabilities of the said Elisha Berry. And this cause is furthermore remanded, that the chancellor may pass such further orders and decrees therein, as the nature of the case may require. The items in exhibit, No 3, of defendant, to be deemed by the auditor as established, except the first of said items, of $440.32, the balance on settlement. DECREE REVERSED, AND CAUSE REMANDED, JOSEPH I. JONES vs. TRUEMAN BELT. December 1844. Where a complainant alleged the existence of a contract with the defendant, accompanied with collateral circumstances, and called upon him not to state what the contract was, but to admit or deny the existence of the agreement and circumstances set torth ; and the defendant, in his answer, averred another agreement between him and the complainant, and denied the collateral circumstances : the statement of the agreement by the defen- dant in such case is not simply responsive to the contract ho was called on to admit or deny. It is not such a denial as requires two witnesses, or one with concurring circumstances to disprove it ; nor in this case was it ne- cessary to disprove the denial of the collateral circumstances by the same amount of proof. It is a general rule, that a positive denial, in an answer of the contract stated in the bill, should be contradicted or outweighed by the proof of two wit- nesses, or one witness and pregnant circumstances; but the principle on which it is predicated is not one of universal application. As where two papers .vere exhibited in the cause ; admitted in the defendant's answer, and declared by the court to be the agreement of the parties, they are sufficient to control the answer denying the agreement, without the aid of any oral testimony in their support. The cases to which the rule was introduced to apply, must be those in which the facts denied depended on oral testimony; or oral and circumstantial evidence ; not where they were conclusively proved by the production of the written contract of the parties. Neither are the exceptions to the rule confined to cases, where the contract denied, has been formally signed and executed ; as where a verbal contract is made, to which no witness could testify, and a complainant, charging and seeking its performance, were to exhibit with his bill various letters written by the defendant to third parties, stating the contract, all which OF MARYLAND. 107 Jones vs. Belt. 1844. letters, the answer denying the contract, admitted to be genuine ; this would dispense with the general rule in question, A defendant cannot exempt himself from the obligation to make a convey- ance which he stipulated to make, on the ground that he has not the legal title. A vendee, against whom a decree for specific performance of a contract of purchase is sought, may object the want of title in his vendor, as insupera- ble in ordinary cases. Ordinarily Chancery will not compel a purchaser to pay the purchase money and accept a defective title. But a vendor has no interest in setting up his own want of title. A decree which refers to the bill for a description of the lands on which it is intended to operate, is not vague and uncertain in that respect. This court, in affirming the decree of the Court of Chancery, will make such appropriate additions to its terms, as may be necessary to secure to both parties the benefits, advantages and prospective rights for which they mu- tually stipulate, in relation to which the decree appealed from was silent, or not sufficiently precise. APPEAL from the Court of Chancery. The bill in this cause, which was filed on the 28th Novem- ber 1838, by the appellee, alleged, that he is the owner in fee simple of a tract of land situated at the intersection of the Washington Branch of the Baltimore and Ohio Rail Road, and the turnpike road between Baltimore and. Washington, at a place called Beltsville; that upon the said tract of land he has a house and improvements, occupied and used as a tavern stand, the value of which mainly consists in its being a stop- ping and watering place of the trains of cars passing on the rail road between B. and W. ; that before your orator erected his present improvements on the said tract of land, he enquired of and ascertained from the B. and 0. R. R, Company, that they would make the said intersection a stopping and water- ing place, provided a supply of water could be obtained in the vicinity, sufficient to fill the tank or reservoir that it would be necessary for the said company to erect, for the use of the engines, drawing trains on the said branch road. He being interested in the matter, made enquiry at once, and aided in his examination by the officers of said company, ascertained that a supply of water could be obtained in requisite abun- 108 Jones vs. Belt. 1844. dance from certain springs on the land belonging to a certain Joseph J. Jones. That the place on said land where said springs were found, presented at the time no appearance of an open and running spring, available in its then condition, for useful purposes ; but was a damp, wet and sobby piece of ground, indicating the existence of springs of water, which might be made availableby digging down, walling a reser- voir, and collecting the small streams of water into one head ; the evidence of the supply of water being satisfacto- rily ascertained, application was made to the said Jones, for permission to collect the springs and conduct them by suita- ble pipes to the intersection of the two roads aforesaid, there to furnish a supply of water to the tank or water station pro- posed to be built. That the said Jones at once assented to the use of the said springs of water, with the understanding, that when the said springs were collected into a common reser- voir, and the same walled up, one half of said reservoir should be left open for the use of said Jones, and upon condition that your orator would agree to indemnify the said Jones for all damages that he might sustain in the opening of the ground, for the purpose of laying down pipes to conduct the water from the spring to the water station aforesaid, the said Jones requiring no other compensation for the use of the springs in their then condition, than the use of one half of the spring when it should, by digging and walling, as aforesaid, be made available for useful purposes ; and the agreement, aforesaid, of your orator, to indemnify the said Jones for damages that he might sustain in laying down the pipes aforesaid. That the said R. R. Co. being unwilling to incur the expense of erect- ing the water station necessary to receive the water from the spring, without an assurance that they should have the use of the water, and being unwilling to meddle with the springs without the consent of the proprietor of the land, required that your orator should obtain from the said Jones a binding evidence of his assent. That your orator accordingly applied to the said /., for a deed of conveyance of the said springs, with the rights necessary to the use of them for the OF MARYLAND. 109 Jones vs. Belt. 1844. purpose aforesaid ; that the said /. made no objection to the execution of such an instrument, but alleged that he had recently purchased the land, and had himself, as yet, no deed for it, but that as soon as he obtained a deed, he would exe- cute such an instrument as was requested by your orator, and required by the said R. R. Co. ; and the said J. accordingly addressed a letter to the said R. R. Co., in which he bound himself to execute to your orator a proper conveyance of the said springs, and the rights appendant to their use, and your orator bound himself to the said company to furnish to them the supply of water so to be obtained as aforesaid. And your orator here brings into court and files as a part of his bill of complaint, copies of the original papers, shewing the de- mand of the said company upon your orator, the obligation of your orator to the said company, witnessed by the said /., and the obligation of the said /. to convey when he, himself, should procure a title, which papers are retained by and filed in the office of the B. and O. R. R. Co., and cannot be at this stage of this proceeding obtained by your orator, where- fore he annexes the copies aforesaid, certified under the seal of said company, and which he prays may be taken as part of this, his bill of complaint. And your orator further states, that the said company did, on the execution of the said papers proceed to dig and wall the said springs and bring them into one head, over one half of which they built a cov- ering, capable of being locked up, for their own use, leaving the other half open for the use of the said Jones, who thereby obtained a handsome spring, and ample supply of water, where he had, originally, nothing but a marshy and useless spot of land ; and that the said company, also, erected a tank or water station at the intersection of the roads aforesaid, and laid down pipes to lead the water into it from the said springs, and that the said company have, in accordance with their understanding with your orator, ever since made use of the said water station for the purpose of supplying the engines of their trains with water ; and your orator further states, that he gave an instrument of writing as agreed upon, as aforesaid, 110 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. to the said Jones, in which your orator agreed to indemnify him for all damages which he might sustain, by the digging of his fields or grounds for the purpose of laying down the pipes aforesaid. And your orator further states, that he put up considerable and expensive buildings at the intersection of the roads aforesaid, and appropriated the same to the purpose of a tavern stand ; and that the same are now under rent to a tenant, upon the condition, that one half of the rent now re- served is to be abated, should the said company cease to use the said water station as heretofore ; and your orator further states, that he has been informed and believes, and so your orator expressly charges, that the said Jones hath now got a title to the said land, and is in a situation to convey the said spring and rights appendant thereto, to your orator. That he has been at all times willing and ready, and that he is now willing and ready, to indemnify the said Jones for all and any damage that he may have sustained by reason of the digging for and laying down the pipes aforesaid ; but that the said Jones hath never made any demand upon your orator for dama- ges, nor does your orator believe that he has sustained any, inasmuch as the said Jones has now an available supply of water which he had not before, and the fields around the said spring are in grass. Nevertheless, jour orator is ready, and tenders to pay whatever damage the said Jones may have sus- tained, as agreed upon between them ; and your orator fur- ther states, that the said Jones now wholly and peremptorily refuses to convey to your orator, as originally agreed upon, alleging, that your orator has not paid him a consideration for the said spring, and with a view to compel your orator to pay to him such sum as the said Jones may please to demand, as consideration for the use of said spring, and not as damages for laying down said pipes through his fields, threatens to take up the said pipes, or otherwise to stop the flow of water from said spring to the said water station, and has actually given notice to the said company, not to water their engines at the said sta- tion, and your orator expressly charges, that the claim thus set up by the said Jones is without a shadow of right, and is OF MARYLAND. HI Jones vs. Belt. 1844. done maliciously and fraudulently for the purpose of injuring your orator, and with a view to compel him to pay for the said spring, contrary to the intention and agreement of the said Jones, when the said spring was made available, as aforesaid; and your orator expressly charges, that the consideration to the said Jones for the privilege of using the said springs, was the advantage that the said Jones expected to derive and has since derived, from the making of the same available to him for useful purposes, and the agreement of your orator to indemnify for all damages done by opening the ground to lay pipes, as aforesaid ; and your orator further charges expressly, that it was in consequence of the undertaking of the said Jones to convey, as aforesaid, that your orator went to the expense of building and improving his property, as aforesaid. And your orator charges, that the interruption of the supply of the water of said spring, will at once deprive his property of the advantage of being a water station, which it now has, and besides reducing the rent paid by the present tenant one half, will otherwise seriously and irreparably injure his said property. And your orator expressly charges, as his belief and apprehension, that the said Jones will, if not restrained by authority of this honorable court, take up the said pipes, or otherwise interrupt the flow of water from the said spring to said water station, doing to your orator thereby, a wrong, which no action at law can compensate ; and your orator charges expressly, that the said Jones hath given notice to the said company to cease to use the said water station, supplied from the said spring, all which actings and doings are contrary, &c. PRAYEB, that the said Jones convey to your orator the spring or springs aforesaid, with the rights appendant thereto, and that he may be restrained from interfering with the supply of water to the said water station, from the said spring or springs; for further and other relief; for an injunction to re- strain Jones, &c., from digging up the pipes leading from the spring on the said Jones' land, now used to supply the water station of the B. and 0. R. R. Co., at the intersection, &c. at Beltsville. &c. 112 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. Exhibit. "The President of the B. and 0. R. R. Co., requires of Trueman Belt an instrument of writing, with, at least, one surety, under a penalty equivalent to expense incur- red by the said company in erecting the water station, com- mencing at Jones' spring and ending at the said Belt's store, (the contract price is three thousand, seven hundred dollars, more or less,) to convey the piece of ground offered to the board, for a house for engines, cars, &c. ; also, the exclusive right to the spring belonging to the said /ones, with free egress and ingress, necessary to improve and keep the same in per- petual repair. JONATHAN JESSOP." " PRINCE GEORGE'S COUNTY, Md., September 25, 1835. I, Trueman Belt, do this day hereby bind myself, my heirs, administrators, and assigns, to execute or cause to be execu- ted, as soon as practicable, to the B. and 0. R. R. Co., the necessary instrument or instruments of writing, conveying to the said R. R. Co. a full and complete title to the premises herein mentioned, or intended to be mentioned, according to the true intent and meaning of the within instrument of wri- ting, in the penalty of the sum herein mentioned, that is to say, three thousand, seven hundred dollars. In witness, &c, (Signed,) TRUEMAN BELT, (Seal.) Witness, (Signed,) Joseph, J. Jones. To PHILIP E. THOMAS, Esq." " Mr. Trueman Belt having applied to me for my spring, for the use of the B. and W. R. R. Co., and I having agreed with the said T. B., to convey to him the right of said springs, and being informed by him that the said company require a legal conveyance of the premises, previous to com- mencing the work necessary to convey the water from said spring or springs to said Belt's new store, all I can say or do, at present, is, that I have lately purchased the land on which said spring or springs are situated, and have not as yet ob- tained a legal title thereto, but expect to get it soon, and will immediately thereafter execute, or cause to be executed to the said T. B. } his heirs, or assigns, a good and sufficient title to OF MARYLAND. 113 Jones vs. Belt. 1844. the within mentioned premises, for which I hereby bind my- self, my heirs, administrators and assigns, in the full and just sum of three thousand, seven hundred dollars. In witness whereof, I hereby affix my hand and seal, this 25th day of September, 1835. (Signed,) JOSEPH J. JONES, (Seal.) Witness, Jlmos A. Williams." The Chancellor, (BLAND,) on the 28th November, 1838, ordered subpoena and injunction, as prayed. The defendant's answer admitted, that the said complainant is the owner in fee, of a tract or parcel of land, situate at the intersection of, &c. at &c., and upon said land the said com- plainant has a house and improvements, which are now used and occupied as a tavern stand, and the value thereof, in a great measure, consists in its being a stopping and watering place for the trains of cars, passing on the Rail Road between B. and W. This defendant knows nothing of any enquiries made by the said complainant of the said B. and 0. R. R. Co., or of any agreement made between them for establishing a water station for the said company, at the aforesaid place ; nor has he any particular knowledge of the examinations made by the said complainant, individually, or in concert with the agents of the said company, or others, upon the lands of this defendant or others, for the purposes of discovering water for the uses of the said road. But he believes that some such examinations were made, and that it was known to the said complainant that there were on the lands of this defendant, and convenient to the tavern stand of the complainant, springs of water, from which a supply might t>e obtained in requisite abundance for all the purposes of the said tavern stand, and of a water station of said company. This defendant denies that said land where the said springs existed, presented at the time of the pretended discovery thereof, no appearance of an open and running spring, available, in its then condition, for useful purposes ; on the contrary, he avers, that on said land, at the very place indicated by the defendant in his bill, and at the very time of the said pretended discovery, there was, and for many years before had been, a spring of running water; which 15 v.2 114 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. spring, at the aforesaid time, was used, and for many years before had been used by your orator and his family, and by the former owner of said land and his family, for the supply of water for all their domestic or family purposes ; and this fact was well known to the said complainant at the time of his aforesaid pretended examination ; and this defendant ad- mits, that in the vicinity of the aforesaid spring the ground was damp, wet, and sobby, and indicated the presence or ex- istence of other springs of water, which might be collected into one head and made available for the purposes of a water station, as aforesaid ; but all this was before the time of said pretended discovery well known to this defendant, and might have been discovered by the complainant without encountering all the labor which he pretends that he devoted to the pur- pose. And this defendant admits, that after the complainant discovered that a supply of water for the purposes aforesaid, could be obtained from the aforesaid land of this defendant, he applied to this defendant for permission to collect said springs into one reservoir, on the land of this defendant, and thence to conduct them through the land of this defendant by suitable pipes, to the intersection of the aforesaid roads, and there to furnish a supply of water to the tank or water station there proposed to be built, offering at the same time to this defendant to pay to him so much as he reasonably deserved to have for said privilege, to which proposition this defendant acceded ; but this defendant being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which hfe might thereby be subjected, it was agreed and understood between the said complainant and this defendant, that the former might enter on the lands of this defendant, and thereon erect, a reservoir for the purpose of collecting said waters, and lay pipes through the lands of this defendant, for conveying said waters to the tank or reservoir to be erected at the water station of the said company, as aforesaid, and that at a future day this defendant and the said complainant should ascertain and fix the sura to which the said defendant should OF MARYLAND. 115 Jones vs. Belt. 1844. be entitled, as aforesaid. This defendant denies that he agreed to permit the said complainant to use his aforesaid springs for the purposes aforesaid, upon or with the under- standing, that when the said springs were collected into a common reservoir, and the same walled up, that one half of said reservoir should be left open for the use of this defendant, and upon condition that the complainant would agree to in- demnify this defendant for all damage that he might sustain in the opening of his ground for the purpose of laying down pipes to conduct the water from the said spring to the water station aforesaid ; and he further denies that he required no other com- pensation for the use of the said springs in their then condi- tion, than the use of one half of the spring, when it should, by walling and digging, as aforesaid, be made available for useful purposes, and an agreement, that the said complainant would indemnify this defendant for damages which he might snstain by laying down pipes as aforesaid ; on the contrary, this defendant avers, that he did insist upon and require compensation to be made him by the complainant for the use of his aforesaid springs, and yielded to the complainant the privilege aforesaid, only in faith of the complainant undertak- ing to pay him therefor, so soon as the amount which he de- served to have could be ascertained, and that nothing ever passed between the said complainant and this defendant about dividing said reservoir; but for some time after the same was erected, it was open for the common use of this defendant and the said company, and afterwards, at the solicitation of an agent of the said company, this defendant agreed that the said company might divide the said reservoir, leaving open one part thereof, might cover in the other part thereof for their own use, and he denies that the arrangement between the said com- plainant and himself in reference to the damages which he should sustain, by the entering upon and opening his ground for the purpose of laying or repairing said pipes, was intended to affect his right to compensation for the use of his springs, as aforesaid, nor can it have any such influence ; and this defendant avers, that agreeing with the complainant, as is here- 116 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. in before admitted, and understanding that the B. and 0. R. R. Co. desired some assurance that he had agreed to permit the water to be taken from his springs to the station of the said company, he did agree to write, and actually signed a let- ter to the President of said company, of which the paper JJJ, No. 1, and filed herewith as part of this answer, professes to be a copy ; but, he submits, that the same does not profess to state the terms of the agreement between the complainant and himself, but simply admits the fact that an agreement between them had been made, and expresses the willingness of this de- fendant to abide by and execute the same ; and this defendant denies that the complainant at the time aforesaid required him to make a conveyance for said springs, this defendant was not prepared at the moment to make any such conveyance, as he had no legal title to the land, and it was always expected by this defendant, that he was to be satisfied for his springs be- fore he should be required to convey them to the complainant, and this defendant wrote the letter aforesaid in the confidence, that the said complainant v/ould be as prompt to comply with his part of the agreement aforesaid, as this defendant. And this defendant admits, that after the receipt of the aforesaid let- ter, the said company proceeded to dig out and wall up the aforesaid spring, and some time afterwards, and after this de- fendant and the said company, had in common used the whole reseivoir, the said company with the permission of this defen- dant, as aforesaid, covered over one half part thereof, and this defendant admits, that he has now in the other part of the said reservoir an abundant supply of water, but he insists that he had, before such improvement made, a sufficient supply for all his purposes ; and that the water, which formerly was of the first quality has, by the walling up and introduction of metallic pipes therein, become greatly deteriorated, so that his condi- tion at present is by no means as good as it was formerly. And this defendant also admits, that the said company has erected a tank for water, at the intersection of said roads, and laid pipes to lead the waters from said springs thereto, and has established a water station at the aforesaid place; and this OF MARYLAND. 117 Jones vs. Belt. 1844. defendant admits, that the said complainant executed to him the instrument, marked Exhibit JJJ, No. 2, and filed as part of this answer, but the same was intended merely to indem- nify this defendant, from the damages which he might sustain from the agents of the company, in entering on his aforesaid lands, and opening the same for the purpose of laying or re- pairing the water pipes, as aforesaid, and was not intended to set out, nor does it set out, the terms upon which the use of his springs was to be given to the said complainant, as that contract was to be complied with as soon as the parties could determine what compensation was to be given to this defen- dant, it was not deemed important to reduce the same into writing ; and this defendant admits, that after said agreement, the said complainant made considerable improvements on his aforesaid lands, and although he knows nothing of the agree- ment between the complainant and his lessee, he has yet no doubt and is willing to admit, that the said premises rent at this moment for more than they would rent in case the water station of the said company, now at the place, was broken up, And this defendant denies that he has obtained a legal title to said land, and even if he had, he admits that he would be unwilling to execute a conveyance of his springs to said com- plainant, and he denies his obligation to make any such con- ^veyance until he is compensated, as well for the use of the springs, as for the injury he has sustained by the constructing of the reservoir and laying pipes through his lands, and he admits too, that he has given notice, as well to the complain- ant as to the company, of his aforesaid claims, and of his reso- lution to cut off the supply of water from said station, unless his reasonable demands are complied with ; and he again de- nies that he conceded to the complainant the right or privilege of using said springs, in consideration of the advantage that he expected to derive from making the same available, as aforesaid, and of the agreement of indemnity, as aforesaid, and he begs leave to deny that he wishes to injure the pro- perty of the said complainant, or to deprive him of any of the advantages which he anticipated from his improvements thereon. He is willing to abide by his agreement, and he only 118 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. requires that it may be executed by the said complainant, and this defendant denies all fraud with which he is charged, and prays that the injunction heretofore granted in the cause, may be dissolved, &c. The Exhibit JJJ, No. 1, filed with defendant's, was a copy of the instrument sealed by him on the 25th September, 1835, addressed to Philip E. Thomas, Esq. (Seepage, 112.) The Exhibit JJJ, No. 2, viz : "Know all men by these presents, that I, Trueman Belt, of, &c., am held and firmly bound unto Joseph J. Jones, of &c., in the sum of $3,700, to be paid to the said J. /. /., his &c., which payment well and truly to be made and done, I bind myself, my &c., firmly by these presents, sealed with my seal and dated this 25th September, 1835. Whereas the above named Trueman Belt, has contracted with the above named Joseph J. Jones for the exclusive use of his, (the said Joseph J. Jones,) springs, for the purpose of conveying water therefrom, for the use of the Baltimore and Ohio R. R. Co., and the right to enter by such way as may be most convenient, and open a ditch to convey the water from said springs by pipes to the said BeWs new store. Now the condition of the above obligation is such, that the above named Trueman Belt shall, at all times, save harmless the said Joseph J. Jones, his heirs and assigns, and make good to him, or them, all the damages that he, the said Joseph /., his heirs or assigns may sustain, by the said Rail Road Company en- tering upon the said Jones 9 land, for the purpose of opening the necessary conveyance of said water, as above specified, and also for entering thereon for the purpose of making any repairs that may ever be necessary, then the obligation to be void and of none effect, else to remain and be of full force and virtue in law. TRUEMAN BELT, (Seal.) Signed, sealed and delivered, in the presence of Jlmos A. Williams." The complainant then pleaded the general replication, and a commission was issued : so much of the proof as is essential, will be found in the opinion of this court. OF MARYLAND. 119 Jones vs. Belt. 1844. At July term, 1843, (BLAND,) Chancellor, decreed, that the injunction be made perpetual ; that the defendant Joseph J. Jones, forthwith execute, acknowledge and deliver, according to law, a good and sufficient deed, conveying from him unto the plaintiff, Trueman Belt, his heirs and assigns, all right, interest and use, of, in, and to the lands in the bill of complaint mentioned, to the extent and upon the terms as therein set forth ; and costs. From this decree the defendant appealed to this Court. The cause was argued before ARCHER, DORSEY, CHAM- BERS, SPENCE, STONE and SEMMES, J. By ALEXANDER for the appellant, and By PRATT and LATROBE for the appellee. DORSEY, J., delivered the opinion of this court. The real question in dispute in this case, looking to the merits of the matters in controversy, is, whether agreeably to the contract between the parties, the appellee was bound to pay any thing to the appellant for the use made of his springs, and the water conveyed from them ? According to the contract alleged in the bill, no such payment was to be made. But this allegation is positively denied by the answer, which asserts, that the appellee applied to the appellant for permission to collect said springs into one reservoir, on the land of the appellant, and thence to conduct them through his lands by suitable pipes, to the intersection of the Washington branch of the Baltimore and Ohio Railroad, and the turnpike between Baltimore and Washington, and there to furnish a supply of water to the tank or water station, there proposed to be built ; offering at the same time to the appellant, to pay him so much as he reasonably deserved to have for said privilege: to which proposition the defendant acceded ; but that the appel- lant, being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which he might thereby 120 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. be subjected, it was agreed and understood between the said appellee and appellant, that the former might enter on the lands of the latter, and thereon erect a reservoir for the pur- pose of collecting said waters, and lay pipes through the appellant's lands for conveying said waters to the tank or reservoir, to be erected at the water station of the said com- pany as aforesaid, and that at a future day, the appellant and appellee should ascertain and fix the sum to which said appel- lant should be entitled, as aforesaid. The argument on behalf of the appellant appears to assume, that it is requisite not only to remove the effect of the appellant's denial of the agreement charged in the bill, by the proof of two witnesses, or that of one witness and pregnant circumstances ; but that it is requisite by like testimony to disprove the agreement, and its concomitant circumstances set out in the appellant's answer. The cor- rectness of this assumption may well be questioned, when by adverting to the bill, it appears that the appellant was not called on to state whai was the contract between the parties, but to admit or deny whether he made the agreement charged in the bill. To such a bill it can hardly be assumed, that the appellant's statement of the contract was simply responsive to that which he was called on to admit or deny. There having been no exceptions taken in the court below y either to the admissibility of testimony or insufficiency of the averments in the bill, to which the testimony, is to be applied, let us see whether the appellee has proved a case in its gene- ral outlines or essential parts, correspondent with that stated in the bill : and in the next place let us inquire, whether the proof so offered is sufficient, also, to countervail the positive denial in the appellant's answer ? The nature of the transaction in question, makes it ap- parent, that the inspection of the springs by Samuel Sprigg and Jlmos Ji. Williams, two of the railroad directors, and the conversation then held with the appellant, was prior in point of time to any definite contract between him and the appellee ; as the sole motive of the appellee to enter OF MARYLAND. 121 Jones vs. Belt. 1844. into the contract, was to carry into effect a contract in regard to the erection of a water station by the Rail Road Company, which, of course, and as the testimony shews, it would not enter into, until it had ascertained that the supply of water was adequate. Until then, the company agreed to contract with the appellee, it cannot be presumed that he entered into any definitive contract with the appellant. The testimony of Sprigg, shows, that for the construction of the reservoir and use of the water, the appellant desired no com- pensation, unless he sustained an actual injury thereby ; and at that time he could not conceive how he could be thus injured. Under such impressions, that he should in this respect have made the contract stated in the bill of complaint is in a high degree probable. But we think there is no room for conjectures or probabilities on the subject, when we advert to the appellant's exhibits JJJ No. 1, and JJJ No. 2, which in the view of a court of equity, constitute one written agreement between the parties in relation to the matters now in contro- versy. Instead of one written agreement, signed by both parties, each gave to the other an instrument of writing, con- taining the stipulations by which the subscribers were to be respectively bound. JJJ No. 1, enumerating the acts to be done by the appellant, and JJJ No. 2, the duties required of the appellee ; in execution of their agreement, JJJ No. 2, disproves the statement of the agreement as made by the answer, sustains the allegation in the bill, that nothing was to be paid by the appellee to the appellant, for the use of the springs and the water, and of itself outweighs the positive denial of that fact by the answer. It is not pretended by the answer, nor has any proof been offered to establish it, that there was any separate stipulation for the payment of the amount of damages done to the springs, and of the value of the abstract privilege of using the water. The answer itself repudiates such an idea. If then, it were the design of the appellant to insist on such a claim, for what conceivable reason was such a stipulation left out of JJJ No. 2. There is no alle- gation that it was done by fraud or mistake. We must there- 16 v.2 122 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. fore regard such a claim as forming no part of the contract between the parties. Having expressed our opinion as to the merits of this con- troversy, we will now consider some of the objections, taken by the appellant to the chancellor's decree, most, if not all of which, are rather of a technical character, than otherwise. And first, as to the appellant's objection to the decree, that it has been passed against the positive denial in the answer of the contract stated in the bill, which denial has not been con- tradicted or outweighed by the proof of two witnesses, or one witness and pregnant circumstances, according to the well established principles of a court of equity. In answer to this objection we have only to say, that the principle on which it is predicated is not one of universal application, though undeniably true as a general rule ; yet to the circum- stances of this case it has no application. Here the two papers which this court have declared constitute the agree- ment of the parties were exhibited, and admitted, in the appellant's answer, and are sufficient to control the denials in the answer, without the aid of any oral testimony in their support. The cases, to which the rule was intended to apply, must be those in which the facts denied, depended on oral only, or oral and circumstantial evidence ; not where they were conclusively proved by the production of the written contract of the parties. Nor are the exceptions to the rule confined to cases where the contract denied has been formally signed and executed by the parties. As for example ; sup- pose a verbal contract were made, to which no witness could testify, and never had been reduced to writing, and executed as the agreement of the contracting parties, and a complainant charging and seeking the performance of such contract, were to exhibit with his bill twenty letters written by the defendant to third persons, stating the contract in every particular: all of which letters \vere admitted to be genuine by the answer; which however denied the contract. Could it be contended that such letters would be less satisfactory than the proof of twenty witnesses who may have heard the defendant, on one OF MARYLAND. 123 Jones vs. Belt. 1844. occasion only, state or admit the same facts that were contained in the letters? Or that although the proof of two such wit- nesses would be sufficient to entitle the complainant to the decree he sought, yet that the twenty letters would not? The absurdity of applying this Chancery rule to such a case is too glaring to be countenanced for a moment. Another objection urged to the Chancellor's decree, is that it enjoins the execution of a conveyance by the appellant before he has acquired a legal title to the premises to be con- veyed; upon the acquisition of which title only he bound him- self to convey. If this objection as to want of title were made by a vendee, against whom a decree for the specific per- formance of a contract of purchase was sought, it would be insuperable in ordinary circumstances. As ordinarily a Chan- cery court would not compel a purchaser to pay the purchase money, and accept a defective title. But what interest the vendor has in setting up a defect in his own title, as a bar, to a conveyance called for by a vendee, who is willing to accept such defective title, it is difficult to conceive. He certainly cannot be prejudiced by such a conveyance, and consequently it forms no ground for the reversal of the Chancellor's decree at his instance. And such a defence comes with a bad grace from the appellant, after having nine or ten years before exe- cuted his exhibit J J J, No. 1, and without having assigned any reason or apology for his having so long neglected to per- fect his title. The next objection raised to the decree is, that it is too vague and uncertain in defining the thing to be conveyed, and that it directs the conveyance of the title of the appellant to all the lands mentioned in the complainant's bill. We do not think the decree, upon a fair interpretation of it, obnoxious to the exceptions thus taken to it. It refers to the bill, as showing the lands on which the conveyance was to ope- rate, and the extent of the right or interest intended to be trans- ferred. From the nature and circumstances of this whole trans- action, it is rcani/est, that it was not necessary nor intended that there should be a conveyance of the land itself; but of a mere 124 CASES IN THE COURT OF APPEALS Jones vs. Belt. 1844. privilege or easement exercisable upon, or flowing out of the land to which it was applicable. As this contract was made for the purpose of securing a beneficial easement to the rail road company, and as the rail road company, by its agents, have contracted with the appellant, that one half of the reservoir should be left open for the use of the appellant, to which the appellee hath assented, it is right and proper that the convey- ance directed by the said decree, should make provision for the same; and should also secure to the appellee the privilege of entering on the lands of the appellant, for making all neces- sary repairs to the pipes conveying the water from the reservoir to the water station, upon the said appellee, his heirs, execu- tors, administrators or assigns, thereafter paying to the said appellant, his heirs and assigns, for the damage done to him or them, as the case may be, by the making of the said repairs; and should also secure to the said appellees, his heirs and as- signs, an entry upon the said lands of the appellant for the purpose of making the necessary repairs to the said reservoir, and rendering it effective for the purpose for which it was con- structed. And for the purpose of providing for these objects and removing all doubt as to the nature of the interest in the lands of the appellant, designed to be conveyed to the appel- lee, this court will sign a decree affirming the decree of the Chancellor, with costs, and making the appropriate additions thereto, to accomplish the objects aforesaid. For the recovery of the damages, if any, which the appellant has sustained by the laying down of the pipes by which the water is conveyed from the reservoir to the w r ater station, he is left to his remedy upon his exhibit J J J, No. 2. DECREE AFFIRMED. OF MARYLAND. 125 Jones vs. Plater. 1844. WASHINGTON JONES, KT AL. vs. WILLIAM PLATER, ADM'R OF JOHN R. PLATER. December 1844. Upon a contract to sell a part of a tract of land called G. Manor, supposed to contain 988 1-2 acres, more or less, at the price of nine dollars per acre, the parties intended that the number of acres should be fixed by the con- tract, and not by subsequent measurement. Unless the words more or less lead to such a conclusion, they are useless and insensible ; made in good faith, they qualify the representation of quantity. A contract must be interpreted by its terms. When a tract of land is sold, supposed to contain 998 1-2 acres, more or less, the number of acres is not of the essence of the contract ; and a deficiency of 55 acres in such a case, is not of such a character as to induce belief of fraud or mistake. APPEAL from the Court of Chancery. The bill was filed by the appellee on the 9th October 1832, and alleged that John JR. Plater, on the 30th November 1817, sold to a certain John Darnall, a part of a tract of land called " Great Elkton Head Manor," containing 988| acres, MORE or LESS, at and for the sum of $9 per acre, as per exhibit A. That J. D. paid a part of the purchase money, and died. The appellants were his personal representatives. The bill prayed a discovery of the assets of DarnaWs estate, and payment of a balance of purchase money, after an account had between the representatives of the parties to the original contract, and in case of deficiency of personal assets, a sale of the land, the equitable title to which had descended to various minors and femes covert. EXHIBIT A Filed with the Bill. This agreement and covenant between John Rousby Plater, of, &c., on the one part, and John Darnall, of &c., of the other: witnesseth, that the said John R. Plater sells to the said John Darnall, a part of a tract of land called Great Elkton Head Manor, including the mill seat and mill, supposed to contain nine hundred and ninety-eight and a half acres, more or less, at the price of nine dollars per acre. The said Darnall binds himself to make the following payments on the 126 CASES IN THE COURT OF APPEALS Jones vs. Plater. 1844. 1st January 1817, the sum of $2,000; and the balance of the purchase money in two equal annual payments, from the 1st January 1817, with the legal interest annually on the whole balance unpaid, and the aforesaid J. R. Plater obliges himself to convey in fee to the said John Darnall, on the payments being completed, each party having a copy of this bargain and agreement, dated this 30th day of November 1816. J. R. PLATER, JOHN DARNALL. After the bill had been taken pro con/mo, under an order of publication against some of the defendants, the answers of the infant defendants taken by guardian, others of the defen- dants answered the bill and admitted the contract of 1817, and alleged that a resurvey of the land was made by and with the consent of J. R. P., about the 1st April 1829, by which it appeared the land contained 943, instead of 988^ acres. The defendants claimed a reduction in price for F5| acres, at $9 per acre, and controverted the state of the accounts as men- tioned in the bill of complaint, denying insufficiency' of assets to pay the sum really clue, but admitted there was nothing beyond that sura. A commission was then issued, proof taken, and the cause referred to the auditor, who stated an account showing $2,355. 23 due the complainants, on the basis of a sale of 9S9| acres at $9. It was agreed that the only question to be presented to the Chancellor was, whether the defendants were to be charged with the quantity of 998^ acres, at the price of $9, as claimed by the plaintiff, or with 943 acres as alleged by the defendant. On the 2nd March 1843, the Chancellor (BLAND,) affirmed the auditor's report, and decreed, that unless the sum due should be paid by, &c., the land should be sold for the purpose of paying the complainant. From this decree the defendant appealed. The cause was argued before ARCHER, DORSEY, CHAM- BERS, SPENCE, STONE and SEMMES, J. OF MARYLAND. 127 Jones vs. Plater. 1844. By A. RANDALL, for the appellants, who cited; 3 Stark. Ev. 1043, 1044; 5 Cranch, 234; 1 Cain S. C. R. 168; 18 John. 73; 5 G. & J. 147; 7 G. 4r /. 331 ; 4 Wendell, 58; 19 Wendell, 320; 11 G. Sf J. 314; 2 Sto. Eq. 53,69; 15 Vet. Jr. 516; 1 Ves. % Bea. 524; 2 JoAn. 37; 4 jHen. # ^^n. 82; Sugden on Ven. 102. By J. JOHNSON, for appellee, who cited: 4 Mason, 417; 1 Ves. Sf Bea. 375; 6 Bin. 102; 4 G. /. 478, 488; 4 ff. 4r /. 278; 6 Harr. $ John. 24. ARCHER, J., delivered the opinion of this court. The determination of this case depends on the construction of the contract of the parties, of the 30th of November 1816. The question to be decided is, whether the parties intended that the number of acres should be fixed by the contract, at 998| acres, or whether it was designed that the quantity should be ascertained by measurement and paid for, according to the number of aeres the land should actually contain ? The words of the contract are : " the said John R. Plater sells to the said John Darnall a part of a tract of land called Great Elk- ton Head Manor, including the mill seat and the mill, supposed to contain 998| acres, more or less, at nine dollars per acre." The insertion in the contract of the terms more or less, indu- ces us to believe it to be the intention of the parties that the land to be paid for was 998^ acres ; and not that the quantity to be paid for, was to be that which it should be found actually to contain. Unless the words "more or less" lead to such a conclusion, they are useless and insensible. The contract must be interpreted by its terms, and from an examination of its terms alone, we have arrived at the conclusion above stated. If it were competent to look out of the instrument, the intention of the parties clearly appeared on the first of Novem- ber 1816, by the agreement of that day, that the sale should be of 998^ acres, at $9 per acre, whether it contained more or less ; and we do not see in the agreement of the 30th, any US CASES IN THE COURT OF APPEALS Jones vs. Plater. 1844. change of intention, although the design of the parties is not so clearly and decisively expressed. The letters of Mr. Plater if used in evidence, show nothing to the contrary; the land sold was part of a tract from which other sales had been made, and a survey was necessary to enable Plater to convey, as he would be bound to do on the payment of the purchase money. If he therefore joined in the survey, or aided in it, no inference against the above interpretation could be deduced from such conduct. The land thus appears to have been sold by estimation ; and so much is to be given by the acre for the quantity, more or less. The quantity of acres was manifestly not con- sidered as of the essence of the contract, neither warranted on the one side, nor demanded on the other. The deficiency in the quantity is inconsiderable, and is not of such a character as to induce the belief of fraud or mistake. We cannot more intelligibly express our views, than in the language of Judge Story : " There is much good sense in holding that the words more or less, or other equivalent words, used in contracts or conveyances, should be construed to qualify the representa- tion of quantity, in such a manner, that if made in good faith neither party should be entitled to any relief on account of a deficiency or of a surplus." 4 Mas. 417. We therefore think, this is no case, for an abatement of the purchase money. The agreement in the record would seem to preclude the examination of any other questions, than those which we have examined. DECREE AFFIRMED. OF MARYLAND. 129 Tiffany vs. Savage. 1844. HENRY TIFFANY vs. JOHN SAVAGE. December 1844. Where a plaintiff contracts with the defendant's agent, in an action on the contract, it is necessary to give proof that the agent had some authority. Although upon the whole testimony in a cause, on both sides taken together, the conclusions of a judge might be, if acting as a juror, that the verdict should be for the defendant, yet if there is evidence legally sufficient to warrant the jury in finding for the plaintiff, when left unaffected by the defendant's proof, the court will not say to the jury upon the motion of the defendant, that there is no evidence in the cause, or that the plaintiff's cause is not proven. APPEAL from Washington County Court. This was an action of assumpsit, for goods sold and deliv- ered. The defendant pleaded non assumpsit, &c. The plaintiff to support the issue on his part joined, gave in evidence the following account, and affidavit attached to it, for goods, wares, and merchandise, viz : "Baltimore, September 22, 1838. Mr. John Savage, by Lewis M. Hughes, bought of Henry Tiffany, 2 pieces 3-4 check, 81 at 10 $8.10, &c., $260.07." &c. The plaintiff by his counsel, then read in evidence to the jury certain interrogatories, by him filed in this cause, as fol- lows, &c. And the answers to said interrogatories by Lewis M. Hughes, a competent witness, sworn and examined on the part of the plaintiff, as follows : 1st. In the month of September 1838, I went to Henry Tiffany^s and bought the goods in the name of John Savage. 2nd. I told the plaintiff, the said Henry Tiffany, that the goods were for John Savage, and had them directed to his iron works in Pennsylvania, to the care of his clerk, I think. 3rd. I believe the account as exhibited to me, is a true account of the goods purchased from said Tiffany for John Savage. 4th. I did receive a letter from said Savage in reference to said goods. I decline attaching the said letter to the deposi- tion, because a portion of it is separate and distinct from the 17 v.2 130 CASES IN THE COURT OF APPEALS Tiffany vs. Savage. 1844. transaction, and is private. The annexed statement, is a full, perfect, entire and true copy of that portion of the letter, in the handwriting of said Savage, relating to this transaction : "Why not answer Longhead's letter about the number of boxes forwarded ; the bill of lading calls for 13 boxes, marked Ji. McCallister, Huntingdon. 19 bags of coffee, 2 bbls. sugar, marked John Savage. There was, likewise, a bale of goods marked Jl. McCallister^ not entered on bill of lading. Really, it is too bad, to receive goods ship- ped, as you stated in your letter, en the 24th September, on. the 8th day of October ; a voyage to the West Indies could be accomplished before. Extreme inattention was to be found somewhere; three days ought have sufficed. No numbering of boxes, no notice of the bill of goods, &c. You put no card on the boxes as I requested." 5th. I have the letter in my possession, and the answer to the fourth interrogatory is my answer to this. 6th. The letter referred to, did acknowledge the receipt of the goods, with the exception of one package, which said package, deponent since learned, had been received by said John Savage. 7th. I did direct the said plaintiff to charge the goods to the said Savage at the time they were purchased. The defendant then read in evidence to the jury, interroga- tories by him filed in said case, as follows, to be propounded to Lewis Hughes and to Holker Hughes, as witnesses to be examined on the part of the defendant. And the answers to said interrogatories by /. Holker Hughes, a competent witness, sworn and examined on the part of the defendant, as follows: 1st. I had purchased from John Savage, (the defendant above referred to,) a certain lot of blooms, and undertook to procure for him, and to pay for goods to be purchased in Bal- timore. I think I gave instructions to Lewis M. Hughes (my agent in Baltimore, Maryland,] to purchase such goods as John Savage might require, from any house with which I was in the habit of dealing. The bills of those goods, or copies OF MARYLAND. 131 Tiffany vs. Savage. 1844. of them, were rendered to me, and duly charged to said Savage, the defendant, on the "Mont Alto" furnace books, and on said books properly credited, among which said bills so cred- ited and charged, was one from Henry Tiffany for the goods above referred to and received by said Savage. The reason I undertook to pay for the blooms, purchased by me from said Savage in merchandise, was, that I had been dealing for a num- ber of years in Baltimore, and had credit with merchants, among whom was said Henry Tiffany, and said Savage wanted goods, and was willing to receive them in exchange for the blooms above referred to, he being unacquainted with the mer- chants of Baltimore. The bill shown to me, and attached to interrogatories, and bearing date the 22nd September, 1838, which said interrogatories are signed by D. G. Yost, esquire, as counsel for plaintiff, is, I think, the amount of the bill ren- dered to rne, and credited on "Mont Mto" furnace books to the aforesaid Henry Tiffany. The plaintiff then read to the jury in evidence, the answers of the said Lewis M. Hughes to the above mentioned interro- gatories, filed by the defendant, as follows : 1st. I purchased the goods upon the authority of a letter from Holker Hughes, who directed me to have them charged to John Savage. 2nd. I do not recollect of stating at whose instance the goods were purchased at the time I ordered them. 3rd. In answer to this interrogatory, I refer to ray answers to fourth, fifth and sixth interrogatories on the part of plaintiff. 4th. It was in compliance with the instructions from Holker Hughes, referred to in answer to first interrogatory. Whereupon the defendant, by his counsel, prayed the opin- ion and direction of the court to the jury from the evidence above set forth, the plaintiff is not entitled to recover, because it is not proved by said evidence that the said Lewis M. Hughes was the authorized agent of said defendant in purchasing said goods, wares and merchandise from said plaintiff, and forward- ing them to said defendant; which opinion and direction the court gave. The plaintiff excepted and appealed to this court- 132 CASES IN THE COURT OF APPEALS Tiffany . Savage. 1844. The cause was argued before ARCHER, DORSEY, CHAM- BERS, STONE and SEMMES, J. By D. G. YOST, for the appellant, and By PRICE, for the appellee. SEMMES, J., delivered the opinion of this court. The question for our decision in this case is, whether upon the facts proved on the trial below, the court erred in not leav- ing it to the jury to decide the issue between the parties? The suit was brought by Henry Tiffany against John Savage, to recover the price of a certain quantity of goods, which had been purchased of the plaintiff by a certain Lewis M. Hughes, and forwarded to the defendant. The testimony offered by the plaintiff, consisted of an account with a probate thereto annexed, and of the deposition of the said Lewis M. Hughes, which had been taken, together with the deposition of Holker Hughes, the defendant's witness, under a commission issued for that purpose. The account was headed thus, "BALTIMORE, Sept. 22nd, 1838. " John Savage, by Lewis M. Hughes, Bought of Henry Tiffany." Then follows the items, amounting in all, to $260.07. To this account is annexed the affidavits of the plaintiff and his clerk, George Stanard,jr., proving the correctness of the same, in the usual way ; and that it remained unpaid. The deposi- tion of Lewis M. Hughes, stated in substance, that he had pur- chased the goods from the plaintiff in the name of the defendant, and that he told the plaintiff the goods were for the defendant. That deponent had them directed to the defendant's iron works, in Pennsylvania, and that he afterwards received a letter from the defendant, in which he complained of delay in the arrival of the goods, and of a want of attention through some one's fault, in his not receiving proper information in respect to the same ; that said letter acknowledged the receipt of the goods, with the exception of one package, which deponent afterwards learned had been received by the defendant. But it was shown OF MARYLAND. 133 Tiffany vs. Savage. 1844. by the deposition of Holker Hughes, the defendant's witness, that the said Holker Hughes had purchased of the defendant a certain lot of blooms, and had undertaken to pay for them in merchandise, to be procured in Baltimore. That he ac- cordingly gave instructions to the said Lewis M. Hughes, (deponent's agent in Baltimore,} to purchase such goods as the defendant might require, from any bouse with which depo- nent was in the habit of dealing. That the goods were pur- chased as ordered, and bills for the same rendered to deponent, with which the said defendant was duly charged, &c., on the books of the "Mont Jllto" furnace ; that amongst the bills so rendered and charged, was the bill of Tiffany, the plaintiff, for the goods bought of him, as aforesaid, by the said Lewis M. Hughes ; and upon the whole evidence, the defendant by his counsel, prayed the opinion and direction of the court to the jury, that the plaintiff was not entitled to recover, because it was not proved that Lewis M. Hughes was the authorized agent of said defendant, in purchasing said goods from the plaintiff, and forwarding them to the defendant, which opinion and direction the court gave; and it is contended, that the court by thus taking all the facts within its own exclusive cogni- zance, usurped the province of the jury, and decided upon the "measure and quantity of the proof," as a question of law. Let us see whether the judgment of the court below, is obnox- ious to the objections which have been urged against it. It was certainly necessary, in order to entitle the plaintiff to re- cover, to establish the fact that the said Lewis M. Hughes had some authority, either express or implied, from the defendant, to act as his agent in purchasing the goods. And, if the court below was right, in granting the defendant's prayer, we must conclude that the evidence offered by the plaintiff, taken by itself, was legally insufficient to warrant the jury in rinding that fact. See the case of Cole, vs. Hebb, adirfr. d. b. n. of Wm. Gwyther, to be found in 7 Gill fy John., 20. But we are not warranted in coming to such conclusion, from the tes- timony offered by the plaintiff in this cause. The account, which we find in the record, with the joint affidavits of the 134 CASES IN THE COURT OF APPEALS Ridenour, et aL, vs. Keller. 1844. plaintiff, and his clerk, George Stanard, jr., thereto annexed, as aforesaid, shows on its face to be an account by the plain- tiff, against the defendant, for goods sold and delivered, and is the plaintiff's identical cause of action in this suit. This account, it appears, was suffered to go to the jury as evidence ; to which is to be added, on the part of the plaintiff, the depo- sition of Lewis M. Hughes. Now, notwithstanding it may be true, that if the whole testimony, in the cause on both sides, be taken together, our conclusion might be, if sitting as a jury, that the verdict should be found for the defendant ; yet seeing, as we do, that there was evidence offered by the plaintiff, le- gally sufficient to warrant the jury in finding the issue, which it was offered to sustain ; testimony, which if left unaffected by the defendant's proof, would have been conclusive in the plain- tiff's favor ; we are of the opinion, that the court below erred in granting the defendant's prayer. We therefore, reverse the judgment, and order a procedendo. JUDGMENT REVERSED. DAVID RIDENOUR, ET AL., vs. THOMAS KELLER, SHERIFF OF WASHINGTON COUNTY. December 1844. A sheriff who has made a levy upon personal property, under a writ of fieri facias, in good faith apprehending danger of loss by reason of the con- flicting claims made upon it, is entitled to have the title of the claimant settled in equity, and be protected in the mean while by injunction. The accounts of an administratrix, making a distribution of her intestate's estate in money, no creditor nor fraud appearing, will not, after a lapse of sixteen years, be disturbed in equity, where she was guardian to her infant children, and paid them the interest on the sum distributed to them during her life, and her successor in the guardianship received the amount dis. tributed, from her personal representative, though she had taken to her own account, certain portions of her intestate's estate at their appraised value, which portions remained in esse at the time of her death. The court will presume that distribution of an intestate's estate, had, after a lapse of four years, been made, where creditors were not interested ; no charge of fraud made ; and it appearing that, all the distributees had received their proportions of the appraised value of the estate in money, and some of them had disposed of the same. OF MARYLAND. 135 Ridenour. et al., vs. Keller. 1844. Where an administratrix took a portion of her intestate's estate, to her own account, at the appraisement, and paid the distributees their portions of the estate in money, which they kept for four years, and alleged no fraud ; the distributees, seeking to set aside her settlements, must first do equity, and return what they have received, or offer so to do. APPEAL from the Equity Side of Washington County Court. The bill, in this cause, was filed on the 14th June 1842, by Thomas Keller, sheriff of Washington county, and alleged, that a judgment was rendered in W. county court, at March term 1839, against a certain Abraham Barnes and Melchior B. Mason, in favor of a certain David Ridenour, for, &c., which judgment, was afterwards entered to the use of Lot Ensey and Christian D. Fahnestock, late partners, trading under the name and frm of Lot Ensey and Company, who became, and are the equitable assignees of said judgment. That on the 25th day of February 1841, a fi. fa. was issued upon said judgment, directed to John Carr, esq., then sheriff of said county, and the same day delivered to him; that afterwards, and before the return day of said execution, the said John Carr levied upon a large number of negroes, and other personal pro- perty, which was shown to him by the plaintiff, in said exe- cution, and alleged to be the property of the said Abraham Barnes, and Melchior B. Mason, or one of them; that a part of the personal property mentioned in said levy list, was admitted to be the property of said Barnes and Mason, or one of them, which part was afterwards sold by the said Carr, as sheriff, by virtue of said fi. fa., a true list of said articles, so admitted and sold, is herewith exhibited ; that afterwards, on the 4th February 1842, the said John Carr departed this life, be- fore the term for which he had been elected and commissioned as sheriff, had expired; that a few days thereafter, your orator was duly commissioned as sheriff of said county, gave bond, accepted the office, and was, in all respects, qualified accord- ing to law. That letters testamentary on the personal estate of said Carr, were, afterwards, granted to James Dixon Ro- man, who accepted the trust, and within twenty days thereaf- ter, delivered over to your orator the said writ of fieri facias 7 136 CASES IN THE COURT OF APPEALS Ridenour, et al., vs. Keller. 1844. together with the said levy list, and the list of appraisement, and all other papers connected with, or relating to said writ; which your orator duly accepted. Whereupon, it became the duty of your orator, to proceed as the said Carr should have done; that the return day of said writ has been extended from time to time, at which it was originally returnable, until now, when it stands extended until the first day of Jiugust next; that the said property, mentioned in the said levy list, except the part so sold as afoiesaid, has been, and is claimed by seve- ral other persons, and denied to be the property of said Barnes and Mason, or either of them: some of said claimants claim- ing separate and distinct articles, and some of them claiming in opposition to each other. And your orator begs leave to state briefly, the nature of the several claims, so that your ho- nors may see the great difficulty in which your orator is placed, and the utter impossibility of deciding to whom the property belongs, and thus avoid danger and loss to himself, without the aid of this honorable court. Your orator is informed, and believes, that most of the articles mentioned in said levy list, except those sold as aforesaid, were formerly the property of John Thomson Mason, of said county, who departed this life intestate, on or about the month of December 1824; that let- ters of administration on his personal estate were granted to his widow, Elizabeth Mason; that she, as administratrix, took possession of the personal estate of said deceased, consisting of most of the articles now disputed in said levy list, together with a large amount of other property of great value; that she, the said Elizabeth Mason, made no distribution of the said personal estate, at least, of that portion contained in said levy list, nor did she make sale thereof, but charged herself with the whole amount at the appraised value thereof, and retained the same in possession until her death, which occurred in the month of May or June, 1836. That soon after her death, the said Abraham Barnes and Melchior B. Mason, obtained letters of administration on her personal estate, and proceeded to make settlement thereof; that they distributed a part of said negroes amongst the heirs of the said Elizabeth, and retained OF MARYLAND. 137 Ridenour, et al., vs. Keller. 1844. the balance of said personal estate, charging themselves there- with, in their settlements with the Orphans' court, at the ap- praised value thereof, and retained possession of the said pro- perty, with which they had so charged themselves. And your orator further states, that afterwards, on the 9th January 1839, the said Abraham Barnes, Melchior B. Mason, and a certain John Thomson Mason, their brother, executed a certain deed of trust to John M. Gordon and William Schley, esqrs., for certain purposes therein mentioned, and conveyed to them a large number of negroes belonging to said parties grantors respectively, and which deed also conveyed the negroes men- tioned in said levy list; that afterwards, on the 15th May 1839, the said A. B., M. B. M., and J. T. M., executed another deed of trust, for other purposes therein particularly mentioned, conveying the same negroes, by name, to the said J. M. G. and W. S., trustees, including the said negroes on said levy list; that the said J. M. G. and W. S., now claim title to the said negroes mentioned in said levy list, by virtue of one or both the said deeds of trust, aforesaid, alleging, that the said negroes were the property of said Barnes and M. B. Mason, or one of them; and the title thereto was by said deeds of trust vested in them, the said trustees, for a purpose therein specified, which, has not yet been accomplished or fulfilled; and the said J. M. G. and W. S., have forbidden your orator, at his peril, to sell any one of said negroes; and your orator further states, that afterwards, on the llth October 1839, afore- said, the said Ji. B., and M. B., his wife, M. B. M., and J. T. M., executed a certain other deed of trust to William Price, esq., and David G. Yost, as trustees, conveying a large amount of property, real, personal, and mixed, including all the other negroes mentioned in said levy list, and also many other arti- cles therein, in said list enumerated, to the said Price and Yost, as trustees, for certain purposes therein mentioned. And your orator states, that the said W. P. and D. G. Y., as trus- tees, claim a large portion of the property mentioned in said levy list, under and by virtue of the said deed of trust, insist- ing, that they have the legal title to the same, and have for- 18 v.2 138 CASES IN THE COURT OF APPEALS Rich-Hour, et al., vs. Keller. 1844. bidden your orator to sell any part of said property which is contained in said deed of trust; that afterwards, on the 12tb November 1841, letters of administration, de bonis non, on the personal estate of the said /. T. M., deceased, were granttd to one John Winter, who accepted the trust; and now, he, the said John Winter, as administrator de bonis non, claims all the property, or nearly all, mentioned in said levy list, except the part sold as aforesaid, as the property of the said J. T. M., which was not administered by the former administrator, Eli- zabeth Mason, in her life time, and insists, that the said Eliza- beth, by charging herself with the said property, and having made no sale or distribution, did not vest the title to said pro- perty in herself, but that it remained in her hands, as adminis- tratrix, until the time of her death; and therefore, the said JL. B. and M. B. M., as her administrators, had no right to, or control over, the said property; and, that the said John Win- ter, as administrator de bonis non, is solely entitled to the same, for the purpose of sale or distribution, according to law; and he claims the same in opposition to all others, arid has forbid- den your orator, at his peril, to remove or sell any part of that, which originally belonged to his said estate. And your orator further states, that some time in the month of November 1841, the letters of said Barnes and Mason, as administrators of the said Elizabeth Mason, were duly revoked, and that on the 30th day of the same month, letters of administration, de bonis non, upon said estate, were granted to the said John Winter; that a part, or few of said articles mentioned in said levy list, are represented as having belonged to the said Elizabeth, in her own right, and that the mode of settlement adopted by her said administrators was illegal and void, and did not vest the title to such property in them; and insists, that he, as admin- istrator de bonis non, is entitled to the same, as the unadmin- stered estate of the said Elizabeth Mason, deceased ; and now claims the same, and has forbidden your orator to sell the articles thus claimed, which your orator cannot precisely enumerate. And your orator further states, that the said David Ridenovr, the legal plaintiff, and Lot Ensey, the surviving partner of the OF MARYLAND. 139 Ridenour, et al., vs. Keller. 1844. said L. E. and Co., insist, that the said property is the pro- perty of the said Barnes and Mason, or one of them, and require your orator to sell it as such, and by virtue of the said writ of fi.fa., and threaten your orator with a suit for dama- ges, if he returns said writ, nulla bona. And your orator fur- ther states, that the former sheriff, the said John Carr, in his life time, summoned a jury of inquest, who were duly empan- nelled and sworn, to try and determine the title to said pro- perty; that a trial was had, wherein each of the said several claimants were represented by counsel, except the said Gor- don and Schley, trustees as aforesaid, and the said jury ren- dered a verdict, which is herewith exhibited; but your orator is advised, that such verdict is, in law, no protection to him against the said several suits threatened, and which may be brought by the said parties. And your orator is advised and believes, that he cannot, safely to himself, either sell the said property, or return the said writ, nulla bona, but that the said several claimants ought to interplead together, touching their right to said property, in order that your orator may know to whom the property belongs, and whether the said Ji. J5., and M. B. M..OY either of them, have any, and what interest therein, which your orator can sell by virtue of said execution; and that the said several claimants ought, in the meantime, to be restrained by the order or injunction of this honorable court, from commencing or prosecuting any action at law against your orator, touching the premises; and especially, that the said plaintiff, in the said writ of fieri facias, to wit, the said D. R., and the said L. E. and Co., should be restrained from any proceedings to compel your orator to return said writ of fi.fa.. In tender consideration whereof, &c. Prayer in con- formity to the bill. The defendants answered this bill. A variety of accounts, and the deeds of trust, &c., were filed as proof, but the nature of the defence made, and the facts established, sufficiently appear in the opinions of Washington county court and of this court. 140 CASES IN THE COURT UK APPEALS Ridenour, et al., vs. Keller. 1844. At March term, 1843, Washington county court, (T. BUCHANAN, A. J.,) delivered the following opinion: The facts, as they appear from the admissions in the answers, or from the exhibits filed therewith, appear to be these. John Thomson Mason died in 1824, leaving a large personal estate; his widow, Elizabeth Mason, administered on his estate, and returned an inventory and appraisement; she afterwards settled an account, charging herself with all the property con- tained in the inventoiy at its appraised value, and of debts; and distributed the cash balance amongst the heirs. There was no sale or distribution of the property, but the widow retained the possession of it until her death, in July 1836. After her death, letters of administration, on her estate, were granted to Ji. Barnes and M. B. Mason, who, returned an inventory and appraisement of her estate, which consisted, almost, exclusively of the same properly which she had charg- ed herself with, as administrator of her husband. The said Barnes and Mason, made no sale or distribution of property, but charged themselves with the whole amount, at the ap- praised value, and after taking credit for the payment of debts, distributed the balance of value amongst the heirs; and after- wards, as a mode of paying said distributive shares, they dis- tributed certain of the negroes to the several heirs, at a value fixed upon by appraisers, approved by the Orphans' court, for that purpose. The said Barnes and Mason, retaining all the other property, and a large number of the negroes; and after several deeds of trust, mortgaging the same for payment of certain debts. The negroes, and other property have been levied upon by the sheriff as the property of said Barnes and Mason, under an execution against them, at the suit of D. Ridenour, use of Lot Ensey and Company. It further appears, some of the heirs were minors, and the youngest did not attain the age of twenty-one years, until before the said levy was made; and, that soon afterwards, in November 1841, letters of administration, d. b. n., on the estate of John Thomson Mason, were granted to John Winter, one of OF MARYLAND. 141 Ridenour, et al , vs. Keller. 1844. the defendants, and that soon afterwards, letters of ad. d. b. n., on the estate of Elizabeth Mason, were granted to the same person; and he claims the greater part of the property, as the unadministered property of John T. Mason, and a small part as the property of Elizabeth Mason. The plaintiffs, in the execution, claim it as the property of Baines and Mason. William Schley and John M. Gordon, claim the negroes under the deeds of trust, exhibited. And Win. Price and D. G. Yost, claim many of the negroes under the deed of trust to them. The question is, to whom does the property belong? It is the opinion of the court, that Mrs. Mason had no right to charge herself with the personal estate of her husband, Jno. Thomson Mason, at the appraised value; and, that by so doing, she acquired no title to the property; but, she held the same as administratrix, and, at her death it remained as the unad- ministered estate of her husband, John T. Mason; and that Barnes and Mason, as her administrators, had no right to the same, and ought not to have included it in their inventory; after her death no legal title could be claimed, except by an administrator de bonis non, on his estate; and it follows, that all the distributions and settlements of the said property by her administrators were wholly void; and John Winter, as admin- istrator, is now entitled to all the articles embraced in the levy which were the property of Jno. Thomson Mason, deceased. But Elizabeth Mason, appears to have been possessed of a small personal estate at the time of her death, which she had in her own right. But the administration, on her estate, seems to have been irregular and void in the same particular; they had no right to charge themselves with the appraised value of the property, and acquired no title thereby, and therefore, all those articles in the said levy, which belonged to her, are pro- perly claimed by her administrator de bonis non. There is some difficulty about the negro man John Robinson: it is alleged, that he belonged to Elizabeth Mason, but was not returned in the inventory of her estate, through error or mis- 142 <'A8RS IN TUP, COURT OF APPKAL* Ri &c. ; that the said Ziegler had permission, before the issuing of said 158 CASES IN THE COURT OF APPEALS Byer vs, Etnyre and Bcsore. 1844. writs, from the said Mayhue and Lowman, to sell the same for his own use ; which opinion and direction the court refused to give. To which refusal of the court, the defendant excepted. 4xH EXCEPTION. The defendant, upon the same facts stated in the former bills of exceptions, prayed the court to direct the jury, if they believe from the evidence that the said Frederick Ziegler had permission and authority from the said Mayhue and Lowman, before the delivery of the said writs of fieri facias to the constable, to proceed and sell said grain in the ground for his own use, and that this permission and authority were given on the premises, and in view of the said grain in the ground; and that said Ziegler did, thereupon, proceed to advertise the said grain for sale, before said writs of fieri facias were so delivered, that the said facts amounted to a delivery of said grain to the said Ziegler, and the plain- tiffs are not entitled to recover ; which opinion and direction the court refused to give. To which refusal of the court the defendant excepted. The verdict and judgment being against the defendant, he prosecuted the present appeal. The cause was argued before ARCHER, DORSEY, CHAM- BERS, SPENCE, STONE and SEMMES, J. By WEISEL and PRICE for the appellant, and By MASON and F. A. SCHLEY for the appellees. DORSEY, J., delivered the opinion of this court. The County court, we think, committed no error in over- ruling the appellant's objections to the admissibility of the writs of fieri facias, and the endorsements thereon. The first of which is, "that the endorsements on the said writs do not sufficiently shew a levy upon, or seizure of the grain in ques- tion." There is no precise form of return to such executions prescribed by law ; and that made by the constable on this occasion, as far as this objection is concerned, is in accordance with the returns usually made by such officers ; and by com- mon usage and acceptation, the term "levied" when thus OF MARYLAND. 159 Byer vs. Etnyre and Besore. 1844. used by constables, imports a seizure. But suppose the facts were otherwise ; seizure is a matter in pais, which may be proved by parol evidence, and was so proved by the consta- ble who made the same, prior to any objection being taken to the testimony. It is not the constable's return which gives title to a purchaser under a fieri facias ; but the seizure and sale under the writ. And the constable's return is evidence, but not the only admissible evidence of those facts ; a state- ment thereof, in the receipt for the purchase money given to the vendee, would be as effectual to transfer the title to personal property, as the most formal return indorsed on, or attached to the writ; and if there had been no return made, nor receipt given by the constable, and the seizure, sale, and payment of the purchase money were established by oral testimony only, the title of the purchaser would be equally good. The remarks made upon the first objection are, for the most part, equally applicable to the second. The parol evidence of the constable obviating the defects, imputed to the returns made to the writs of fieri facias. The only question raised on the second bill of exceptions in the court below, and on which the court decided was, whether a bill of sale, under the act of 1729, chap. 8, which enacts, "that from and after the end of this session of Assem- bly, no goods or chattels, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser, morta- gee, or donee, unless the same be by writing, and acknow- ledged before one provincial justice, or one justice of the county where such seller, mortgagor, or donor shall reside, and be within twenty days recorded in the records of the same county," was admissible in evidence, where the magistrate, who took the acknowledgment, omitted to state therein the official character in which he acted ; and where it was admit- ted by the parties in the cause, that the person before whom the acknowledgment was made, was at the time thereof, a justice of the peace of the State of Maryland^ in and for Washington county, duly commissioned and qualified as such, 160 CASES IN THE COURT OK APPEALS Bjer vs. Etnyre and Besore. 1844. The only ground assigned for the rejection of the testimony offered, was, that the person who took the acknowledgment did not, upon its face, make any mention of his official cha- racter, or state himself to be a justice of the peace. Which objection to the evidence offered, the bill of exceptions states, that "the court sustained, upon the ground aforesaid, and refused to permit the said instrument of writing to be read to the jury."" The act of 1729, prescribes no form of acknow- ledgment to be taken by the justice; much less does it require that the authority of the justice to take the acknowledgment, should appear upon its face. With equal, if not greater pro- priety, might it be insisted, that where the acknowledgment is made before a justice of the county, it should state, that the person was a resident thereof, who made the acknowledgment. Without such residence, the writing acknowledged is as inoperative and void, as if the person taking the acknowledg- ment were not a justice of the county. And yet, perhaps, not an instrument of the kind can be found, where the acknow- ledgment contains any such assertion of residence. And should the acknowledgment, contrary to the fact, state the residence of the party to be in a different county from that of the justice, the erroneous statement might be disproved, and the instrument acknowledged, established in its operation under the act of 1729 : although upon the face of the acknow- ledgment it appeared to be a nullity. See the case of Git- tings vs. Hall, 1 Harr. fy John., 18; and so, if the acknow- ledgment had stated the person taking it to be a justice of the county, when, in truth, he was not so, the falsehood might be proved, and the instrument invalidated. And, a fortiori, may the defect be supplied, by testimony aliunde, where the acknowledgment omits to state the official character of him, by whom it was taken. And the proof offered, even if not admitted to be true, as was the case on this occasion, was much stronger and more conclusive evidence of the fact of official authority, than would have been the mere statement thereof, in the body of the acknowledgment. This view of the case we think fully sustained by the opinion of this court OF MARYLAND. 161 Bjer vs. Etnyre and Besore. 1844. in Connelly vs. Bowie, 6 Harr. 8f John. 141, where, in an action of ejectment, a certified copy of a deed was admitted as evidence, by the county court, although the acknowledg- ment thereto, neither stated the official character of the persons taking it nor the county in which it was taken. This court, in reviewing the judgment of the county court, say : "The official character of the persons before whom the supposed acknowledgment was taken, does not appear on the face of it, and the paper is equally silent as to the county in which the acknowledgment was taken; nor is there any proof in the record showing, that John Ball and Turner Wootton were justi- ces of the peace ; or that the acknowledgment was made in the county, in which the lands were then situate ;" and for these reasons reverse the judgment of the county court. Is not the inference irresistible, that had there been proof in the record, dehors the certified copy produced, shewing that John Ball and Turner Wootton, (the persons before whom the acknowledg- ments were taken,) were justices of the peace of, and that the acknowledgment was made in, the county in which the lands were situate, the judgment of the county court would not have been reversed, for the defects appearing on the face of the deed ; the copy whereof had been admitted by the county court, in evidence to the jury? But, although the county court, in the case before us erred, in refusing to permit for the reason assigned, the instrument of writing to be read to the jury, as offered by the appellant, yet its refusal was justified upon a ground which does not appear to have been brought to its notice, but which this court are not at liberty to overlook. By the act of 1729, chap- ter 8, under the provisions of which the bill of sale before us was taken ; its being recorded within twenty days "in the records of the same county," is as necessary to its validity, as is its acknowledgment. The record contains no evidence of such recording: the usual certificate thereof, by the county clerk, not appearing by the record to have been indorsed on the bill of sale. It is true, that preceding the bill of sale there is the following written statement, viz : "At the request 21 v.2 162 CASES IN THE COURT OF APPEALS Byer vs. Etnyre and Besore, 1844. of Frederick Zeigler the following bill of sale was recorded, May 24th, 1841." But this statement is signed by nobody ; and where or by whom recorded, non apparet. The third bill of exceptions having been abandoned, this court are relieved from its consideration. We concur with the county court, in its rejection of the appellant's prayer, in the fourth bill of exceptions, that if the jury "believe from the evidence, that the said Frederick Zeig- ler had permission and authority from the said Mayhue and Lowman, before the delivery of the said writs of fieri facias, to the constable, to proceed and sell said grain in the ground, for his own use, and that the permission and authority were given on the premises, and in view of the said grain in the ground ; and that the said Zeigler, did thereupon, proceed to advertise the said grain for sale, before said writs of fieri facias were so delivered, that the said facts amounted to a delivery of the said grain to the said Zeig- ler, and the plaintiffs are not entitled to recover.*' Before the court could grant the prayer thus made to it, it must assume the non-existence of all the other oral testimony given in the cause ; because, by the prayer, no part of it is submitted to the finding of the jury. In the absence of all proof, that any consideration was paid for the said permission and authority : or, that it was delegated by Mayhue and Low- man to Zeigler, on account of any debt due from the former to the latter ; or for what purpose this delegation of power was made ; to call on the court below to deduce the fact of the delivery of the grain to Zeigler, from the facts submitted by the prayer to the finding of the jury, was to ask the court to transcend its jurisdiction, and exert a power exclusively with- in the cognizance of the jury. The authority delegated, and its incipient exercise by Zeigler, are perfectly consistent, either with the delivery, or non-delivery of the grain. De- livery, in this case, was a fact dependent upon the intention of the parties, to be passed on by the jury, upon evidence being offered, which was legally sufficient for them to assume OF MARYLAND. 163 Bell, et al, vs. Webb and Mong. 1844. its existence. And so far from the court granting the appel- lant's prayer, upon the finding by the jury of the facts enu- merated, with equal if not greater propriety might the appel- lees have prayed an instruction from the court to the jury, that from their finding, only, the facts submitted to them in the appellant's prayer, they were not warranted in finding the delivery of the grain to Zeigler. Concurring in opinion with the county court, in its admis- sion of the testimony stated in the first bill of exceptions ; and in its refusal to grant the appellant's prayers in the second and fourth bills of exceptions, we affirm its judgment. JUDGMENT REVERSED. PETER BELL, ET AL., vs. WILLIAM WEBB AND PETER MONG. December, 1844. On the 1st February 1820, B. being in debt on judgment, executed a mort- gage of his lands to C., to secure him a sum due on bond. On the 29th of the same month, he executed a second mortgage of his lands and personal property to W. and M., who were his sureties ; and for their indemnity. On the 27th July following he executed a deed of trust for the property mentioned in the second mortgage, to the same grantees. The trust was to sell the property, as speedily as it could be done without a sacrifice, and pay 1st, all liens and incumbrances according to their priority ; and 2nd, all judgments obtained against, debts or liabilities undertaken by, W. and M. for the said B. The personal property, which was under execution, was sold and so applied. The land was not sold until October 1821. HELD : 1st. That as the trustees were not obliged to sell at a sacrifice, by the terms of the deed, the depressed price of lands furnished a sufficient justification to them for forbearing the sale for the time they did forbear. 2nd. That at the sale of the land, which was by virtue of an execution, the purchaser was, in fact, an agent of one of the trustees. 3rd. A trustee who purchases the trust property, which had been previously levied on, at the sheriff's sale under the writ, being guilty of no fraudulent conduct to depress the price, will be entitled to re-imbursement of his ex- penditures, but cannot deprive the c. q. t. of the benefit of his purchase. 4th. The circumstance of the trustee having an interest coupled with his trust, as for the satisfaction of his own claims, does not dispense with the 164 CASES IN THE COURT OF APPEALS Bell, et al., vs. Webb and Mong. 1844. equity, that all his acts should enure in equal proportions to the benefit of others according to the extent of their claims, as well as to himself. Where a c. q. t. attended the sale of trust property, under an execution, by a judgment creditor of the grantor of the fund, was requested to bid and did not ; nor did he express any dissatisfaction therewith, but it did not appear that, ho then, or at any subsequent time until the filing of his bill, had any notice or knowledge, that his trustee, through an agent, was the purchaser, there is no ground to impute acquiescence in the sale, though eighteen years had elapsed. In such a case, the sale is voidable at the election of the c. q. t. The land remaining in the possession of the trustee, at the institution of the suit, may be sold, and the purchase money, after allowing the trustee all the money by him paid and applied to the purposes of the trust, and also for all necessary and proper expenditures upon the land, and permanent improve, ments thereon, over and above its profits, shall be applied to the purposes of the trust. APPEAL from the Equity side of Washington County Court. The bill, in this cause, was filed on the 13th October 1839, by Peter, Daniel, and Frederick Bell, of, &c., children and administrators ot Frederick Bell, late of Washington county, deceased, and alleged, that on or about the 1st February 1820, Daniel Berger being seized in fee of the lands, &c., hereinafter mentioned, proposed to mortgage the same to the said Frederick Bell, deceased, to secure a certain claim which the said deceased at that time, had against the said Daniel Berger; and the said Berger affirmed the said premises to be free from all prior incurabrances; that on said 1st February 1820, the said Daniel Berger, executed and delivered to their said deceased father, a deed of mortgage for the said lands and tenements, reciting, among other things, that "whereas the said Daniel Berger, by his bond or obligation, bearing even date with these presents, stands bound unto the said Frederick Bell, his, &c., in the sum of $1402.60, with condition there- to -written, for the payment of $701.30, with legal interest from the 1st March next, ensuing the date, &c." And the said Daniel Berger, by said deed, for and in consideration of the said recited debt, as well as, &c., did grant, &c., unto the said mortgagee and to his heirs, &c., a certain part of a tract of land called "Huckleberry Hall" containing, &c. ; and a OF MARYLAND. 165 Bell, et al., vs. Webb and JViong. 1844. certain tract of land, called "Kysers Inheritance," containing, &c. And the said deed contained a condition, or proviso, thereto annexed, that if the said Daniel Berger should pay the said $701.30, on or before the first day of March, ensuing the date of said deed, the same should be void, otherwise, to re- main in full force and virtue in law; all of which will more fully appear, c. ; that the said sum of $701.30, was not paid to your orators' deceased father in his lifetime, or any person on his account, nor to your orators, or any person on their account, since his decease, according to the said provisions in the said deed and bond mentioned, whereby the said deed of mortgage became forfeited, &c. But now, so it is, the said Daniel Berger, combining and confederating with a certain Wm. Webb, and a certain Peter Mong, and divers other per- sons, whose names are hereinafter mentioned, and made par- ties hereto, and others, &c., to injure and aggrieve your ora- tors' deceased father, in his lifetime, and your orators since his death; and to deprive them of the said sum of money, and the interest thereon, give out and pretend, that the said Daniel Berger, in his lifetime, executed a certain other deed of mort- gage to the said William Webb and Peter Mong, of the same property, to secure them in the manner therein set forth and recited; which the said Webb and Mong, claim as a prior lien, or incumbrance, on the said property, which said deed is dated, the 29th February 1820. And, that the said Daniel Berger executed a certain other deed, or conveyance, in trust, of the same property, for the purposes therein mentioned, to the said William Webb and Peter Mong, which said deed is dated, the 27th July 1820. That the said William Webb and Peter Mong, under the authority given them by said deed of trust, pretended to convey the said property to Marmadu/ce W. Boyd, by deed, dated the 24th January 1824, for the trifling consideration of one thousand and ten dollars; that all the said conveyances were only part of a scheme and contrivance, to defeat the just claim of your orators' deceased father, who was not familiar with matters of law, and was prevented prosecuting his claim against said property, by the intricate entanglement of the 166 CASES IN THE COURT OF APPEALS Bell, at al , vs. Webb and Mong. 1844. same; that the said Marmaduke W. Boyd, the nominal gran- tee in said deed, never took possession of said property, and does not appear ever to have enjoyed any benefit under the said last mentioned deed; but the same was, in fact, a mere contrivance of said Mong, or said Webb and Mong, to protect themselves, or the said Mong, in the possession and enjoyment of said property, which he, the said Mong, appears to have had, and the proceeds thereof, since 1820, till the present time; and to defeat the claim of your orators' deceased father. And, the said Mong, still confederating with the said Daniel Berger, notwithstanding the deed, he, the said Mong, had pre- viously, in conjunction with the said Wm. Webb, as the trustees aforesaid, pretended to make to Marmaduke W. Boyd, and the legal title thereby conveyed to said Boyd, (if the said Webb and Mong could convey the same,) he, the said Peter Mong, took another deed of the same property from the said Daniel Berger, dated the 13th February 1828; the said Berger not having had any reconveyance of said property. All of which will more fully appear, by reference to the said deeds, each and every of which, your orators pray, may be taken as part of this bill. And your orators aver, that, if the said deeds were in fact made bona fide, and for good and valuable considera- tion, of which they charge to be fact, the mortgage of your orators' deceased father has the priority of date, and is, there- fore, entitled to be fully satisfied out of the said property. Your orators' further allege, that under the deed of trust of the said Daniel Berger to the said Wm. Webb and Peter Mong, dated 27th July 1820, there was a large and valuable personal pro- perty, conveyed to Wm. Webb and Peter Mong, along with the property herein before mentioned ; and, also, another small tract of land, containing one and one-fourth acre; all of which both personal and real property, were conveyed to satisfy the trusts therein mentioned, and to pay off all encumbrances on the property; that, in said deed, were recited certain judg- ments against, and other liabilities of Daniel Berger; but the more effectually to perplex and defeat the claim of your orators' deceased father, it is not mentioned, though created only a few OF MARYLAND. 167 Bell, et al., vs. Webb and Mong. 1844. months before the date of said deed, that the judgments, which they pretended to make liens on the property, amounted only to about the sum of $2000, which the personal property would have been sufficient to satisfy, if a faithful account had been rendered of the same ; and a fund might have been raised from the sale of the real property, more than sufficient to pay off the mortgage of your orators' deceased father. But your orators charge, that the said judgments had not a prior claim upon said property to the said mortgage, or if they had, they have since been discharged. Yet the said Wm. Webb and Peter Mong, have neglected to settle any account of the real and personal estate, so conveyed, in trust, and to pay off the incumbrances, according to the directions of the deed, and the trusts conferred upon and assumed by them. And your ora- tors charge, that the said Peter Mong, since the deed of Daniel Bergerlo him, dated the 13th February 1828, has taken upon himself the exclusive control and disposition of said pro- perty, and has sold parts thereof to divers persons, to wit, &c.; shewing the great value of said property, and the fraudulent and insufficient consideration pretended to have been paid for the whole property, all of which is of equal value, conveyed or pretended to be conveyed under the deed of trust, aforesaid; which will more fully, and at large appear, by reference to said last mentioned deeds ; all of which are made parts of this bill. And your orators further shew, that the said Daniel Bergerdied in this county, in or about the year 1833, or 1834, insolvent, and without any personal property to administer upon ; that there was no administration, and that, consequent- ly, your orators claim, or any part of it, was never satisfied; that the said Daniel Berger left children, to wit, &c. Prayer, that the said Wm. Webb, Peter Mong, Marmaduke W. Boyd, and other parties, defendants hereto, may set forth and show, what other right, title, interest, or claim, they, or any of them, may have in said property ; that the said Peter Mong, or the said Wm. Webb and Peter Mong, and the other parties, holding the said lands according to their proportions, if there be not a sufficient quantity still in the possession of 168 CASES IN THE COURT OK APPEALS Bell, et al., vs. Webb and Mong. 1844. said Peter Mong, may be decreed to pay and satisfy to your orators the said sum of, &c.; and, in default thereof, that the said parties hereto, and all persons claiming or to claim under them, may be foreclosed of, and from, all equity of redemption, &c.; and the same, or so much as may be required, may be decreed to satisfy the mortgage held by your orators ; and, if it be necessary and proper, that the said Wm. Webb and Peter Mong, may be decreed to settle their trust under the direction of this honorable court, and that the claim of your orators may be decreed thereby to be satisfied ; and that your orators may have such other, and further relief, as, &c. ; of subpoena, &c. The defendants, the trustees, appeared and answered the bill. The nature, character and extent of that answer; the exhibits filed by both parties ; and the testimony, sufficiently appear in the opinion of this court. On the 24lh December 1842, Washington county court, set- ting as a court of equity, dismissed the bill with costs, and the complainants prosecuted this appeal. The cause was argued before ARCHER, DORSEY, CHAM- BERS, STONE and SEMMES, J. By SPENCER for the appellant, and By PRICE for the appellees. ARCHER, J., delivered the opinion of this court. Daniel Berger, being largely indebted on judgments obtained against him in Washington county court, executed to the com- plainant, on the 1st of February 1820, a mortgage on his lands to secure the payment of $701.30; and on the 29th of Febru- ary, executed a deed of mortgage to William Webb and Peter Mong, for his said lands and personal property. In this deed, it is recited, that Berger was in debt to sundry persons in the sum of $6000; and that Webb and Mong were his securities, and that the deed is executed to secure them the payment there- of; and subsequently, on 27th July 1S20, he executed a deed of trust for the said lands and personal property in trust, to sell the same as speedily as it could be done, without a sacrifice, OF MARYLAND. 169 Bell, et al., vs. Webb and Mong. 1844. for the purpose of paying off, first, all the liens and incum- brances according to their priority. Secondly, for paying off all judgments, and debts, and liabilities, obtained against, or undertaken by the grantees, on account, and for the said Ber- ger, &c. The answer states, that the personal property, which was under execution, sold on 2nd November 1820, for near $600, and was applied to payment of the executions which covered it. That the trustees offered the lands for sale, and could get no bid for them, owing to the depressed prices of land at that time. That the judgment creditors became impatient, issued executions, and the land was offered at sheriff's sale on 3rd day of July 1821, and was subsequently sold by the sheriff under vendies, on the 21st of October 1821, to Marmaduke W. Boyd for $1010. That this sum was insufficient to pay the liens and judgments, prior to the complainants mortgage ; that Boyd purchased the land, at the request of Webb and Mong, to aid them in getting out of the difficulties in which they were involved, by being connected with the concerns of Berger. That after said purchase, they conveyed to Boyd all the inte- rest they had in the land, to enable Boyd to sell the lands, that the proceeds might be applied to their relief; but Boyd being unable to sell, Mong agreed to purchase the land from Boyd, and paid him $1500 for the same, which sum covered all ex- penditures by Boyd, in the purchase, &c., of the land. By the evidence, it is established, that Mong and Webb had offered the lands at private sale repeatedly ; that lands were depressed in price very much at that time, and that within a year after the deed to them j?. fas, on those judgments were issued, and upon vendies, they were sold. As the trustees were not obliged to sell at a sacrifice, by the terms of the trust, the depressed price of lands furnished a sufficient justification to them for forbearing the sale, for the time they did forbear. There appears to be no evidence satisfactory to us, that there existed any combination between the trustees and the judgment creditors, to bring these lands to a sale. 22 v.2. 170 CASES IN THE COURT OF APPEALS Boll, et al., vs. Webb and Mong. 1844. We are, therefore, bound to consider, that no imputation can lie against the trustees on account of the executions. It cannot however, we think, be doubted, that at the sheriff's sale, Boyd in the purchase, was the mere agent for Mong. This is evident, we think, as well from the facts disclosed in the answer, as from the testimony of Mong himself: and one of the questions which arises in the case, is, whether a trustee can be permitted to purchase the cestui que trusts property, levied upon and sold at a sheriff's sale, without any instru- mentality of his. As decisive of this question, we refer to 7 G. Sf /. 1. The trustee thus purchasing, will be entitled to re-imbursement for his expenditures in the purchase, but he cannot deprive the cestui que trust of the benefit arising from the purchase, if there be such benefit. 3 Des. 25. But, it is supposed, that whatever may be the general rule on this subject, that in the case before us. there was a trust coupled, with an interest, which authorized the purchase for his own benefit. The trustee had an interest in the satisfac- tion of his own claims, it is true, but equity would seem to demand, that all his acts, in relation to the trust property, should enure in equal proportions to the benefit of others, ac- cording to the extent of their claims, as well as to himself. This point seems to have been involved in 7 Gill 8f John. 2. Another question is, whether the sale ought not to be con- sidered, as ratified by long acquiescence; after a knowledge of the facts, which will impeach a sale, a party would be bound, in a reasonable time, to proceed, and if he do not, he will be presumed to have acquiesced. Here a period of eigh- teen years has elapsed, from the sale to the filing of the bill; but as far as the records presented the case, it would appear to have been an ordinary sale to Boyd, by the sheriff, and it seems only to have been discovered at the filing of the answer, that Boi/dhad purchased for the trustee; so that the complain- ant proceeded upon this new state of the case to vacate the purchase immediately thereafter. It is true, the complainant attended the sale, and was requested to bid, but declined, and did not express dissatisfaction therewith. But it does not OF MARYLAND. 171 Barrcll vs. Glover, et al. 1844. appear, that he then,,or at any subsequent time, until the insti- tution of these proceedings, had any notice or knowledge that Boyd was purchasing for the trustee. We therefore think, there is no ground to impute any acquiescence to the com- plainant. In view, therefore, of all the circumstances of the case, we are of opinion, that the sale thus made, is voidable, at the election of the complainant; and that the land described in the proceedings, and yet remaining, at the institution of this suit, in the possession of the defendant Mong, should be sold; and that the purchase money, after allowing to the defendant all the monies by him paid and applied, to the purposes of the trust, and also for all necessary and proper expenditures upon the land, and permanent improvements thereon, over and above the profits of said lands, shall be applied to the purposes of the deed of trust, made by Berger, on the 27th July 1820; and that the cause should be remanded, to the county court, that the principles of this decree may be carried into effect by further proceedings therein. DECREE REVERSED. SAMUEL B. BARRELL, vs. JAMES GLOVER, ET. AL. Decem- ber, 1844. An action of debt cannot be maintained upon a deed of mortgage, reciting that the grantee was indebted to the grantor in a sum certain, and that tho deed was executed for the better securing the payment thereof, with a pro- viso, after the habendum of the instrument, that upon payment of the money the deed should be void, there being no covenant ia the deed to pay the debt. APPEAL from Jlllegany County Court. This was an action of debt, instituted on the 6th February 1841, by the appellees against the appellant. 172 CASES IN THE COURT OF APPEALS Barrell vs. Glover, et al. 1844. The plaintiff 'filed in the cause the following indenture. This indenture, made this 22nd August 1836, between Samuel B. Barrell of, &c., of the one part, and James Glover, James Pearcy, and Lewis McMillan, of the other part. Where- as, the said Samuel B. Barrell stands indebted to the said James Glover, James Pearcy, and Lewis McMillan, in the sum of $5000, current money, to be paid to them by the said Samuel B. Barrell, on or before the 22nd day of August 1837, with legal interest thereon until paid, and for the better secur- ing the payment thereof, with interest as aforesaid ; the said S. B. B. hath agreed to execute, and doth execute these pre- sents. Now this indenture witnesseth, that the said S. B. B., in consideration of the said debts or sum owing to the said J. G., J. P., and L. McM., as aforesaid, and for the better secur- ing the payment thereof, with interest to the said J. G., J. P., and L. McM., their, &c. ; and also in consideration of the fur- ther sum of, &c., to him, the said S. B. B., in hand, well and truly paid, by the said J. G., J. P., and L. McM., at or before sealing and delivery of these presents, the receipt whereof, &c., hath granted, bargained and sold, released and confirmed, and by these presents doth grant, bargain and sell, release and confirm unto the said J. G., J. P. and L. McM., their heirs and assigns, all that tract or parcel of land called "Water Works" lying in Jlllegany county, aforesaid. To have and to hold the said tract of land called "Water Works," unto the said J. G., J. P. and L. McM., their heirs and assigns forever. Provided always, and it is the true intent and meaning of these presents, and of the said parties thereto, that if the said S. B. B., his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid, to the said J. G., J. P., and L. McM., their, &c., the said full sum of $5000, with legal interest for the same, on or before the 22nd August 1837, with- out any deduction or abatement whatsoever, then and from thenceforth, these presents, &c. The plaintiffs declared, that whereas the said defendant heretofore, &c., by a certain indenture, then and there made, between the said plaintiffs of the one part, and the said de- OF MARYLAND. 173 Wharton et al, vs. Callan. 1844. fendant of the other part, which said indenture, sealed with the seal of the said defendant, the said plaintiffs now bring here into court the date whereof is the day and year aforesaid, acknowledged himself to be indebted to the said plaintiffs, in the sum of $5000, current money, to be paid to the said plain- tiffs, by him, the said defendant, on or before the 22nd day of August, in the year 1837, with legal interest thereon, until paid. Nevertheless, &c. After oyer of the deed, the defendant demurred generally to the declaration, in which the plaintiffs joined. The county court rendered judgment in favor of the plain- tiff, for the debt claimed in the declaration, and the defendant appealed to this court. The cause was submitted without argument to ARCHER, DORSEY, CHAMBERS, SPENCE and STONE, J. By F. A. SCHLEY for the appellant, and By ALEXANDER for the appellees, who cited Penn 8? Dig- ges, ex. of Digges vs. Carroll, et al. Mss. Deer. 1836. BY THE COURT. JUDGMENT REVERSED, WITH COSTS AND JUDGMENT FOR THE APPELLANT. JOHN O. WHARTON, ABRAHAM BARNES, AND MELCHIOR B. MASON, vs. JOHN T. CALLAN. December, 1844. Where the defendant made his note payable to the plaintiff, who passed it away for value, and afterwards, the plaintiff paid it, he may maintain an action for money paid for the defendant, though after the note fell due, and before the plaintiff had paid his endorsement, the defendant was released under the act for the relief of insolvent debtors. APPEAL from Washington County Court. This was an action of assumpsit, brought by the appellee against the appellants, on the 16th March 1842. The plaintiff declared. 174 CASES IN THE COURT OF APPEALS Wharton, ct al.. vs. Callan. 1844. IST. On the note of the defendants, dated the 20th April 1839, payable on or before the 1st November 1839, to the plaintiff for $1000. 2ND. On an insimul computassent, on the 1st March 1842, and a balance due plaintiff of $1000. SRD. For money paid, laid out and expended, &c. The defendants pleaded in bar: IST. JVbn assumpsit. 2ND. That as to 1st count in the declaration, the plaintiff, after the making and delivery of the note, declared on to him, endorsed and delivered it to R. C. W., which said R. C. W., prosecuted the said appellants to judgment upon the said note. SED. That on the 12th May 1840, the said Abraham; on the 18th August 1840, the said Melchior ; and on the 16th March 1841, the said John 0.; respectively became, and were petitioners for relief under the acts relating to insolvent debt- ors ; were severally, and in due course of law, discharged from their debts, and finally released ; and that the plaintiff is only entitled to a qualified judgment, to affect future acquisitions by gift, &c. This plea contained full and formal averments of the proceedings of ihe appellants to a final release, &c. The plaintiff joined issue on the 1st plea, and replied to the 2nd plea of the defendants below, as follows: The plaintiff saith, that he, &c., ought not to be barred, &c. That although true it is, that the said plaintiff did, for a valuable consideration paid to him, assign and endorse over, and deliver to the said Richard C. Washington, the said pro- missory note, mentioned and described in the first count of the said declaration, and the said Richard, as such endorser or holder of said note, did institute suit on the same, in Wash- ington county court, against the said defendants, and recovered judgment against them in said court, as stated in the said plea of the said defendant, by them secondly above pleaded, yet the said plaintiff in fact saith, that the said John 0. Wharton, to wit: (here state and finally set out the respective applica- tions of the several defendants, for the benefit of the insolvent OF MARYLAND. 175 Wharton, et al, vs. Callan 1844. law, and its supplements, and their respective discharges under the same,) and the said plaintiff says, that the said judgment, so recovered by the said Richard, against the said defendants, was in no way paid or satisfied by the said defendants, other than by their said respective discharges under said act of Assem- bly, and its several supplements; whereby, the said Richard, was prohibited from issuing any writ of execution, or other process on said judgment, whereby he could affect either the persons or property of said defendants, or either of them ; ex- cept such property of said defendants as was not included in their schedules, returned in their said applications, of which the said plaintiff says there was none. And the said plaintiff, in fact, further saith, that because of the said insolvency of the said defendants, and their failure to pay, or in any manner sat- isfy said judgment, the said Richard, as holder and endorser of said note, in the first count of said declaration mentioned, afterwards, and after the said defendants were discharged as aforesaid, to wit : on the first day of February 1842, at the county aforesaid, demanded and received from him, the said plaintiff, as endorser on said note as aforesaid, the full amount of said note then due, and he, the said plaintiff, as such endor- ser, then and there paid to the said Richard C. Washington, a large sum of money, to wit: the sum of $1200, current money, in full, for the said claim of said Richard, on him, the said plaintiff, on said promissory note, on which said judg- ment was rendered ; by virtue of which said payment by him, the said plaintiff, to the said Richard, a right of action to recover the same from the said defendants, hath accrued to him, the said plaintiff; and this he, the said plaintiff, is ready to verify ; wherefore he prays judgment on the 1st count; and his damages by him sustained, on occasion of the non-perfor- mance of the said promise and undertaking of the said defen- dants, in the said first count, in the said declaration mentioned ; to be adjudged to him, &c. Replication to 3rd plea. The said plaintiff saith, that the said defendants, heretofore, to wit, on the 20th day of April 1839, at, &c., made their cer- 176 CASES IN THE COURT OF APPEALS VVharton, et al., vs. Callan 1844. tain promissory note in writing, bearing date the day and year aforesaid, and thereby, then and there, on or before the first day of November 1839, they, or either of them, promised to pay to the said John F. Callan, or order, for value received, $1000; and then and there, delivered the said note to the said John F. Callan; and the said plaintiff, to whom, or to whose order, the payment of the said sum of money, in the said promissory note specified, was to be made, after the making of the said promissory note, and before the payment of the said sum of money therein specified, to wit: on the first day of November, in the year 1839, at the county afore- said, endorsed the said promissory note, by which said en- dorsement, he, the said plaintiff, then and there, ordered and appointed the said sum of money, in the said promissory note specified, to be paid to one R. C. W. ; and then and there, by said endorsement and assignment, bound himself to be respon- sible for the payment of the same, without the form of a pro- test of said note ; by means whereof, and by force of the sta- tute, in such case made and provided, the said defendants then and there, became liable to pay to the said Richard, the said sum of money in the said note specified, according to the tenor and effect of the said promissory note ; and being so liable, they, the said defendants, in consideration thereof, afterwards, to wit : on the fourth day of November 1839, at the county aforesaid, undertook, and then and there, faithfully promised the said Richard, to pay him the said sum of money, in the said promissory note specified, according to the tenor and effect thereof, yet the said defendants wholly failed to pay to the said Richard, the said sum of money, in the said' promissory note specified ; and thereupon, the said Richard, afterwards, to wit: at the March term, in the year 1840, in Washington county court, at the county aforesaid, impleaded the said defendants, in a certain plea of trespass on the case on promises, to the damage of the said Richard, in the sum of $2000, for the not performing the said promise, to pay said promissory note ; and such proceedings were, thereupon, had in the said court; that afterwards, to wit, on the 23rd day of March 1841, OF MARYLAND. 177 Wharton, et al, vs. Callan 1844. the said Richard, by the consideration and judgment of the said court, recovered in said plea against the said defendants $2000, for his damages which he had sustained, as well by reason of the not performing the said promise and undertaking, to pay said promissory note, as for his costs and charges by him about his suit in that behalf expended, whereof the said defendants were convict, as by the record and proceedings thereof, still remaining in this court, will more fully and at large appear; and the said plaintiff further says, that the said defendants never paid, or in any manner satisfied the said judgments ; but obtained a release, from the same, by their re- spective applications for the benefit of the said act of Assem- bly, and its several supplements; and their several discharges under the same, at the several times and in the manner stated and set forth in their said third plea; whereby, and because of said discharges of said defendants, without having in any man- ner paid or satisfied the said promissory note, or said judgment for the recovery of the same, the said Richard, afterwards, and after the said discharges of said defendants, to wit, on the first day of February, in the year 1842, as endorsee and holder of said promissory note, demand of him, the said John F. Cal- lan, as endorser on said note, and as security to him for the payment of the same by the said defendants, the said sum of money specified in said promissory note, and all interest due on the same ; and which said sum of money, the said John F. Callan was bound in law to pay; and the said plaintiff further, in fact saith, that he did afterwards, and after the said dischar- ges of said defendants, under said act of Assembly, and its several supplements, to wit, on the first day of February 1842, at the county aforesaid, pay to the said Richard, as holder and endorser of said promissory note, and in satisfaction of the same, the sum of $1200, current money; and which said sum of money the said plaintiff saith, was so much money laid out, expended, and paid by him, the said plaintiff, at the special instance and request, and to and for the use and behoof of them, the said defendants, since their said respective dischar- ges; whereby, notwithstanding said discharges, action hath 23 v.2 178 CASES IN THE COURT OF APPEALS Wharton, et aL, vs. Callan. 1844. accrued to him, the said plaintiff, to demand and recover from them, the said defendants, the said sum of current money, so paid for them as aforesaid ; and this, he, the said plaintiff, is ready to verify; wherefore he prays judgment, and his dama- ges by him sustained, on occasion of ihe non-performance of the said several promises and undertakings, in the said decla- ration mentioned, to be adjudged to him, &c. The defendants demurred generally to the replication to the third plea, in which the plaintiffs joined. The county court rendered judgment on the demurrer for the plaintiffs, and dama- ges were assessed by consent. The defendants prosecuted the appeal. The cause was argued before ARCHER, DORSEY, CHAM- BERS, SPENCE, STONE and SEMMES, J. MASON, for the appellants, maintained, as this was not the case of a security suing his principal, upon the ground of payment made, after the principal had been released by opera- tion of law, the action could not be maintained. And he cited, 3 D. 8f E. 341, 98, 599. 3 Wilson, 346. The appellee was a bona fide creditor of the appellant, by reason of the note, and as the note could have been proved by him, as a debt against the insolvent's estate, there was no liability over. 4 D. # E. 825. At this point of the argument, R. JOHNSON, also for the the appellants, enquired, if the court would hear an argument in opposition to their judgment, in the appeal of Harris vs. Oliver, E. S. Mss. In that case, the note was made for the accommodation of the endorser, who, after his release as an insolvent debtor, was offered as a witness for the maker of the note ; and it was held, as the witness would be liable over to the defendant, who offered him, upon his paying the note, he was incompetent to testify. The court, upon consultation at the bar, said the principle of that decision would not be disturbed. OF MARYLAND. 179 Wharton, et al, vs. Callan 1844. F. A. SCHLEY for the appellee. This case is not distinguishable in principle, from Harris vs. Oliver. The endorser, here, has no right of action, until he has paid the note. Until then, he has no debt to prove. Callan would not be permitted to question the appellant's right to a release, until he had paid. The rules applicable to bills of exchange, are only applica- ble to notes after endorsement. Byles on Bills, 17 Law. Lib. Smith's Mer. Law. 163, 164. Chitty on Bills, 553. 2 Burr. 676. Burr. 1224. 1 G. & J. 175. Notes after endorsement, take the character of inland bills. The rules, as to bills creating rights and duties, show that en- dorsers are mere sureties, entitled to such rights, and will be protected accordingly. Chitty, 266. An endorsement is an indemnity, provided due notice is given of failure to pay by the maker. Callan is in law, as the drawer of a bill, and hence, a security for the acceptor. Chitty on B. 333, note I, states the order of liability, as to the several parties to the instrument. 3 Boss # Puller, 366. 4 Bing. 720. 16 Law. Lib. 136, 137, 138, 3 Kent Com. 86. Nothing will discharge the acceptor, but payment and release, or what is equivalent to a release. A discharge under insolvent law, is neither 4 Bing. 717. 15 E. Com. Law, R. 126. Callan had no control over the bill at the time of insol- vency. He had parted with it. The endorser's rights arise on payment of the note. 1 Lord Ray. 742. 3 H. # J. 132, 133. By payment by the endorser, after his payment a new con- tract is created. 17 Law. Lib. 161. Before this he had no right of action. Then can the prior release affect him ? Can it operate on a contract not then in existence ? The insolvent law only affects the debts due at the period of arrest. Yet it is no satisfaction. The debt still remains. 4 D. fy E. 447. Then a surity who pays the debt, is not precluded by the prior insolvency of his principle: any other construction would be unjust. 180 CASES IN THE COURT OK APPEALS Wharton, et al., vs. Gallon. 1844. REVERDV JOHNSON in reply. The thing to be accomplished by the act of 1805, ch. 110, sect. 5 and 13, was the emancipation of the debtor from all his then engagements, from the incumbrance of his debts. All his property was to be surrendered up; nothing was to be kept for contingencies. All property, real, personal, and mixed, was to be conveyed. The 5th section discharges the debtor from all debts due, owing or contracted; all his covenants, all his promises, all discharged ; every form of agreement, deed, or contract, is discharged. The petitioners under the act of 1805, (which afterwards was made the basis of our general system,) were merchants; all indebted on negotiable paper. The leg- islature designed to apply the act to negotiable paper, for all the petitioners were then so indebted. The endorser, here, is a creditor, by force of the original contract ; and by that alone. The act was to release a petitioner, but no other person. It contemplated, that other persons might be liable, but it was the debt with reference to the original debtor, the legislature struck at. The 13th sect, gives relief as to subsequent arrests, upon antecedent contracts; and a party can only apply once in two years. The case cited from 4 D. $ E. 447, has no appli- cation here. It relates to a release under the Lord's act, which has no resemblance to our law. A release there, is a statutable payment of the particular debt, for which the party was exe- cuted. 2 Sell. Prac. 346 Hence, there must be a remedy, still, in favor of the creditor, who had not charged the debtor in execution. 3 Wilson 262. 1 Term Rep. 598, 346, are cases, in which there was no obligation on the part of the debtor, to pay at all; no consideration; no right of action ; 3 H. fy J. 125. Failure of consideration, unless in cases of mala in se vel prohibita, can only be taken advantage of by immediate parties to the contract. As to third persons, the question is not open. Where a holder of a note has given value, it is immaterial whether the instrument was, originally, an accom- modation to another or not. This is all that 3 H. Sf J. 125, decides. The case before us is altogether different from OF MARYLAND. 181 McElfresh, adm'r, vs. Schley and Barr. 1844. that. The appellants were bound to pay Callan. On failuie to pay, they were fixed as to him. Callan was fixed, as to Washington; who might have had two judgments, yet but one satisfaction. How then did Callan stand to the makers after judgment? He might pay, demand an assignment of Wash- ingtorfs judgment against the appellants, and have it en- tered for his use. Then Callan was bound to pay. Yet it is argued, if he refused and postpones payment, he may recover. But if he does his duty and pays promptly, he cannot. This cannot be : he is then a creditor, and bound by the act of insolvency, where legal and equitable creditors may all come in. BY THE COURT JUDGMENT AFFIRMED. WILLIAM M. BEALL AND THERESA MCELFRESH, ADM'R. OF JOHN H. MCELFRESH, vs. GEORGE SCHLEY, DAVID BARR AND CHRISTINA BARR. December, 1844. M, by his last will, devised to one of his three sisters, certain real estate in fee, and constituted her his residuary legatee, and devisee ; he bequeathed to her all his "money, choses in action, and all the rest, residue, and remain, der of my (his) property, real, personal and mixed, (not hitherto devised or bequeathed,) of which I am now possessed, or of which I may be possessed, at the time of my death, to her, her heirs and assigns, forever." M. also de- vised real and personal estate, in trust, for his other two sisters. After the publication of this will, the testator purchased other real estate, and died without republishing it. HELD, that the two sisters, who took trust estates, could not also claim as heirs at law, their proportion of the after acquired estate ; which, in this case passed under the residuary clause- No person will be compelled to make an election unless the intention of the testator be sufficiently made out. There never can be a case of implied election, but upon a presumed intention of the testator. The degree of intention necessary to raising a case of election, must plainly appear on the face of the will. Where a testator declares in express terms his design to make T. his residu- ary devisee, and explicitly announces of what, by devising to her the re- mainder of the property of which he was then possessed, or of which he might be possessed, at the time of his death; this is evidence of his inten- tion to devise all the estate of which he might die possessed ; and upon the equitable principles of election, is a devise to that extent. 182 CASES IN THE COURT OK APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. The doctrine of equitable election is as applicable to an heir at law, as to other devisees ; and may result, either from an express, or an implied con- dition. A man shall not take a benefit under a will, and at the same time defeat the provisions of the instrument ; if he claims an interest under it, ho must give full effoct to it, as far as he is able. He cannot take what is devised to him, and at the same time, what is devised to another; hence, he must elect which he will take of the two devises. The rule, that a will is inoperative to pass lands acquired after its execution, will not prevent the application of the doctrine of election. Void wills, as of femes covert, or infants, do not demand an election ; so a will not executed according to the statute of frauds, creates no case of election, from implication. Such wills cannot be read as evidence. The modern English cases do not enlarge the principle of election. Tho court will fix a time, in their decree, within which a devisee bound to elect, must make an election ; and if the election is not to take the es- state, in fact used and enjoyed under the will, the court will further decree an account of rents and profits of the part so held and used. APPEAL from the equity side of Frederick County Court. The appellees in their bill alleged, that Caspar Mantz, be- ing seized and possessed of a large real and personal estate, did, on the 29th August 1832, publish his last will and testa- ment ; and about the 29th October 1839, died without having revoked, or in any manner altered or changed his said will. That John H. McElfresh, named in said will, took upon him- self the burden of executing all the trusts imposed upon and confided to him by said will; both as the sole executor of said will, as also the trustee for the several parties, devisees, and legatees, named in said will. That in and by said will and testament, the said testator did, among other things, devise and bequeath to the said John, &c., (for a statement of which devises and bequests, see the will post.) That the said /. H. McE., after the death of said testator, gave to your oratrix, Christina Barr, wife of David Barr, full and immediate pos- session of said farm, so devised to her as aforesaid, in compli- ance with the direction of said testator ; and she has, ever since, received and enjoyed the rents and profits thereof. He also received and paid over to her, the dividends received by him on said bank stock ; also, the rents on the dwelling house of said testator, and the several lots of ground in Frederick town ; OF MARYLAND. 183 McElfresh, adm'r, vs. Schley and Barr. 1844. as devised as aforesaid, for the use of your oratrix. But the said McElfresh; in his life time, did not pay over to your ora- trix any part of the interest due her on the said sum of $32,000 ; contending, that he was not bound to pay the same until two years after the death of said testator ; that he was entitled to hold the said sum, free of interest, for one year after the death of said testator ; so that your oratrix would be entitled to re- ceive interest on said sum, from the 29th day of October 1840, and not before; to which your oratrix objected, and the said McElfresh, therefore, withheld from her the said interest on said $32,000; that the said /. H. McE. died some time in the month of July 1841, intestate, and that letters of administra- tion on his goods and chattels, rights and credits, have been granted by the Orphans court of Frederick county, to his widow, Theresa McElfresh and William M. Beall, who are acting as such administrators ; your orator and oratrix further charge, that the said /. H. McE., in his life time, received and held in his hands, for the use of your oratrix, the interest on said $32,000 ; and that he also received from the assets of said tes- tator the said principal sum of $32,000, and had the same so invested or loaned, as to produce and yield annually, the legal interest of the same ; which ought to have been, but which was not, paid over to your oratrix, during the life time of the said J. H. McE.; that some time after the death of said /. H. McE., your oratrix applied to his said administrators to pay her over the dividends on said bank stock, that had accrued in part, and had not been paid over to her in the life time of said intes- tate, and which had in part accrued since his death ; as also to pay over to her certain rents that had become due on the real property lying in Frederick town ; and also the interest, due to her under the will of her said brother, on the said sum of $32,000 ; but they refused payment of any part to her ; saying, that any payment to be made by them, must be made to who- ever might be appointed the trustee for your oratrix, in the place and stead of the said J. H. McE., deceased. That your ora- trix being much in want of the money, which her brother's bounty had so kindly provided for her, immediately filed her pe- 184 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. tition, together with her husband, in this honorable court ; and obtained an order appointing George Schley her trustee, to act in the place and stead of the said J. H. McE., in regard to said trusts ; that said George Schley has accepted said trust ; that the said G. S: as trustee, as aforesaid, in the place and stead of J. H. McE., and by virtue of said order, called on said administrators of said McElfresh, to pay into his hands, for the use of your oratrix, according to the provisions and di- rections of said last will of said Caspar Mantz, the $32,000, in cash, with all the interest due thereon ; as also the rents of the real estate, and the dividends on the said bank stock, that had been received by the said J. H. McE. in his life time ; but had not been paid over to your oratrix, the said Christina, by him. That the said administrators did pay over to said George Schley^ as trustee for your oratrix, the rents and dividends on the bank stock received by said J. H. McE., as also the sum of $28,000, in part of the said principal sum of $32,000; and the sum of $2426.66, as interest on said $32,000, from the 29th day of October 1840, being one year after the death of said testator, up to the 3rd day of February 1842 ; that being the day on which the payment was made to your orator, the said George Schley. But the said administrators refused to pay the re- maining $4000, of the said principal sum, to the said G. S.; and now hold the same in their hands, and refuse to pay it over for the benefit of your oratrix, until, as they say, your ora- trix and her said husband will unite in a deed of conveyance : by which, they will convey and release to the said T. McE., as the residuary devisee in said will, all their estate, right, title, and interest both at law, and in equity, in and to a certain farm or tract of land, known as the "Kenegafarm ;" and which said land was purchased, by and conveyed to, the said Caspar Mantz, some considerable time after he had made and executed his said last will and testament. This conveyance your oratrix is unwilling to make, believing, as she is indeed advised, that the said testator died intestate, as to the said land so purchased by him, after he had made his said will, and that the same will descend to his heirs at law, of whom your oratrix is one ; and OF MARYLAND. 185 McElfresh, adm'r, vs. Schley and Barr. 1844. that your oratrix is under no obligation, legal or equitable, to forego her rights as one of the heirs at law, of her said brother, to said farm, to enable her to receive and enjoy the whole bounty intended for her, and given to her by his said last will and testament. But now so it is, &c. Prayer, for subpoena against the appellants, and for relief, &c. Caspar Manlz devised as follows : "1st. I devise and bequeath to John H. McElfresh, his heirs or assigns, for the purposes, uses, and trusts, hereinafter men- tioned, 222 acres of land, more or less, being part of "Locust Level," &c.; and $10,000, money, now in the hands of /. H. McE., bearing interest, &c. It is my wish and desire, and I do so order and direct, that the nett profits arising from the aforesaid farm of 222 acres, after deducting what is necessary to keep said farm and the buildings thereon in good repair, together with the interest arising after my death from the $10,000, of three per cent funds, in the hands of J. H. McE., and the $5000 in cash as aforesaid, shall be invested in some good funds, at the discretion of the said J. H. McE. I further order and direct, that the said J. H. McE. shall pay over to my sister Eleanor, out of the nett proceeds of the real and per- sonal estate, above devised, during the life of her husband, as much as the said J. H. McE. may think necessary for the comfort of my said sister Eleanor, and her children ; but in no event to suffer any part of said proceeds to go into her hus- bands hands. And any receipt or acquittance which my sister Eleanor, though covert, shall execute, &c. I further direct, that should my sister Eleanor outlive her husband, that the nett proceeds of the land, and money, and cash, hereinbefore mentioned, shall be paid, semi-annually, to my sister Eleanor, &c ; and all the nett proceeds and increase of the said real and personal estate, which may be in the hands of the said /. H. McE. at the death of my sister Eleanor, shall be equally divided between her children, share and share alike ; but should any of her said children have died, before said division shall be made, and left children, the said children shall be entitled to their mother's or father's share, as the case may be. But 24 v.2 186 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. no division, as aforesaid, shall be made during the life of my sister Eleanor's husband, nor until her youngest child shall attain the age of twenty-one years. If in the course of events, it should become necessary for the said John H. McElfresh to make a disposition of his worldly affairs, I hereby authorize and empower him to appoint some trusty friend to carry into effect my wishes and directions, respecting the devises and legacies hereinbefore mentioned, and to allow him such com- pensation as he may think proper. 2nd. I hereby devise and bequeath to /. H. McE., his heirs or assigns, for the purposes, uses and trusts hereinafter men- tioned, 454|- acres of land, more or less, &c. It is my will and desire, and I do so order and direct, that immediately after my decease, my sister Christina shall go into the posses- sion of the aforesaid farm of 454 acres, have and enjoy the whole productions and profits thereof. It is my will and de- sire, and I do so order and direct, that all the other property hereinbefore mentioned, save what is put in trust for my sister Eleanor, shall be in the hands of the said John H. McElfresh, in trust ; the said John H. McElfresh is to receive and collect all the nett proceeds of said real and personal estate ; and the same, together with all the interest on bank stock and other funds, he shall pay over to my sister Christina, to her own separate use, during her natural life, whether she be covert or sole; and any receipt or acquittance of my said sister Christina, though covert, given to the said John H. McElfresh, touching the trusts hereinbefore mentioned, shall be as valid in law as if she was sole. And further, it is my will, and I do so order and direct, that after the death of my said sister Christina, all the real estate hereby devised to the said John H. McElfresh in trust, for my sister Christina, shall be sold ; and I do hereby authorize and empower the said John H. McElfresh to convey the same as fully as I could do, and the proceeds arising from said real estate, together with the bank stocks and other funds, and the increase thereof, herein devised in trust, for the benefit of my sister Christina, shall be equally divided among the children of my sister Christina, that may be then living, share OF MARYLAND. 187 McEIfresh, adm'r, vs. Schley and Barr. 1844. and share alike; and should any one, or more, of her said chil dren have died before said division, then the child or children, of such child or children, shall come in for the same share that the mother or father would have been entitled to, if living. Provided, and it is my will and desire, that no sale or division of the real and personal property, herein devised and bequeathed to John H. McEIfresh) in trust, for my sister Christina and her children, shall be made, until her youngest child arrive to the age of twenty-one years. 3rd. I devise and bequeath to my sister Theresa, to her, her heirs and assigns, forever, all the following property, to wit: all that tract of land, being part of a tract of land called "Tasker's Chance," &c., to her my said sister Theresa, her heirs and assigns forever. 4th. It is my will and desire, and I do so order and direct, that my sister Theresa shall pay to Catharine Clark, a free coloured woman, $100 in quarterly payments of $25 each,' in advance, during her natural life. There is a chest of home made linen in my house, if there should be any of it left at the time of my death, it is my wish that it shall be equally divided between my three sisters, Eleanor, Christina, and The- resa. And furthermore, I do hereby make and constitute my said sister Theresa, my residuary legatee and devisee ; and do hereby give and bequeath to her all my money, choses in ac- tion, and all the rest, residue and remainder, of my property, real, personal, and mixed, (not hereinbefore devised or be- queathed,) of which I am now possessed, or of which I may be possessed at the time of my death, to her, my said sister Theresa, her heirs and assigns forever. And finally, I do here- by make, constitute, and appoint John H. McEIfresh, my whole and sole executor of this, my last will and testament; and I do revoke and annul all former wills heretofore made by me, relying on his honesty and integrity to carry this, my last will and testament, into full and complete effect. In testimony whereof, I have set my hand and affixed my seal, this 29th August 1832. CASPAR MANTZ, (Seal.) 188 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. The defendants, William M. Beall and There&a McElfresh) in their answer declare, that they admit that Caspar Mantz did, on the 29th day of August 1832, make and execute his last will and testament in due form of law, a true copy of which is exhibited as a part of the complainants bill, and that the said C. M. died in the latter part of October 1839, without having revoked said will. That John H. McElfresh, who was named in said will as executor and trustee, to take charge of the estate of said Caspar Mantz, accepted the trust reposed in him, and as to the true character and legal and equitable con- struction of the trust reposed in the said John H. McElfresh, these defendants submit themselves to the determination of this honorable court. That the said Caspar Mantz, after the mak- ing and executing said last will, purchased a tract of land of a certain Joseph Kenega, and obtained, therefor, a deed of con- veyance, a true and certified copy thereof is here exhibited as a part of this answer ; and that the said Caspar Mantz, died, the owner of said land and premises, contained and specified in said c'eed from Joseph Kenega. And these defendants state further, for answer, that the said Christina Barr, one of the devisees and legatees aforesaid, and her trustee George Schley, esq., claim to receive the whole of the devises and legacies given to the said Christina Barr, by the said C. M.; and the said Christina Barr, as one of the heirs at law of C. M., also claims one-third of the said land and premises, so, as aforesaid, conveyed to the said C. M., after the making and executing said will; without relinquishing or giving up any part of the testators bounty, given by said will to the said The- resa McElfresh, the residuary devisee and legatee. 'I hese de- fendants are advised, that the said Christina Barr will not be permitted, according to the rules of a court of equity, to take both under and against the will of Caspar Mantz; but that she will be bound, according to the well settled rules in a court of equity, to elect which she will take. These defendants further state, for answer, that they are advised that they are not bound in equity, to pay any more of the legacies bequeathed to the said Christina Barr to George Schley esq., her trustee, until the OF MARYLAND. 189 McElfresh, adm'r, vs. Schley and Barr. 1844. said Christina make her election, to take under the will and release all right she may have, if she have any, to the said land and premises commonly called the " Kenega farm ;" and they also state, that the said Christina Barr claims both, the bounty of the testator under the will, and a proportion of the after ac- quired land and premises commonly called the il Kenega farm;" which they refuse to yield, until the question of election is finally determined by this honorable court, as a court of equity. These defendants further state, for answer, that they admit that the said John H. McElfresh is dead, and that he died intestate, and that these defendants obtained letters of administration from the Orphans court of Frederick county, on the estate of the said John H. McElfresh, deceased. The residue of this answer not being deemed material to illustrate this case, as decided, is omitted by the reporter. After the general replication, the parties filed an agreement showing what had been done under the trusts of C. M's will ; and that a pro forma decree be passed by the court for the pur- pose of taking the case to the Court of Appeals, to determine and settle the questions submitted to the court upon the follow- ing propositions, viz : In this case, if the court shall be of opinion that George Schley, esq., as the trustee of C. B., is, according to the doc- trine of a court of equity, entitled to take and receive under and by virtue of the will of C. M., the whole and entire pro- perty and money devised and bequeathed to J. H. McE., in trust, for the said Christina Barr, and she to take and hold her proportion as one of the heirs at law of C. M., deceased, of the land and premises specified in the deed from Joseph Kenega to the said Caspar Mantz, and that the said Christina Barr and her said trustee can, according to the rules and principles of a court of equity in this State, receive and claim under the cir- cumstances of this case, all the property devised and bequeathed in trust for her, and also as heir at law of C. M., deceased, one- third part of the said land and premises aforesaid, purchased of Joseph Kenega by the said C. M., after the making and exe- cuting his will, without being put to elect, which she will take ; 190 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. then, and in that case, the court will pass an unconditional decree, ordering and directing the said Wm. M. Beall and Theresa McElfresh as the administrators of J. H. McE., de- ceased, to pay to the said G. S. as the trustee of C. B., the sum of $4000, with the interest thereon, from the 3rd day of February 1842, as the balance of the trust funds which were in the hands of J. H. McE,, as trustee for said Christina Barr, at the time of his death. But, on the contrary, if the court shall be of opinion, under all the circumstances of this case, that the said C. B. cannot, by the said trustee, according to the principles of a court of equity, take, and rightfully claim, all the property and money devised and bequeathed to her by the said C. M., and also, as heir at law of C. M., a proportion of the land and premises specified in the said deed from Joseph Kenega ; and that this case is one in which the said C. B. ought to be put to her elec- tion, whether she will take the property bequeathed and devised in trust for her, by the said C. M., in and by his last will ; or whether she will take, as one of the heirs at law of said C. M., deceased, her proportion of the land and premises pur- chased by the said C. M. after the making and executing said will of the said Joseph Kenega, and that she cannot have and claim both. Then, and in that case, the court will make such a decree in the premises, as shall to the court seem just and equitable, and in accordance with the doctrine of election ; and to have the same effect as if a cross bill in this case had been filed, to compel the said Christina Barr and her trustee to make their election, how they will take, &c. On the 4th day of October 1843, Frederick county court, as a court of equity, (MABSHALL, A. J.) decreed, that Wil- liam. M. Beall) and Theresa McElfresh, as the administrators of J. H. McE., deceased, pay to George Schley, as the trustee of C. J5., or bring into this court, to be paid to him, the sum of $4000, and the interest thereon, from the 3rd day of Fe- bruary 1842. And it is further ordered, adjudged, and decreed, that the said Christina Barr is entitled to claim and hold, by her said trustee, all the property devised and bequeathed in 0V MARYLAND. 191 McElfresh, adm'r, vs. Schley and Barr. 1844. trust for her by Caspar Mantz, in his last will and testament. And also, she is entitled to hold and claim as one of the heirs at law of the said Caspar Mantz, deceased, her undivided third part of the land and premises, purchased by the said Caspar Mantz, after the making and executing his last will and testament of a certain Joseph Kenega, specified and described in the deed of said land, exhibited in this case by the defen- dants, as a part of their answers. The defendants appealed to this court. The cause was argued before ARCHER, CHAMBERS, SPENCE, STONE and SEMMES, J. By PALMER for the appellants. In a court of equity, can one take under a will, and against it? Can he so defeat the intent of the testator? Real pro- perty, acquired after the execution of a will, vests in the heirs of law of the testator. Personal property, in the executor. We admit, that after acquired, real property, does not pass under a general devise, in a will. The language of the Stat. Hen. 8, has secured that construction. Yet the law of Eng- land adopts the rule, that one cannot take under, and repudi- ate the same will. Then, does the equitable doctrine of elec- tion apply here ? Does it apply at all ? Does it apply to an heir at law? Dillon vs. Parker, 1 Swanst. C. R. 359. 2 Stor. Eq. 335, 393, 395. An election is between two independent alternatives. 2 Stor. Eq. 355. Infants and femes covert may be compelled to elect. Snelgrove vs. Snelgrove, 4 Dessaus, 294, 300. Upshaw vs. Upshaw, 2 Hen. and Mumf. 381. Exceptions to the rule of election : wills of infants ; wills not executed according to the statute of frauds. Dillon vs. Parker, 1 Swanst. 405, note. Hearle vs. Greenbank, 1 Ves. Sen. 306, 307. Sheddon vs. Goodrich, 8 Ves. Jr. 496. 1 Cox, note 241. The exceptions relate to inoperative or void wills. The intention of the testator is not matter of proof. 1 Dev. 635. 192 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. On the rule and its application, he cited Lady Cavan vs. Pulteney, 2 Ves. Jr. 560. Wilson vs. Lord John Townshend, Ib. 696, 697. Ward vs. Baugh, 4 Ves. Jr. 623. 1 Pow. Dev. 255, 436. Hixonvs. Oliver, 13 Ves. 111. Wetby vs Welby, 2 Ves. fy Beam. 199. 4 Kent. Com. 510. 3 Doug. 361. Churchman vs. Ireland, 1 Russ. Sf Mylne, 250. 2 Sto. Eq. 356. 6 Cruise Dig. 17, 21. 3%. Deri. 20, 26. Bun- ker vs. Cooke, 1 Bro. Parl. Cases, 199. Churchman vs. Ire- land, 6 Con. Eng. Chan. Rep. 237. 16. 4 Simons, 520. Thelussonvs. Woodford, 13 Fes. Ill, is the very case at bar. WILLIAM SCHLEY for the appellee. The intention of the testator must govern ; arguments and opinions to show that intent, result from the will itself. 4 Kent, 410. A will resembles a conveyance. It cannot pass after acquired lands. Not having title, the testator cannot pass them. Skep. Touch. 438. Kemp vs. McPherson, 7 Har. & John. 335. The complainants concede, that the land in controversy descended to the heir at law. The three sisters are entitled as heirs at law. The term residue, refers to time of making the will. Brailsford vs. Heyward, 2 Dessau, 33. Van Kleeck vs. The Reformed Dutch Church, 6 Paige, C. R. 600, and relates to what is not previously disposed of, as to real pro- perty ; as to personal estate, it relates to the death of the tes- tator. Oke vs. Heath, 1. Ves Sen. 141. Cambridge vs. O Rous, 8 Ves. Jr. 25. Thelussonvs will did not affect a residue. Where property is given to A, and also to B, and B takes not only what is granted to him, but also that which is granted to A, and against the intent of the grant which creates both estates; on the doctrines of compensation, an election between the two parcels is enforced, and B not permitted to take both : for one cannot claim under any instrument, with- out giving full effect to it. 2 Rop. Leg. 378, 386, 389. Election arises upon grants of property by mistake, but a residuum relates to real property devised, retained until the OF MARYLAND. 193 McElfresh, adm'r, vs. Schley and Barr. 1844. testator's death. 1 Pow. Dev. 264, note 7. Smith, et.al., vs. Edrington, 8 Cranch, 68, 97. It does not relate to future acquisitions. Johnson vs. Tel- ford, 4 Con. Ch. Rep. 409. The fact is stated in all the cases, that the testator had un- dertaken to deal with that, which did not belong to him. To raise a case of election, an intent to give that which is not the grantor's own property, must exist. Churchman vs. Ire- land, 6 Eng. Chan. Rep. 237, is stronger than the case at bar. Ib. 4 Con. Eng. Chan. Rep. 409, 412. 1 Russ. & Mylne, 244. Welby vs. Welby, 2 Ves. & Bea. 187, an heir was put to his election, between lands devised, and lands by descent. The English cases are all fully examined. In the City of Philadelphia vs. Davis, 1 Wharton, 490. Girard, et al., vs. City of Philadelphia, 4 Rawle. 323. Cases of doubt do not constitute cases of election. The fact that two have differed about the construction of a will, show it not to be a case of election. Broome vs Monck. 19 Ves. 609. Gilb. Eq. Cases, 15. There is an implied condition in all cases of election, that devisee will not, and ought not, to claim both estates. The case of Thelusson and Woodford, does not affect this cause, which is within Back and Kett, Jacob, 534, and decided by it. Then who is to exercise the right of election here ? The feme covert 1 ? or^her trustee for her ? or the heirs at law ? 2 Rop. on Leg. 430. The heirs at law are entitled to all undisposed of estates. Sir Thomas Jones, 112, 114. 8 Modern, 90. All the decided cases are before the court. The doctrine of election is founded on clear, and unquestioned law. To de- vises on express condition, it will of course apply. So of im- plied conditions : benefits to A and B ; the grant to B, being of A's property ; an implied condition not to take both. So where one has power over two estates, grants one to A, and makes an ineffectual attempt as to B. There A must elect upon principles of equity. It would be against conscience no* 25 v.2 194 CASES IN THE COURT OP APPEALS McElfresh, adm'r, vs. Schlcy and Barr. 1844. to carry out devise lo both. Such is the case of Thelusson vs. Woodford. But this case is clear of all previously decided causes. Mrs. Barr has nothing but the rents and profits ; no part of the corpus of her estate ; after her death the estate goes to her children. P. J. T. had the whole legal estate, and claimed another estate, which disappointed the will : claiming one estate un- der the will, he could not claim the other estate in opposition to it. If he claim the other estate, he could not claim under the will. Here the trustee of the fund claims : it is not Mrs. Barr ; she does not take under the will. We do not set up legal rights in opposition to equity : Mrs. B. has no power to burthen the estate, sell, or dispose of it ; the trust fund can- not be a question in any way ; the right of election must arrest the determination of her estate ; the thing devised, must be capable of alienation. REVERDY JOHNSON in reply. Mrs. Barr must be entitled to one third of the estate, at common law. There is one question, peculiar to the case itself, i. e., what is the true interpretation of the will, which shuts out the heir at law? Looking to the whole character of this devise, at the time the will was executed, it is clear, the testator did not design to die intestate, of either his real or personal estate. If intestate, as to the farm in controversy, it must be attributable to ignorance, in fact, of the effect of the devise. As far as relates to Mrs. Barr and Mrs. Harding, the testator did not intend to vest in them, absolutely, any interest in his estate, so as to subject it to their husbands power. We are not left to speculate about this. The testator knew how to devise absolute, and qualified estates, so as to keep them clear of their husbands. The whole will designed testacy, and, to avoid intestacy. That is manifest in fact; or, why did he put the words in the last clause ? All he then had, must pass. These words were put to enlarge antecedent phrases ; to include, what they might not embrace. They are not surplussage ; they have an independent meaning : and OF MARYLAND. 195 McElfresh, adm'r, vs. Schley and Barr. 1844. they meant, that all the estate he possessed, at the time of his death, should go to the residuary legatee. As to personal and mixed estate, the will operates upon all; and the words used, put the real estate on same footing ; show the same state of mind as to both. The meaning is, all I have now, or may have, at my death. He meant, that Mrs. McEl- fresh should take under the will, and not as heir. All who take under the will, must admit this. As respects the devisees, the intent was, that all of them should take under the will. Dillon vs. Parker, 1 Swanst. 397, note, 2 Story Eg. 339. The doctrine of election, is more ancient than the case in Vernon. It may be traced back to Elizabeth. It arises, most frequently, under wills ; yet is applicable to deeds. Its justice is recognized everywhere. A devisee is estopped to deny the testator's power to devise. He, who claims any part, must admit the residue. The right, under grants, rests on the same footing. It is like lessor and lessee ; the latter cannot deny title to make the lease. As to the two devises, to Mrs. Barr and Mrs. Harding, being in trust for life, remainder to the children ? Mrs. Barr has made her acceptance of the life interest, and she now disputes as to the Kenega farm. The children have nothing to do with this controversy. The limited character of the interest cannot change the principle. As she takes the trust estate, she is estopped from relying on her rights as heir at law. A will, not executed in conformity with the statute of frauds, is still good as to personalty. There, the terms of the legacy must be complied with. Welby vs. Welby, 2 Ves. Sf Bea. 190. The rule, for which we contend, has never been questioned, from Elizabeth to the present time, and is equally applicable to an heir at law, as to other parties. Thelusson?s case has never been doubted. Its demonstrative reasoning is conclusive. 2 Vernon, 581, (1706,) announces the general rule. It related to devises of fee simple, and fee tail estates, among children. Upon an implied condition, acquittances were decreed, inter se. Forrester 176. Ambler 338. Wilson vs. Lord John Town- shend, 2 Ves. Jr., 196. Birgmingham vs. Kirwnn, 2 Scho. # Lef. 449. 2 Sto. Eq. 338, note. 196 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. A will, devising to an heir at law the same estate which would descend to him, does not operate at all ; but if, in the same will, the testator devises an estate to another, then the part devised to the heir, operates, upon condition that he gives efficacy to the will. Freke vs. Lord Barrington, 3 Bro. C. R. 285, note. Newman vs. Newman, 1 Bro. C. R. 186. Wolhn vs. Tanner, 5 Ves. Jr., 218. Blount vs. Bestland, 5 Ves. Jr., 515. Pettiward vs. Prescott, 7 Ves. Jr., 541. Broome vs. Monck, 10 Ves. Jr., 609, 616. The rule is stated as a rule of law, applicable to all persons, and all classes of persons. The case Thelusson vs. Woodford, 13 Ves. 209, embraces the contest at bar. To accept the benefit, while he declines the burthen im- posed, is a fraud on the design of the donor. Crosbie vs. Murray, 1 Ves. Jr., 557, 559. All the provi- sions of the will ought to be conformed to. This principle covers every variety of case, to which its justice is applicable. The cause of failure is immaterial. Courts look to the will, for the purposes of the devisor to do justice between co-legatees. The rule can only apply to a defective will : a grant of no title. The true owner of the benefit must elect, to give up his own as the law awards it, or the benefit devised, as the tes- tator granted it. It is enough, here, if the testator intended to pass Kenega farm, though it was after acquired land. The doctrine of election, is a rule of law, established for the sole design of promoting justice ; of disposing, equitably, of all the devises in a will ; is irrespective of parties ; and must apply, with most force, to the testator's own property. If the rule is applied where the property of a stranger is given, it must apply most strongly to the testator's own estate. From 1806 to this time, except Sir Thomas Plummer, all judges have concurred in Thelusson vs. Wood/ord; and indeed it is too clear for doubt. Mr. Justice Kennedy, in Pennsyl- vania, mainly relies, that since the revolution, no cases of English origin are to be referred to in the courts of that State. In that State they are wiser than all the world put together ! OF MARYLAND. 197 McElfresh, adm'r, vs. Schley and Barr. 1844. The rule is maintained in 4 Con. Ch. Rep. 209. 4 Con. C. Rep. 412. Kinnard vs. Williams, 8 Leigh. Va. Rep. 400. Whatever force there may be in 4 Whart. 505, 506, as ap- plicable to certain devisees, it has none, as respects a contest between a specific and a residuary devisee, who was to have after acquired property. In the latter case, the specific devi- sees can only take to the extent of their devises. If one of them is heir at law, and another residuary devisee, then the heir at law is to get no more than the property specifically de- vised to him. If all, alike, are heirs, specific legatees and residuary, then each should enjoy according to the intent of the will. Upon the question, whether the court or party in interest should make the election, in cases of coverture and infancy ? Boughton vs. Boughton, 2 Ves. Sen., 12. 2 Rop. Leg., 426, 430, 433. Ward vs. Bawgh., 4 Ves. Jr., 623. Long vs. Long, 5 Ves. J., 445. The words of this will are very clear, and carefully put, to prevent dying intestate, as to this property. ARCHER, J., delivered the opinion of this court. The controversy in the present case, arises under the will of Caspar Mantz ; and grows out of the following clause in the will : " And furthermore, I do hereby make and constitute my sister Theresa, my residuary legatee and devisee; and I do hereby give and bequeath to her all my money, choses in action, and all the rest, and residue, and remainder of my property, real, personal, and mixed, (not hitherto devised or bequeathed,) of which Jam now possessed, or of which I may be possessed, at the time of my death ; to her, my said sister Theresa, her heirs and assigns forever." Which said will was executed on the 9th day of August 1832. On the 18th March 1835, he purchased of a certain Joseph Kenega, a valuable farm, near Frederick town, for which he duly obtained a conveyance; and died on the 29th Octo- ber 1839. 198 CASES IN THE COURT OK APPEALS Mcfcllfresh, adm'r, c. Schley and Barr. 1844. It appears by the facts in the case, that the testator left three sisters, Mrs. Harding, Mrs. Barr, and Mrs. McElfresh ; and that Mrs. McElfresh is his residuary legatee and devisee. Among other things, the testator devised to John McEl- fresh, in fee, the husband of the residuary legatee and devisee, certain renl estate ; and fifteen thousand dollars in cash, in trust, for the use of Mrs. Hardi7ig,forY\fe, and after her death, the whole of the said property to go to Mrs Harding^ s chil- dren ; as in the will is particularly specified. A devise of certain real estate, and thirty-two thousand dollars, besides bank, and turnpike stocks, particularly speci- fied in the will, was made to the same trustee for the benefit of Mrs. Barr, for life, and after her death, for the benefit of her children ; as set forth particularly in the will. He also devised sundry lands to Mrs. McElfresh, her heirs, and assigns ; and in the conclusion of his will, constituted her residuary legatee and devisee, in the terms which have been before set forth. The question submitted to us under the will, above ad- verted to, as appears by the agreement, and statement in the record, is, whether Mrs. Barr, by her trustee, can claim the property devised in trust to her b} the will of Caspar Mantz; and also, as heir at law, the one-third of the value of the Kenega farm, purchased by Caspar Mantz after the execution of his will ? The will not having been republished, it is conceded, that the after purchased lands never passed under it ; no matter how clear may be the intention of the testator, in the clause under consideration, to pass them. The answer to the question will be found in the solution of the enquiry, whether the case is one for election, according to the principles of law applicable to such doctrine? The inap- plicability of the doctrine of equitable election, to this case, has been urged upon several grounds : 1st. On the intention of the testator, as deduced from the residuary clause. 2nd. Its inapplicability to an heir at law. OF MARYLAND. 199 McElfresh, adm'r, vs. Schley and Barr. 1844. 3rd. Its supposed inapplicability to a clause in a will, which, although it may manifest the intention of the testator, is in itself inoperative to pass any estate by the rules of law. And, 4th. On the ground that the case before us, if the intention were even clear, and if applicable to an heir at law, is not of such a character as comes within the most approved definition of the doctrine. It- No person will be compelled to make an election, unless the intention of the testator be sufficiently made out. There never can be a case of implied election, but upon a presumed intention of the testator. 3 Bro. Ch. 191, 1 Ves.jr. 257, 557. The degree of intention necessary to raising a case of elec- tion, must plainly appear upon the face of the will. On the other hand, it is said, the court is not to refuse attention, to what amounts to a moral certainty of the testator's intention ; where that is to be gathered, either from the state of the pro- perty, or the purview of the will. 4 Bro. Ch. 24. What was then the intention of the testator in the residuary clause ? It is supposed that the residuary clause may be con- strued, so as only to shew an intent to pass, that which should constitute a residue of his then existing property, at the time of his death ; and not property, which, after the execution of his will, he might acquire. Such a construction would make the testator guilty of the folly of supposing, that without such clause, either the residue at his death would not pass, by the term, "of which I am now possessed," or, that any portion of his property, constituting a part of the residuary, if disposed of by him in his life time, would pass under the will: a supposi- tion we should not be justified in making, when the words, themselves, have so plain an import. His design is declared in express terms, to make her his residuary devisee ; and of what, he explicitly announces, by devising the remainder of the property, of which he was then possessed, or of which he might be possessed at the time of his death ; the term "which," referring in the mind of the testator to the word "property," and not to the word " remainder." It then stands as a devise of all the estate of which he died possessed, or of which he might be possessed at the time of his death. 200 CASES IN THE COURT OF APPEALS McElfresh, adm'r, vs. Schley and Barr. 1844. We agree with the Vice Chancellor, in 4 Sim., 520, that such words show in a most marked manner, that he intended to pass, not only the estates he had at the date of the will, but all that he should be in possession of, at the time of his decease. It cannot be denied, that the words would pass all the personal estate, that the testator was possessed of at his death ; and if it is clear as to future personal estate, how can it be said he had not the same intention as to real estate, when they are both disposed of in the same sentence? Can any one say, that he had one intention as to personal estate, and a different intention as to the real estate, when he uses "the same words as to both." And he overrules a contrary construction put upon words of the like import, in Back 4" Kelt, Jacobs Rep., 540. 2. That this doctrine is applicable to an heir at law, is clear from the authorities. 2 Fern. 586. 2 Ves. Jr. 696. 2 Scho. Lef. 449. 2 Story Eq. note, 338. 2 Ves. Jr. 544, 559. 2 Ves. Sf Bea. 187, are all cases where the heir at law was put to his election ; and in 10 Ves. 593., the point was ad- mitted, that the doctrine reached the heir. The same doc- trine was applied in 2 Eq. Ca. 2, referred to in 2 Rop. Leg. 405 ; and in the case of 2 Ves. Sf Bea. 187, it was applied in a case, in which the devise to the heir was inope- rative. In the case of an express condition, there never could have been a doubt, because the testator may annex what condition he pleases to his estate. Why should not election occur in the case of an implied condition, if the intention be plain and clear, as against the heir ? It is said, that the devise to the heir is read as if it were to him absolutely, if he confirm the will: if not, then in trust for the disappointed devisees as to so much of the estate given to him, as shall be equal in value to the estates intended for them. It is only carrying out a plain intent of the testator, and giving to the residuary devi- see, that which the testator intended, and forbidding the heir from taking property not designed for him. From the earliest case on the subject, the rule is, that a man shall not take a OF MARYLAND. 201 McElfresh, adm'r, vs. Schley and Barr. 1844. benefit under a will, and at the same time defeat the provi- sions of the instrument. If he claims an interest under an instrument, he must give full effect to it, as far as he is able to do so. He cannot take what is devised to him, and, at the same time, what is devised to another; although, but for the will, it would be his : hence he is driven to his election to say, which he will take. 3. But we have seen that the will is inoperative to pass the lands acquired after its execution. Will this fact prevent the application of the doctrine of election ? The English cases since the revolution, are, we think, decisive of this subject. 13 Ves. 219. 4 Simons, 520. 4 Con. Ch. Rep. 412. The first of these cases was affirmed in the House of Lords, and is considered, notwithstanding the opinion of Sir T. Plumer, in Back fy Kett, Jacobs 534, as a case of great authority ; and is now the settled law of England. We could add nothing to the convincing reasons by which these cases are supported, by the judges who decided them. There are cases of void wills, such as the will by a feme covert, or an infant, which certainly, by established cases, will not demand an election ; but these have been rightly placed on a ground, which does not affect the present question. So too, a will not executed and attested according to the statute, creates no case of election from implication. They are considered as no wills ; they cannot be read as evidence ; and there is nothing, therefore, to indicate intention. But in the case before us, the will is properly in evidence ; and the intention is clearly indicated. The cases above referred to may be the first in which the law of election was applied to a will, ineffective to pass after acquired lands ; but no case from the English books has been cited against such application, and we consider them as the strongest evidence of the pre-existing law ? We have exa- mined an opposing case, cited from 1 Whar. Pen. Rep. 509, but cannot agree with it, in confining the rule of election to the operative parts of the will, from the fear of being led into error, by endeavoring to give effect to an intention imputed to the donor. It would be only in such cases where the inten- 26 2v. 202 CASES IN THE COURT OF APPEALS McEIfresh, adm'r, vs. Schley and Barr. 1844. tion was plain, that the rule would or ought to be extended, and when this is clearly ascertained, it would be unbecoming a court of conscience to allow the heir to take the devise to himself, and also as heir, what was manifestly intended for another. 4. The modern English cases do not, we apprehend, extend or enlarge the principle of election. That principle, as appli- cable to this case, we take to be this : that no one shall be per- mitted to take under an instrument, and defeat its provisions ; or, in the language of Lord Erskine, a person shall not claim an interest under an instrument, without giving full effect to that instrument as far as he can. This is not a new doctrine ; it will be found to have been announced as long since as the case of Noys fy Mor daunt, 2 Ves. 581. Lord Redesdale, in 2 Scho. Lib. 316. 2 Dessau. 94. 3 Wood Lee., 202. 1 W. Black, 1010. WILLIAM SCHLEY, for appellee, cited. 24 Law Lib. 52. 23 Law Lib. 25. Llewin on Trusts, 102, 629, 630, note 639. TFard, on Leg. 143, 192. 3 Bro. C. R. 88. 1 Ves. J. 176. 3 ^/c. 616. 1 Eden, 489. 657, 1 G. Sf J. 220. 1 Pefers. S. C. 236. 1 359, note 381. 1 Fon&. 153. 15 Wendell, 290. 9 Clark & Fin. 583, 606. ARCHER, J., delivered the opinion of this court. The bill, as amended, seeks to enforce payment of a legacy left the complainant, by the last will and testament of Francis J. Mitchell, by the obtainment of a decree for the sale of Myrtle Grove, upon the ground, that the said legacy was, by the said last will and testament of Francis J. Mitchell, charged upon the said estate. The bill, also, seeks an account of all the property left to James D. Mitchell, by the will of Francis J. Mitchell, in trust for the complainant. The chancellor dismissed the complainant's bill, first, be- cause the estate charged with the alleged legacy, had descended to the complainant ; and secondly, because it did not suffi- ciently appear, that the personal estate bequeathed to James D. Mitchell, in trust, for the complainant, ever was managed by, and applied to his own use, by the said James D. Mitchell, without the consent of the complainant. The only estate alleged in the argument of complainant, to be charged with the legacy, by the will of Francis J. Mitchell, 236 CASES IN THE COURT OF APPEALS Mitchell vs. Mitchell. 1844. is the estate called Myrtle Grove. If that estate has, in fact, descended to the complainant, the charge, if one in point of law exists, has become extinct by the union of the title and the lien in the complainant. We will, therefore, first proceed to enquire whether the es- tate called Myrtle Grove, has descended to the complainant. This question grows out of the will of James D. Mitchell, bearing date on the 6th day of August 1837. James D. Mit- chell died in the month of August 1837, and probate was had of his will, on the 23rd of August 1837. James D. Mitchell left no children, but a widow, Elizabeth Ji. Mitchell since de- ceased, and a brother, Henry S. Mitchell ; a brother by the same father, but a different mother; and a sister, the complain- ant, of the whole blood. Henry S, Mitchell, has a son now living, named Joseph H. Mitchell, who is his oldest male child, and was born in March 1838. Henry S. Mitchell has also another son, an infant, now living. Elizabeth Ann Mitchell, the widow of James D. Mitchell, died in the month of August 1841. The life estate devised by the will to Elizabeth Jinn Mitchell, having terminated, the half brother of the complainant still living, the question is, whether the remainder to the eldest male heir of Henry, is vested in his oldest male child ? or whether, in consequence of the life estates terminating before the death of Henry, the remainder to his oldest male heir is not void ? in which event the estate would decend to his heirs : The com- plainant is the heir at law of the testator. The terms used in the will, as descriptive of the remainder, are, "the first heir male of his brother Henry, and the heirs and assigns of such male heir forever, if he shall live to attain the age of 21, or leave lawful issue, &c." The cases which have been cited establish the law to be, that no one is recog- nized as heir until the death of the ancestor. In the language of Mr. Justice Taunton, a man may be heir apparent, or heir presumptive, but he is not very heir living the ancestor. One cannot, therefore, take as a purchaser under the description of heir, or heir male, unless, where the estate is to vest, he has, by OF MARYLAND. 237 Mitchell vs. Mitchell. 1844. the death of his ancestor, become very heir. This appears to be a general rule, subject only to this exception, that when the intention of the testator can be made clearly to appear from the will, that be did not mean the word heir, or heir male, to be used in its technical sense, but in its popular sense, then the popular sense shall prevail. The intention should be by de- monstration plain ; and he who urges the exception, must demonstrate the intention, for prima facie, the words must be taken in their technical sense, as words of limitation. These principles will be found to be sustained by Hob. 33, 1 Vent. 334, 2 Vent. 311, 1 P, Wil. 229, 2 Wil. Black. 1010, 2 Leon. 70, 4 Mod. 153. And it is rightly said, by one of the judges, in delivering the opinion of the court, in Winter vs. Perratt, 9 Clarke fy Finnely Jip. Ca. 669, "that what amounts to a plain demonstration of intention, so as to withdraw the term heir from its technical interpretation, must, in each case depend on the language used, and the circumstances under which it is used ; and is not a question to be determined by reference to reported cases ; but by a careful consideration of that lan- guage, and those circumstances, in the particular case under discussion." We perceive no room to doubt, that the term "heir" was designed to be used by the testator in its technical sense ; wherever in the will the word heir is used, it is used in its technical sense, as where he says the first "heir male of Henry" and "his heirs and assigns." In the latter instance, the word heirs is used by the testator in its technical sense; and again, on the failure of heirs male of Henry, who were to take in succession, then he devises over, to his right heirs. Can we, by any just construction, impute to the testator a different meaning to the same words, when used in the same will, and in the same sentence of the will, without anything to indicate a difference? But again, when the testator devises Hunting Field to his wife, and gives her a power of appointment, and in case of her failure to exercise that power of appointment, devises the estate to the children of Henry; is it not still more apparent, that he was aware of the difference in the terms, heir of Henry, and child of Henry? 238 CASES IN THE COURT OF APPEALS Mitchell vs. Mitchell.. 1844. The annuity to the heirs at law, which has been bequeathed, with a charge on his lands, by the testator, and his presumed knowledge, that his sister, his heir at law, had designs to con- nect herself with a monastery, we do not think furnish consi- derations showing a different intent from the technical sense. The charge is on all his lands, as well Hunting Field as Myrtle Grove; and yet, in such case, on the failure of the contingen- cy, the devise over is to the heir at law. The case of 9 Cla. fy Fin., Jlp. Ca. 606, has been cited as decisive of this. It is true, in that case, the terms used by the testator were considered as indicating an intention, in the use of words, different from their legal signification; but the judges who so decide, do so on the ground, that the term, heir male of the branch of R. C's family, in connection with the cir- cumstances of the case, and the fact that /?. C"s family was known to the testator, gave to the word heir male, a different signification from its technical meaning. Though even in this case, different as it is from the one before the court, much di- versity of opinion prevailed among the judges ; and it strikes us, from a review of their opinions, there would have been but little difference of opinion^ had the mere technical terms been used, without the qualifications affixed to them. In conclusion, on this branch of the case, we beg leave to refer to the following observations of Lord Brougham, in de- livering his opinion in the case above adverted to, "that there are certain principles fit to be kept in view, when we are called upon to construe a will, which raises such doubts as the pre- sent has raised. One is, and the most material, that the leaning should be towards taking technical words in their technical sense; and only suffering ourselves to adopt another meaning, when there can be no reasonable doubt from the context, that, in such sense, the testator used them ; and that, he could not have used them in their known or legal sense. This rule is founded on the consideration of the risk we run, in allowing a scope for conjecture and fancy, of making a will for him, which neither he himself made, nor the law recognized ; and if it be said that, by adhering to the technical sense, we shall OF MARYLAND. 239 Mitchell, vs. Mitchell. 1844. sometimes run the risk of giving a construction which the tes- tator did not intend, the answer is, that this risk is common to both courses, and we avoid that other, and perhaps greater evil, of introducing uncertainty into the foundation upon which titles rest :" In these views, we fully concur. If the word, heir male, is to be construed in its technical sense, then the limitation over, after the death of the tenant for life, is gone ; as there could be no heir of Henry Mitchell, during his life. The rule being, that every contingent remain- der must vest, eo instanti, that the particular estate determines. The remainder failing to take effect, the estate descended on the death of the tenant for life on the complainant, who was heir at law, and her lien was sunk in her title to the land. The principal cases which determine, that if there be suffi- cient in the will to show that the word heir, is used in such a way that the testator meant the word "heir," to mean, descen- dant, or heir apparent, it shall be so construed, are, 1 Ven. 334, 2 Vent. 311, 1 Pier. Wil. 229, 2 W. Black. 1010. The first of these cases is Burchett vs. Durdant. There, a devise to the heirs of the body of Ji., now living, was held to be a vested remainder, and it was so determined, because the words "now living," were referred, not to Ji., but to the heirs of the body; and it was apparent, from other parts of the will, that the testator knew that Ji. was in esse also. It was, on this account, adjudged, that the heirs of ^3., took the remainder to the heirs of Ji., during his life. As there was an heir appar- ent of the body of Ji., then living, it was considered as a de- signatio persona. The case of Darbison vs. Beaumont, 1 P. Wil. 229, was a devise of lands to A. for life, remainder to his first son, in tail male, &c., and in default of such issue, remainder to the heirs male of the body of the testator's aunt, Eliza- beth Long, lawfully begotten ; and for default of such issue, remainder of all his lands, to his, the testator's right heirs. He also gave a legacy to Elizabeth Long, and legacy to her three sons, JI., B. and C., of .500. The question was, whether ihe heir at law of the testator, or Ji., the eldest son of E. L., 240 CASES IN THE COURT OF APPEALS Mitchell, vs. Mitchell. 1844. was entitled to the testator's real estate. Three reasons are assigned for the judgment, that the heir at law did not take the estate. 1st. That the testator noticed, that the sons of E. Long were living ; and that she, E. L., was also living. 2nd. That the limitation of the right heirs of the testator was ex- pressly, on failure of issue male of E. L.', so that the intent was plain, that the apparent heir of the body of E. L., should take before his heir general ; and 3rd. That it was the same as Burchett vs. Durdant, because, the words, then begotten, con- nected with the word, heirs male, were nearly similar. The words, then begotten, in this, were tantamount to "then living ," in the former case. It is very certain, that the case before us does not come within the reason of either of the above cases. There is no devise to an heir male of H. W., then living, as in Burchett vs. Durdant ; for here at the death of the testator, H. W. had no issue born. The will, here, does not leave over the estate to the heirs at law, upon the failure of issue, as in the case of Darbison vs. Beaumont ; but the expression is, on failure of such heir male, to the the heirs at law; nor are the words heirs of the body of H. M. begotten, found in this will; and if they had been, these words in the case before us, could not be un- derstood to be tantamount to heirs then living, because, H. M. had no children then living. The case in 2 Will. Black. 1010, has been supposed to go further than either of the cases above adverted to. Here, the devise was to his son, Richard Brook- ing, and the heirs of his daughter, Margaret, jointly and equally, and for want of heirs male of Richard Brooking, at his decease, then to the heirs and assigns of Margaret, lawfully begotten of her body. The testator knew, that Margaret was living, and had at his death a son. In Darbison vs. Beaumont, the words, heirs male, of the body of the testator's aunt, Elizabeth Long, lawfully begotten, were considered tantamount to, heirs of the body then living, and as being the same in prin- ciple with the case of Burchett vs. Durdant. The case, there- fore, of 2 W. Black. 1010, may be governed by one of the reasons, assigned for the judgment in Darbison vs. Beaumont, OF MARYLAND. 241 Compton vs. Compton. 1844. We do not consider the case before us, as one, in which the testator has given plain indications of an intention, that the technical words he has used should be taken in their popular sense, and to mean descendants; and do not, therefore believe* that the cases above adverted to, can govern and control our construction of the will, now under consideration. The above views render it unnecessary for us to enquire into the various questions, which in relation to this lien, were dis- cussed, as growing out of the will of F, J. Mitchell. In relation to the right of the complainant to an account, in reference to the property devised in trust to James D. Mitchell, for the use of the complainant under the will of Francis J. Mitchell, we concur with the chancellor in his views, as ex- pressed in his decree in this case, and affirm his decree. DECREE AFFIRMED. BARNES COMPTON, vs. WILSON COMPTON. December, 1844. It is the duty of the Orphans court in appointing a guardian, to consult the interest, rather than the wishes of an infant. An appeal will not lie from an order of the Orphans court, appointing a guardian. APPEAL from the Orphans Court of Charles County. On the 5th March 1844, the appellant, a minor, appeared in the Orphans court and prayed to have a guardian appointed, and asked to have Richard Barnes, esq> one of the justices of the said court, to be appointed, who retired from the bench. The court postponed the appointment until the 3rd Tuesday in March, when, on the 19th of that month, the appellee filed a petition, alleging the condition of the appellant's property, the necessity of a guardian, and institution of legal proceedings to protect the minor's property and vindicate his rights. The pe- titioner alleged, that he was the nearest male relation of the minor, and ought to be appointed. The appellant answered 31 v.2 242 CASES IN THE COURT OF APPEALS Compton vs. Compton. 1844. this petition, and reiterated his wish to have his relation, Richard Barnes, appointed. On the 23rd March, the court decreed that Wilson Complon be appointed guardian, on giving bond ; from which decree Barnes Compton prayed an appeal, by his next friend, Richard Barnes, to this court. The cause was submitted on notes of counsel, to ARCHER, C. J., DORSEY, CHAMBERS, SPENCE and MAGRUDER, J. By T. F. BOWIE for the appellant : The appellant contends that he has the right to select his own guardian, and that his selection is to be admitted by the Orphans court, unless good cause be shewn that he has made an improper or injudicious selection. In this case, it is not pretended that Richard Barnes is not, in all respects, a fit and proper person to be guardian to the njinor. No objection, whatever, was urged against his appointment, on the ground of unfitness, on the contrary, if the statements made in the minor's petition to the Orphans court are to be taken as true, and they are not at all controverted, he was, and is, of all per- sons, the most fitting. The appellee insists, in his petition, that being the nearest male relation to the minor, he is to be preferred as his guar- dian, and the court below, in granting his petition in the man- ner they do, adopt his views of the law, and in effect decide, that he is to be preferred, and by reason of such preference, entitled to the guardianship. These views of the law are deemed to be altogether erroneous, and an examination of the authorities, both in England and in this country, will prove them to be so. It has been supposed, that the time at which a minor has the right to choose his guardian is, at the age of fourteen, and not sooner; but this will be found to be the case only with reference to those kinds of guardianships in England, where, by the law of England, the right of guardianship belongs, as a matter of right, to certain descriptions of persons, until that age is attained by the minor ; as in the cases of guardianship OK MARYLAND. 243 Compton vs. Compton. 1844. in chivalry ; in socage ; by the custom of gavel kind ; by the custom of the manor, and the like. In all these cases, the right of selection does not exist before fourteen, simply because, by law, the right of guardianship devolves by operation of law, a? a matter of right, and to allow the minor the right of choice in such cases before fourteen, would conflict with the rights of other persons secured to them by law, and the immemorial usages of the realm. In the case of the guardianship in socage, which exists in all cases where minors have lands held by the socage tenure, the next male heir who cannot by possibility inherit the estate, is entitled to the guardianship until the minor attains the age of fourteen, at which time the guardianship ceases, and the right of selection begins. In such a case the guardian derives his right, not from appoint- ment by any of the courts of England, but by the usages of the common law, and is entitled to enter into and take pos- session of the minor's lands and estate, and to keep the same until he attains to the age of fourteen. So also, with reference to the guardianship in chivalry, which exists only where minors are entitled to lands held by "military or knight service." In this case, the lord who originally granted the lands and of whom they are so held, is entitled to the guardianship of the minor, and to possession of all such land, until the minor at- tains to an age at which he is able to perform "military ser- vices." In this case also, the right of choice in the minor before that age, does not exist, because it would conflict with the feudal rights of the lord, which are secured to him by the immemorial customs of the common law ; and so in reference lo all the other descriptions of guardianships before spoken of. Wherever the estates of the minor are holden by any of the feudal tenures or customs of the realm, the right of selection in the minor does not exist before the age of fourteen years ; but it is confidently believed, that in all other cases, where the minor's estates are not held by any of the ancient feudal tenures, the right of selecting his own guardian exists at any age, that he is capable of making a prudent selection. See Coke on Lit- tleton, 786. 14 Law Library, 69. Coke on Littleton, by Thomas, 183, note 6. 1 Chitty Blac. Com. 462, note 9. 244 CASES IN THE COURT OF APPEALS Compton vs. Compton. 1844. In the ecclesiastical courts of England, a minor above seven years of age has the right to choose his guardian, and he is admitted in that character by the court, who hold themselves bound by the minor's nomination, unless an improper choice is made, and in that case, and that case only, they will control it. 40 Law Library, 68, 69. McPherson on Infants, 74, 75. This is the undoubted law of England. The feudal tenures were abolished in this country by the Revolution, and there are now in this State no such tenures as draw with them any of the kinds of guardianships above spoken of, which devolve, by operation of law, on those who are entitled. But all guardianships in this State are created by appointment, and such as are in England, now granted by the ecclesiastical and chancery courts, in which the right of selec- tion has uniformly been acknowledged to exist in the minor, if above seven, and capable of making a proper choice. This was undoubtedly the case in this State, and the right of selection seems to have been engrafted upon our laws by the legislature of the State. By the act of 1715, chap. 39, sec. 7, Bacon's Laws of Md>, the right of choice is given to the minor in express words, "if capable of choosing his guar- dian," and is denied to him only in the event of his not being of sufficient age to make a proper choice. No particular age is mentioned by the act alluded to. The minor's capacity to make a prudent and judicious choice, seems only to have been con- sidered as sufficient to give him the right. And it is submit- ted, that this important right is no where impaired or taken away by any subsequent legislation of the State. It is clearly not taken away by any express words of repeal in any subse- quent act of Assembly. The act of 1798, chap. 101, which it is supposed, repeals the act of 1715, by sec. 2, repeals only so much of all former acts "as are inconsistent with, or repug- nant to any of its provision." So far from repealing this part of the act of 1715, the act of 1798 seems to recognise the right of choice in the minor. For by sub. chap. 12, sec. 2, the Orphans courts are authorised "to call or have brought before them, any orphan for the purpose of appointing a guardian." OF MARYLAND. 245 Compton vs. Compton. 1844. Wby have them brought into court to have a guardian ap- pointed, if they are not to be consulted in reference to the ap- pointment? This provision seems to imply the right of choice, and the uniform and invariable practice in all the Orphans courts through the State has been, from their organization to the present day, to allow the right of choice precisely in the same manner, as was allowed by the judge or commissary gene- ral for probate of wills, &c., under the act of 1715, sec. 7. They have never construed the act of 1798 as repealing the act of 1715, in this particular ; and in the case of Kraft, vs. Wickey, argued in this court as late as 1832, 4 Gill fy John. 339, the counsel in the cause seem to have recognised the act of 1715, sec. 7, as still in force in this State, so far as relates to this right of selection of guardians by minors. So important a privilege as this is, to the infant citizens of this republic, ought not to be taken away from them by mere construction or implication. There ought to be express words of repeal, before the courts should permit so serious an invasion of the rights of infants. It is comfidently submitted, that no such express words of repeal can be found in any subsequent sta- tute of the State, and it is difficult to discover any principle of law which would require the courts, ever watchful as they are over the rights and interests of minors, to deny to them this inestimable privilege. The right to choose guardians before the age of fourteen, and whenever they are capable of making prudent selections, being thus established to be in all orphans, how far the Or- phans courts are bound by their selection, when made? will be the next subject of inquiry. To say that the Orphans courts have an unlimited discretion in the matter, will be in effect to deny the right of selection in the minor, for of what avail or benefit will it be, if the Orphans courts in the exercise of a wild and arbitrary discretion, have the right to over-rule their choice whenever they may think proper. The act of 1798 sub. chap. 12, sec. 1, gives to the Orphans courts the power to appoint guardians to all orphans in this State, entitled to any real or personal estate, but this act does not prescribe the rules which 246 CASES IN THE COURT OF APPEALS Compton vs. Compton. 1844. are to govern the Orphans courts in the exercise of that power. They are simply substituted by the act of 1798, in the place of the commissary general, who originally had that power, under the act of 1715, leaving the principles and rules of law by which they are to be governed in the exercise of the power, precisely where they were prior to the passage of the act of 1798. And what were those principles ? The authorities already cited shew what they were, and the extent to which the right of se- lection has been recognised in the minor. It is only where the minor makes an improvident choice, or selects some person manifestly unsuited and unfit for the station, that the Orphans courts can control it. This restricted discretion is allowed to the Orphans courts, from regard to the interests of minors, and with a view to pro- tect them in the enjoyment of the right itself. They are bound by the selection, if it does not appear to be imprudent ; and those who seek to set aside the selection made, must prove or shew it to be imprudent, or in some way injurious to the minor. The same rule on this subject will prevail here, that prevails in the ecclesiastical courts of England. "The minor may himself nominate his guardian, who is then admitted in that character by the judge, but if the minor makes an im- proper choice, the court will control it." 41 Law Library, 69. McPherson on Infants, 75. If without any proof of unfitness in the person selected, or any pretext that he has been injudiciously selected, the Orphans court disregards the right of choice in the minor, it would be manifest error and the ex- ercise of an arbitrary and unreasonable discretion, which the law never designed to confide to it. In the case at bar, no pretext of that sort is alleged, nor does it appear that any objection of that character was made to the person who was selected by the minor as his guardian. It is exceedingly difficult, therefore, to ascertain any excusable ground for the action of the Orphans court in this case, and still more difficult to apply any principles either of law or equity, which would justify the order passed by them, by which they have so unceremoniously impaired the infant's right of choosing his own guardian. OF MARYLAND. 247 Complon vs. Compton. 1844. By the act of 1820, commonly known as the act to direct descents, the right of election to take the lands of an intestate, at their valuation, is secured to the eldest heir. This right of election is declared to be a valuable privilege by this court in the case of Chaney, vs. Tipton, 11 Gill fy John. 253 ; and if invaded or withheld by any action of an inferior court, would be such a wrong as may be redressed by the appellate court. Can it be doubted, that the right of an infant to select his own guardian, is of equal value and concern to him as the right of election, under the act of 1820, is to the persons to whom it is given? and if in the one case, an invasion of the right would be redressed on appeal, it is difficult to see on what grounds similar redress would be denied in the other. Whenever a matter is purely within the discretion of the Or- phans courts, as in the case of the granting of letters of ad- ministration in certain cases, it is admitted, that no appeal will lie to reverse their action ; but this is, simply, because in such cases no rights are impaired, or wrongs inflicted. The Orphans courts having the unlimited discretion in such cases, are not responsible for the exercise of it, and the courts will not intend, that they have done wrong to any one who has a right to complain. But the question now under review is very different from that in the case supposed. The right of a minor to select his guardian, is a positive right secured to him by law, and not a mere matter of appointment, within the discretion of the Orphans courts. If they have discretion at all, it is restricted in its nature, and dependent entirely on the existence of pecu- liar circumstances, which must be shewn to exist in fact, be- fore the discretion, as a rule of action, arises at all. If the circumstances do not exist, on which depend the right of dis- cretion, then no discretion exists at all ; and if in such a case, a court acts upon such discretion, thus assumed by them, where it was not intended to be given, their action would be errone- ous, and a clear case of usurpation of power. In all such cases it is well settled, that an appeal will lie to reverse such erroneous exercises of judicial power. 248 CASES IN THE COURT OF APPEALS Compton vs. Compton. 1844. THOS. S. ALEXANDER, and P. W. GRAIN, for appellee. The question presented by this record is, whether an infant of thirteen years of age, has a right to appoint his own guar- dian? Or whether such appointment rests in the discretion of the Orphans court? If the infant of such age may claim the right of selection, then the decree in this case must be reversed. If, on the other side, the Orphans court possesses the power of appointment simply, or may control the exercise of the right of selection, by an infant, (assuming such right to exist,) in either case the decree must be affirmed. By the act of 1798, ch. 101, sub. ch. 12, sec. 1, (which it is apprehended gives the law to the case,) it is enacted, that whenever land shall descend, or be devised to a male, under the age of twenty-one years, &c., &c., and said male, &c., shall not have a natural guardian, or guardian appointed by last will, &c., &c., the Orphans court, &c., shall have power to appoint a guardian to such infant, until the age of twenty- one years, if a male, &c., &c. The power of appointment is thus given over all male in- fants, who at the time of its exercise, may be under the age of twenty-one years, simply, absolutely ; without restraint, or qualification, or exception. The power is given to the court, to be exercised as its judicial discretion may dictate; and for the due exercise of such discretion, it is responsible. It may not devolve its power on another, nor permit its discretion to be controlled by the caprice of the infant. Confining our atten- tion to the law itself, it is ver^ clear, that no distinction is made between infants above, and those under the age of thirteen years ; and if the power of the court may be controlled by the nomination or selection, made by an infant of twenty years, then there is no legal reason, wherefore, the same control should not be exercised by an infant of twenty months. It is true, that by sec. 2, "the court shall have power to call, or have brought before them, any orphan as aforesaid, for the purpose of appointing a guardian." This power is potential merely, and we know, that in practice, many guardians are appointed in the absence of their wards. In some cases, the OF MARYLAND. 249 Compton vs. Compton. 1844. court calls the infant before it, in order that the infant may be handed over to the custody of the guardian. In other cases, it is exercised with a view of consulting the infant's reasona- ble inclinations. But whatever may be the considerations upon which the enactment rests, and whether the authority is deemed potential or imperative, it is very clear, that it extends equally to infants of all ages. And if under pretexts of his right, to appear before the court, at the time a guardian is to be ap- pointed for him, an infant of fourteen years, or thirteen years, may claim the privilege of naming the person who shall be appointed, then may the like privilege be claimed and exer- cised by an infant of any age whatever. On the part of the appellant, it is attempted to control the preceding enactment, by interpolating therein the rights, which it is supposed an infant might have exercised by the common law. It is admitted, that at common law, an infant owning lands in socage tenure, might have selected his own guardian, after the expiration of his guardianship by tenure. But this admission does not assist the appellant, since the guardianship in socage, continued until the infant attained his full age of fourteen years. The ecclesiastical courts are likewise in the habit of appointing guardians, under certain circumstances; but, their power to appoint a guardian, except for any com- mitted purposes, is denied, and it would seem, that in those courts, the power of selecting his own guardian, is given to any infant, who is above the age of seven years. If we are to derive authority to our Orphans courts, from the practice of the ecclesiastical courts, we must take that practice as we find it. But this is not contended for, and it is by no means certain, that the literal admission of the right of an infant, to select his own guardian, is not accompanied by the practical exercise of the power, to guide that selection, as the court itself deems expedient. Just as a chapter, in the election of a bishop, find their responsibilities alleviated by the intimation, which accom- panies the conge delire; that the crown will be gratified by their choice, of a particular individual. In my opinion, safer precedents may be derived, from the provisions of the statute 32 v.2 250 CASES IN THE COURT OP APPEALS Compton vs. Compton. 1844. of 12 Car. 2, ch. 24 ; and the practice of the Court of Chan- cery, which to supply the defects of the common law, has been compelled to exercise the power, of appointing guardians to the persons and estates of infants. The father and the court exercise their powers, irrespective of the inclinations of the infant, and in every case, the appointment continues until the ward attains his age of twenty-one years. For all this, I refer to McPherson on Infants, (41 Law Library,) the authority re- ferred to by the counsel, for the appellant. He next refers to the act of 1715, ch. 39, sec. 7, which gives the power of selection to an infant, who is capable of choosing his guardian, and hence argues, that there is an age, after which the discretion of the court ceases. The act also says, that if the infant be not at age, the court shall appoint. It is clear then, that the rule intended to be established, was not a rule which was to depend on the actual discretion of the infant; but discretion was to be imputed or denied, as a legal conclusion from his age. And the right is more definite, and better secured, if it is made to depend on age, than it could be, if made to rest on actual discretion. Who is to judge of the infant's actual discretion? The court, and the coincidence, or otherwise, of the infant's selection with the court's preference, would be the conclusive evidence of the ca- pacity of the infant. What then was the age, which deter- mined the court's discretion? The act of 1763, ch. 24, sec. 2, which, extending the court's power to some cases, not cov- ered by the act of 1715, empowers the court to permit the in- fant, if above the age of fourteen years, to choose his guardian, and if under the age of fourteen years, then the court is to appoint. Now, treating these acts as parts of one system, the age of fourteen years, is the age referred to generally, by the act of 1715, and the infant's capacity is determined by his age. I care not then, whether these acts shall form a part of our statutory law, or are repealed as inconsistent with the provi- sions of the act of 1798. I incline to think, their enactments are entirely inconsistent with the broad and unlimited discre- tion, which is given to the Orphans courts, by the act of 1798 : OF MARYLAND. 251 Compton vs. Compton. 1844. and infer from the diversity in those provisions, an intent on the part of the legislature, to withdraw from the infant the anomalous power of appointing the guardian, who is to check and control him at the very age, when experiences teaches us, a youth is the least controllable. If we can notice the origin of the act of 1798, we may fairly infer, from the character of its author, an intent to substitute a power, concurrent and co- extensive with that of the Court of Chancery, to appoint as guardian the person whom the court may deem best fitted, to exercise all the functions pertaining to the office of guardian. In crediting this concurrence of jurisdiction, the most mis- chievous consequences would result, if it was understood, that if taken before the court of chancery, the infant would have to acquiesce in the appointment, to be made by the court; whilst he was at liberty, by going before the Orphans court, of selecting a guardian for himself. I refer to the North Carolina Reports, Hayw. 350, 303, Mills vs. McAllister-, and especially to the note at the end of the case, for the pur- pose of showing, that the court may and should exercise, without restraint, its power of appointment. If the court possessed the power of appointment, then its action in this case is conclusive. A variety of cases are to be found, in which it has been adjudged, that the appellate court will not attempt to control the court of the first instance, in the exercise of powers confided to its discretion, and surely no subject can be suggested, in regard to which, it is more impor- tant, that the court having personal intercourse with the in- fant, and the competitors for the care of his person and pro- perty, should be the ultimate judges of their relative merits. Admit this court to have a control over the discretion of the Orphans court, to set aside its judgment, when such judgment is shown to have been predicated upon improper or clearly insufficient grounds, is there any thing on the face of this re- cord to show, that the court's discretion was not rightly exer- cised? The facts on which the court acted; the grounds of their decision, are not stated. The infant's petition alone is relied on, as evidence of the qualifications of the person norni- 252 CASES IN THE COURT OF APPEALS Cornplon vs. Compton. 1844. nated by him. But, the averments in that petition, are not in themselves evidence, nor are they sustained by proof. Were it otherwise, the statements made by the infant may well stand with other facts, which, if disclosed, would show the entire unfitness of his nominee; neither the influence which he has acquired over the infant, nor his literary attainments, lead to the conclusion, that his moral qualities are such as we should require in the guardian of a youth ; and it is by no means im- probable, that the proceedings, which are contemplated by the appellee, were designed for the assertion of some right of pro- perty of the infant, against the person, whose influence over the infant, has occasioned this controversy. I am not at liberty to state the particulars which have been communicated to me; but I am instructed, and may so say in general, that the court below, acted on grounds very satisfactory to itself; and to re- quest, in justice to that court, nay, more especially for the welfare of the infant, that the decree may not be reversed, and the guardianship of the infant changed, without affording us an opportunity of showing the grounds on which the appellee was preferred. In the present state of the record, every pre- sumption is to be made in favor of the decree. There is noth- ing on the face of the record, to convict them of improper, immature judgment. If the power of the court over the sub- ject, is conceded, then must it be assumed, that it has rightly acted, 3 G. $ Johns. 39, Owens vs. Collinson; and I appre- hend this consequence will follow, whether it is supposed the court possessed the power of appointment simply, or possessed a power of controlling an injudicious choice, on the part of the infant. If the right of the infant to select, is subject to any control, then ought we to assume, it was properly con- trolled in this instance, 1 Coxe, 397, Eldridge vs. Lippincott, here conceded, that the mother was prima Jade entitled to the guardianship. Yet, the court having appointed another, with- out assigning reasons therefor, the Court of Appeals presumed there were adequate reasons for setting her aside. Admit with us, that the right of the infant, when improperly exercised, may be controlled, and we may very confidently rely on the above OF MARYLAND. 3.53 Compton vs. Compton. 1844. case as an authority, in point, in our favor. Will its applica- tion be avoided by asserting, that our youth, when by the exuberance of their passions they are most likely to be led astray, shall have the absolute and uncontrolled power of se- lecting their guardians and advisers? I know that the power existed, without any legal control, at the common law. The same may be predicated of our acts of 1715 and 1763 ; and henee, I conclude very confidently, that our legislature of 1798, designed to abrogate a rule which cannot be observed, with- out entailing upon our sons and daughters the most evil con- sequences. Nothing, be it observed, is said against the fitness of the appellee. He is the nearest of kin to the infant, the surviving administrator of the estate of the infant's father. If his per- sonal qualifications are admitted, there is propriety in selecting, as guardian, the person who is already possessed of the in- fant's estate. The infant's subsistence is most surely provided for; and all rights of the infant against him, as guardian and administrator, are saved, until the infant attains his majority. These are important considerations. MAGRUDER, J., delivered the opinion of this court. This appeal must be dismissed : from an order of the Orphans court, appointing a guardian to an infant, no appeal will lie. It is the duty of the Orphans court, in appointing his guar- dian, to consult the interests, rather than the wishes of the in- fant. If the latter was competent, without control, to choose his guardian, it would be scarcely necessary for him to have one. He might also choose his own boarding-house, his in- structers. and others whose services he needed. The Orphans court, in the discharge of this duty, may make an injudicious choice ; but it is not probable that this court, without any in- formation to assist them, could exercise such a power more judiciously. From such an order, it would not be more proper for this court to entertain an appeal, than from an order of the county court, granting, or refusing to grant, a new trial. APPEAL DISMISSED. 254 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. THOMAS BURGESS, COLLECTOR OF PRIMARY SCHOOL DIS- TRICT, No. 30, OF HOWARD DISTRICT, vs. ARTHUR PUE, JR. December 1844. In an action of replevin, brought by a taxable inhabitant against a collector of the school tax, to recover property seized for non-payment of such tax, due for 1843, having filed his affidavit on which he obtained the writ, affirming that the property had been taken by such collector, he cannot maintain that the school district is disorganized, and the power of the taxables suspended by reason of informalities in the proceedings of such district, for the year 1842. Nor that the election for 1843 was void, because the minutes of the proceed- ings of the taxables did not state every thing to have been done, which the law requires to be done ; as, that the election should be by ballot. It is not necessary that the mode of election should appear on the minutes, nor that they should show the clerk had bonded. The taxables when assembled; may vote a tax, as well for the expenses for the current year, as to pay arrearages due for essential expenses of the pre- ceding year. Notice of the time and place of meeting of the inhabitants, to authorise the imposition of a school tax under the act of 1825, should be given. In such an action, the collector need not offer proof of his qualification. He is an officer de facto, and in the absence of proof, no presumption is to be made against his qualification. The act of 1825, does not forbid the appointment of one of the trustees to be the clerk of the school district. The legislature had the right to delegate, to those appointed to exercise them, viz : the taxable inhabitants, the powers given by the act of 1825, ch. The individuals to whom those powers were delegated, ought to conform to the provisions of the law under which they act ; but the minutes of their proceedings need not show all the facts necessary to give them jurisdiction. Governed by the nature of the trust conferred, and the great confidence reposed, by the law, in the judgment of such inhabitants, the court will presume any thing which the law requires to be done, to be rightly done, until the contrary appears. Upon a case stated, which does not authorise the court to give judgment for either party, this court can give no judgment, but must reverse that of the court below, and remand the cause. In the case of corporations, the recording of an official bond is not essential to its validity, unless it be so expressly declared. A vote or resolution, appointing an agent for a corporation, need not be en- tered on the minutes, but may be inferred from the fact of accepting his services, or permitting him to act. OF MARYLAND. 255 Burgess vs. Pue. 1844. Persons acting publicly as officers of a corporation, are presumed to be right- fully in office. An election by a corporation, contrary to its charter, is voidable ; yet if an officer has come in under color of right, and not in open contempt of all rights whatever, he is an officer de facto. APPEAL from Howard District Court. This was an action of replevin, commenced by the appellee against the appellant, on the 4th September 1843, founded on the following warrant, viz : "To John L. Moore, clerk of Howard District of Ji. Jl. co. Howard District of Anne Jirundel county, to wit : Whereas, on this 4th of September 1843, before me the subscriber, one of the justices of the peace of the State of Ma- ryland, in and for the said district, Arthur Pue, jr., of the said district, made oath, that two pied oxen belonging to him have been illegally and unjustly seized in execution for school taxes, for district No. 30, by the collector, Thomas Burgess, which affidavit is hereto annexed : Whereby it appears to me, that it is necessary for the purposes of justice, that a replevin should issue ; you are hereby empowered and directed to issue a replevin for the following chattels taken as aforesaid, to wit, "two pied oxen," and this shall be your warrant for the same. Witness my hand and seal this 4th day of September, 1843. JAMES A. FROST. (Seal.)" "Howard District of Anne Jirundel county, to wit: Be it remembered, that on this 4th day of September 1843, be- fore me the subscriber, one of the justices of the peace of the State of Maryland, in and for the said district, personally ap- peared Arthur Pue, jr., of the said district, and made oath on the Holy Evangely of Almighty God, that two pied oxen have been illegally and unjustly seized by the collector, Thomas Burgess, for the school taxes for primary school district No. 30, of said district. Sworn before JAMES A. FROST. (Seal.)" Replevin bond was filed and approved. The writ of reple- vin issued, and the oxen were replevied and delivered to the plaintiff below, who filed his declaration for the same. 256 CASES IN THE COURT OF APPEALS Burgess vs, Puo 1844. The defendant pleaded 1. JVbn cepit. 2. An avowry, in which he alleged, that the said place where the taking of the goods and chattels, aforesaid, is supposed to be, is within the limits of primary school district No. 30, of Howard District of Anne Jlrundel county, and that at a meet- ing of the taxable inhabitants of said primary school district, duly convened and held in said district on the 29th day of July 1843, it was among other things voted, that a tax of six- teen cents on every hundred dollars worth of assessable pro- perty in said district be raised, to defray the expenses of the school in said district, and the said defendant was then and there duly elected and appointed collector of said district, and to collect the aforesaid tax ; and the said defendant accepted said office, and duly qualified as such collector, as aforesaid ; and received from the trustees of said primary school district, duly appointed and qualified as such, a rate bill made by the said trustees, and containing the names of the persons charge- able with the aforesaid tax, with the sums respectively payable by them agreeably to law, and a warrant in due form of law, requiring the said defendant, as collector as aforesaid, to col- lect the sums chargeable against, and payable by said persons respectively, according to law. And because the said plaintiff was chargeable with the sum of $37.491, part of the tax aforesaid, so as aforesaid voted and assessed, and because the said plaintiff utterly refused to pay the aforesaid sum of money or any part thereof, unto the said defendant, as collector as aforesaid, within the time limited by law for that purpose, or at any time prior to the aforesaid taking, although payment thereof of the said plaintiff, was by the said defendant, as col- lector as aforesaid, in due form of law demanded, that is to say, on the day and year aforesaid, at the county aforesaid ; the said defendant well avows the taking of the said goods and chattels in said place, where, &c., and justly, &c., for the said sum of $37.49^, so being in arrears and collectable by the said defendant, as collector as aforesaid, which to the dis- tress of said defendant, as collector as aforesaid, was charged OF MARYLAND. 257 Burgess vs. Pue. 1844. and bound, and this he is ready to verify. Wherefore, he prays judgment and a return, &c. The plaintiff joined issue on the 1st plea, and replied to the avowry. 1st. That the said defendant, at the said time when, &c., was not the collector of primary school district, No. 30, duly elected, qualified and authorised to collect the taxes imposed in said district, in manner and form as the said defendant hath above, in his said avowry in that behalf alleged ; and this, &c. 2nd. That the meeting of the taxable inhabitants of said primary school district, held on the 29th July 1843, by which the tax mentioned in the said avowry is avowed to have been made, was not duly convened and held in said district, and was not authorised to impose and vote said tax; and this, &c. 3rd. That the taxable inhabitants of said primary school district, No. 30, were, on the 15tb July 1843, notified to meet on the 29th July, (at the school house in said district,) of said year, for the purpose of electing officers, and voting a tax for the support of the school for the ensuing year, and the said taxable inhabitants, on the said 29th July, at the said school house, in said meeting, voted a tax to defray the necessary expenses of the district, during the past and for the current year, which tax is the same in the said avowry mentioned ; and this, &c. 4th. That the tax voted by the said meeting of the taxable inhabitants of school district, No. 30, in said avowry men- tioned, was not voted at an annual meeting of the taxables of said district, duly convened and held, and this the said plain- tiff is ready to verify; wherefore he prays judgment, &c. 5th. That on the 29th July 1843, there was no legally or- ganised school district meeting, authorised and empowered to vote a tax on the inhabitants of said district, and this the said plaintiff prays may be enquired of by the country, &c. 6th. That at a meeting of the taxables of the said supposed school district, No. 30, held on the 30th July 1842, a tax of eight cents in the hundred dollars of assessable property in 33 v.2 258 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. said district, was voted for the expenses of said school district for the ensuing year, and a rate bill or tax list made out and placed in the hands of the defendant, with a warrant thereto annexed, commanding him to collect of the said plaintiff the sum of $18.74|, among others of the taxable inhabitants of said district, by virtue of which proceedings and warrant, the said defendant seized and took the property of the said plain- tiff, in payment of the said sum of $18.74f- ; whereupon the said plaintiff sued out of Howard District court of Anne Jlrundel county, a writ of replevin against the said defendant, on which writ such proceedings were afterwards had in said court, that a judgment thereon was given for the plaintiff, as will appear from the record of said court, and the said plaintiff in fact saith, that the tax imposed by said meeting of the tax- able inhabitants of said supposed school district, No. 30, at the meeting of the 29th of July 1843, was voted to defray the expenses of the past and for the current year ; and the said plaintiff further in fact saith, the said defendant hath appealed from the judgment of Howard District court, in the action be- tween the said plaintiff and the said defendant, on the writ of replevin, sued out by the plaintiff as aforesaid, which appeal is still pending and undecided, and this the said defendant is ready to verify; wherefore he prays judgment, &c. 7th. That the sum voted as a tax, at the meeting of the taxables of the said supposed school district, No. 30, held on 29th July 1843, was not raised in due proportion on all the taxable inhabitants of said district, and this he is ready to verify; wherefore he prays judgment, &c. It was then agreed, by the parties, that this cause be sub- mitted to the court here, on the following statement of facts: It is agreed and admitted, that a meeting purporting and claiming to be an annual meeting of the taxable inhabitants of primary school district, No. 30, in Howard District, held on the 29th July 1843, at the primary school house in said dis- trict, pursuant to notice, by George L. Stockett, (who assumed to act as, and during the then preceding year had publicly acted as the clerk of the district,) set up at the school house, OK MARYLAND. 259 Burgess vs. Pue. 1844. and other, the most public places in the district, for the space of time required by law, a tax of sixteen cents on every one hundred dollars of assessable property in the district, was im- posed and laid to defray the necessary expenses of the district, during the past and for the current year; that George L. Stockett, George Ellicott and Isaac P. Ijams, were elected trus- tees of said district for the ensuing year, and the defendant was elected collector thereof, and the said collector gave bond with security, for the performance of his duties as collector, as appears from the copy of the minutes of the book of pro- ceedings of said district hereto annexed, marked A, as a part of this statement, (which copy it is agreed, shall be taken and received as full proof of the entries therein, as if the original was before the court duly proved,) and which is in the follow- ing words, to wit: "A copy of the proceedings of primary school, No. 30, of Howard District of A. Ji. county. PRIMARY SCHOOL. Notice is hereby given, that the an- nual meeting of the free white male citizens of the State of Maryland, above the age of twenty-one years, and actual resi- dents of, and taxable in school district, No. 30, of Howard District of Ji. Ji. county, will be held at the school house in said district on Saturday, the 29th day of July next, at 10 o'clock, A. M., for the purpose of electing officers and voting a tax on the assessable property of the district, for the sup- port of the school for the ensuing year. July 15th, 1843. GEO. L. STOCKETT, Clerk." "29th July 1843. At a public meeting of the taxable inhabi- tants of primary school district, No. 30, in Howard District of j2. Ji. county, convened according to public notice, given by handbills placed at the following places, to wit, one at Lilly's tavern, one at llchester mills, one at Mrs. Williams'' tavern, one at school house, No. 30, and one published in the Howard District Press. The meeting was then organized by calling George Ellicott to the chair, and appointing McLane Brown, secretary. The trustees laid before the meeting a com- munication from the counsel engaged to defend the suits brought 260 CASES IN THE COURT OF APPEALS Burgess vs. Puo. 1844. against Thomas Burgess, collector ; and after considering the same, the following resolutions were adopted : 1st. Resolved, that Thomas Burgess, collector, be instructed to suspend all further proceedings in the collection of the tax imposed by the resolutions of the meeting held on the 30th July 1842. 2nd. Resolved, that a tax of sixteen cents on the one hun- dred dollars of assessable property, in the district, be imposed on said property, to defray the necessary expenses of the dis- trict, during the past and for the current year. 3rd. Resolved, that every taxable inhabitant, who shall have paid the sum assessed to him by the resolution passed on 30th July 1842, shall be entitled to retain the sum so paid by him out of the tax, which he may be liable to pay under the above resolutions. The above three resolutions were unanimously adopted, the people voting by ballot. On motion, George L. Stockett read the trustees' report. On motion of Reuben P. Hammond, the trustees' report was unanimously adopted. On motion of McLane Brown, George L. Wight and Levy Chaney were ap- pointed to count the ballots, when it appeared there were thirteen votes in favor of the report and none against it. On motion, Mr. Hammond, George L. Stockett, George Ellicott, and Isaac P. Ijams, were put in nomination for trustees for the ensuing year. On motion of Mr. Brown, the meeting then proceeded to ballot. On motion, Mr. Ijams, George L. Wight and Levy Chaney were appointed to count the ballots, when it appeared thirteen ballots were deposited, and that there were thirteen vo'ces for George L. Stockett, thirteen votes for George Ellicott, and thirteen votes for Isaac P. Ijams, one member of the meeting refusing to vote. George Ellicott, George L. Stockett and Isaac P. Ijams, were therefore declared duly elected trustees for the ensuing year. On motion of Mr. Stockett, the meeting proceeded to ballot for clerk, McLane Brown being in nomination. On motion of Mr. J. P. Ijams, George L. Wight and Levy Chaney were appointed to count the ballots, when it appeared Mr. Brown was unanimously elected. OF MARYLAND. 261 Burgess vs. Pue. 1844. On motion of Mr. Stockeft, the meeting proceeded to ballot for collector, Thomas Burgess being in nomination; on motion of /. P. Ijams, George L. Wight and Levy Chaney were ap- pointed to count the ballots, when it appeared that Thomas Burgess had thirteen votes, being the whole number of votes cast, and he was declared unanimously elected. On motion of Mr. Ijams, the minutes of the meeting was read by the secretary. On motion of Mr. Stockett, the meeting was then adjourned to the 29th July 1844, and the proceedings signed by the chairman and secretary. (Signed,) GEOBGE ELLICOTT, Chairman. McLANE BROWN, Sec'y" "Annualjreport of the trustees of primary school, No. 30, of Howard District of Jl. A. county. The trustees of primary school, No. 30, report, that at the last annual meeting of the resident taxable inhabitants, held on the 30th July 1842, we were elected trustees for the ensu- ing year, and at the same time, a levy of eight cents on the one hundred dollars of taxable property in the school district, was voted for the support of the school; that it was estimated $160, but only $22 has been collected and received. We have received from the school commissioners of Howard District $90, and from the State fund $55.25, from the monthly payments of the children attending school $36 in all about $203.25. We have paid for teacher's salary $182.62, for books, stationary and stove, $43.21, but there is now due for stationary and teacher's salary about $65, which is estimated in the expenses for the ensuing year. Cir- cumstances having occured, not necessary here to mention, makes it necessary that a levy of 16 cents on the $100 of taxable property in the school district, be made to meet the expenses of the school for the past and ensuing year, this we estimate to be about $560. We estimate the levy of 16 cents, will produce about $390 ; the monthly payments of the chil- dren about $25, and from the State fund and commissioners of the district about $145, which we think will be sufficient to defray the necessary expenses of the school for the ensuing 262 CASES IN THE COURT OK APPEALS Burgess vs. Pue. 1844. year, and meet its liabilities for the past year. All of \vhich is respectfully submitted. (Signed,) GEORGE ELLICOTT, GEO. L. STOCKETT, J. P. IJAMS, Trustees." "Copy of clerk's bond. Know all men by these presents, that we, McLane Brown and Edward Brown, of Howard District of Jl. A. county, are held and firmly bound unto the State of Maryland, in the just and full sum of $300, current money, to be paid to the said State of Maryland, or its certain attorney, to which payment well and truly to be made, we bind ourselves and every of us, our heirs, executors and administrators, jointly, severally and firmly by these presents, sealed with our seals, and dated this 31st day of July, in the year 1843. Now whereas, the above bound McLane Brown has been duly appointed clerk of pri- mary school district, No. 30, of Howard District of Anne Arundel county. The condition of the above obligation is such, that if the said McLane Brown shall well and faithfully execute the office of clerk, as aforesaid, according to law, then this obligation to be void and of no effect, otherwise to remain in full force and virtue in law. (Signed,) MCLANE BROWN, (Seal.) EDWARD BROWN. (Seal.) Signed, sealed and delivered in presence of MARSHALL D. MAXWELL." "A copy of tax list for 1843, at 16 cts. on the $100. Mc- Lane Brown, $2,146, $3.43^, and forty-two other taxables. "Received 1st August 1843, of the trustees of primary school, No. 30, Howard District, a copy of the above tax list for collection, which is to be returned collected, within sixty days. (Signed,) THOMAS BURGESS." "A copy of collector's bond. Know all men by these presents, that we, Thomas Burgess and Washington Gaither, of Howard District of Jinne Jlrundel county, are held and firmly bound unto the State of Maryland, in the full and just sum of $384, current money, to be paid to OF MARYLAND. 263 Burgess vs. Pue. 1844. the said State, or its certain attorney or assigns, to which pay- ment well and truly to be made, we bind ourselves and every of us, our and every of our heirs, executors and administrators, jointly and severally, and firmly by these presents, sealed with our seals and dated this 1st day of August, in the year of our Lord 1843 : whereas, the above bound Thomas Burgess has been duly appointed collector of primary school district, No. 30, in Howard District of Anne Jirundel county; now the condition of the above bond is such, that if the said Thomas Burgess shall well and faithfully execute the office of collector, as aforesaid, according to law, this obligation to be void, other- wise to be and remain in full force and virtue. (Signed,) THOMAS BURGESS, (Seal.) WASHINGTON GAITHER, (Seal.) Signed, sealed and delivered in the presence of McLANE BROWN. A true copy from the school book, McLANE BROWN, Clerk." Which bond of said collector was accepted and approved by the said trustees who had accepted their appointment, and were acting as trustees as aforesaid, and that the said trustees so acting as such, made out a rate bill or tax list, for raising the aforesaid tax on all the assessable property in the district, and in due proportion ; but the said plaintiff alleges, that the resolutions annexed thereto, qualify said rate bill and render said proportion unequal, delivered the same with their warrant, requiring him to collect the aforesaid sums from the persons charged therewith, with the resolutions adopted at said meet- ing, from No. 1 to No. 3 inclusive, annexed to said rate bill and warrant. It is further agreed, that the copy of the proceedings of the said primary school meeting, and of the bond of the defendant, as collector aforesaid, and rate bill and warrant aforesaid, at- tached to and made a part of this statement, may be read by the plaintiff, for the purpose of shewing, (if he can,) any irregularity or defect in the proceedings of said meeting, or in the appointment or qualifications of the said trustees or col- lector, which will in law, negative the authority of said trustees 264 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. or collector to act as such, and the admissions herein previ- ously made, are to be taken, subject to this limitation. It is further admitted, that in the year 1832, a primary school was organized in said district, and ever since has been kept up in fact ; but the regularity and legality of such organization and continuance is denied by the plaintiff, and affirmed by the de- fendant. It is admitted, that the trustees and clerk elected on the 30th July 1842, at the meeting of the taxables of said school district (claiming and professing to be the annual meet- ing duly convened, but which claim is denied by the plaintiff,) of that year, were elected viva voce, and not by ballot, the plaintiff being present and voting, and no objection having been made to said proceeding, and that the said trustees and clerk continued to act as such until the 29th July 1843, and that no district meeting of the taxables of said district was formed or organised by the commissioners of primary schools, in the interval or up to the time of the commencement of this suit, and no trustees, clerk, or collector, were appointed by the commissioners of primary schools, for school district No. 30, since the said school first went into operation. It is further admitted and agreed, that the record of proceedings in the action of replevin between the present parties, tried and de- termined in this court at March term, 1843, and now depending in the Court of Appeals, shall be taken as part of this state- ment, and that any fact therein admitted, shall be admitted herein, and the plaintiff is allowed to rely on the papers in said cause, and the minutes of proceedings hereto annexed, marked B., as follows, to wit : the 9th annual meeting of primary school, in district No. 30, A. A. county. 29ih July, 1839, minutes of the 9th annual meeting of the taxable inhabitants in district No. 30, A. A. county. On motion of McLane Brown, George L. Stockett was called to the chair ; and on motion of Anthony Smith, McLane Brown appointed secretary pro. tern. On motion of McLane Brown, the report of the trustees was read by George L. Stockett, and on motion of McLane Brown, the report was unanimously adopted. On motion, the treasurer's report was read and adopted. On mo- OF MARYLAND. 265 Burgess vs. Pue. 1844. tion of McLane Brown, the meeting proceeded to the election of officers for the ensuing year, when Mr. Brown nominated A. Smith, George L. Stockett and J. P. Ijams, as trustees for the ensuing year; the aforesaid gentlemen were unanimously elected trustees for the ensuing year ; and on motion, McLane Brown was elected clerk for the ensuing year ; and on motion of McLane Brown, Anthony Smith was duly elected collector. On motion of Mr. Smith, the meeting adjourned to the last Saturday of July 1840. The 10th annual meeting of P. S. } in district No. 30, A. A. county, 1st August 1840. Minutes and proceedings of the 10th annual meeting of the taxable inhabitants in district No. 30, A. A. county. On motion of/. S. Williams, Dr. R. G. Stoc- kett was called to the chair, and J. S. Williams appointed secre- tary. On motion, it was resolved, under the laws regulating primary schools of A. A. county, this meeting deem it incom- patible for the trustees of primary schools, to hold at the same time the office of commissioner or inspector of primary schools. On motion, it was resolved, that when the number of scholars in this school district amount to thirty, that the trustees be re- quested not to admit any scholars from any neighbouring dis- trict. On motion, it was resolved, that nine cents on the $100 be levied on this district, for the ensuing year. On motion, Anthony Smith, J. P. Ijams, and George L. Stockeit, were elected trustees, and George L. Stockett to act as secretary, pro. tern. On motion, it was resolved, that the annual meeting be held on the last Saturday in July, hereafter, at 10 o'clock, A. M. On motion, the meeting adjourned, sine die. GEO. L. STOCKETT, Clerk, pro. tem." "July 31st, 1841. The llth annual meeting of taxable in- habitants of primary school district, No. 30, Howard District of A. A. county. On motion of George L. Stockett, Thomas Maccrea was called to the chair, and George L. Stockett ap- pointed as clerk. On motion, it was resolved, that a tax of eight cents on the $100 be levied on the taxable property of - district, for the ensuing year. On motion of Thomas Maccrea y George L. Stockett, ./. P. Ijams and George L. Wight, were 34 2v. 266 CASES IN THE COURT OF APPEALS Burgess vs. Puc. 1844. appointed trustees for the ensuing year. On motion of George L. Wight) it was resolved, that the report of the trustees be adopted. On motion of /. P. Ijams, it was resolved, that this meeting do adjourn to the last Saturday of July 1842, at 10 o'clock, A. M. July 30th, 1842. The 12th annual meeting of the taxable inhabitants of primary school district, No. 30, Howard District of A. A. county conrened, and on motion, George Ellicott was called to the chair, and McLane Brown appointed secretary. On motion, the secretary read the trustees annual report; Mr. Ijams moved the adoption of said report, determined in the affirma- tive; McLane Brown moved a levy of eight cents in the $100; C. S. W. Dorsey moved, as a substitute, four cents, determined in the negative. The vote was then taken on McLane Brown's motion, and determined in the affirmative. Mr. Wight nomi- nated George L. Stockett, J. P. Ijams and George Ellicott, as trustees for the ensuing year ; Henry H. Pue nominated Levi Chaney, Anthony Smith and William Smith ; the question was then taken on the nomination of George L. Stockett, unani- mously elected ; J. P. Ijams and George Ellicott, unanimously elected ; Mr. Ijams nominated George L. Stockett as clerk, elected unanimously. On motion of C. S. W. Dorsey, re- solved, that the trustees report to the next annual meeting the number and names of the children attending school, and who pay capitation tax, and the time of their attendance. On motion of A. Smith, the meeting adjourned, to meet on the last Saturday of July 1843, at 10 o'clock, A. M. (Signed,) GEO. ELLICOTT, Chairman. McLANE BROWN, Sfec'y." And all other proceedings in the minutes of the proceedings of said school district, to be read from the minute book, for the purpose of showing a defect or want of legal authority in the meeting of taxables of 29th July 1843, to impose said tax, and in the defendant as collector, or for any other cause ; the defendant denying, however, the right of the plaintiff to rely on any part of said proceedings of any meeting anterior to the 29th July 1843, for any such purpose. It is further admitted, OF MARYLAND. 267 Burgess vs. Puo. 1844. that the plaintiff is, and on the 29th day of July 1843, was, a taxable inhabitant of said primary school district, and charged as such tvith the tax imposed, as aforesaid ; that payment there- of being refused, the said defendant seized the property in the proceedings mentioned, these being the property of the plaintiff, and within the aforesaid district, and held the same for payment of said tax, but no objection, whatever, is to be taken to the regularity of the proceedings of the defendant, provided he was legally and duly authorised to demand pay- ment, as aforesaid. It is further admitted and agreed, that the minutes of proceedings of school district No. 30, marked B. shall be received as legal evidence of the facts therein stated, as if the original book was duly proved ; upon the foregoing statement of facts and such inferences thereupon as a jury might fairly draw, it is submitted, whether said defendant had lawful authority as collector, as aforesaid, to take the property of the plaintiff, aforesaid ; the case is submitted to the court, with liberty to either party to appeal. RICH'D. I. BOWIE, for plaintiff. THOS. S. ALEXANDER, for defendant. The plaintiff then insisted, that the act, entitled, an act to provide for the public instruction of youth in primary schools throughout the State, and the several supplements thereto, are unconstitutional and void. 2nd. That the tax laid at the meeting of the taxables of primary school district, No. 30, of Howard District, held on the 29th July 1843, was illegal and void ; because the trustees, clerk, and other officers, elected at the preceding annual meet- ing of the 30th July 1842, were not elected by ballot, but viva voce, and the clerk did not bond, whereby the said district meeting was disorganised, and the powers of the taxables suspended; and the annual meeting of the 29th July 1843, was called without due authority of law, the commissioners of primary schools being the proper persons to re-organise said district meetings. 3rd. That the notice declared the object of the meeting to be "for the purpose of electing officers and voting a tax," &c. k 268 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. "for the support of the school for the ensuing year;" the tax laid was to defray the expenses of the district during the past, and for the current year. 4th. That the tax is retrospective, and not prospective, is not within the purview of the acts, but for purposes not pre- scribed by them. 5th. That the tax was not laid at the annual meeting of the taxables of the district. 6th. That two taxes have been laid in the same year for the same purpose. 7th. That the sum voted as a tax, was not raised in due proportion on all the taxable property in said district. 8th. That the property of the plaintiff has been before seized and taken for a part of the sum now demanded of him as a tax, and for which his property is now seized, and a suit is now pending in the Court of Appeals, involving the validity of the tax first laid. 9th. That the said taking was illegal and wrongful, because the said defendant had not duly qualified as collector of said tax, according to law. 10th. That the person assuming to act as clerk, was ineli- gible, having previously been elected trustee, and acted as such ; he could not act in both capacities, and the proceedings shew he acted as trustee, and did not qualify as clerk. The county court rendered judgment for the plaintiff, and the defendant appealed to this court. The cause was argued, on notes, before ARCHER, C. J., CHAMBERS, SPENCE and MAGRUDER, J. By T. S. ALEXANDER, for the appellant. The constitutional objections to the primary school system were opened and fully discussed on the former appeal, and are now under consideration. On the present occasion, the appel- lant's counsel will confine himself to the discussion of the questions of irregularity, which are peculiar to this case, OF MARYLAND. 269 Burgess vs. Pue. 1844. 2. It is alleged, that the proceedings of the meeting held in July 1843, were void, because of the irregular proceedings of the meeting in July 1842, which it is said, disorganized the district, and suspended the powers of the taxables. The specific irregularities alleged, are, that the trustees and clerk were elected viva voce, and not by ballot; and that the clerk did not give bond, as required by law. I have already, in the former case, discussed the effect of the irregularity in the manner of conducting the elections of 1842, and shown, as I trust, that it is cured by the act of 1828, chap. 169, sec. 5. The only effect of the irregularity, if not cured, would be to avoid all the acts of the meeting of 1842. It cannot dis- organize the district, or dissolve the corporation. In 9 Wen- dell, 35, Reynolds vs. Moore, and in 7 Wendell, 341, Ring vs. Grant, it has been decided, that in an action like the present, the plaintiff cannot show an irregularity or defect in the origi- nal organization of the district. If a defect in the original organization, which shows that the district was never duly organised, cannot be relied on, for the purpose of avoiding subsequent proceedings of the district, you cannot, on any principle, admit that proceedings, in themselves regular, of a district regularly organized, shall be avoided by proof of an intermediate irregularity. The act of 1825, chap. 162, sec, 9, expressly provides, that the clerk, trustees, and collector, once duly appointed, shall continue in office until their succes- sors shall have been elected. An irregularity or defect in the mode of conducting an election, may vitiate the whole pro- ceeding. It cannot disorganize the district, since provision is made to supply the defect created by a failure to elect, by an election, which, by reason of its irregularity, is to be treated as no election. The taxables of the district, having the power of assessing taxes, and electing officers to manage their local affairs, con- stitute for those purposes a corporation; a corporation, not private but public, and clothed with political powers of great moment. Now, it is not true, that a political corporation, en- trusted with important political functions, can be dissolved by 270 CASES IN THE COURT OF APPEALS Burgess vs. Puc. 1844. an irregularity in its proceedings, or in the succession of its officers or members. As a general rule, the acts of a person claiming to be invested with a particular office, and exercising publicly, and with general assent or acquiescence, the powers annexed to that office, must be respected. The remedy against usurpation, is to be found in the exercise of the power of amotion. You cannot avoid the act of the intruder; much less can you affirm, that an acquiescence by a corporation, in an intrusion, shall work a dissolution of the body. The commis- sioners of Anne Arundel county constitute a corporation. The law provides for a continued succession of its members, and I grant, for the purpose of the argument, that an election ir- regularly conducted, would not clothe the persons elected with the legal character of corporators. Yet, if the persons claim- ing to be the commissioners under such irregular election, were permitted to assume the office of commissioners; to possess themselves of the records of the corporation; to adjust the county expenses and impose a tax, and to appoint a collector and other local officers, could it be safely affirmed, that those proceedings were simply void, that the collector could not en- force the collection of the tax? that the killing of a constable thus appointed, whilst in discharge of the duty incident to his office, would not be murder? Will it be argued, that an irregu- larity in conducting the elections of commissioners in the year 1842, dissolved the corporation, and that the persons now acting as commissioners, in virtue of an election in 1843, are exercising the functions of an office which has no existence? If none of those positions can be maintained, it will be still more difficult to prove that a corporation, aggregate of an in- definite number, exercising in general meetings its most impor- tant functions, can be dissolved by a failure to elect, or mere irregularity in electing an executive officer. The consequence of maintaining the judgment of the county court, in this case, will be, that every one who is not inclined to pay his State or county taxes, will attain his object, by examining into the pro- ceedings of the commissioners for some five years past. None of them, it is apprehended, will endure a severe scrutiny. It OF MARYLAND. 271 Burgess vs. Pue. 1844. is impossible to adopt any legal principle in support of the proceedings of the county commissioners, which will not ap- ply with equal force, when invoked to the aid of the proceed- ings of the taxables and their trustees. And, indeed, their case is placed beyond the reach of cavil by the act of 1828, chap. 169, sec. 5, which expressly commends the primary school system to the protection of our courts of judicature, and declares, that no proceedings of the taxables or of the trustees, shall be set aside, or adjudged to be void for defect of form, or any irregularity therein, so as the requisitions of the acts are substantially complied with. The informal or irregular proceeding is to be sustained; and yet it is to be ar- gued, that such informality or irregularity shall work a disso- lution! This act avoids all consequences of an irregular or informal proceeding, and therefore would repeal any inconsistent provi- sion, which existed in the previous act of 1825, chap. 162. But in fact no inconsistency is to be discovered. Section eight of this last act, provides for the original organization of the district, and for the failure to organize after meeting, by an adjournment without day, or from any other cause. It cannot apply as a perpetual provision. After the first, or other meet- ing, has appointed a day for holding future annual meetings, there can be no adjournment without day, in the sense of the section. After one election, duly conducted, the offices will remain filled; and provision is made for other meetings, at which the omissions of the annual meetings may be supplied. If in all these important particulars, the law has so anxiously guarded against the consequences of irregularity, it is reasona- ble to infer, that informalities of less importance were not de- signed to accomplish a disorganization. Nor is it unworthy of notice, that the effect of the irregu- larity is expressly submitted by the law to the judgment of the commissioners, and they are the exclusive judges of every question arising under the provisions of that section. If in their opinion, the district has from any cause been dissolved, they are to convene another. Can any court of justice or other 272 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. jurisdiction, in opposition to their judgment, determine that the first meeting was not dissolved, and sustain the proceed- ings of, and officers appointed by the first meeting, against the proceedings of, and officers appointed by the second meeting? If the commissioners should determine that the meeting was not dissolved, and refuse to convene another, could a court of justice reverse that judgment, and annul the proceedings of the first meeting? And what would be the consequences of such judgment of reversal? The district would be deprived of its school, and of its capacity to organize another, since the initiatory proceeding must be taken by the commissioners. We are brought, then, to this alternative: the section com- mented on must refer to an original meeting exclusively; or the question of dissolution, by the irregularity of a subsequent meeting, must be referred to the jurisdiction of the commis- sioners ? Either alternative may be adopted by our adversa- ries, since it is to be inferred from the record, that the com- missioners treat this as a regularly organised district. The failure of the clerk, appointed in 1842, to give bond, could not work a dissolution, The giving of bond is essen- tial to his due qualification. But a vacancy in the office of clerk, does not disorganize a district. Neither is such effect produced by a failure, on the part of the taxables, to elect a clerk by ballot. Provision is made by the law for the con- tinuance in office, of the officer once inducted, until the regu- lar appointment of his successor. We have shown the case of a clerk, duly elected and inducted, and entitled, because of the irregularity in a recent election, to hold over, and yet yield- ing his office to another, who claims under such recent elec- tion, which by reason of such irregularity may be avoided. All the cases shew, that the acts of such usurping clerk, exer- cising the functions of clerk with the assent of the person lawfully invested with that office, and with public approbation, must be respected as if he had been legally inducted into office. 9 Wendell, 17, McCoy vs. Curlier. 7 Wendell, Ml,' Ring vs. Grant. 5 Wendell, 231, Wilcox vs. Smith. OF MARYLAND. 373 Burgess vs. Pue. 1844. The record admits, that the persons giving notice of the meeting of 1843, was elected (though the argument concedes irregularly,) clerk by the meeting of 1842; that he acted as clerk, from his election up to the time of meeting in 1843, without objection to his authority as such. Upon those cases and those admissions, I insist, that the notice in pursuance of which the meeting of 1843 was convened, is to be treated as given by the duly qualified clerk. I deny next the necessity for any notice of an annual meeting. The time of holding the annual meeting is fixed by the taxables, and all persons are bound to take notice of that day. The law requiring the clerk to give notice of such meeting, is directory merely. I think this may safely be inferred from section 10, and pro- viso to section 8 of the act of 1825, chap. 162. But this point was discussed in the former case, and is therefore to be rested on that discussion. 3. Assuming then that the district remained organized, and that the clerk elected in 1842, notwithstanding the irregulari- ties existing in his election and qualification, was right in giv- ing notice of the meeting of 1843, it is next to be shewn, that the form of the notice was sufficient for its purpose. One would suppose, that if defect in form could be tolerated in any proceeding whatever, it ought to be in the form of notice. No form is prescribed by the law. The act of 1825, chap. 162, sec. 10, simply requires that notice shall be given of the time and place of meeting. A designation of time and place is essential to the notice. Every thing else is surplussage. Does a notice then, that the meeting will be held for the pur- pose of voting a tax "for the support of the school for the ensuing year," or for any other specific purpose, restrain the meeting from transacting any business, which might have been transacted at a meeting convened after a more general notice? By no means. It might possibly be argued, that where a spe- cial meeting is called by the trustees, for a particular purpose, it should transact no other business than such as occasioned its call. But an annual meeting does not derive its authority to convene, from the order of the trustees or notice of the clerk. 35 v.2 274 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. Provision is made for the annual meetings by the law, which also enumerates the powers which such meetings may exercise. It may safely be affirmed, that the authority of an annual meet- ing to entertain and vote on any particular subject, is not to be restrained by the notice of the clerk. Else may the clerk defeat any purpose of the law. He might omit to state in his notice that officers were to be elected; and then it might be argued, that the corporation would be dissolved. He might omit all notice of the tax proposed to be assessed, and then no tax could be laid. 4. The tax, it is said, is retrospective in its objects, and not prospective; is not with the provision of the acts, but for pur- poses not prescribed by them. The specific objection, as is more specially stated in the third point, is, that the tax was imposed "to defray the necessary expenses of the district dur- ing the past and for the present year." What items are in- cluded under the head of "necessary expenses," do not appear, and consequently it cannot appear that the taxables have pro- vided for any expenditure which it is not right to provide for. We are to assume then, that they are proper in their character, and the only question can be, whether the taxables can raise by taxation, a fund for payment of liabilities which they have previously incurred? In discussing this question it is to be assumed, that the law designed to confer on the taxables the authority to raise the sums, necessary to defray the expenses which they might incur in the exercise of their powers. And that they may, occasionally experience the very casualties which sometimes intervene to embarrass other public bodies and indi- viduals. They may vote a tax of $500 to build a school house, which may in fact cost them $1,000. Would you de- bar them of the power of providing for payment of the addi- tional expense? Their proceedings in assessing a tax may be void, and may not be so adjudged until after the expenses which it was designed to meet have been incurred. Would you say that those expenses should remain a charge and in- cumbrance on the district, until a special act of the legislature should enable them to provide for its discharge? A school OF MARYLAND. 275 Burgess vs. Pue. 1844. house may be erected at a necessary cost of $2,000, which the convenience of the district would require to have discharged by instalments. Would you subject the taxables to the charge for the entire amount in one year? Why would you deprive the taxables of this power of providing for payment of past expenses? No reason can be given for subjecting the taxa- bles to this restraint, other than that as the assessable property in the district is continually changing hands, a tax to be im- posed at this present time, would reach persons who were not subject to taxation during the past year, and would not reach many who will be subject to taxation during the succeeding year. This was the argument used in the court below. It assumes, that the persons owning properly at the time a debt is incurred, must defray their aliquot proportion of that debt. But the act of 1825, chap. 162, sec. 12, requires the tax to be imposed on all the assessable property in the district, agreea- bly to the assessment of the last preceding tax. Upon the hypothesis suggested, the county tax may have been laid in January, the district tax may be voted in December, to defray the expenses of the succeeding year. All this the argument assumes to be admissible. Is there any greater injustice to result from permitting the meeting in December, to assess a tax for the then preceding year? There is nothing in the act, (vide section 8,) or in the act of 1828, chap. 169, sec. 3, which requires the taxation to be prospective. The language of those acts is just as broad as is to be found in the act of 1794, chap. 5, sec. 1, which requires the justices of the levy courts to meet annually, "to adjust the ordinary and necessary expenses of their several counties." Under this law, some of the levy courts adjust their expenses already incurred. Others provide only for future expenses, whilst others again provide for expenditures of particular classes already incurred, and as to others by way of anticipation. Will you deny to a levy court the power of providing a fund, to defray an expense which is about to be incurred? or to provide for payment of a debt already contracted? May not a recovery be had against a levy court for a debt contracted by its authority? And 276 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. would not a court compel the levy court to make a levy, for the purpose of discharging the judgment? The like law holds with regard to debts contracted by school trustees, and recove- ries had against them. To say that the property in the district may have changed hands since the debt was incurred, begs the question. The alienation was made cum onere. The practical inconvenience of assessing, or attempting to assess a debt in due proportions on the persons taxable, at the mo- ment the debt was contracted, would be extreme. The debts increase day by day. The alienations are daily made. But the spirit of our institutions require that the tax-gatherer should be seen once only in the year. The 13th section of the Decla- ration of Rights expressly declares, that every "person in the State ought to contribute his proportion of public taxes for the support of government, according to his actual worth." Here the charge is literally on the persons. But no one has yet ventured to deny the right of the legislature, to provide for future exigencies, or to supply the deficiencies created by the omissions of past legislatures. Can we charge the next generation with the debt we have created for works of internal improvements? 5. That the tax was not laid at an annual meeting. The answers to this objection are: 1. There is nothing in the law which requires the tax to be imposed at an annual meeting. 2. The notice states that an "annual meeting" will be held, and it is agreed, that the meeting purported and claimed to be an annual meeting. From these and the other facts admitted, it is fairly to be inferred, that the meeting was an annual meeting. 6. That two taxes have been laid in the same year for the same purpose. This is not true in point of fact. One tax was laid at the 12th annual meeting, held on the 30th July, (being the last Saturday,) 1842, the other at the 13th annual meeting, held on the 29th July, (being the last Saturday,) 1843. The first tax was voted to defray the liabilities then incurred and contemplated. The decision of the Howard Dis- trict court was adverse to the right of the trustees to collect OF MARYLAND. 277 Burgess vs. Puo. 1844. that tax. In deference to the judgment of the court, the taxa- bles suspended the collection of the tax, and assessed another tax, out of which they proposed to discharge the liabilities which were intended to be met by the first tax. There are not two taxes imposed for the same purpose. The last vote annuls the former vote, and all that can be collected is the last tax assessed. 7. That the tax last voted, was not raised in due proportion on all the taxable property in the district. The tax list made out is regular on its face, and there is nothing to show that it is not correct in every particular. The only pretext for this objection is, that by the third resolution, "every taxable who shall have paid the sum assessed to him by the resolution, passed on the 30th July 1842, shall be entitled to retain the sum, so paid by him out of the tax, which he may be liable to pay under the preceding resolutions." So far from induc- ing inequality, its adoption was essential to produce equality in contribution by the taxables. If partial collections of the tax of 1842 had been made, it would have been unjust to exact from those who made the payments, the entire amount of the taxes assessed by the resolutions of 1843. The further collections of the tax of 1842 being suspended, and the tax of 1843 being thereby necessarily increased, nothing was more just or equal than that the monies paid on account of the tax of 1842, should be refunded, or the taxable permitted to retain the amount out of the taxes chargeable to him in 1843. 8. That the property of the appellee has been taken in exe- cution, for a part of the sum now demanded. This is untrue in point of fact. The property was taken by the collector of 1842; but was replevied by the appellee, and the judgment in that action was in his favor. The appeal now pending, does not affect in any manner that judgment or its consequen- ces. If it should be affirmed, then there would be no ground for the objection; if it should be reversed, the appellee would be entitled to discount the amount assessed to him in 1842, from the sum claimed from him under the proceedings of 1843. 9. That the collector has not duly qualified according to 278 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. law. This objection does not deny the due election of the collector; and indeed, this fact could not be denied, since his election is expressly affirmed in the record of the proceedings of the meeting. His qualification is alone at issue. His bond (the giving of which constitutes his qualification,) is set out in the record, and it is admitted, that it was accepted and ap- proved by the trustees. It is impossible for me to discover any ground for this objection. In the argument of the former case, I insisted, that the pro- ceeding adopted in the case assumed, that the defendant was legally appointed and qualified as collector. I rely on that argument in opposition to this objection now taken. 10. That the person assuming to act as clerk was ineligible, having been previously elected trustee, and acted as such. That he could not act in both capacities, and the proceedings shew, that he acted as trustee and not as clerk. This objec- tion is but a variation of the third objection : "The clerk of 1842 was also elected a trustee. He could not act in both ca- pacities. He acted as trustee, and therefore was not clerk." That he did act as clerk, is clear from the notice under which the meeting of 1843 was held. _4nd it is distinctly admitted, that he continued to act as clerk down to the meeting of 1843. He acted likewise as trustee; but this did not vitiate his acts as clerk. There is no incompatibility between the offices of clerk and trustee. 16 Johns. 135; and if there was, he was clerk de facto, and I have already shown, that as clerk de facto, his notice was to be respected. Having thus answered all the objections taken on the record, to the authority of the appellant, to enforce payment of the tax laid in 1843, I presume to ask a reversal of the judgment of the court below. By R. I. BOWIE, for the appellee. The record in this case, shows an action of replevin, brought by the appellee against the appellant, for certain oxen seized, taken and detained by the latter, under the circumstances set forth in the case stated, as appears in the record. OF MARYLAND. 279 Burgess vs. Pue. 1844. The facts set forth in the case stated, on behalf of the appel- lant, are designed to show, that he acted by virtue of and in pursuance to the act of 1825, ch. 162, entitled, an act to pro- vide for the public instruction of youth in primary schools, &c., and the several supplements thereto; and those intro- duced on the part of the appellee, to show that the seizure, caption and detention of the cattle, were not authorised by those acts, or any of them, for the reasons specifically assigned (as appears from the record,) in the court below; and the ap- pellee further insisted, that if the caption and detention were in pursuance of said acts, or any of them, the appellee should recover, nevertheless, because those acts were unconstitutional and void. The appellee's objections may then be reduced to two heads, as follows : 1. That the seizure, caption and detention of the appellee's property, were not authorised by the acts of 1825, chap. 162, and the several supplements thereto. 2. That if authorised by said acts, the appellee should re- cover, because those acts are unconstitutional and void. Under the first point, assuming that the powers granted by the acts alone mentioned, to the inhabitants of the primary school districts, are "specially delegated powers," that the ju- risdiction created by those acts, is a "special limited jurisdic- tion." The appellee insists, that the proceedings of the taxa- ble inhabitants of the primary school districts, must be in strict conformity with the provisions of the laws authorizing them, and should show upon their face, the facts which are necessary to give them jurisdiction. For the 1st branch of this postulate, vide the State use of the Levy Court, vs. Merryman, 7 H. fy J. 91. 1 H. Sf J. 36. Quyn, vs. the State use of Pue, 1 H. . Sf /. 359. Ellicott, vs. the Levy Court. Kerr and al, vs. the State, 3 H. fy J. 560. 1 Pick. 109. Metcalfs Dig. 361, 362. For the 2nd. Vide, Wickes, vs. Caulk, 5 Harr. fy John. 42, 43, 45. Shivers, vs. Wilson, 5 Harr. $ John. 130. 1 Salkeld, 475. Cowp. 26, 29. 4 Bac. Mrid. 656. 280 CASES IN THE COURT OF APPEALS Burgess vs. Puo. 1844. The act of 1825, chap. 162, sec. 8 and 10, requires notice to be given of the annual meetings. Sec. 8, prescribes and limits the the power to tax, "to pur- chase a site for the school house, and to build, keep in repair, and furnish such school house with necessary fuel, books, sta- tionary and appendages.'* The act of 1828, chap. 169, sec. 3, authorises a tax on the assessable property in said district, for the payment of the salary of a teacher in said district. The objects of taxation being thus limited, and notice re- quired of the annual meeting for these purposes, it is clear, the proceedings of the meeting must be confined to, or con- form with the terms of the notice, otherwise the notice would be nugatory. On the 15th July 1843, as appears from paper A, in the re- cord, the taxable inhabitants of primary school district, No. 30, were notified to meet on the 29th of July 1843, for the pur- pose of "electing officers, and voting a tax, &c., for the sup- port of the school for the ensuing year." Under which notice, they proceeded to lay a tax, to defray the necessary expenses of the district, during the past and for the current year. The tax voted, therefore, is not only a tax not warranted by the primary school laws, because not within the terms of those laws, but is a tax levied without notice, and contrary to notice. Again, the whole tenor of those acts shows, that the taxes imposed should be annual and prospective, thereby protecting the people from the burden of accumulated and improvident expenses' in this case, in disregard of these plain and salu- tary provisions of the laws, the tax is biennial and retrospec- tive. The resolutions attached to the tax list in paper A, show, that the retrospective tax was designed to operate only on the appellee, and those who like him, had refused to pay the tax imposed in 1842, the regularity and constitutionality of which, as regards the appellee, was then "subjudice" in this court. This was directly opposed to the 12th section of the act of 1825, chap. 162, which provides, that if the sum payable by OF MARYLAND. 281 Burgess vs. Pue. 1844. any person named in such tax list, shall not be paid or col- lected within the time limited, "it shall be lawful to renew such warrant," not to double the tax. The legality of the tax in 1842, being then pending, by ap- peal, in this court, if the same should be pronounced legal, the appellee must be twice mulcted for one year's tax; or if the same should be declared illegal, the appellee must pay the same, notwithstanding the court's decision against it. It is further insisted by the appellee, that the election of offi- cers, held in 1842, being made viva voce, and not by ballot, as required by the act of 1825, chap. 162, the primary school dis- trict, No. 30, was disorganised, and those officers illegally elected, could do no act for the continuation of the corpora- tion, but the duty of re-organization devolved upon the com- missioners of primary schools, as prescribed by said act in such cases, who did not, as is admitted by the appellant, form or organize any district meeting of the taxables of said district subsequently. 2nd. The appellee should recover, because the acts of 1825, chap. 162, and its supplements, are unconstitutional and void. The original act, sec. 29, 30, provides, that if the majority of the voters of any county should be in favor of the estab- lishment of primary schools, as therein provided for, then and in that case, the said act should be valid for such county or counties, otherwise of no effect whatever ; and if a majority of the voters of any county in this State should be against the establishment of primary schools, then and in that case the said act should be void. This reference to the people of the counties, for the obliga- tion or sanction of a law, is no where warranted by the con- stitution. It sprung either from a desire to avoid the respon- sibility of legislation, or a mistaken application of that clause of the constitution, which requires an amendment of the con- stitution to be passed by two successive legislatures. What- ever the source, the error is gross and pernicious. The coun- ties have no separate political existence or character, &c. 36 2v. 282 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. They are not recognised by the constitution, except as mu- nicipalities; they may be created or changed by the will of the legislature. A law depending on the assent or dissent of a county, is not more valid than if it depended on the assent or dissent of any number of individuals, in any other geo- graphical limits, because the people of the county have no constitutional right of legislating for themselves. The legislative power of this State is vested in a General Assembly, consisting of Senate and House of Delegates, from the counties and cities of the State. The citizens of Jinne Jirundel county, or Howard District, are entitled by the con- stitution to the benefit of their collective wisdom, without whose consent, it expressly declares no taxes shall be imposed. Vide twelfth section Bill of Rights. By these laws, the sovereign power of taxation is delegated to an indefinite number of persons; the majority of those pre- sent may vote a tax "ad libitum," for certain specific purposes. The representative form of government is here utterly annulled. The law of Parliament, which governs all deliberative assem- blies, and is one of the chief safe guards of freedom, is set at naught: the relation of representative and constituents (with the accountability of the former,) destroyed, and the minority left to the mercy of the majority of a mass meeting; in other words, of a mob. The bill of rights and constitution, con- template and constitute a representative form of government; all the powers of which, are to be exercised by trustees or agents of the public, to which they are accountable. Fourth and fifth sections Bill of Rights and Constitution of Maryland. "The bill of rights and constitution is a compact, made by the people themselves. In this compact, they have distributed the powers of government, and deposited the legislative, judi- cial and executive in separate and distinct hands, subject to such limitations and restrictions as they thought proper to prescribe." "The legislature is not omnipotent." "The power of determining the validity of the acts of the legislature, cannot reside with the legislature. It cannot be OK MARYLAND. 283 Burgess vs. Pue. 1844. exercised by the people, because they cannot interfere by their own compact, unless by elections." Whlttington vs. Polk, 1 H. $ J. 242. "If they cannot interfere with the judicial power, because by their own compact they have precluded themselves, the same compact inhibits the exercise of legislative powers." "The constitution portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise." Crane vs. McGinnis, 1 G. fy J. 472. "The power of making war, levying taxes, or of regulating commerce, are great, substantial, independent powers of sov- ereignty, which cannot be implied as incidental to other pow- ers, or used as a means of executing them." McCulloh vs. The State, 4 ,9. C. Con. Rep. 476. "The only security against the abuse of power of taxation, is found in the structure of the government itself. In impos- ing a tax, the legislature acts upon its constituents." Ibid4S6. Such was the security designed by the constitution of Mary- land, yet if taxes may be imposed in detached districts, by an inconsiderable and inconsiderate mass, where is the protec- tion to the unfortunate private citizen who may be exposed to their power? The constituent may groan, but the legislature will not hear his cries, or participate in his burdens. The State of Maryland is not an association of counties, its entire territory and its whole people, constitute an integral govern- ment. The united wisdom of the General Assembly is the consti- tutional guaranty of every citizen for the protection of his life, liberty and property. It is insisted, the General Assembly cannot delegate the power of taxation to the people in mass, without the forms of a municipality or corporation. If so, the nature of the govern- ment might and would thereby be radically changed. Representation or legislation by agents or trustees becomes a nullity ; the freedom and frequency of elections is rendered abortive ; and every republican principle is merged in a pure democracy. 284 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. The act of 1825, ch. 168, if originally binding, was a com- pact between the legislature and the counties accepting it, investing Ihe taxable inhabitants of those counties with certain valuable franchises and privileges. Sections 8, 15, 23. It secured to them, upon complying with the provisions of the law, certain funds, to be applied to the payment of the salaries of teachers. Sec. 15. 1828, ch. 55, sec. 3, intended as a bounty for the promotion of education. The law which was accepted by the taxable inhabitants of the counties as an act of grace and favor under these induce- ments, cannot constitutionally be altered by the act of 1828, ch. 169, and converted into a law for raising revenue for the purposes of education. Dart. Col. vs. Woodward, 4 S. C. Con. Rep. 579, 581. The act of 1825, ch. 162, was addressed to and accepted by the taxable inhabitants, and vested its privileges in them ; men, women, citizens or aliens. The act of 1828, ch. 169, transfers all the powers given to the taxable inhabitants to the free white male citizens. Thus limiting privileges which had previously been granted to a large class for a valuable consideration to a comparatively small portion of the community. The appellee further insists, that if the legislature can dele- gate the power of taxation and legislation, they must be re- stored to the people at large, from whom they were derived, that is to say, to every person authorised and qualified to vote under the constitution of Maryland; that the primary school law and its supplements, in this respect are unconstitutional, because they deprive the people at large of the school districts, of any voice in the election and control of the schools, and vest the power solely in the taxable inhabitants, or "free white male citizens, residents of and taxable in said districts respectively." Contravening and annulling in the judgment of the appellee, the act of 1809, which secures the right of suffrage to every "free white male citizen above twenty-one years of age," and having resided "twelve months in the State, and six months in the county." OF MARYLAND. 285 Burgess vs. Pue. 1844. By the operation of these laws, the right of suffrage and legislation on the most valuable and momentous subject, the instruction of our own offspring, is taken away from the legis- lature, which represents and sympathises with every citizen, and is responsible for the faithful discharge of its duty to its constituency, and placed in the hands of a privileged and ir- responsible majority, to be used without check or control. MAGRUDER, J., delivered the opinion of this court. An attempt to collect, by a seizure and sale of his property, the taxes imposed upon the defendant, in and by the taxable inhabitants of school district, No. 30, in Howard district, gave rise to this suit. This tax, as it appears by the case stated, was imposed at a meeting which took place on the 29th July 1843, and was a tax of sixteen cents on every hundred dollars of taxable property within the district, in order to defray the necessary expenses of the district "during the past, and for the current year." If the meeting and the proceedings, which took place on that day, were authorised by law, then the defendant in error cannot sustain the action of replevin, which was brought by him. and the proceedings in which are now before us. It is designed to notice the points which were raised in the court below, and in the order in which they were introduced into that court. The first objection to this law, that it is unconstitutional, has been already over-ruled by this court, in the case between these same parties, decided at June term 1844. One ground, on which the defendant in error insisted, that the tax could not legitimately be demanded, was, that the trustees, clerk, and others, at the preceding annual meeting, in July 1842, were not elected by ballot, but viva voce ; and the clerk did not bond. Because of this, it is contended that the said district is disorganised, and the power of the taxables suspended. It appears by the case stated, that a notice of the meeting, which was to take place July 15th, 1843, "for the purposes of 286 CASES IN THE COURT OK APPEALS Burgess vs. Pue. 1844. electing officers and voting a tax on the assessable property of the district, for the support of the school for the ensuing year," was signed "George L. Stockett, clerk." The meeting took place, and to the proceedings of that meeting, in the election of officers for the ensuing year, no objection is taken ; but the incurable error consisted, in the election of those, of the pre- vious year. The minutes of the proceedings of that meeting which constitute a part of the case stated, tell us, that George L. Stockett, was nominated, and elected unanimously: and surely, from this entry we are not bound to infer, that he was elected illegally? This entry, at all events, must be one of "the mat- ters of form," which the Jict of 1828, ch. 69, requires us to disregard. According to the reasoning of the counsel for the defen- dant in error, the election must be pronounced to be void, unless the minutes state every thing to have been done, which the law requires to be done. The law says, that the election must be by ballot ; and therefore, and in order to be valid, it is not only necessary that the election should be by ballot, but the omission to state on the minutes that it was by ballot, vitiates an election, to which no other exception can be taken. It will not be denied, that in some of the old cases, to which we are referred by the counsel, expressions may be found attributed to the court, which would seem to justify this reasoning. Those expressions are generally to be found in cases, where, by their own showing, the acts done were contrary to law, and seem to have been used without reflecting, that as they might be understood, they would take from us much valuable law. The election does not appear to have been by ballot ; and moreover, it does not appear that the clerk gave bond, as the act of 1825 requires. Now these objections, which are de- signed to take from the clerk his office, are urged in a suit to which the clerk is no party. See 7 Sargeant fy Rawle., 392. Besides, the act of 1825, ch. 162, sect. 9, provides, that the clerks, &c., of each district, shall hold their office until the next annual meeting, and a new election shall be made. OF MARYLAND. 287 Burgess vs. Pue. 1844. Now, we find, that George L. Stockett was in the office, act- ing as clerk, in July 1842 ; and are we, in this suit, to which he was no party, and grounding our opinion upon this statement, to determine, that he was not legally in the office, the duties of which he was discharging? In the case of corporations it is considered, that the record- ing of an official bond is not essential to its validity, unless it be so expressly declared. A vote or resolution appointing an agent, need not be entered on the minutes, but may be inferred from the permission, or acceptance of his services. See Angel fy Jlmes on Corporations, 157, and the case there referred to, of Dunn, vs. Saint Andrews Church, 14 Johnson's Reports, 118. The authority continues, "we need hardly add, that if in such case the agent is held to be duly appointed, as between the corporation and himself, a fortiori, he would be, as between the corporation and third persons." "Persons acting publicly, as officers of a corporation, are presumed to be rightfully in office; acts done by a corporation, which presuppose the existence of other acts, to make them legally operative, are presumptive proofs of the latter; and although the charter or act of incorporation prescribes the mode in which its officers shall be elected, and an election contrary to it, would unquestionably be voidable, yet if the offi- cer has come in under color of right, and not in open contempt of all rights whatever, he is an officer de facto, #c." See Jlngel and Ames, 158, 159. An act of Assembly, confers upon the mayor and aldermen of the city of Annapolis, authority to take the acknowledg- ment of deeds, which are designed to transfer the title to laud from the grantor to the grantee. Surely a party who claims under a deed so acknowledged, is not, in order to make the deed evidence, to prove that the mayor was what he professed to be, that is, was duly elected to the office. It seems however to be thought, that these trustees, clerks, &c., are to be regarded as special agents, deriving from the law special authority, and their acts, in order to be valid, must be proved to be, in every respect, according to the strict letter 288 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. of the law; and that the law, with respect to the acts, and the inferences from the acts of corporations, are not applicable to them and their actings. The correctness of all such notions may be questioned. In the case of the inhabitants of the fourth school district, in Rumford, vs. Wood, 13 Mass. Re- ports, 193, chief justice Parker in delivering the opinion of the court, admits, that they, (the school districts,) are not bodies politic or corporate, with the general powers of corpora- tions; and he tells us this may be said of towns and other mu- nicipal societies. He then proceeds: "they may be considered under our institutions as quasi corporations, with limited pow- ers; co-extensive with the duties imposed upon them by stat- ute or usage," and he is brought to the conclusion, that in construing their acts, a liberal view should be had to the end intended to be effected. See, also, Angel andJlmes on Corpo- rations, p. 18. These authorities, in connection with the act of 1828, ch. 169, will, it is believed, justify the court in over-ruling this and other points, which were raised by the defendant's counsel, in the court below. It is also objected, that the notice given by the clerk, de- clared the object of the meeting to be, "for the purpose of electing officers and voting a tax, &c., for the support of the school for the ensuing year." To this notice the objection does not apply; but it is said, that the tax voted, was to "de- fray the expenses of the district, during the past and for the current year, such being the language used in voting the tax." What are the powers of these people, when assembled in district meeting, in regard to voting taxes ? "To vote a tax on the resident inhabitants of each district, as they or a majority of such of them as may be present, as aforesaid, shall deem sufficient to purchase a suitable scite for the school house, and to build, keep in repair, and furnish such school house with necessary fuel, books, stationary, and appendages ; and to re- peal, alter, regulate arid modify all such proceedings, or any part thereof, from time to time, as occasion may require." And surely, in the discharge of these duties, it may be neces- OF MARYLAND. 289 Burgess vs. Puo. 1844. sary to raise funds, in order to defray expenses already incur- red, and (as required by another clause,) to "pay the sala- ries of such teachers." The officer must give notice, and did give notice, ot the time and place of meeting. What follows, cannot make the notice illegal, although it had not stated that all the business which was actually done, (such as acting upon claims, directing the payment of them, &c.,) would be done. It may also be observed, that between the notice and the vote, there is not that difference which is suggested. The tax to be voted, is to pay what is then due, and what it is known will be due in the course of the year: and provision for the payment of what is already due, and what in the course of the year is to become due, is made by voting a tax for the support of the school; that is, to pay debts which, no matter when contracted, are payable in the course of the coming year. Perhaps it would be desirable to ascertain, at the begininng of the year, the amount of expense to be incurred in the course of that year, and provide for the prompt payment of it; but then, this is impossible, as it cannot be known what will be the amount of expenditures for repairs, books, fuel, &c. They must sometimes purchase upon credit, and in order to pay for what is thus purchased, it is necessary to vote a tax, which is to defray expenses during the past, as well as the ensuing year ; and this may, with strict propriety, be said to provide for the school for the ensuing year. This too, is an answer to the fourth objection, that the tax is retrospective, and not pro- spective. We perceive nothing which warrants the objection, that the tax was not voted at the annual meeting of the taxables; nor that two taxes have been laid in the same year for the same purpose; nor does there seem to be any foundation for the ob- jection, that the sum voted as the tax, was not raised in due proportion on all the taxable property. As to the eighth objection, it appears that the seizure there spoken of, (if in this case it can be noticed at all,) was ille- gal, and for that tax he is not responsible. It can furnish no 37 v.2 290 CASES IN THE COURT OF APPEALS Burgess vs. Pue. 1844. objection to the vote, that a tax of sixteen cents, be laid in ihe year 1843. The ninth objection assumes, that the collector is to be pre- sumed not to be qualified, unless there be express proof of his qualification. He is an officer de facto; but if not de jure also, he is not in office. The defendant, himself, has sworn, (see affidavit ante,) that the very property for which this suit was brought, was seized by the collector, Thomas Burgess, for the school taxes, for the primary school district No. 30, of said dis- trict. Of the last of the objections, which appear to have been relied on in the court below, notice has already been taken, and according to our view of such objections, this cannot be sustained. Besides this, it seems to have no foundation in law. The charter does not forbid the appointment of one of the trustees to be the clerk. It is true, that at the meeting in August 1840, it was voted, that in the opinion of the then meeting, it was incompatible in the trustees to hold another office, and perhaps, at some meeting an opinion was express- ed, that the offices of trustee and clerk are incompatible; but these votes and expressions of opinion, do not disqualify any man. The objections, all of them, assume, either that the legisla- ture had no right to delegate to those appointed to exercise them, the powers given to them by the act of 1825, or, that the individuals to whom those powers have been delegated, must not only conform strictly to the provisions of the law under which they act, but that the minutes of their proceed- ings must show all the facts which are necessary to give them jurisdiction. "It is believed, that this would not be correct, even although the law of 1828 never had been enacted. But surely the legislature had the power to pass that law, and one object of it seems to have been, to require courts, in judg- ing of their actings and doings, to judge them by other rules than those which are sometimes adopted, in determining upon the validity of the acts of special agents, who, by the nature and terms of their authority, can do nothing which they are OF MARYLAND. 291 Hoyc vs. Johnston. 1844. not expressly authorized to do. Much is left to the discretion and judgment of the individuals, who are to execute the law of 1825. In their judgment the law reposes, and from the nature of the trust, must repose great confidence; and it will presume every thing which it requires to be done by them, to be rightly done, until the person, who would impeach their conduct, can furnish legal and satisfactory evidence, that they have done acts not necessary to be done, in exercising the powers and discharging the duties which the law requires of them. But if for any or all of the reasons, which have been no- ticed, the proceedings of the clerk and other officers were to be considered illegal and void, still, it would be necessary to reverse the judgment, and order a writ of procedendo ; because, the case stated, (whatever might have been intended by the parties,) does not authorise the court to give judgment, either for plaintiff or defendant. Of course, this court can give no judgment upon the state- ment, but reverse the judgment, with costs, and order a proce- dendo. JUDGMENT REVERSED AND PROCEDENDO AWARDED. JOHN HOYE vs. EDWARD JOHNSTON. December, 1844. A second patent for the same land will not be granted, according to the rules of the land office, until the first be vacated. H., on the 5th September 1839, obtained a warrant of re-survey, to affect con- tiguous vacancy in Allegany county. On the 19th May, he made a survey ; on the 31st July, returned his certificate into the land office, and on the 18th February 1841 , paid the composition money. On the 29th June 1840, J. obtained a special warrant ; on the llth July, executed his survey; on the 24th, paid the composition money, and on the 27th January 1841, ob- tained a patent for his survey. This done, he successfully caveated the application of H., for a patent on his survey. It appeared that H. was seized of the tract which his warrant was issued to re-survey ; had made his sur- vey before J. obtained his special warrant, and paid his composition money in time ; his title relates to his survey of the 19th May 1840, and was prior in point of equity to J's title. 292 CASES IN THE COURT OF APPEALS Hoye vs. Johnston. 1844. An equitable title to vacant lands, will, in equity, prevail against a legal title, when the party possessed of the legal title, has procured it by means of fraudulent representations to the officers of the land office. Upon a bill, in such case, the patent will be vacated in favor of the equitable title, or the patentee decreed to convey the land to the injured party. Under the act of 1822, ch. 128, sec. 3, the composition money for vacant land in Allegany county, may be paid within twelve months after the date of the certificate of survey. By the terms of a special warrant, a party is forbidden from running his lines within the lines of any former or more ancient survey. A party who sues out of the land office, a general or special warrant of survey, to take up vacant lands, has an opportunity to know, and is presumed to know, that before he obtained his warrant, another warrant for the same land, if the fact be so, had actually been located. When a party has presumed or actual notice of a location made, and pre- vails upon a public surveyor to violate the instructions under which he was acting, and to misrepresent to other officers of the State, who were to judge of the fairness and regularity of such surveyor's proceedings, that in executing a warrant, he had conformed to the rules of the land office, and had so enabled a party to obtain a patent for land, this is a fraud affecting such patent. Upon a bill in equity, filed by the holder of an equitable title to vacant land under the State, against the patentee of the same land, to vacate the pa- tent as fraudulently obtained, the State need not be made a party. Ample relief may be had without the State, who has no interest in such a case. APPEAL from the Court of Chancery. The bill in this cause was filed on the 5th July 1841, by the appellant against the appellee, and alleged, that John Hoye of Mlegany county, being seized of a tract of land in said county, called Flavia, held under a patent from the State, bearing date on or about the 7th September 1838, and one other tract called Rotunda, contiguous to which your orator supposed there was some vacant land, he did on or about the 5th September 1839, sue out a warrant to re-survey his aforesaid tracts, with liberty to include the contiguous vacant lands. That said warrnrit was shortly after placed in the hands of the surveyor of the said county for execution, and was by him on or about the 19th May 1840, executed, and a certificate of the re-survey made on behalf of your orator was returned into the aforesaid land office, whereby it appears that your orator's original tract called Flavia, contained the quantity of 354^ acres, and that the OK MARYLAND. V 293 Hoye vs. Johnston. 1844. surveyor had included the quantity of 162^ acres vacant land, and that the whole was reduced into one tract by the name of ".P/ctna Resurveyed," as by reference to the said certificate now remaining in the land office, will more fully appear ; and your orator herewith files a certified copy of the same as a part of this, his bill of complaint; that he duly compounded on his aforesaid certificate of re-survey, and thereby entitled himself to demand a patent therefor, and but for the acts and doings of the defendant, hereinafter named, would have obtained such patent in due season. But now so it is, that a certain Edward Johnston, contriving and intending to defraud your orator of the benefit of his aforesaid warrant of re-survey, and to appro- priate the said vacancy to himself, sued out of the said land office, on or about the 29th June 1840, a special warrant for one hundred acres, to affect the aforesaid vacancy which had been included, as aforesaid, in your orator's re-survey, and on or about the 14th July 1840, laid the same upon the said vacancy, and caused a certificate thereof to be returned to the said land office, by the name of "Fort Meigs" That said Johnston paid the composition money and obtained a patent therefor, on or about the 27th January 1841. And your orator files herewith an authenticated copy of the said certificate, and prays that the same may be taken as part of his bill. And that the said Edward Johnston having thus obtained from the State a grant of the vacant land which was designed to be affected, and was in truth bound by your orator's aforesaid warrant of re-sur- vey, and the actual execution thereof, prior to the date of the said Johnston's warrant, the latter, nevertheless, having, as aforesaid, procured the grant, entered a caveat against the issuing of a patent upon your orator's certificate, which caveat the Chan- cellor, as judge of the land office, by an order dated the 10th April 1841, ruled good, as will appear by the aforesaid certifi- cates, and other, the proceedings in the said land office, to all of which your orator prays leave to refer as parts of this bill. That the said Edward Johnston, whom your orator prays may be made a defendant to this bill, at the date of the warrant, so as aforesaid sued out by him, and at the time of its execution. 294: CASES IN THE COURT OK APPEALS Hoye vs. Johnston. 1844. as aforesaid, on the 14th July 1840, had full and direct know- ledge that your orator had previously surveyed ami included the land now in dispute, in his tract called "Flavia Resurveyed;" and that he, the said Johnston, therefore purchased, with no- tice of your orator's prior equitable title and in fraud thereof, and your orator herewith files the copy of a statement of facts agreed and admitted by the parties upon the trial of the caveat in the land office, whereby it clearly appears, that the said Johnston had full and explicit notice of the equitable rights of your orator, at the time he took out and executed his said war- rant; and your orator prays that the said copy may be taken as a part of his bill. And your orator is advised, that though your honor as judge of the land office, and in conformity with the ancient rules and usages of that office, ruled the aforesaid caveat against his before mentioned certificate of re-survey good, yet that judgment does not preclude him from asking for the equitable interposition of this court, and that, upon es- tablishing the truth of his aforesaid allegations, he will be en- titled to a decree vacating the patent, so as aforesaid, issued to the said Edward Johnston, or declaring that he shall stand seized of the land so granted, as trustee for your orator, and requiring him to convey the same to your orator. And your orator alleges, that he was utterly ignorant of the existence of the said warrant, and of the execution thereof by the said Johnston, until after the patent had been granted to him, the said Johnston, as aforesaid, and that the same operated as a surprise upon your orator, but that all the acts and proceed- ings of the said Johnston were had with full notice of the existence of your orator's warrant, and of its execution. In consideration, &c. With this bill the various exhibits, therein referred to, were filed. The defendant, Edward Johnston, by his answer admitted, that on the 29th June 1840, he sued out of the Western Shore Land Office of Maryland, a special warrant for one hundred acres, to affect a certain vacancy which he had previously dis- covered, and that in pursuance of said warrant, a survey was OF MARYLAND. 295 Hoyo vs. Johnston. 1844. made, and the said vacancy was found to contain two hundred and forty-nine acres and three-eighths, and called "Fort Meigs," according to the certificate thereof, returned into the said land office. He further admits, that at the time when said survey was made, he was informed by one of the deputy surveyors of Allegany county, that the principal part, or per- haps the whole of said vacancy, had already been included in a survey which had been a short time previously made out for the complainant, called "Flavia Resurveyed." That upon re- ceiving this information, he did not think proper to suspend the further execution of his warrant aforesaid, but caused the same to be completed and a certificate thereof returned, as aforesaid, believing that he was fully entitled to said vacancy. That having inspected the complainant's pretensions thereto, he saw, as alleged in complainant's bill of complaint, that his claim was founded upon a warrant of re-survey, which had been sued out upon the tract of land called "Flavia," which tract, if it can be assumed to exist at all, this defendant knew was not contiguous to said vacancy. That in order to ascertain the vacancy, this defendant had caused the elder adjoining tracts of land to be run out, of which "South Bar," patented to Gen. James Swann on the the 2nd March 1805, was one. That Flavia was also run out, but that it was found to lie en- tirely within the lines of "South Bar" and that being a much younger tract than"5WA Bar," it having only been patented on the 7th September 1838, this defendant regarded such tract as a non-entity, and looked upon the patent therefor, as a nul- lity. To show that Flavia does lie entirely within the lines of "South Bar," this defendant has caused a plat to be made out by the surveyor of Allegany county, which he herewith ex- hibits. Now this defendant is advised, that if at the hearing of this cause it should be assumed, that such patent is ope- rative, and that Flavia has a potential existence, then upon its appearing, as shown by said plat, that Flavia is surrounded by the outlines of South Bar, and consequently cut off from the vacancy contained in "Fort Meigs" and "Flavia Resurveyed," this defendant's title to the same, he being the patentee of 296 CASES IN THE COURT OF APPEALS Hoye us. Johnston. 1844. "Fort Meigs," must prevail against the pretensions of the complainant. This defendant further admits, that after he had obtained a patent upon his certificate for "Fort Meigs" he caveated the complainant's certificate of "Flavia Resurveyed." That at the hearing of said caveat, he relied chiefly in argument upon the fact, that the vacancy in controversy was not con- tiguous to the complainant's tract, "JFYawa," and that after a full hearing of both parties, his honor, the Chancellor, as judge of the land office, ruled his caveat good. That as such judge, he decides in all cases brought before him, as by law he is bound to do, according to equity and good conscience, and agreeably to the principles established in the high court of Chancery, as if the matter were brought before him by a bill in chancery? This defendant, therefore, claims the decision which was made by the judge of the land office in said caveat case, as final and conclusive upon the question of right to said vacancy. That such decision is surely a judgment or decree between the same parties upon the same subject matter? And that the complainant cannot possibly rid himself of the bind- ing and conclusive effect of such decision, unless he can shew (which is not pretended,) that such decision was brought about by fraud, accident, or surprise, or other similar means. And this defendant denies all; and all manner of fraud and con- spiracy, with which he is charged by said bill, and prays, &c. With this answer various exhibits were also filed ; a com- mission was issued, the facts established under which, appear in the opinion of this court. At July 1842, the Chancellor, (BLAND,) dismissed the bill with costs, being of opinion, that the patent of the defendant. Edward Johnston, has been properly obtained, without fraud, according to the law and rules of the land office, and therefore, cannot, upon the facts shewn, be vacated by any regular pro- ceeding, much less by a bill like this, to which the State is not a party. From this decree, the complainant appealed to this court. The cause was submitted to ARCHER, C. J., DORSEY, CHAMBERS, SPENCE and MAGRUDER, J., upon arguments, in writing. OF MARYLAND. 297 Hoye vs. Johnston. 1844. J. JOHNSON for the appellant. This case comes before the court, upon an appeal from a decree of the Chancellor, passed on the 22d July 1842, dis- missing the appellant's bill, with costs. The facts as charged, admitted, and proved, are as follows: The appellant obtained, regularly, a patent fora tract of land in Allegany county called "Flavia" on the 7th of September 1838; and on the 5th of September 1839, he took out a war- rant to re-survey the same, and add contiguous vacancy, which warrant was executed on the 19th of May 1840; returned to the land office on the 31st of July 1840; and the composition money paid on the vacancy and improvements included in the re-survey, on the 15th of February 1841. The appellant's original contained 354^ acres. The vacancy included in re-survey Making 517 acres. On the 29th of June 1840, the appellee took out a special warrant for one hundred acres, to affect the same vacancy, which he caused to be executed on the 14th of July 1840, and returned a certificate to the land office on the 24th July 1840; paid the composition on the same day, and on the 27th Janu- ary 1841, obtained a patent, calling the tract "Fort Meigs." And on the day of the date of his patent, to wit, the 27th of January 1841, the appellee filed a caveat against the appel- lant's certificate, which the Chancellor, as judge of the land office, on the 10th of April 1841, ruled good. The appellant then, on the 5th July 1841, filed his bill in the Court of Chancery, praying that the patent which had been issued to the appellee, might be vacated, and for general relief, upon the ground, as charged in the bill, that the appellee, when he obtained his warrant and made his survey, had actual knowledge, that the appellant had previously included the same land in his re-survey of "JFYam'a," and that, therefore, the ap- pellee having purchased the land, with notice of the prior equitable title of the complainant, was guilty of a fraud upon his rights. 38 v.2 298 CASES IN THE COURT OF APPEALS Hoye vs. Johnston. 1844. The defendant's answer admits, that at the time of his sur- vey, to wit, on the 14th of Juty 1840, he was informed, that the vacancy had been included in the prior survey of the com- plainant; but that notwithstanding such notice of the com- plainant's prior survey, he thought fit to proceed with the exe- cution of his warrant, because, as alleged in the answer, the defendant had ascertained, that the complainant's original tract "P/awa," was embraced within the lines of an elder tract, called "South Ear," patented to Gen. Swann on the 2nd of March 1805. An agreement, signed by parties properly authorised, shews conclusively that the appellee, when he made his survey, had actual notice, that the land in contro- versy had been, prior thereto, included in the appellant's re- survey upon his tract called ".FYaitta." It also appears, that "F/cria," the appellant's original, con- sists in part, of lots distributed to soldiers of the Continental army, in Jlllegany county, which lots were not alienated by the soldiers, to whom they were distributed, fifty years past. Under an order of the Chancellor, passed on the 8th of February 1842, a survey was made, and the plat shows, that the 12th line of the appellant's original, touches the vacancy. The Chancellor's decree, dismissing the bill, it is insisted, is erroneous, for the following reasons: 1. That the appellant's proceedings upon his warrant of re- survey, were all in strict accordance with the laws and regu- lations of the land office. The warrant is dated 5th September 1839, and the re-sur- vey was made, and the certificate returned to the land office on the 31st July 1840, and of course, within eighteen months of the date of the warrant. L. H. As. 273, 325, 466. Act 1795, chap. 88, sec. 7. The appellee does not deny, that the survey was made, and the certificate returned in time; but he says, the composition money was not paid, until after the time limited by law for that purpose. But the certificate of the re-survey is dated on the 19th of May 1840, and the composition paid on the 15th of February OF MARYLAND. 299 fioyo vs. Johnston. 1844. 1841, within twelve months from the date of the certificate, which, so far as Allegany county is concerned, is in time, by the 3rd section of the act of 1822, chap. 128, which declares, "that all surveys of land, made after the passage of this act, in Jlllegany county, and returned to the Land Office of the Western Shore, and which shall not be compounded upon, within twelve months from the date of the certificate, shall be null and void ;" thus by the clearest implication saying, that if the composition money be paid within the twelve months from the date of the certificate, it shall not be void. This act, shortly after its passage, received a construction from the late Chancellor, who said, that by virtue of it, parties in Allegany county have twelve months from the date of their certificates to pay the composition money, and in this construction, the present Chancellor expressed his entire concurrence. The case then being free from this difficulty, the 2nd ques- tion relates to the equity of the appellant, to have the patent, granted to the appellee, vacated as fraudulent, because the appellee, at the time he made his survey and paid the caution money, had actual notice of the prior equitable title of the appellant. The appellant's warrant of re-survey, dated the 5th of Sep- tember 1839, gave him an equitable interest in all the contigu- ous vacancy, from its date. Howard vs. Cromwell, 4 H. McH. 325, 330. Under such a warrant, the party acquires the right of pre- emption in all the adjoining vacancy, and if he makes his sur- vey, and pays the caution money in two years from the date of his warrant, he has a complete equitable interest in all the vacancy included in his survey. Hammond vs. JVbrm, 2 H. $ J. 140. Such being the established law of the land office, it would seem to follow, that a patent granted to another, in contraven- tion of this law, ought not to be allowed to stand in the way of the party clothed with such rights. If the appellant could have obtained a patent upon his cer- tificate, there can be no doubt it would, upon the doctrine of 300 CASES IN THE COURT OK APPEALS Hoye vs. Johnston. 1844. relation, have over-ridden the patent granted to the appellee; but this could not be done, because it is an inflexible rule of the land office, that two patents shall not, if it be known, issue for the same land, and the appellee having obtained a patent, though in fraud of the rights of the appellant, that patent must be put out of the way, before those rights can be perfected. But this case does not stand, nor is the appellant's claim to relief, founded exclusively, or chiefly, upon his superior title, resting upon his prior warrant and certificate, against which it might be urged, that the greater diligence of the other party, had rightfully deprived him of these advantages. The admis- sions of the answer, and the agreement referred to, show that the appellee, when he made his survey, had actual notice, that the land in dispute, was included in the appellant's elder survey. The appellee then, stands in the predicament of a purchaser, not with constructive notice merely, but actual notice of the prior equitable title of another, and consequently, his title will be made subservient to the title of the latter. A court of equity will consider such a purchaser, as a trustee for the bene- fit of the party whose rights he has thus sought to defraud or defeat. 1 Story Eq. 383, 384, sec. 394. Murray vs. Bailout, 1 John. Ch. Rep. 566, 576. Murray vs. Fuister, 2 Ib. 157. Sagden, 526, 527. Mead vs. Ld. Orrery, 3 Atk. 235, 238. Taking the legal estate, after notice of a prior right, makes the party a mala fide purchaser; as if a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered conveyance, he will not be allowed to avail himself of his title against the prior conveyance. 1 Story Eq. 385, 386, sec. 397. The appellee supposes that he will not be visited with the consequences attaching to a purchaser, with notice of a prior equitable title, because, though he had notice at the time of executing his warrant, he had, as he says, no notice at the time of purchasing it. Now the warrant of re-survey taken out by the appellant, bears date the 5th September 1839, and was actually executed on the 19th of May 1840, whilst the appellee's warrant was OF MARYLAND. 301 Hoye vs. Johnston. 1844. not issued until the 29th of June 1840, more than nine months subsequent to the appellant's warrant, and one month and ten days after the actual location of it. And consequently, when . he purchased his warrant, he had constructive notice of the prior warrant and survey made by the appellant. 1 Bland, 326. But he does not, in his answer, rest his defence upon this ground. The ground taken by him in his answer, is, that upon learning from the surveyor, when making his own survey, that the land he was about taking up, as vacancy, had been includ- ed in a prior survey by the appellant, he nevertheless deter- mined to proceed, because he had ascertained to his satisfac- tion, that the plaintiff's original tract, "Flavia" was entirely included within the lines of an elder tract, called "South Bar" patented to Gen. James Swann, on the 2nd of March 1805. The appellee, therefore, does not rest his case upon the ground of want of notice, but upon the supposed want of authority on the part of the appellant, to take out a warrant of re-survey. He says he had no such authority, because his tract, "Flavia" was included in the elder tract, "South Bar" Now in answer to this pretension, it need only be said, that this court, in the case of Hoye vs. Lee, December term 1843, decided, that "South, Bar" had no existence, for the reason, that it was embraced in Soldiers Lots, which had not, when "South Bar" was taken up, become liable to escheat. But this pretension, that the appellee's title is to be respect- ed, because he had no notice of the appellant's prior warrant and survey, at the time he purchased his warrant, though he had notice before he executed it, is unsustainable for another reason. When he went upon the ground, to execute his warrant, on the 14th July 1840, he found it occupied by another, under a warrant then, undeniably, in full force, and which had been executed two months before, to wit, on the 19th of May 1840. Was it not then his duty to stop, and ask the State to reim- burse him for the expense of his special warrant, by giving him authority to take up land elsewhere, according to the rules 302 CASES IN THE COURT OF APPEALS Hoyc vs. Johnston. 1844. of the land office. This he did not choose to do, but under- taking to decide for himself, that the appellant's warrant was invalid, he proceeds with his survey, and presses with all the rapidity which the law would allow, the grant of a patent to himself, that he might be in a position to frustrate the prior right of the appellant, when he should call upon the State to comply with her engagement to him. If, when apprised, as he admits himself to have been before he made his survey, of the clear rights of the appellant, he had suspended his proceedings, no injury would have accrued to any one; and the State might have kept her contract with the appellant, by giving him a patent for the land he had contracted to purchase, upon his complying with conditions, which she had herself prescribed, and with which conditions, he did strictly comply. Not having pursued this course, he, the appellee, must take the consequences of his attempt, to appropriate to himself property, to which another, as he knew, had a prior equitable title. It is no objection to the appellant's application, to a Court of Chancery for relief, that the Chancellor decided against him as judge of the land office; such decision may be reviewed in Chancery by original bill. West vs. Jarrett, 1 H. fy J. 538. In that case, a bill was filed in equity, after an adverse de- cision in the land office, and the defendant was decreed to convey to the complainant, the land included in the elder sur- vey of the latter. In the case of Garretson vs. Cole, 1 H. fy J. 370, the Court of Chancery compelled a party, who had obtained a patent contrary to the rules of the land office, to convey to another party who had fairly taken up the same land, notwithstanding the Chancellor, as judge of the land office, had, upon caveat, decided against the complainant. The power of a Court of Chancery, to vacate a grant impro- perly obtained, was also decided in the case of Kelley's Les- see vs. Greenfield, 2 H. # McH. 140, 141, 142. In the case of the State, at the relation of Yates vs. Smith and Purviance, 2 H '. fy McH. 244, a patent was vacated by OF MARYLAND. 303 Hoyc vs. Johnston. 1844. the Chancellor, because obtained from the land office, contrary to law; and in the case of the State, at the relation of Hind- man et al. vs. Reed, 4 H. $ McH. 6, the defendant was de- creed, to convey to the State land included in his grant, which had been reserved to the use of the proprietory as a manor. It is stated in the appellee's second point, that the attorney general is a necessary party to this suit. In the cases of West vs. Jarrett, 1 H. fy J. 538, and Gar- retson vs. Cole, Ib. 370, the attorney general was not a parly, and in the latter case, which was a bill filed after a patent granted, the patentee was compelled, by decree, to convey to another, who, as the complainant in this case has done, had fairly complied with the regulations of the land office. It is insisted therefore, that the attorney general is not a necessary party; but if the court should think otherwise, the decree will not on that account be affirmed, but the case will be remanded to the Court of Chancery, for further proceedings, that substantial justice may be done, by making the necessary parties under the provisions of the act of 1832, chap. 302, sec. 6. The appellant respectfully insists, that a decree should pass, vacating the appellee's patent, or that he should be compelled to convey the land therein contained to the appellant. By T. S. ALEXANDER for the appellee. The appeal in this case is taken from a decree of the Court of Chancery, dismissing the bill filed by the appellant in that court, for the purpose of vacating a patent which had been granted to the appellee, for a parcel of land in JHlegany county, with the view of obtaining a grant to himself, for the same land. The appellant claims, under a warrant of re-survey, issued on the 5th September 1839, and executed on the 19th May 1840. His certificate was returned on the 31st July 1840, and compounded on the 15th February 1841. The appellee claims under a special warrant, granted him on the 29th June 1840, and executed on the 14th July 1840, 304 CASES IN THE COURT OF APPEALS Hoye vs. Johnston. 1844. His certificate was returned on the 24th July 1840. On the same day the composition was paid ; and on the 27th January 1841, he obtained his patent. It is conceded, that all his pro- ceedings were taken according to the regular course of the land office. The only objection taken to his title in equity, is, that the appellant had acquired an equitable title to the same land by virtue of his warrant of re-survey, which would have been perfected by the issuing of a patent to him, but for the proceeding of the appellee, which is supposed to have been fraudulent as against the appellant. The appellee, it is insisted, is a purchaser with notice of the prior equity of the appellant. Express notice to the appellee is not shown, at any period anterior to the day of executing his warrant. At the time of purchasing out his warrant, he had no notice, in fact, of the appellant's pretensions. At the time of contracting with the State, and paying the first instalment of the purchase money, he was a purchaser without notice. He was, therefore, autho- rised to proceed to perfect his title, notwithstanding subse- quent notice, and having now obtained the legal title, he may retain it against the equitable title of the appellant. I repeat, the admission and proof of actual notice applies to the time of survey, and not to the time of suing out the warrant. He is not to be affected by constructive notice, upon a prin- ciple, that every man is bound to notice all the proceedings in the land office, in relation to land titles. The land office, though an office of record, is not a court of record ; and no rule can be found more extensive, than that all persons are bound to notice the proceedings of courts of record. That they are not bound to notice proceedings in an office of record is clear. The enrolment of a deed, properly executed and ac- knowledged, is notice to all the world of a transmission of the title. This is allowed from the necessity, &c., of the thing, and for the security of titles. But it is not evidence of any covenant in the deed not connected with the title; nor is the enrolment of a deed, defectively executed or acknowledged, evidence for any purpose whatever. This distinction is war- OF MARYLAND. 305 Hoye vs. Johnston. 1844. ranted by the limitation of the rule itself. For a proceeding in a court of record binds only parties, and others claiming under parties pendente lite. A judgment against A, as heir of B, would not bind C, another heir of the same ancestor. Upon what principle then, shall a proceeding in the land office by the appellant, to which the appellee was no party, and of which he had no notice, vitiate a title acquired by the appellee bona fide, and for a valuable consideration paid down ? The appellant's case requires the concession of this propo- sition, that no one is bound by constructive notice of the pro- ceedings in the land office. The only principle on which the opposite proposition can rest, is, that the proceeding is in rem, and binding the title, must affect with notice, all who would deal with the title. Let this be admitted: how then stands the case? The appellant had notice, constructively, of the suing out of the appellee's warrant, and of its location, of the return of his certificate, of payment of composition, and of his application for a patent thereon. He permits the ap- pellee to negotiate with the State for a grant of the land in dispute, and pays down his purchase money, concealing from him the appellant's claim of title to the same land. Is it not fair to argue, that silence, under such circumstances, ought to be accepted as a waiver of the claim ? If I permit another to build on my land without objection, I cannot afterwards assert ray title against him. If I witness the execution of a convey- ance, without giving notice of my incumbrance on the land thereby conveyed, the purchaser may claim protection against me and my heirs. Shall the appellant be permitted then to rely on a title, the knowledge of which he concealed from us until after we had parted with the purchase money, and ac- quired a legal title to the property purchased ? Upon the principle of constructive notice, the appellant was capable, and his concealment of his title has operated to an injury. If his title had been disclosed in season, the composition money would not have been paid, and our warrant might have been located elsewhere. At this time the appellee has no remedy for recovering back the money he has paid the State. I con- 39 v.2 306 CASES IN THE COURT OK APPEALS Hoye vs. Johnston. 1844. elude, therefore, that the appellant will not strengthen his case by relying on the doctrine of constructive notice; and, that as the appellee had purchased out his warrant before he received any notice, in fact, of the appellant's claim, the latter has no equity against him. Having thus shown that the appellee's title was not obtained against equity, I will next inquire into the merits of the ap- pellant's pretensions. Now it is conceded, on the other side, that according to the rules of the land office, a patent cannot issue for land which is already granted. The first patent must be vacated, before a second can be issued. Hence it follows, by his own admissions, that the patent granted to the appellant, in 1838, was obtained irregularly, illegally, and by a fraudulent suppression of the fact, that the same land had been previous- ly granted to Gen. Swann. Can he predicate an equity upon a title obtained by such practices ? If the appellee's patent was revoked, it would not avail the appellant. The outstand- ing title in the grantor of South Bar, would present an insu- perable obstacle to the issue of a patent on his certificate of re-survey. The Chancellor would never grant a patent in con- firmation of a title, which, by the appellant's own showing, originated in a violation of the laws of the office. The counsel for the appellant, anticipating this objection, has attempted to evade its force by affirming, that in some other case, it has already been adjudged by this court, that the patent for South Bar must yield to the patent for Flavia, the original. In answer to the argument of the learned counsel, it will be sufficient to remark, in the first place, that the record now before the court, and upon which alone, the court's judg- ment must be pronounced, furnishes no evidence, whatever, of any such alleged adjudication. And secondly, that in fact the cause to which the learned counsel would refer, has been re- manded to the county court for a new trial, in the progress of which the rights of the parties may assume very different as- pects. At this moment, and especially in this cause, the court is bound to assume the validity of the patent for South Bar; and must therefore conclude, that the rights claimed by the OK MARYLAND. 307 Hoye vs. Johnston. 1844. appellant, will, if allowed, operate to the prejudice of that elder grant. Where is then the basis, on which the appellant's pre- tence of equity may be rested ? If the patent for South Bar is valid, it clothed the patentee with the legal title to the land embraced within its limits, and no legal or equitable title to the same land could be challenged by the appellant, under color of the patent for Flavia, the original. Upon this hypothesis then, the appellant's warrant of re-survey was irregularly issued. For none other than the owner of the legal title, can sue out a warrant to re-survey the original, for the purpose of affecting contiguous vacancy. The warrant of re-survey was void simply, at least, conferred no right as against the appellee claiming under his special warrant. All this is apparent from the case of Hammond vs. JVbrn's, 2 H. fy J. 130. In that case, the court denied to a warrant of re-survey, its usual efficacy in binding the title to contiguous vacancy, on the ground of a defect in the plaintiff's legal title to the original. But the court further held, that a warrant of re-survey, ob- tained on a title defective at law, but equitable, may operate as a common warrant, and vest in the party an equitable inte- rest in all the vacancy which may be included in the re-survey, from the time of payment of the composition money due thereon. In applying the principles of that decision to the present case, it is to be observed : 1st. That in the original, on which the appellant sued out his wairant of re-survey, he had no equitable title. His origi- nal patent was sued out in violation of the rules of the land office, and in fraud of the rights of Gen. Swann. Under color of a title, thus tainted in its origin, no title could be as- serted at law or in equity. I take the distinction between the case of a party, who having fairly purchased the original, en- deavors, by a warrant of re-survey, fairly sued out, executed, and compounded on, to acquire title to contiguous vacancy, and that of a person, who, conscious of the fraudulent origin of his pretended title, would yet use it as an instrument for extending his acquisitions. 308 CASES IN THK COURT OK APPEALS Hoye vs. Johnston. 1844. 2nd. The court in Hammond vs. Norris, decided, that a warrant of re-survey, sued out in a bona fide, though defective title in the original, will, after its location, be permitted to operate as a common warrant, provided the certificate of re-sur- vey is returned and compounded on, before the grant is issued, on a subsequent survey. All those circumstances, i. e. 1, actual location; 2, return of certificate; 3, payment of the composition money; must concur to give title as against a subse- quent purchaser. It is expressly declared, that the equity arises out of payment of the composition money, and the patent relates back only to the date of the certificate of re-sur- vey. In this case, it is to be remarked, that the patent to the appellee was issued before payment of composition by the appellant, on his certificate of re-survey; and that the appellee had actually returned and compounded on his certificate, be- fore the appellant's certificate was returned into the office. Waiving, in the next place, all objection to the appellant's title in the original, and to the regularity of the warrant of re-survey, I will next inquire, whether, upon those concessions, he can predicate an equity to have the appellee's patent va- cated? The right of the appellant, in this aspect of the case, must rest on the position, that the suing out of his warrant of re-survey was an appropriation of all vacancy contiguous to the original; and that a patent issued on his certificate would have related back as a conveyance to the date of the warrant. But in all the cases, it is laid down, that this principle of re- lation is an equitable principle, and that a party claiming the benefit thereof, must show that he has, in all his proceedings, conformed to the rules of the land office. Any departure from those rules, or irregularity, or laches in executing his warrant, or returning or compounding on his certificate, will place him beyond its protection, vide Dorsey's Ejectment, 98, &c. Vide especially, page 103, and the case of Beall vs. Beall, there cited from 1 H. Sf /., 346. Upon the authority of those cases, I insist, that the appel- lant's right of priority, acquired under his warrant, was lost by his failure to compound on his certificate within twelve OF MARYLAND. 309 Hoye vs. Johnston. 1844. months from the date of his warrant. And I apprehend, that if this case had originated in any other than Jlllegany county, it would be conceded, that there had been delay in the pay- ment of the composition money, and that such delay was fatal to the pretensions of the appellant. The endeavor of his counsel is, to show that in regard to the time limited for pay- ment of composition, there is one law for Jlllegany county, and another for the rest of the State. I must confess, that he is sustained by the authority of Chancellors Johnson and Bland, in his position, that in surveys in Jlllegany county, the time for payment of composition is extended to twelve months from the date of the certificate. Nevertheless, I would most re- spectfully submit, that such authority is not conclusive of the question, when it comes under review- of this court, and that the opinions expressed by the late and present Chancellors, tend to establish invidious distinctions, and to introduce anom- alies, not contemplated by law. The act of 1781, ch. 20, sec. 6, declares, that the time for compounding shall be one year from the date of the warrant. By the act of 1795, ch. 88, sec. 10, if any certificate of survey or re-survey, shall be returned, and not compounded for, agreeably to law, such sur- vey or re-survey, shall be liable to a proclamation warrant. The sec. 7 of the same act had declared, that no certificate of survey or re-survey shall be received into the land office, unless the same be passed by the examiner general, and returned to the office within eighteen months from the date of the warrant. Here is then the distinction taken, between a void certificate and a voidable certificate. A failure to return the certificate into the office, within eighteen months from the date of the warrant, annulled the certificate. A failure to compound on a certificate, duly returned within twelve months from the date of the warrant, rendered the certificate voidable at the suit of any one who would sue out a proclamation warrant to affect the same land. A certificate annulled, because of a failure to have it returned within time, left the land, intended to be af- fected thereby, in the same condition as if the warrant had not been issued, and liable to be taken up on any warrant and in 310 CASES IN THE (JOU11T OF APPEALS Hoye vs. Johnston. 1844. any quantity. Under a proclamation warrant, the party was obliged to re-survey all the lands included in the original survey. Hence, it occasionally happened, that in Allegany county, large bodies were included in surveys which remained uncom- pounded on, and therefore, liable to proclamation, but to no other species of warrant ; and therefore, by act 1804, ch. 75, reciting the grievance resulting in that county from that state of things, it is enacted, that all certificates of surveys of land in Allegany county, theretofore made and not compounded on, and then liable to proclamation, shall be on or before a day thereafter, unless then paid on or secured by proclamation, be vacated, &c. The clear effect of this act is, to annul the certificate after a certain time, but, in the meanwhile, to con- tinue their liability to be proclamated. In other words, cer- tificates then voidable, were to remain voidable until a certain day, and then to become absolutely void. This act related only to certificates which had been, previous to its passage, returned into the land office. In the year 1822, other certifi- cates were discovered to be in a like predicament, and the legislature therefore, by a supplement to the former act, and after a like recital with that contained in the original, by sec- tion 1, enacts, that all certificates of surveys of land in Allegany county, made since the passage of the former act, and not compounded on, and therefore liable to proclamation, be va- cated, &c., on and after a certain day, unless then paid on. Up to that day, it is clear, those certificates were to remain liable to proclamation. And it is equally clear, that the legis- lature did not intend to enlarge the time for payment of com- position, in favor of the owners of any of the certificates embraced within the provisions of either of those nets. The interest of the public, was the motive for each enactment; and this object was to amend, by vacating those certificates, abso- lutely, after a certain day, unless, before that day, they should be proclamated under the existing laws. The next case of the legislature was, to provide against a repetition of the evil. This is done by section 3, which annuls all certificates there- after to be made and returned; and not compounded upon OF MARYLAND. 311 Hoyo vs. Johnston. 1844. within twelve months from the date of the certificate. This section, I submit, ought to be subject to the principle of con- struction, which is applied to section 1 of the same act, and the original act of 1804. And as neither affected to extend indulgence to the holders of certificates, we ought not so to construe the sec. 3 of 1822, as enlarging the time within which future certificates should be compounded. We ought not to assume, that the legislature designed to extend indulgences to the people of Jillegany^ which were denied to her citizens re- siding elsewhere. The true construction, I insist, is, that in future, certificates are to be returned within the time limited by the general law ; are to be compounded on as directed by law ; are to remain liable, as heretofore, to proclamation, and after a default, continuing until after twelve months from the date of the certificate, the survey shall be entirely annulled, and the land was so restored to its original condition, and be liable to appropriation as if it had never been surveyed. Not one word, it is to be observed, is said about repealing procla- mation warrants in reference to Jillegany county, nor is any state of facts given, which would have justified the legislature in extending to the people of Jillegany , an indulgence for nearly thirty months, whilst the rest of the State remain subject to the original law, and may be required to perfect their titles within twelve months from the date of their warrant. It is to be observed, in conclusion, that this question may be treated as an open question, without any general inconvenience. A reversal of the Chancellor's opinion, in regard to the con- struction of the act of 1822, may, and will change the practice in the land office. But it cannot possibly impair any title de- rived under that act. The practical effect of the construction placed on the act, has been to prevent the acquisition of titles under color of proclamation warrants. But the titles, actually granted, will, under any construction of the act, remain un- impaired. It is again -insisted, that the form of the proceeding is im- proper. The attorney general ought to have been a party suing by information. The general rule is to be found in 312 CASES IN THE COUilT OK APPEALS Hoye vs. Johnston. 1844. Mitford's pleading. A leading case on the subject, is to be found in 2 Sch. fy Lefr. 617. I think it may be confidently affirmed, that, in every case in which the validity of the King's grant has come into question, the attorney general has been a party, and that in every instance in which the proceeding has been instituted to vacate a patent, it has assumed the shape of an information. It is fit, that in every case in which the King's acts are brought into question, there should be some one present, charged to protect his rights, and vindicate his justice. In many instances, the King is the exclusive judge of the propriety of vacating his own grant. The subject can assume the privilege of controlling or directing this discretion only where the grant conflicts with his vested rights; and even here the King's officers must have the privilege of determining whether there is a vested right, which is in peril by the grant. In the present case, the necessity for the presence of the at- torney general is made apparent by a consideration of the relief which is asked, and which alone could be granted. The only relief that can be given, would be to vacate the appellee's patent, whereby the title would be reverted in the State. A conveyance from appellee to the appellant, could not be de- creed, since this court cannot judicially know, nor can it be found, upon the proofs taken and admissions made between these parties, that the appellant has complied with all the con- ditions of the land office, and therefore, is entitled to a patent. It is admitted, for the purpose of this suit, that the appellant has compounded on his certificate. No such admission has been made on the part of the State. The case has been con- ducted between these parties as if the existence of the out- standing grant to the appellee, formed the only obstacle to the issuing of a grant to the appellant. For any thing that this court knows, or can judicially discover, there may be a multi- tude of other objections resting on a like number of caveats, interposed by other parties. Will the court undertake to say the appellant has complied with all the regulations of the land office, and the appellee's patent being removed, is entitled to his grant? OF MARYLAND. 313 Hoye vs. Johnston. 1844. The appellant's counsel supposes this question is set at rest by the cases of Garretson vs. Cole, 1 H. 8f J., 370, and West vs. Jarret, 1 H. fy J., 538. In one of these cases relief was granted by the Chancellor, but his decree was reversed on ap- peal. In the other, relief was denied by the Chancellor, but granted by the Court of Appeals. In neither of those cases, was the objection, now relied on, taken. And it is to be ob- served, that in each case there were circumstances of actual fraud, in violation of contract, which presents a peculiar case. It is not like the present, which rests on a pretended violation of the laws of the land office. In other cases, moreover, it will be found, that the attorney general was treated as a ne- cessary parly. These cases are just as strong to show, that he ought to be made a party, as the others can be to show, that he need not be made a party. If the State has an inter- est in the suits, that interest must be represented by the attor- ney general. If the State has no interest, then his presence as a party is improper. Now, I insist, that a decree passed on an information by the attorney general, is conclusive to show, that the State has a substantial interest in the subject of the suits. On the other hand, a decree passed between private parties only shows, that the court may have overlooked the existence of that interest, which needed the intervention of the State's attorney. The cases to which I refer, are to be found in 2 H. $ McH. 201, 244. 4 H. McH. 6. 1 H. & J. 332. 2 H. & J. 472, 487. The learned counsel next insists, that if it should be ad- judged, that the attorney general is a necessary party, the case may be remanded to the Court of Chancery, for further proceedings. This may be done, where the party entitled to sue, in bringing before the court the material defendants in interest, omits to make defendants of others, whose presence is necessary, for the purpose of making title or passing a com- plete decree. But there is no instance in which a case has been sent back, to make complainants of others, who ought to have sued with the complainant. When the cause is returned to the Court of Chancery, it stands as if no appeal had been 40 v.2 314 CASES IN THE COURT OF APPEALS Hoye vs. Johnston. 1844. taken, or decree entered, and the court is authorised to permit any proceedings to be had, which might have taken place an- terior to the passing of the decree. Now, I apprehend, the practice in regard to making new parties, by amendment, would not justify the introduction of a new party as complai- nant. If one of two obligees, should inadvertently sue the obligor, he could not amend by joining his co-obligee, as com- plainant. He would have to dismiss his bill, and begin anew, or suggest a reason for bringing him before the court as a de- fendant. And the reason for this distinction is obvious. I may be made a defendant against my consent, whenever my presence is necessary to the determination of light between others. But I cannot, without my consent, be made to assume the attitude of complainant. The court cannot authorise A to use the name of B, as complainant. Nor is it just ; nor would it conduce to dispatch or economy in the general administra- tion of justice, that B should be permitted in concert with A, to become a party complainant to a suit, originally instituted by B. New process would require to be issued on such an amendment; and the defendant would be at liberty to make a new defence to the entire case. Where is then the advantage to be gained by a change in the practice ? The utmost that can be said is, that the bill should be dismissed, without pre- judice. The present, is stronger than the case I have already stated. The attorney general is the necessary party complainant. He may sue on his mere motion, or in the relation of the present appellant. It is not necessary that the appellant should be a party at all. If he is permitted to unite with the attorney general, he is an auxiliary, and not a principal party, and his presence is necessary only to enable the court to make a com- plete decree. He stands pretty much in regard to the attorney general, as a feme covert does who sues without her husband. Could a feme covert, suing alone, amend by making her hus- band a party? I submit, then, that the attorney general is a material and necessary party; that the suit ought to have assumed the form OF MARYLAND. 315 Hoye vs. Johnston. 1844. of an information, and not that of a bill. For these reasons this decree ought to be affirmed, without regard to any sup- posed merits. Next, I submit, that the appellant has no merits, and I rely much on the fact, that hitherto no effort has been made to set aside a patent, upon the ground of notice, simply of a sup- posed prior equity in the complainant. The absence of any such case is a strong, if not conclusive argument, against the claim pretended. MAGRUDER, J., delivered the opinion of this court. The plaintifrin error, filed his bill in the Court of Chancery, to vacate a patent which the defendant had obtained, on the ground, that the survey on which the patent was granted, was in fraud of his, the plaintiff's right. These facts appear in the case. The plaintiff on the 5th September 1839, obtained a warrant of re-survey. He made his survey on the 19th May 1840; returned his certificate of survey on 31st July 1840; and paid the composition money on the 18th February 1841. The defendant obtained a special warrant, 29th June 1840, (more than one month after the plaintiff's survey of his land,) executed it on the llth July 1840, returned his certificate of survey, and paid the composition money, 24th July 1840; and on 27th January 1841, procured his patent, and then entered a caveat, to prevent the granting of a patent to the plaintiff, on his certificate of survey. The two certificates of survey include the same land. As the defendant had obtained a patent for land, comprehended in the plaintiff's certificate, as vacant land, no patent, according to the rules of the land office, can be given to the plaintiff until the defendant's patent is vacated. One of the grounds of objection, to the relief asked, is, that the plaintiff was not seized of the tract of land, on which he obtained his warrant of re-survey. It appears, however, that the tract of land called Flavia, which was to be re-surveyed, was granted to the plaintiff himself, 7th September 1838; and that the land in controversy, was contiguous to that tract. 316 CASES IN THE COURT OF APPEALS Hoyo us. Johnston. 1844. The objection is, that this same parcel of land, had been pre- viously granted to James Swann. The plaintiff's counsel in- sists, that it has been adjudged, that the alleged grant to Swann, must yield to the patent for Flavia; and the answer given to this, is, that the adjudication no where is to be found in this record; and from that adjudication, the plaintiff in error can derive no advantage. This will not be controverted ; but then, the record furnishes no evidence, that the land claimed for Swann was an older tract than that of the complainant. It would be difficult for the court to discover, by an inspection of this record, that the plaintiff, at the time that he obtained his warrant of re-survey, was not seized of the tract called Flavia, and for which he, himself, had obtained a patent. In addition to this, it may be remarked, that the plaintiff had made his survey before the defendant had obtained his special warrant. In the case of Hammond vs. Norris, the general court determined, that although a person, who has not a title to the land on which he obtains a warrant of re-survey, cannot thereby claim a right of pre-emption, in all contiguous vacancy, yet, such a warrant will operate as a common war- rant. See 2nd Harr. % John. 141. And the plaintiff's cer- tificate of survey, being older than the defendant's special war- rant, then, upon the payment of the composition money, the title to the land commences from the date of the survey; pro- vided, the composition money was paid by the plaintiff, with- in the time required by law. The question then arises, was the composition money paid by Hoye in due time? He made his survey, 19th May 1840; and paid the compo- sition money 1st February 1841. If the land had been situ- ate in other parts of the State, it would not have been paid, within the time required. But the warrant ol re-survey was obtained on a tract of land in Jlllegany, and in that county all the vacancy, also, is situated. Whether, then, Hoye paid the money, within the time required by law, is to be decided by the act of 1822, ch. 128, sect. 3. This act declares all certificates of survey to be null and void, "which shall not OF MARYLAND. 31 P Hoye vs. Johnston. 1844. be compounded upon, within twelve months from the date of such certificate." If this law was now, for the first time, to receive its interpretation, it would seem to be clear, that the owner of the certificate of survey, by the payment of the compo- sition money, at any time within twelve months after the date of his certificate, would be entitled to all the rights which he might have secured to himself, by the payment of it on the day of its date. Such is the construction it has received ever since its enactment, and now, none other ought to be given to it. The composition money was paid by Hoye, within ten months after the date of the certificate. It is concluded, then, that the plaintiff in error has a right to impeach the defendant's survey and grant; and is entitled to relief, if he has established the fraud, and asked relief in the proper form: was there any fraud practised by the defendant in the execution of his warrant, the survey of the land, the return of the certificate of survey, and obtaining the patent, by which the plaintiff in error is prevented from obtaining the patent to which he is entitled? On the 29th June 1840, the defendant obtained a special warrant, and by the express terms of that warrant, he had authority to survey, in order to purchase the vacancy of which he gave a description; provided, that in making that survey, he did not run his lines "within the lines of any former or more ancient survey." This he was evidently forbidden to do; and to prevent unintentional violations of this, the second of the rules, adopted by the Governor and Council in 1782, and which from time immemorial had been a rule of the land office, was adopted. See the rule in Landholders Assistant, p. 435; and opportunity was thereby afforded to the defen- dant to know, and he is presumed to know, that before he obtained his warrant, another warrant, whether in name a general, or special warrant, had actually been located; and this land, now in dispute, had been included in a survey by another person. Besides being presumed to know this, his answer admits, that he had actual notice of it, and with a knowledge of it, he actually prevailed upon the surveyor, to 318 CASES IN THE COURT OF APPEALS i Hoye vs. Johnston. 1844. violate the instructions under which he was acting, and to represent to other officers of the State, who were to judge of the fairness and regularity of his proceedings, that in executing his warrant, he had conformed to the rules of the office; and by these misrepresentations the defendant so obtained the pat- ent, which now enables him to deprive his antagonist of a grant, to which he is entitled. It is easily to be accounted for, that the officers of the land office, especially in earlier days, were not over-anxious for a rigid observance of the rules of office; or as a former Chancellor of Maryland observed, deter- mined "merely with reference to the interests of the State, or perhaps its officers." The lord proprietary, first, and then the State, had land to dispose of; and if the vendee paid the price asked, for every acre, to which his grant gave him a title, the vendor was no gainer by a rigid observance of these rules. Still, it was the duty of all to take notice, and not to violate those laws; and more especially, not by acting fraudulently themselves, to obtain an unconscientious advantage of others. Some, who take up lands in Maryland, seem to think, that there is scarcely any regulation of the office, which men, dealing for land, are bound to observe; except that which requires a man to be seized of the tract of land, upon which he applies for a warrant of resurvey; and accordingly, this defendant, who claims a right to urge this, as an objection to a grant being issued to the plaintiff, claims it, because of violations by him- self of many of the regulations of the office; whereby, the officers were deceived, and the plaintiff is defrauded. If indeed, such objections, as it may be presumed that the defendant would urge, in opposition to the claim of the plain- tiff to a grant, had been established by proof, in the case, it would not be necessary for the court to inquire minutely into the actings and doings, and the motives for those actings and doings of the defendant; but as, in his efforts to destroy the plaintiff's equity, he has been so unsuccessful, it can no longer be controverted, that this whole proceeding on the part of the defendant, was in fraud of the law; and that, of the frauds practised, in order to obtain a patent to himself, and then, by OF MARYLAND. 319 Hoye:'cs. Johnston. 1844. the aid of that patent, to prevent the plaintiff from obtaining one, the latter has just cause to complain and to ask relief therefrom. But, then it is contended, that although the defendant may have obtained his patent by fraud, and although the plaintiff in error, may be entitled to ihe relief which he seeks, yet, in this case, he cannot obtain it; and this, because the State has not be^n made a party, (either complainant or defendant,) to the suit. The counsel in the course of their argument, have furnished us with some cases like this, in which relief was given, although the State was not made a party to the bill of complaint. We are told, that "the non-joinder of a mere nominal or for- mal party, will often be dispensed with, if entire justice can be done without him ; or if he cannot, properly, be made a party to the suit." Story's Equity Pleading 196. No person should be made a paity who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Now, it would be difficult to prove, that the State has any interest in the decree, which may with propriety be passed in this case. The State, moreover, is not bound to be a party complaining; and has taken care to let it be known, that she does not choose to be a defendant in her own courts. It is not necessary that she should be a party; it should not rest with the State, or any department of its government, to say, whether one of her citizens, really aggrieved by another citizen, shall have justice administered to him. We have then precedent and rule to warrant the decision, that although the State is no party to the bill, ample relief may be had. We therefore reverse the decree of Chancery, with costs in both courts, and decree, that the said Johnston shall convey to Hoye, in fee simple, all the land included in his patent, dated the 27th January 1841, for a tract called "FortMeigs." DECREE REVERSED AND CAUSE REMANDED. 320 CASES IN THE COURT OF APPEALS Welch vs. Parran, et aZ. 1844. ROBERT WELCH OF BENJAMIN, vs. JOHN PARRAN, ET AL. December 1844. P. sold a tract of land to T. for $8000 ; of which, $1000 was secured by the vendee's notes; $2000, due in 1841 and 1842, secured by the vendee's notes with W. as endorser ; and the balance of $5000, due from 1843 to 1847, secured by the vendee's notes with D. and S. as endorsers. The vendee died insolvent. The vendor recovered judgment, at law, against W., and then proceeded in equity to sell the land, which he purchased in at $4000. Upon a bill, filed by W. to compel P. to apply the $4000 in discharge of the notes first due, and to restrain his proceedings at law upon his judgments, HELD : that the product of the sale should be so applied, under the direction of the Court of Chancery, as would give full security to the vendor, which might be done by enquiring into the pecuniary condition of the sureties. If any one of the sureties should be found unable to pay, then the vendor should be secured by applying so much of the proceeds of sale, as would extinguish the note thus endangered. The vendor is entitled to full payment from the one security or the other ; or if one is insufficient, from the additional security. The endorsed notes are to be considered as additional securities. The vendor is not bound to wait, during the time occupied in ascertaining the condition of the securities, but as the notes become due may enforce them at law. Such of the sureties as pay, may be subrogated to the rights of the vendor, to the extent of any interest they may have in the purchase money. Where an injunction issues to restrain proceedings at law, upon the ground of credits not allowed, and the defendant admits the credits in his answer, and consents to allow them, the injunction should be dissolved as to the balance duo. APPEAL from the Court of Chancery. This was an appeal from an order, dissolving an injunction. The bill was filed by the appellant, on the 22nd April 1844, and alleged, that about the month of December 1839, James Tongue, then of Calvert county, now deceased, purchased of John Parran, a tract of land, lying therein, called Elkton Head Manor, containing about 1231 acres, for the sum of $8000; that the said land when so purchased, was covered with large quantities of valuable timber and wood, with the proceeds of the sales of which, the said Tongue expected to pay for the same, and in consideration of which, the said Parran allowed OF MARYLAND. 321 Welch vs. Parran, et al 1844. the said Tongue, to pay the purchase money in many and ex- tended instalments; that your orator knowing the premises, and relying on the proposed execution of a deed of trust, here- inafter mentioned, by the said Tongue, became a surety for the same Tongue, in the execution of two notes to said Parran, each for $1000, in part payment of the said purchase money; one of them payable on the 1st January 1841, and the other, one year thereafter; that Henry C. Drury, of William, also became surety on two such notes, for the same amount, paya- ble each for $1000, the one on the 1st January 1843, and your orator believes, the other to be payable one year thereaf- ter; that John S. Skinner also became a surety on three of such notes, each for $1000, the times of the payment of which, though unknown to your orator, were to expire after the pay- ment of the other notes aforesaid. That afterwards, about the 24th December 1841, the said James Tongue, executed the deed of trust above mentioned, to Cephas Simmons and Rich- ard Estep, conveying the said land, with the approbation of the said Parran, to them, with certain other property therein spe- cified, "in trust, for the sole object and intent, to defend and save harmless your orator and his aforesaid co-sureties," on account of their respective liabilities as aforesaid ; that after- wards, to wit, about the month of September last, the said James Tongue departed this life, intestate, leaving Gideon G. Tongue and others, his heirs at law, and that there hath been no administration granted on his personal estate. That after- wards, about the 4th November last, the said John Parran filed his bill of complaint in this court, against the heirs and trustees aforesaid, of the said James Tongue, deceased, for the sale of the aforesaid land, to pay the purchase money, for which your orator and his co-sureties, were responsible as aforesaid; whereon such proceedings were had, that on the 23rd January last, your honor passed a decree for the sale of the said land, on the terms which the said Parran desired, viz: one third of the purchase money, payable in six months, and the balance in one and two years from the day of sale; that accordingly, on the 9th April instant, Jonathan Pinkney, the 41 v.2 322 CASES IN THE COURT OF APPEALS Welch vs. Parran, et al. 1844. trustee for the sale thereof, sold the same to the said for the sura of $4000; that by the said proceedings, it appears, that one of the notes aforesaid, on which your orator was a surety, hath been paid, and that $300 hath been paid on the second of said notes, of which your orator was a surety, and that in addition thereto, your orator is entitled to another cre- dit of $100.38, as of the 21st October 1842, whereby, the balance now due by your orator, is reduced to the sum of $848.40, as of the 25th inst. ; that though the said John Par- ran, hath in his bill aforesaid, admitted, that your orator hath paid him the aforesaid sum of $300, oh the second note above mentioned, and halh the receipt of the solicitor and attorney of the said Parran, for the sum of $100.38, as another pay- ment thereon, yet the said Parran hath obtained judgment in the Anne Jlrundel county court, for the whole of the said second note against your orator, and hath levied execution of fieri facias thereon, on the property of your orator, and is about to sell the same by the sheriff of the county, at a forced sale, for cash, within a few days ; that the purchase money due, as aforesaid, by the said John Parran, should be applied in the first place, to the extinguishment of the balance due, as aforesaid, by your orator to the said Parran, and should have been so made payable, as to enable your orator to have the benefit thereof; or the said Parran should be enjoined from proceeding to collect, by forced sale, this balance from your orator as a surety, when he has, by his own proceedings, placed the primary fund for the payment of the debt of the principal debtor, beyond the reach of your orator ; all of which is contrary to equity and good conscience, and tend to the manifest injury and oppression of your orator; that at the time of the death of the said James Tongue, he had already cut down and ready for market, large quantities of valuable timber and wood, the proceeds of which, according to the agreement of the said Tongue, Parran and your orator, and other sure- ties, were to be applied to the payment of the purchase money of the said land, and to the discharge of the liabilities of your orator and other sureties, as they respectively became due; OP MARYLAND. 323 Welch vs. Parran, et a/. 1844. that the said Parran, your orator is informed and believes, and therefore charges, is collecting the said wood and timber, dis- posing of the same, and refuses to allow the proceeds thereof, to be applied according to the agreement aforesaid, to the ex- tinguishment of the said Parran's judgment aforesaid, against your orator, although the same will be fully sufficient for that purpose; that the said timber and wood, constitute no part of the aforesaid purchase, from the said Pinckney, as trustee as aforesaid, nor hath the said Parran any right thereto whatso- ever, but that the same should be sold and accounted for, un- der the authority of this court. In consideration whereof, &c. prayer for an application of the payments, injunction against proceedings at law, and for general relief, &c. With the bill, the complainant filed the proceedings in equity, by John Parran, for the sale of the land, to pay the balance of the purchase money. The answer of John Parran alleged and admitted, that in the month of December 1839, he did sell and dispose of, to a certain James Tongue, now deceased, a tract of land called "Elkton Head Manor," at and for the sum of $8000. He also admits, that the said land, at the time of the said sale, contained a large quantity of wood, with a small proportion of timber, but denies that it was covered with large quantities of valuable timber ; the wood on the said land, consisting then, as now, for the most part of pine and other descriptions of fire wood. This respondent also denies, that he allowed the said T>, to pay for the same in extended payments, or gave to the said T., the credits on which said land was sold in con- sideration of an expectation, on the part of said T., to pay for the said land from the proceeds of sales of the said wood and timber, and this respondent has no knowledge whatever of such expectation, if such ever existed, being known to the complainant, or of his reliance thereon, when he consented to become one of the said T's sureties, for a portion of the pur- chase money of said land; on the contrary, this respondent avers, that he, this respondent, never entered into any sort of agreement whatever, either with the said T., or with the com- 324 CASES IN THE COURT OF APPEALS Welch 758. Parran, et al 1844.. plainant, or with any other person or persons whatsoever, in relation to the payment of said purchase money, or any portion thereof, with the proceeds of said wood and timber; nor was there any understanding whatever, either express or implied, at the time of said purchase, or at any other time, between this respondent and the said 71, or any other person in relation thereto. This respondent admits, that the said T., did execute a deed of trust, of the land so purchased by him from this respon- dent, to Cephas Simmons and Richard Estep, for the purposes therein mentioned ; but this respondent denies, that said deed of trust was executed, with his consent, or that he was in any way privy, or party to the same, or that the said deed was made with the approbation of this respondent, as the com- plainant charges in his said bill. This respondent further answering, says, that he admits, that the said complainant became a surety for the said 71, for the sum of $2000, parcel of the purchase money of said land, in two notes, each for the sum of $1000, dated the 23rd December 1839, and payable, the first of said notes, on the 1st January 1841, with interest from the 1st January 1840; and the second of said notes, payable on the 1st January 1842, with interest as aforesaid. He also admits, that Henry C. Drury, of Wil- liam, became a surety of said Tongue, on two others of said notes, for said purchase money, each for the sum of $1000, of same date, and payable, the first of said notes, on 1st January 1843, as charged in said bill, and the other of said notes, paya- ble on the 1st of January 1847, and not at the time, charged in said bill. He also admits, that a certain John S. Skinner, became the surety of said 71, in three other of said notes, for the said purchase money, the first of which became due on the 1st January 1844, each of them bearing the same date as afore- said, and each for the sum of $1000. The secoud of said notes, is payable 1st January 1845, and the third is payable 1st January 1846, and not as the complainant charges in his said bill, due and payable after the payment of the other notes aforesaid. In addition to the aforesaid notes, this respondent avers, that he also took from the said T., four separate notes, OP MARYLAND. 325 Welch vs. Parran, et al. 1844. each for the sum of $250, without any security whatever, dated 18th March 1840, and payable, the first, one year after date, the second, eighteen months after date, the third, two years after date, and the fourth, three years after date, all bearing interest from date, for the balance of said purchase money, all of which aforesaid recited notes, amount to the sum of $8000, the whole amount of the purchase money for said land. The complainant makes no reference "whatever, in his said bill, to the last mentioned four notes of the said T. ; but this respon- dent avers, that they are a portion of the notes, which were executed by the said T., to him, for the aforesaid purchase money of said land. This respondent further answering, says, that the said /. T., departed this life, intestate, in Calvert county, about the time charged in the said bill; and he also admits, that Gideon G. Tongue, James Tongue, and Thomas R. Tongue, are his only children, and sole heirs at law, and that there hath been no administration whatever granted on his personal estate. And this respondent avers, that the said J. T., at the time of his death, was wholly insolvent, and una- ble to pay his debts, and this respondent having no other se- curity for the payment of his aforesaid claim, except his lien on the land aforesaid, and the security afforded by the notes aforesaid, admits, that shortly after the death of the said 7 1 ., and about the time stated in the complainant's bill, he did file his bill of complaint, in this court, against the heirs and trus- tees aforesaid, for the sale of the aforesaid land, to pay the claim aforesaid, for the purchase money thereof. And that a decree was passed by this court, for the sale thereof, in the manner, and at the time charged in the complainant's bill. That Jonathan Pinkney, esq., was appointed the trustee, to sell said land, and that on the 9th day of April last past, this respondent became the purchaser thereof, at the sale thereof, made by the said trustee, for the sum of $4000, he being the highest bidder for the same. That said sale was, in all re- spects, conducted fairly, and this respondent has complied with the terms of said sale, by executing his notes to the trustee aforesaid, with approved security, for the payment of the said 326 CASES IN THE COURT OF APPEALS Welch vs. Parran, et nl. 1844. purchase money, according to the terms of the said decree, as stated in the complainant's bill. This respondent further an- swering, admits, that the first of the notes aforesaid, executed by the said complainant and Tongue, for $1000, and which became due as aforesaid, on the 1st January 1841, hath been fully paid and satisfied ; but he denies that he ever has attempt- ed, in any shape or form, to compel the said complainant, to pay him the said note a second time, or that he has refused to credit him for the same. This respondent also admits, that the sum of $300 has been paid on the second of said notes, and that in addition thereto, the complainant paid the sum of $100.38, on the 21st October 1842, on account of, and in part of said second note, but this last payment was made to the late Somerville Pinkney, esq. ; and this respondent avers, that he informed the said complainant, before he filed his said bill of complaint, that he should have credit for both of said last mentioned sums, whenever he would come to a settlement with this respondent; and this respondent wholly denies, that he ever attempted, by a forced sale or in any other manner, to deprive the said complainant of the benefit of said credits; on the contrary, this respondent avers, &c. This respondent, further answering, says, that in conse- quence of the waste and injury committed on the land sold by him to the said Tongue, by cutting down of wood, timber, &c., and the depreciation which has taken place since that time in the value of real estate in Maryland, the said land was not worth more than the price agreed to be paid by this respon- dent, at the sale, by the trustee aforesaid ; and this respondent apprehends, that at least one-half of the original sum of $1000, for which he sold it to said Tongue, will be lost or put in im- minent peril, unless the sum for which it was sold to this re- spondent, by the trustee, is applied, by this court, to the pay- ment of that portion of the said purchase money, for which the said Tongue was alone responsible, to wit : the sum of $1000, with interest, and the sum of $3000, for which a cer- tain John S. Skinner alone was surety, and in consequence of this apprehension on the part of this respondent, he directed OF MARYLAND. 327 Welch vs. Parran, et al. 1844. the said trustee, Jonathan Pinkney, at the time this respondent purchased said land to make that application, (if it were pos- sible for him to do so,) of the said purchase money. For the sum of $1000, with the interest due thereon, this respondent took no security from the said Tongue; and for the sum of $3000, this respondent took as security, John S. Skinner, esq.j who, at that time, was living in the State, and thought to be in good circumstances, but since then, has removed from the State, and now lives in another jurisdiction, and believed to be not in a very solvent condition, as this respondent has been informed, and believes, so that your respondent insists, that equity and a faithful observance of the sanctity and integ- rity of contracts require, that such an application should be made of the said sum of $4000, so as aforesaid agreed to be paid by this respondent for said land, as will ensure to this respondent, the payment in full, of his original purchase money, due him as aforesaid, from the said T. and his sureties. Your respondent therefore insists, that his aforesaid purchase shall be applied to the payment of the $1000, due from the said Tongue, individually, for which he has no security ; and in the second place, to the payment of that portion of the said debt of Tongue, on which John S. Skinner is surety, the se- curity being at least, extremely doubtful. And this application of said purchase money, this respondent humbly prays may be made by this court, that being the only application of it which will enable him to realize his entire claim. That portion of this respondent's claim secured by the complainant, and the said Drury being, in the estimation of this respondent, entirely solvent. This respondent denies that he has, by any act of his own, not warranted or sanctioned by law and equity, placed the primary fund for the payment of the debt of the principal debtor, beyond the reach of the complainant, as surety. If, by this allegation, the complainant means, that by his filing his bill for the sale of said land, and his becoming the purchaser thereof, under a decree of this court, he has placed the land, itself, beyond the reach of the complainant, it is most true, that such is the result, but this respondent 328 CASES IN THE COURT OF APPEALS Welch vs. Parran, et aL 1844. insists, that such a result is not his act, but the act of the law, and one which the complainant could easily have prevented, by his attending the sale, and either buying the land himself, or seeing that it sold for its real value ; if, in his judgment, this respondent's bid was under its real value, which is not pretended, however, by the complainant in his bill, &c. The Chancellor, (BLAND,) upon the motion of the defen- dant, Parran, after his co-defendant had filed his answer, dissolved the injunction, and the complainant, R. Welch, of Benj., appealed to this court. The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS and SPENCE, J. By RANDALL and ALEXANDER for the appellant, and By T. F. BOWIE for the appellees. ARCHER, J., delivered the opinion of this court. The doctrines in reference to the application of payments, have been elaborately examined by the solicitors ; but we ap- prehend, that so far as regards the interests of the respondent, in the proceeds of sale, refered to in the proceedings, he can have no interest in these questions. As a vendor of the land, he had, as his security, his lien for the purchase money, and the notes given by Tongue with the security of the complain- ant, Drury and Skinner furnished additional security. He is surely entitled to full payment from the one security, or the other; or if one is insufficient, from the other. Unless this was the object of the parties, why was the security taken? The land may be deteriorated in the hands of the vendee, by ne- glect, mismanagement, or waste, or by the depression of lands in the market; to guard against such possible results, security is asked, that the vendor shall in all events be safe, and obtain his purchase money. Now, it is asked, that the proceeds of the sale of the lands, which do not exceed more than one half of the purchase money for which the land was originally sold, should be ap- plied either to the iirst note which falls due, or rateably applied OF MARYLAND. 329 Welch vs. Parran, et al. 1844. to all the notes. The consequence of such an application might be, that the vendor would lose the very object which it had been his design, and the design of the parties to secure; one half the purchase money may be insufficiently secured, and that half maybe on the last notes that are due. If, there- fore, the application is made to \\iefirst notes that are due, the vendor loses one half his purchase money, and the same will be the result, in the like circumstances, if there should be a rateable application of the proceeds among the securities. The case before us is unlike the case of a payment made by the vendee. The property has been sold upon which the vendor had his lien, and the sale has established the fact, that the vendee's equitable right in the land, was without any value; the sale not having produced a sum sufficient to pay the ven- dor's equitable lien. The product of the sale should be applied under the direction of the Court of Chancery, in such a man- ner as would give security to the vendor, which could be done, in this case, by enquiring into the pecuniary condition of the sureties. If any one of the sureties should be found insolvent and unable to pay, then the Court of Chancery would secure the vendor, by applying so much of the proceeds of sale as would extinguish the obligation thus endangered. In no other manner could justice be done to the vendor. If instead of a sale of the land, the equitable right of the vendee had been alone sold, the case would then have stood in the same condi- tion as if the vendee had made a payment on the land, and we should then have been called upon to determine, among the sureties, the proper and legal application of the purchase money. Time may be occupied in ascertaining the condition of the sureties. Shall the complainant be compelled to stay his col- lection of the obligations given him for the purchase money, until these enquiries be made? As they become due we think he has a right to enforce their payment, and such of the sureties as pay may be subrogated to the rights of the vendor, to the extent of any interest they may be ascertained to have in the purchase money. 42 v.2 330 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist, vs. Drakely. 1844. It may, on investigation, be ascertained, that some one or more of the sureties may be insolvent, in which event there would be nothing to which the complainant could be subro- gated; and it may eventuate, that all are solvent, and able to pay; should this be the fact, then the proceeds of sale, after payment of the unsecured notes, should be rateably distributed in extinguishment of the obligations to which there are sure- ties. We are of opinion, the Chancellor was right in dissolving the injunction. It appears that the credits claimed on the judgments, the vendor was willing to have made, and direction had been given to that effect. On this ground therefore, there would have been no foundation for the injunction ; and as the credits have now been actually given, no injustice can be done the appellant by affirming the decree, DECREE AFFIRMED. M. A. GIST AND T. P. SCOTT, ADM'RS OF WILLIAM GIST, vs. THOMAS DRAKELY. December 1844. Upon the back of the notes of a corporation under its seal, payable to the order of K ., he and G., endorsed their names, over which D., an assignee for value, wrote as follows : "For value received, we jointly and severally promise D., to pay him the amount of the within, should the Company make default in the payment thereof." On proof that the Company gave the notes in the course of their business, and 6?., their debtor, credit in account for their amount, demand of payment from, and refusal by the Company, and immediate notice to G., in an action of assumpsit by Z>. against C., HELD, he was entitled to recover. The right of action was not on the sealed instrument, but on the endorse- ment, a collateral or distinct contract. Upon negotiable paper, the holder can only write over the signature of the endorser, such an endorsement as conforms to the nature of the instru- ment, viz : to point out the person to whom the bill or note is to be paid. In actions upon notes not negotiable, the intention of the parties is to be considered, and effect is to be given to that intention, if no rule of law is violated. When a defendant, for a valuable consideration, agreed to become, and by endorsing a note or single bill, not negotiable in point of law, designed to OF MARYLAND. 331 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. become security for the money expressed in it, he is responsible for its payment. Parties to contracts are assumed to know the liabilities imposed on thorn by the law, and juries are not from evidence to infer, their ignorance of such liability. Where a corporation executes a note which its charter does not authorise, the payee may, for value, stipulate with a third party that it shall be paid, and will not then be permitted to urge the invalidity of the Company to make it. He was capable to bind himself to pay the debt, if it should not be paid at maturity The rule of Baltimore county court, which requires that the whole testimony intended to be produced by plaintiff and defendant shall be offered, before any question of law is raised, except objections to the competency of testi- mony, is such a rule as that court has power to make. When a party fails to offer any evidence, at the time he ought to have offered it, under the foregoing rule, this court will not assume that it was then out of his reach, or was afterwards .discovered. The observance of such rule may be dispensed with, by consent. APPEAL from Baltimore County Court. This was an action of trespass on the case, brought on the 26th August 1842, by the appellee, against William Gist, the intestate of the appellants, who died pending the action. The plaintiff declared, 1st. Upon the instruments given in evidence, as negotiable notes, endorsed, failure to pay, and notice, &c. 2nd. Upon the common counts. 3rd. Upon the notes of the Eutaw Company, given in evi- dence, assigned by David Keener, for value to the plaintiff. And whereas also, heretofore, to wit, on the first day of June, in the year of our Lord, eighteen hundred and forty-one, at the county aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, would receive from the Eutaw Company a certain writing, obligatory of the said Eutaw Company, sealed with its seal, the date whereof, is the day and year in this count aforesaid, whereby said Eutaw Company promised to pay, six months after the date thereof, to the order of David Keener, $1826.81, for value received ; and by the said David Keener, after the making and sealing thereof, and before the same became due and payable, to wit, on the day and year in this count aforesaid, to wit, at 332 CASES IN THE COURT OF APPEALS Gist and Scott adtn'rs of. Gist, vs. Drakely. 1844. the county aforesaid, ordered to be paid and assigned to the said plaintiff, by assignment in writing, signed by the said David Keener, who was then and there authorised to make the same, at and for the sum therein specified, and give such value therefor; he, the said defendant, then and there undertook, and faithfully promised the said plaintiff, to pay him the said sum of money in the said writing obligatory specified, upon default of the said Eutaw Company, so to do, when the said sum of money in the said writing obligatory specified, should become due and payable. And the said plaintiff avers, that he, con- fiding in the said last mentioned promise and undertaking of the said defendant, afterwards, to wit, on the day and year in this count aforesaid, did actually receive from the said Eutaw Company the said writing obligatory, at and for the sum there- in mentioned, and gave such value therefor, to wit, at the county aforesaid. And the said plaintiff in fact saith, that the said Eutaw Company did not, when the said sum of money in the said writing obligatory specified, became due and pay- able, to wit, on the first day of December, in the year eighteen hundred and forty-one, or at any other time before or after- wards, pay the same, or any part thereof, to the said plaintiff, but wholly neglected and refused so to do, and made default therein, to wit, at the county aforesaid, (although the said Eutaw Company was requested by the said plaintiff so to do, to wit, on the day and year last aforesaid, to wit, at the county aforesaid,) of all which said premises, the said defendant af- terwards, to wit, on the day and year last aforesaid, at the coun- ty aforesaid, had notice. Yet the said defendant, not regard- ing his said last mentioned promise and undertaking, but, &c. 4th. In the further consideration, that the said plaintiff, at the special instance and request of the said defendant, would receive from the said Eutaw Company a certain other writing obligatory of the said Eutaw Company, sealed with its seal, the date whereof, is the day and year in this count aforesaid, whereby the said Eutaw Company, promised to pay, six months after the date thereof, to the order of David Keener, $826.81, for value received ; and by the said David Keener, after the OF MARYLAND. 333 Gist and Scott adm'rsof Gist, r>a. Drakely. 1844. making and sealing thereof, and before the same became due and payable, to wit, &c., ordered to be paid and assigned to the said plaintiff by assignment in writing, signed by the said David Keener, (who was then and there authorised to make the same,) at and for the sum therein specified, and give such value therefor, he, the said defendant, then and there under- took and faithfully promised the said plaintiff, to pay him the said sum of money, in the said last mentioned writing obliga- tory specified, upon default of the said Eutaw Company so to do, when the said sum of money in the said last mentioned writing obligatory specified, should become due and payable. And the said plaintiff avers, that he, confiding in the said last mentioned promise and undertaking of the said defendant, af- terwards, to wit, did actually receive from the said Eutaw Company the last mentioned writing obligatory, at and for the sum therein mentioned, and gave such value therefor, to wit, at, &c. And the said plaintiff in fact saith, that the said Eutaw Company, did not, when the said sum of money in the said last mentioned writing obligatory specified became due and payable, to wit, on, &c., or at any other time before or afterwards, pay the same or any part thereof to the.said plain- tiff, but wholly neglected and refused so to do, and made de- fault therein, to wit, &c., (although the said Eutaw Company was requested by the said plaintiff so to do, to wit, &c.,) of all which said premises, the said defendant, afterwards, to wit, &c., had notice. 5th and 6th counts were similar to the 4th count. The defendant pleaded non assumpsit. The jury found a verdict for the plaintiff. IST. EXCEPTION. The plaintiff to support the issue on his part, offered in evidence the two sealed bills, or notes and pro- tests, following: "$826.81. Baltimore, June 1st, 1841. Six months after date, the Eutaw Company promise to pay to the order of David Keener, $826.81, for value received. Witness the seal of the company, attested by the signature of the president, (Seal.) DAVID KEENER, President. 334 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist, vs. Urakely. 1844. "4th December 1841. Pro't. non-pay't., H. S. S., n. p., due J Dec'r., E." Endorsed, "DAVID KEENER," "WILLIAM GIST," "Tno's. DRAKELY," "B. F. GARDNER." The notarial protest, dated 4th December 1841, shows that the above instrument was presented "at the place of business of the makers thereof, demanded payment of its contents, and icceived for answer, "it cannot be paid at present." "And that on the same day, the notary addressed a written notice to each of the endorsers of the said promissory note, informing them it ha-d not been fully paid by the makers thereof, and that they severally would be held responsible for its payment, and left those for David Keener, William Gist and B. F. Gardner, at their respective places of business, and directed one to Thomas Drakely, Wheeling, Virginia, deposited it in the post office in this city. "$826.81. Baltimore, June 21st, 1841. Six months after date, the Eutaw Company promises to pay to the order of David Keener, $826.81, for value received. Witness the seal of the company, attested by the signature of the president, (Seal.) DAVID KEENER, President. D. 1,016, Dec. fi, 1841. Pro't. non-pay't. 24th Dec. 1841." Endorsed, "DAVID KEENER," "WILLIAM GIST," "Tno's. DRAKELY," "W. & S. WYMAN." The protest of this note showed a demand and non-pay- ment as before, and also, notices for David Keener, and W. fy S. Wyman, delivered to them. Notice for Wm. Gist and TAo's. Drakely, left at their places of business. The hand writing of the drawer and endorsers thereon be- ing admitted, having, before offering the same, filled over said endorsements, upon each of said bills, which were in blank, the words following, viz: "For value received, we jointly and severally promise Thomas Drakely, to pay him the amount of the within bill obligatory, should the Eutaw Company, the obligee therein named, make default in the payment thereof, when the same shall become due." OF MARYLAND. 335 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. The plaintiff further to support the issue on his part joined, proved by William J. Cole, a competent witness, that the sin- gle bills, hereinbefore inserted, were placed in his hands by Mr. Drakely, the plaintiff, for collection, some time before the institution of this suit; that soon after receiving them, he met William Gist, the defendant, and told him that he had the bills; Gist thereupon inquired of witness, whether they were some of those given for cotton? Witness replied, that he did not know, and asked Gist, what the Company wanted with cotton? to which he answered, for packing their machinery. He (witness,) further proved, that Gist (the defendant,)- stated, in the same conversation, that David Keener and himself, had been appointed a committee, to raise money for the use of the Eutaw Company, and in consideration, that he would endorse said bills, with others, as the means of raising money for it, the Company agreed, to give him a credit upon the claims of the Company against him, he, the said Gist, being at the time, the debtor of the Company, to a considerable amount; that he did endorse said bills and others, for said purpose, under said agreement, and upon which money had been raised. The witness further proved, that in a second interview, between said Gist and himself, he, the witness, stated to said Gist, that he had examined the books of said Company, and found, that his indebtedness thereto, would cover all his liabilities incur- red, to which Gist replied, that he thought he had gone fur- ther; that he intended to pay the bills in the hands of witness, but wished him to go against the Company and Keener first; and promised, that he would give witness a judgment, with a stay of execution, for the amount of the bills; that at a third interview, witness told Gist, (the defendant,) that Keener had consented to confess a judgment; Gist said he did not think he owed as much as he had become responsible for, on account of said Company, but that he would confess a judgment upon the bills; that Gist nevertheless, seemed to hesitate to make such confession, when witness left the nar. and order, for the judgment to be confessed, with T. P. Scott, esq., Gist's at- torney. Witness thinks, that Gist mentioned Tiffany's name, 336 CASES IN THE COURT OF APPEALS Giat and Scott adm'rs of Gist, s.,Drakely. 1844. in connexion with the cotton. Witness further proved, that in his second interview with Gist, said Gist stated, that the Eutaw Company and Keener, had severally made deeds of trust of their property, for the benefit of their creditors; that this statement was made before the institution of the present suit. The plaintiffthen offered in evidence the judgments, which, upon the said two single bills, he had obtained against Keener and the said Eutaw Company, in Baltimore county court. "Baltimore county court, September term, 1842. Thomas Drakely, vs. David Keener. Case, &c. 23rd December 1842. Judgment by confession for $4,000, damages in nar. and costs ; to be released on payment of $1657.12, with interest, from 24th December 1841, and costs. Plaintiff's costs, $8.03. Test, THOMAS KELL, Clerk." "Baltimore county court, January term, 1843. Thomas Drakely vs. the Eutaw Company. Case, &c. 2nd January 1843. Judgment by confession for $4,000, damages in nar. and costs; to be released on payment of $1657.12, with in- terest, from 24th December 1841, and costs. Plaintiff's costs, $7.83. Test, THOMAS KELL, Clerk." Whereupon, no evidence being then offered, on the part of the defendant, the plaintiff offered to the court the following prayer: If the jury shall find from the evidence, that the single bills, upon which the present suit is brought, were executed by the Eutaw Company, and endorsed by David Keener and Wil- liam Gist, by an agreement with said Company, for the purpose of raising money thereon, or purchasing goods, and with a view, by said endorsements, of giving a credit to said Com- pany; and if they shall further find, that William Gist, the defendant, undertook and agreed with said Company, to make such endorsement, in consideration, that said Company would give him a credit for the amount of his responsibilities thus assumed, upon a claim of said Company against said Gist; and shall further find, that when said single bills became due, payment was demanded, and refused by said Company, and that notice thereof was given to said Gist, the defendant, on OF MARYLAND. 337 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. the days shewn by the protests in evidence in this cause, that then the plaintiff is entitled to recover the amount of said bills, with interest, from the time the same became due. The defendant offered to the court the following prayers: 1. That the plaintiff is not entitled to recover, under the first count in the nar. because the bills offered in evidence, are not promissory notes. 2. That the plaintiff is not entitled to recover, under the counts for work and labor, &c., or for materials furnished, &c., because there is no evidence, that the plaintiff performed any work and labor for the defendant, or furnished any material, as charged in said counts. 3. That the plaintiff cannot recover under the count for goods sold and delivered, because there is no evidence in sup- port of said count. 4. That the plaintiff cannot recover under the money counts, because there is no evidence, that the plaintiff lent any money to the defendant, or that the defendant received any money for the plaintiff. 5. That if the jury believe from the evidence, that the de- fendant, when he wrote his name upon the back of the bills offered in evidence, intended to assume the responsibility of an endorser, of a commercial negociable instrument, in the order in which said bill was endorsed, and that the plaintiff so understood the said intended contract when he received said bills, then the plaintiff cannot recover in this suit. 6. Because there is no evidence of any agreement or au- thority from the defendant, with the plaintiff, under or by which, the plaintiff can write the guarantee, proposed to be written by him, over the name of the defendant. 7. Because there is no evidence of any contract, between the plaintiff and defendant in this cause, and the promise and un- dertaking of the defendant, offered in evidence by the plaintiff, was a nude pact, and void for want of present consideration when it was made. 8. Because the promise of the defendant, to pay the said writing obligatory) if the jury shall find such promise, was a 43 v.2 338 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist, vs. Drakely. 1844. promise and undertaking, to pay and answer for the debt of another person, and there is no evidence, that the agreement and consideration for such promise, was made in writing, and signed by the said defendant. 9. Because the contract offered in evidence, is essentially different and variant from the contract declared on. 10. Because there is no evidence, that the plaintiff used due diligence, to collect the debt mentioned in said writing obligatory. 11. Because the only evidence offered by the plaintiff, to charge the defendant, is evidence of a joint contract and re- sponsibility, by Keener and Gist, and it being in evidence, that the plaintiff has recovered judgment against Keener, the obli- gation of the said Gist, if it ever existed, has been discharged. 12. That the assignment of the said bills, by Gist to the plaintiff, not having been made in conformity with the provi- sions of the act of 1763, ch. 23, sec. 9, the plaintiff cannot recover against the defendant Gist, the assignor. 13. If the jury believe from the evidence, that the writing obligatory, offered in evidence by the plaintiff, was made and put in circulation, for the purpose of raising money for the use of the Eutaw Company, then the plaintiff is not entitled to re- cover, because the Eutaw Company had no power or authority under its charter, to make, issue, or put in circulation, the said writing obligatory, and the pretended contract, was merely void, and the promise of the defendant, if the jury should find such promise, is void for want of consideration. 14. If the jury believe from the evidence, that the bills offered in evidence, were made by the Eutaw Company, and passed to the plaintiff, for the purchase of cotton, by the En- taw Company, and for its use, from the plaintiff, then the plain- tiff is not entitled to recover in this action, because the said Eutaw Company, had no authority to make such a contract. The court, (PURVIANCE, A. J.,) granted said prayer, offered on the part of the plaintiff, and likewise, the 1st, 2nd, 3rd and 4th prayers offered on the part of the defendant, and rejected the 5th, 6th, 7th, 8th, 9th, 10th, llth, 12th, 13th and 14th OF MARYLAND. 339 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. prayers, offered by the said defendant; to which opinion of the court to the jury, granting said prayer of the plaintiff, and rejecting said prayers of the defendant, the defendant excepted. SND EXCEPTION. At the trial of the above cause, the plain- tiff having offered in evidence to the jury, the testimony stated in the first bill of exceptions, and no testimony being offered on the part of the defendant, the prayers stated in said first bill of exceptions, having been submitted by the plaintiff and defendant, and discussed before the court, and the court hav- ing pronounced an opinion and decision thereon, the defendant then offered to swear David Keener, Philip H. Coakley and John J. Harrod, for the purpose of proving, that the bills offer- ed in evidence by the plaintiff, were made and endorsed for the accommodation of the Eutaw Company, and were taken and discounted by the plaintiff at an usurious rate of interest. To the right of the defendant, at this stage of the cause, to offer which said evidence, the plaintiff objected, and relied in support of his objection on the twenty-fifth rule of the court, and the court refused to permit said evidence, under the cir- cumstances stated, to go to the jury. To which opinion and refusal, the defendant excepted. It was agreed, that the charter of the Eutaw Company, may be read at the trial of this cause, in the Court of Appeals, from the printed statute books, and that the 25th rule of Bal- timore county court, may be read from the printed rules. The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE and MAGRUDER, J. By LUCAS and T. P. SCOTT for the appellants, and By J. H. B. LATKOBE for the appellees. MAGRUDER, J., delivered the opinion of this court. The Eutaw Company, by two instruments, to which its cor- porate seal was affixed, promised to pay "to the order of Da- vid Keener" the sum of money expressed in each of them. 340 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist, vs. Drakely. 1844. On the back of these instruments, David Keener first, and afterwards Gist, (the original defendant in the court below,) wrote each of them his name. Before offering these sealed instruments in evidence, the blank that was left over their names, was filled up with these words. "For value received. We jointly and severally, promise David Drakely, to pay hire the amount of the within writing obligatory, should the Eutaw Company, the obligees therein named, make default in the pay- ment thereof, when the same shall become due." Upon this, the present suit was brought. The court below, at the instance of the appellee, instructed the jury, that he was entitled to recover in this suit, the amount of said bills, if the same were executed by the Eutaw Company, and endorsed by Keener and Gist, by an agreement with said Company, for the purpose of raising money thereon, or pur- chasing goods, with a view by said endorsement, of giving credit to said Company ; and if they should find, that the de- fendant (in the court below,) undertook and agreed with said Company, to make such endorsement in consideration, that the said Company would give him a credit for the amount of said responsibilities thus assumed, upon a claim of said Com- pany, against said Gist; and shall further find, that when said single bills became due, payment was demanded, and refused by said Company, and that notice thereof was given to said Gist, on the days shown by the protests in evidence, in this cause. Of this instruction the appellants complain. Upon what grounds is it asked of us to say, that the court below erred in giving this instruction? It was frequently assumed, in the course of the argument, that sealed instruments are the causes of action in this case, and authorities were cited to prove, that instruments of that description, if left blank, could not be filled up by the owner of them. But, this action is grounded not upon the promises of the Eutaw Company, which are to be found only in sealed instruments, but upon alleged written promises of the defen- dant, in the court below, to which there were no seals. Many of the cases therefore, with a reference to which, we have been OF MARYLAND. 341 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. furnished, afford us no information, with regard to the law of this case. Those alleged promises, although on the same piece of paper, may be collateral to, or distinct from, and no part of the obligations of the Eutaw Company. Much stress was, in the course of the argument, laid upon the circumstance, that the obligations of the Eutaw Company, were not promissory notes, or negotiable paper; and it seemed to be conceded, that if they had been instruments of that description, the defendant in error, would have been entitled to recover; the authorities, however, would not appear to lead us to this conclusion. Chancellor Kent says, (3 Com., p. 59, 1st edit.,} no other use can be made of a blank endorsement, on a note or bill of exchange, in filling it up, than to point out the person to whom the bill or note is to be paid. In the case of Moies vs. Bird, 11 Mass. Reports, 436, Justice Parker, pronouncing the opinion of the court, said : "Had .the notes been made payable to him, and negotiable in its form, the plaintiff would have been restricted to such an engagement, written over the signature, as would conform to the nature of the instrument. In such case, the defendant would have been held as endorser, and in no other form, for such must be pre- sumed to have been the intent of the parties to the instrument." But this note was not made payable to the defendant, and was therefore, not negotiable by his endorsement. What then was the effect of his signature? It was to make him absolutely liable to pay the contents of the note. He puts his name upon a note, payable to another, in consequence of a purchase made by his brother, in a day or two after the bargain was made, knowing that he could not be considered in the light of a com- mon endorser, and that he was entitled to none of the privi- leges of that character. He leaves it to the holder of the note, to write any thing over his name, which might be considered not to be inconsistent with the nature of the transaction. In Seabury vs. Hungerford, 2nd HilVs JV*. Y. Rep. SO, the court say, "when a contract cannot be enforced, in the particular mode contemplated by the parties, the court, rather than to suffer the agreement to fail altogether, will, if possible, give effect to it in some other way." 342 CASES IN THE COUUT OF APPEALS Gist and Scott adtn'rs of Gist, vs. L'rakely. 1844. This is an attempt to charge the defendant with the amount due on two obligations; because of an endorsement thereon of his name in blank, and of course, the obligation is not, speaking technically, a negotiable instrument. Justice Story, in his able work on the law of promissory notes, page 587, speaking of notes, with the name endorsed in blank thereon, says, "these cases have been either, first, where the note was not negotiable, or second, where it was negotiable," and then adds: "In the former class of cases, it has been held, that if the blank endorsement was made, at the same time as the note itself, the endorser ought to be held liable, as an original pro- misor or maker of the note, and that the payee is at liberty to write over the signature, 'for value received, I undertake to pay the money within mentioned to JB, ' the payee." It is not the duty of this court to say, upon how much less proof, than was offered by him, the plaintiff, in the court below, might have recovered the amount of his claim. He might perhaps, have regarded this as a contract, like that spoken of by the Supreme Court of the United States, in the case of De Wolf against Rabaudand others, 1st Peters, 476, "a trilateral contract, each as an original promise, though the one may be deemed subsidiary, or secondary to the other, a credit not given solely to either, but to both; not as joint contractors, on the same contract, but as separate contractors, upon co-exist- ing contracts, forming parts of the same general transaction." It may be, that the plaintiff below, might have filled up the blank somewhat differently, and thereby, have dispensed with the necessity of offering some of the proof which he adduced, but it is not perceived, that the blanks are filled up, otherwise than as the holder of the notes, was at liberty to fill them up, or that the defendants have any cause to complain of the inser- tion of any word, which, consistently with the nature of the transaction, might have been omitted. Indeed, in order to sustain this decision of the court below, it is not necessary to rely on very modern decisions. The principles settled by the case of Russell vs. Langstajf, Doug. 514, and the various cases in the books, (see 2nd H. Blac. OF MARYLAND. 343 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. 298, note,) brought upon bills, payable to a fictitious payee, or order, would seem to be sufficient for our purpose. If in ca- ses like those now spoken of, such objections to a recovery were over-ruled, it is difficult to come to a conclusion, that they can be fatal objections to a recovery in this suit. In the first case, (that in Douglass,) the defendant endorsed several notes, all of them at the time blank; that is, without any sum, date, or time of payment, mentioned in the notes. The de- fendant's counsel, in the case, might well say, that by the sig- nature, the defendant contracted for no given sum; that notes, without sum or date, were waste paper, and might insist, that the declaration, which alleged a pre-existing note, made pre- vious to the endorsement, was at war with the facts of the case. Lord Mansfield however held, that it was a clear case, in favor of the plaintiff. In the suits upon notes, or bills, payable to a fictitious payee, or order, it was strenuously argued, that the Law Merchant, forbade notes payable to order, to be treated as notes payable to bearer. The court however, decided, that if the rules of law prevented the instrument from operating, according to the words used therein, it may be stated in such a manner, that the law will give effect to them. The intention of the parties is to be considered, and effect is to be given to that intention, if no rule of law is thereby violated. In this case, we must not doubt, for the defendant below admitted to the witness, and the jury have, by their verdict found, that the defendant in the court below agreed for a valuable consideration, to be- come, and by endorsing them, designed to become security for the money expressed in each instrument. It appears by the bill of exceptions, that the jury were put in possession of acknowledgments by Gist, (the defendant be- low,) that he and Keener, were to raise money for the Eutaw Company; and of his further acknowledgments, that in con- sideration of his, (Gist,) endorsing the bills, the Company agreed to give him credit upon the claims, which it had against him, (he being at the time, the debtor of the Company;) that he endorsed the bills in fulfilment of said agreement, and upon 344 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist. vs. Drakely. 1844. the bills so endorsed, money was raised. By the terms of the contract, then, between the Company and Gist, (for which the latter received a valuable and ample consideration,) he was bound to become security for the payment of those bills of the Eutaw Company, and this, before any person was the owner of them; and moreover, that he was to become such security, by the endorsement of, (or writing his name on) them. Surely upon such testimony, (which the jury were to believe,) the appellee was entitled ex cequo et 60730, to demand of the defen- dant below, the amount of notes, the payment of which, to the holders of them, was to be secured by his endorsement, and the amount of which, was to remain in his own hands, in order to save him from any possible loss. The man who be- comes a party to such a contract, for such a purpose, and for such a consideration, is forbidden, by every thing like reason and justice, to deny, that the appellee became the owner of the bills at his special instance, and because of his undertaking to pay the holder of them their amount, if default was made by the makers of them. Surely, of such a transaction it may be said, as was said by Baron Hotham, in 1st H. Blac. Reports, 584, "unless some stubborn rule of law stand in the way of the present judgment, it ought to be supported." Immediately following the prayer of the appellee, we read in the bill of exceptions, that "the defendant offered to the court the following prayers." These prayers, (fourteen in number,) are nearly all of them points, which might be legiti- mately insisted upon by the counsel, whose duty it was in the court below, or in this court, to argue, that the court ought not to give the instruction, of which we have already spoken. Upon a few of them, some remarks will be made. The fifth was properly rejected. It required the court to assume, that the parties might not have known, that single bills were not such commercial, negotiable instruments as pro- missory notes, or might not know, what was the liability which the defendant below assumed, when he endorsed them. The law requires us to assume, that the parties did understand the contract into which they entered, and the liability which OF MARYLAND. 345 Gist and Scott adm'rs of Gist, vs. Drakely. 1844. the defendant below assumed. It would have been improper to authorize the jury, to infer from the evidence the existence of such ignorance among the parties, and if so, to instruct them that if it existed, the verdict must be for the defendant. With respect to the thirteenth, and the next point, (which may be considered in connection with it,) they seem to assume, that if theEutaw Company had no authority (to be found in its charter,) to make those writings obligatory, then the defendant could not oblige himself, to pay to the holders of them, the sums of money expressed in either of them. It is thought, that it did not lie in the mouth of the defendant below, to make such an objection. He was capable of binding himself to pay the debts, if when they became due, they remained unpaid. In regard to the supposed speculation in cotton, the testi- mony (derived from the defendant below,) was, that the cot- ton purchased, was "for packing their machinery." By this, it can only be understood, that it was purchased to pack, in order to send away, the articles in which the Company was authorized by its charter to deal. For such a purpose, the Company was surely authorized to buy cotton upon credit as well as for cash, and might give its bonds as well as the ver- bal promise of any of its members, or its officers, for payment of the purchase money. For reasons, which have already been suggested, we think there is no error in the refusal by the court to give the other instructions, which were not given. There is another exception taken by the plaintiff in error, of which we will now dispose. A rule of Baltimore county court, then existing, commenced in these words. "The court will require in all cases, that the whole testimony intended to be produced by both plaintiff and defendant, shall be offered before any question of law is raised, except objections to the competency of testimony." In this case, after all the points submitted by the defendant, as well as plaintiff, had been decided by the court, the defendant offered to introduce other testimony. The plaintiff objected to its introduction, "at this stage of the cause," relying on 44 v.2 346 CASES IN THE COURT OF APPEALS Gist and Scott adm'rs of Gist, vs. Drakely. 1844. the rule of court above mentioned, and the court "refused to permit the testimony, under the circumstances stated, to go to the jury." Was there error in this refusal, for which an appellate court ought to reverse the judgment of the court below? This court has heretofore ( Wall vs. Wall, 2 H. & G. 82,) said, "there exists no discretion in an inferior court, to dis- pense, at pleasure, with their own rules, or to innovate upon established practice; and a party injured by such a course, has an undoubted right to seek redress in this court. Every suitor is interested in the interpretation of the rules of court, appli- cable to his case; and an erroneous judgment of the county court in relation to them, may in many cases be as vitally in- jurious to him, as a wrongful judgment upon the law, which may govern his case." Again, in the case of Dunbar vs. Con- way, llth G. *8 8 55 Cash for balance ..... 91 $494 25" And then follows the signature of the plaintiffs in error. This paper, offered by the defendant, he contended, proved, 1st. That the claim of the plaintiffs against the defendant, for the segars, was satisfied by the acceptance of the note: and 2ndly. It was insisted, that the claim, (if not satisfied,) was not due until September 6th, and that the action was prematurely brought. Whether upon either of these grounds the defendant was entitled to a verdict, we are required to decide. One ground of defence to the action then is, that unless he was guilty of an alleged fraud, the defendant has been paid for the segars, and no recovery could be had, although the institution of this suit had been delayed until the credit expired. This defence is grounded upon the paper, which was offered in evidence by the defendant, (the bill and statement which 468 CASES IN THE COURT OF APPEALS Phclan & Bogue vs. Crosby. 1845. follows it,) and this paper, it is said, is to be taken in connec- tion with, and its meaning may be ascertained by the parol evidence, which the defendant adduced. It is true, lhat a mere receipt, (not under seal,) is but prima facie evidence, that the sum of money mentioned in it, was paid, and of course, oral evidence is admissible to contradict it, to prove what sum was paid, and when paid. Abundance of authority to this effect, may be found collected in 2nd Soun- ders, on Pleading and Evidence, 308, 309, (1st Am. Edit.} When, however, an attempt is made by oral proof, to contradict the receipt, it is usually made, not by the party who offers it in evidence, but by his adversary. By what evidence the claim was established in this case, the bill of exceptions does not inform us, but at no period of the trial, could this paper have been admitted, if offered by the plaintiffs. It was introduced into the cause by the defendant, and shall he, who offers the written testimony, be permitted, by parol proof, to falsify it? To insist that its meaning ought to be disregarded, if its mean- ing, when collected from its words, is not corroborated by the oral proof? The general rule is, that parol proof is not admissible to alter or vary, (to falsify) the written paper, and this rule is to be observed, even when the parol testimony is offered by the adverse party, except in cases of latent ambiguity, fraud, mis- take, or surprise. Hence, the rejection of parol testimony, in the case of Kemmil vs. Wilson, 4 Washington's C. C. R., 308, and in Batters vs. Sellers and Patterson, 6 H. fy J. 247, and in other cases, many of which are to be met with in the report of the latter case. See also 1st Phil, on Ev. 410, a receipt not under seal, is an exception to the rule; but a paper, one object of which is to furnish an acknowledgment of the receipt of money, may contain other matter, which cannot be varied, or contradicted by oral proof. In the case of Batters, just mentioned, if, at the bottom of the bill of parcels, there had been a receipt in full, signed by the other party, and in an action by the latter party, to recover the prices of the broad cloths, the defendant had offered in evidence that receipt, no OF MARYLAND. 469 Phelan & Boguc vs. Crosby. 1845. doubt, oral proof would have been admissible, to explain or vary it, but the receipt at the bottom, would not have autho- rized the defendant to offer the parol testimony, which the report of the case tells us, was rejected by the court. We are told in Phillips 443, 444, of cases, in which oral proof of independent facts, collateral to the written instrument, may be admitted, but that doctrine has no application to this case. It is undisputed, in this case, that almost every thing which was received by the plaintiffs, for their segars, consisted of a note of hand, of a third person, and that note, (the names of the parties, the sum for which it was given, the date, time of payment, and every thing said about the note,) is accurately described in the receipt, yet the parol proof was offered, to con- tradict the written paper, if the words of the written paper, do not mean precisely what the defendant wishes them to mean. I entertain the opinion, that, without introducing another ex- ception to the general rule, which declares parol testimony to be inadmissible, to vary, or contradict a written instrument, this parol testimony, (offered by the defendant too,) must be entirely disregarded in deciding the question, whether the transfer by the defendant, and acceptance by the plaintiff, of the promissory note, mentioned in the receipt, was an extin- guishment of so much of the plaintiffs' claim, for the segars, or only entitled the defendant to a credit on account thereof, when the money was received from the maker of it? The case of Kellogg vs. Richards, 14th Wendell 116, seems to sustain this opinion. If indeed, in a case like this now before us, parol proof is admitted to contradict the written instrument, with what pro- priety could the Court of Appeals, in the case, 2 G. $ J. 494, undertake to say, what the meaning of the paper was, and to collect that meaning from its words? Surely the absence of parol testimony, expressly contradicting it, could not have taken the meaning of the contract from the jury, if (in case there was any such testimony,) the verdict of the jury was to be influenced by it. The case went back to be tried again, 470 CASES IN THE COURT OF APPEALS Phclan & Boguo vs. Crosby. 1845. and it was sent back, with this opinion of the court; yet if the party who had been unsuccessful in the Court of Appeals, had been so fortunate upon the second trial, as to prove by a wit- ness, something about the meaning of the parties to that paper ; some acknowledgment by his adversary, which might be un- derstood by the jury to mean, that the plaintiff did not under- stand the contract, as the Court of Appeals understood it, would such parol testimony have authorized the second jury, to interpret the contract, otherwise than as it had been inter- preted by the court of dernier resort? But it is said, that the parol testimony was admitted, with- out objection. True, but this cannot alter the law of the case. For what purpose it was introduced, does not appear: but its introduction into the case, even by consent, could not authorise us to learn from it the meaning of the instrument, if the law requires, that its meaning be collected from its words. Parol testimony, introduced without opposition, that the testa- tor declared it to be his meaning, to devise a fee, could not be admitted to change the meaning of the will, when interpreted by its words, and thus make a fee of an estate for life. The question then, according to my view of the case, is: What was the contract between those parties, in relation to this note? Was the note received by the parties, as collateral security, or in satisfaction, as an extinguishment of the claim of the plaintiffs, for the segars? and the answer to this ques- tion, must be found in the written paper. In the case of Glenn vs. Smith, 2 G. fy J. 494, it was de- cided by this court, that to give the acceptance of a note, the effect of an absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown, and that this was not sufficiently done by the receipt in that case. The receipt said, that the promissory note had been received, "in payment of the above account." Is the paper, the legal effect of which is now to be ascertained, like that, in the case last mentioned? Was its operation only to suspend the plaintiffs'.right of action, until the note of Moore became due? OF MARYLAND. 471 Phelan & Bogue vs. Crosby. 1845. Now, it is going very far to say, that a man has not been paid for his gopds, when he, who alone is interested in a denial of the payment, acknowledges that something which he has received, was received by him in payment. This however, is res adjudicate. In the case before us, the plaintiffs say some- thing more. They give the credits, to which the defendant is entitled, as well as the price of the article which they sold to him, and after crediting the amount of the note, and the inter- est upon it, it being ascertained that those two credits, still leave a balance due for the segars. The next acknowledg- ment by the plaintiffs is, that on the self same day, when the note was received by them as payment, they received "cash for balance." Surely, when the creditor acknowledges that the balance of his claim has been paid, and paid to him in cash, he ought not to be allowed to say, that the whole debt, with the exception ol the balance, (which is admitted to be paid,) is still due. This would be, to deprive a creditor of the privilege of making his own contract with his debtor, and in this case, of exchanging his segars for the promissory note of a third person; and this, by assuming that he did not mean what the words, which are used by himself, to express that meaning, must by him have been understood to mean. The plaintiffs' cause of action then, is not, in my opinion, to be found in this paper, but in the alleged fraud, which when established, deprives the defendant of a right to set up this paper as evidence, to defeat this claim, established by other testimony; and I now proceed to notice the second ground of defence. On the part of the plaintiffs, it is contended, that even if this note was taken in satisfaction of the claim, yet they may re- cover the amount of it, in an action for goods sold and deliv- ered, provided, that the proof which they offered, satisfied the jury, that the defendant acted mala fide, having at the time of the transfer of this note, to the plaintiffs, knowledge of the insolvency, or failing circumstances of the maker of the note so transferred, and not communicating that knowledge to the plaintiffs. 472 CASES IN THE COURT OF APPEALS Phelan & Bogue vs. Crosby. 1845. Whether the defendant acted fraudulently in this transac- tion, was a question to be decided by the jury, and not by the court. The authorities tell us, what if proved to the satisfac- tion of the jury, would evidence fraud in the vendee. If, (to give an example,) the vendee purchased the goods, with a preconceived design, of not paying for them, then no pro- perty passes to him, and the vendor has a right to treat the contract as a nullity, and the vendee, as a person who acquired the possession of them tortiously. 17 En. Com. L. Rep. 330. So if the defendant, by fraud, procured the plaintiff to sell his goods to an insolvent, and then got the goods into his posses- sion, in such a case, the plaintiff is not restrained, by any agreement, to give a credit, from suing for the goods, as for goods sold and delivered to him, who is in possession. See Hill vs. Perrott, 3 Taunton 274, and in 1st Stephens Nisi Prius 285, it is said, that an action lies before the credit has expired, if the time given, was after the sale 7 and not making any part of the original contract, or if the sale, (purchase,) was not bona fide. In deciding this question, the court is required to assume, that the jury might have inferred from the testimony adduced by the plaintiffs, that the conduct of the defendant, was frau- dulent ; that at the time of the transfer of this note to the plain- tiff, it was, if not quite, almost as valueless as a counterfeit bank note; that the circumstances of the maker, were known to the defendant, and not made known by him, to the plaintiff. If the facts be so, what is to prevent the plaintiffs from recov- ering? Even in the case, on which the counsel for the defendant principally relies, (Fergusson vs. Covington, 14 Eng. C. L. Rep. 307, and 17 E. C. L. R. 330,) it is conceded, that before the credit expires, the plaintiff may sue and recover in damages, the value of the goods fraudulently obtained, provided his action be trover, and not assumpsit, for goods sold and deliver- ed. The ground of this decision, so far as the reporter could inform us, was, that the only contract proved by the plaintiff, was a contract or sale on credit. This shows that the cases OF MARYLAND. 473 Phelan & Bogne vs. Crosby. 1845. are different. The plaintiffs' proof in this case, intimates nothing about a sale on credit. All that is said in regard to a sale upon credit, came from the defendant. But it is insisted, that in this case, the law will not imply a promise, because there was an express promise. If the plain- tiffs then choose to sue, before the expiration of the credit, they must abandon the assumpsit, and sue for a tort. The amount of the argument is, that if there existed at one time between them, what the parties supposed at that time to be a valid contract, although the law pronounces it to be no con- tract, there is yet an express contract, which will prevent the law from implying a contract. But this cannot be correct. The plaintiffs make out their case, without relying on the alleged contract. They may offer such proof, as was deemed to be sufficient in the case. In 3rd Taunton, the fraudulent con- tract is introduced into the case, and relied on by the defen- dant. So soon as he attempts to establish it, the plaintiffs prove it to be fraudulent, and insist, that they have a right to treat it as a nullity, and do so treat it. If it be a nullity, how can it be regarded as an express contract, and thereby prevent the law from implying, in favor of the plaintiffs, an assumpsit to pay the value of the goods? So soon as the fraud, which vitiates that contract, is established, the case is precisely what it would have been, if there had not been furnished any proof, that such a contract ever was contemplated by the parties, and the case made out, will be, that the defendant got possession of the property of the plaintiffs, and in a way which will authorise them, not only to institute an action for a tort, but also upon assumpsit. Why not in this case, as well as in the case of Hill vs. Perrott, 3 Taunton 274, say, that the law will imply a con- tract, to pay for the goods, from the circumstance of their having been the plaintiffs' property, and having come to the defendants possession, if unaccounted for t Can the defendant prevent the plaintiffs from suing upon this implied contract, by setting up an agreement, (to give credit,) which he fraudulently obtained? The answer to this, is to be found in the same case in Taunton. The defendant "cannot be permitted to account for the pos- 60 v.2 474 CASES IN THE COURT OP APPEALS Phelan & Bogue vs. Crosby. 1845. session, by setting up the fraudulent purchase." And this, because "no man must take advantage of his own fraud." In 15 Johnson 475, the court say, that the special contract, as to the manner of payment being void, on account of the fraud, the plaintiff may disregard it, and bring assumpsit for goods sold. The fraudulent misrepresentations, made by the defendant, vitiated the whole contract. In 6 Johnson 110, it is stated, that the taking of a note, under a fraudulent misrep- resentation, was no payment, and any term of credit, which the taking of the note may have implied, became void. So in 15 Mass. Reports, p. 81, Chief Justice Parker, in deliver- ing the opinion of the court, said: "The credit was obtained upon an offer of adequate security. The security was wholly worthless. The consideration for the credit therefore failed, and the money thus wrongfully obtained, could notybr an in- stant, be conscientiously retained. See also 2 Johns. Rep. 455, and the remarks of C. J. Eyre, in De Symonds vs. Min- wicke, 1st Esp. 430, and those of Lord Kenyan, in Packford vs. Maxwell, 6 D. Sf E. 52. It would seem, that according to a case relied on by the defendant, (in 17 Eng. Ch. Reports,) the plaintiff had a right to regard this contract, (as to the time of payment,) as a nul- lity, and to sue before the expiration of the credit, if he sued for a tort. If so, what is there in the case, to prevent them from waiving the tort, and suing upon an implied assumpsit. This is frequently done. See Stockett against Watkin's adm. 2 G. # J. 326. In one of the English cases, (4th East 147,) in which it was decided, that the plaintiff could not, in that case, (unlike this,) bring an action of assumpsit, until the credit expired, although he might sue on the special agreement. Lord Ellen- borough was reluctant to non-suit the plaintiff, although there was no attempt to prove, that the defendant, in the purchase of the goods, acted mala fide. Another judge, (Le Blanc,) in his decision, seems to have been influenced by, perhaps, an extravagent fondness for "the forms of action:" "In all cases, without express authority to the contrary, it is better OP MARYLAND. 475 Harlan vs. Brown. 1845. to keep the forms of action as distinct as possible, instead of running one into another." This remark may be enti- tled to some weight, in any case, to which it can, with truth, be applied. But for the form of action adopted in this case, as a substitute for trover, (which all admit, might have been instituted by these plaintiffs, and at the time this suit was brought,) it is believed, there will be found "express autho- rity" in the cases, to which reference has been given. In a case like this, and in which the court, in deciding upon this exception, must assume, that all the justice is on the side of the plaintiff, I do not consider myself at liberty to disregard such decisions, pronounced by such learned judges, because of any thing to be found in the cases cited, and relied on by the counsel for the defendant. My opinion is, that the judgment of the court below, ought to be reversed. By the other Judges : JUDGMENT AFFIRMED, WITHOUT PREJUDICE. JNO. H. HARLAN AND MARGARET HARLAN vs. DAVID BROWN. JOHN H. HARLAN AND MARGARET HARLAN'S LESSEES, vs. DAVID BROWN. (E. S.) June 1845. Where a will authorized ah executor to sell the residue of the testator's real and personal estate within two years from his decease, a sale made within the two years is valid, though the conveyance to the purchaser was not executed until after that period, and parol evidence is admissible to show the time of sale. The act of 1831, ch. 315, sec. 10, does not relate to sales of real property, made before that statute went into operation. It is for the court to decide on the admissibility of evidence, but the compara. live value, or weight of testimony, is for the consideration of the jury. The variation of the compass, and the degree of it, are questions of fact, and upon evidence affecting the degree of variation, it is not for the court to say, that the evidence offered by one party, is better than that offered by the other, to guide the jury in determining whether any, or what allowance shall be made for such variation. 476 CASES IN THE COURT OF APPEALS Harlan vs. Brown. 1845. APPEALS from Cecil County Court. The first appeal was in an action of trespass, q. c.f., brought on the 19th October 1835, by the appellee against the appel- lants, for a trespass upon a tract of land called "Dividing," Upon the motion of both parties, a warrant of re-survey was issued, and the defendants pleaded non cul. The jury found a verdict for the plaintiff David Brown. 1st EXCEPTION. At the trial of the cause, the plaintiff offer- ed in evidence a patent for the tract called "Dividing,* 9 dated 17th May 1695, to Mathias Van Bibber, and after other con- veyances, the will of John Dickson, which contained the fol- lowing clause: "Item. It is my will, that the rest and residue of my real and personal property, shall be sold by ray executor, and that my real property be sold within two years from my decease, and to be rented or farmed on shares by my executor, until a sale is made of the said real property, and I hereby empower my executor, to make a good and sufficient deed to the pur- chaser of the said real estate." This will, dated 23rd January 1830, upon which letters tes- tamentary were granted the 6th May 'following, appointed Samuel Rowland executor. The plaintiff then proved, that John Dickson died seized of that part of "Dividing, 11 conveyed to him by James Miller, and the deed from Samuel Rowland to Jlmos Henshaw, and the plaintiff Brown, of the 19th March 1833, reciting a sale by the said executor, in execution of the trust reposed in him on the 25th November 1831, of his testator's part of "Dividing," to the said Henshaw and Brown for said part. The plaintiff then offered to prove by parol testimony, that the said sale was made by said executor in November 1830, and within two years of the death of Dickson, his testator, and that possession of the said land, was given under said sale within that period ; and also gave in evidence a deed of par- tition, between himself and Henshaw, dated the 19th March 1833. UP MARYLAND. 477 Harlan vs. Brown. 1845. The plaintiff also offered evidence to prove, that the alleged trespass is within the lines of the patent of "Dividing." And within the lines of the deed from James Miller to John Dickson; and that the deed from S. Rowland to Ji. Henshaw, and the plaintiff, is for the same land as mentioned in the deed from Miller to Dickson, and that the alleged trespass is upon the land conveyed to the plaintiff, by the deed of partition between Jl. Henshaw and the plaintiff. It was admitted, that the several deeds above mentioned, were executed, acknowledged and recorded according to the formalities required by law to pass real estate, and that the will of John Dickson was also duly executed, so as to pass real estate. The defendant objected to the admission of the said parol testimony, in relation to the time of sale made by the said Rowland, but the court, (HOPPER and ECCLESTON, A. J.,) permitted it to go to the jury; the defendant excepted. 2ND EXCEPTION. In addition to the matters stated in the first bill of exceptions, the defendant prayed the court to in- struct the jury, that the deed offered by the plaintiff, from Samuel Rowland to the plaintiff, and Jlmos Henshaw, was no evidence of title in the plaintiff, unless they should further believe, from the testimony, that it was executed within two years from the death of the said Dickson, which instruction the court refused to give ; the defendant excepted. SRD EXCEPTION. In addition to the matters stated in the first and second bills of exceptions, the defendant prayed the court to instruct the jury, that the deed offered by the plaintiff, from Samuel Rowland to the plaintiff and Jlmos Henshaw, is no evidence of title in the plaintiff, unless they believe, from the testimony, that the sale by the said Rowland has been confirmed by the Orphans court of Cecil county, and notice of the time, place, terms and manner thereof, given according to law, which instruction the court refused to give; the defendant excepted. The second appeal was taken in an action of ejectment, brought on the 6th March 1836, by the appellants against the appellee, for two other tracts, viz: ll SteeVs Resurveyed," 478 CASES IN THE COURT OF APPEALS Ilarlan vs. Brown. 1845. and "Belle Ville" and presented the same questions as those presented by the action of trespass, 2 q. f.^ in relation to "Dividing;" and also an additional question as to the right to determine the variation of the compass, and which is fully set forth in the opinion of this court. In the second cause, the verdict and judgment was for the appellee. Ilarlan and wife prosecuted both appeals. The causes were argued before ARCHER, C. J., DORSEY and MARTIN, J. By GROOME and McLEAN for the appellants, and By OTHO SCOTT and CONSTABLE for the appellees. MARTIN, J. delivered the opinion of this court. The cases of John H. Harlan and Margaret Jl. Harlan against David Brown, and John H. Harlan and Margaret A. Marian's lessees, vs. David Brown, were presented together. The first case is an action of trespass, quare clausumfregit, the other an ejectment. John H. Harlan and wife, were the plaintiffs below in the action of ejectment, and the defendants in the action of trespass. At the trial of the trespass case? three exceptions were taken by the defendants to the opinions of the court. Three exceptions precisely similar, were taken by the same parties, as plaintiffs in the action of ejectment, and also an additional exception. We propose to examine these exceptions in the order in which they have been presented. By the second item of the will of John Dickson, it is pro- vided, that the residue of the real and personal estate of the testator, be sold by his executor within two years from his de- cease. David Brown claimed under the deed executed by the executor of John Dickson, in conformity with the power con- ferred on him by the will. It became therefore important for him to prove, that the sale was made within two years from the death of the testator, both, for the purpose of showing, that the authority conferred on the executor, had been pro- . perly exercised, and that the sale in question, was not embraced OF MARYLAND. 479 Harlan vs. Brown. 1845. by the 10th section of the act of Assembly of 1831, chap. 315. And it certainly was competent to the party, to establish by parol evidence, as the legal and appropriate mode, the time at which this sale was made. This forms the subject of the first exception, and we think the court were right in admitting the evidence. Testimony having been received to show, that the sale of the property in dispute had been made by Samuel Rowland to David Brown, within two years from the death of Dickson, the court were asked to instruct the jury, that the deed of Rowland to Brown and Henshaw, was no evidence of title, unless they should further find, that it was executed within two years from the death of Dickson. This instruction the court refused to grant, and presents the question raised by the second excep- tion. We concur with the court below, in the opinion express- ed by them in this exception, for the plain reason, that the validity of the deed from the executor to the parties claiming under it, depends not on the time when the deed was exe- cuted, but when the sale was made; and evidence had been offered, to establish thefactum of the sale within the period prescribed by the will. The power of sale conferred on the executor, was, we hold, properly executed by a sale of the property within two years from the death of the testator, although the deed was not executed by him, until after that period had elapsed. We concur also, with the opinion expressed by the county court in the third exception. There was no law making the validity of the sale by Samuel Rowland, as the executor of Dickson, depend on its confirmation by the orphans court of Cecil county, as supposed by the defendants' prayer. It was not embraced by the act of Assembly 1831, chap. 315, sec. 10, because the sale was made before that statute went into operation. It follows from the views thus expressed, that in the case of John H. Harlan and Margaret Jl. Harlan against David Brown, the judgment must be affirmed. 480 CASES IN THE COURT OF APPEALS Harlan vs. Brown. 1845. The only remaining question to be examined, is that pre- sented by the fourth exception, in the case of Harlem's lessees against David Brown. It has already been stated, that the three first exceptions in this case, are similar to that raised in the trespass case, between the same parties. We, of course, concur with the county court in the opinions expressed by them, in those exceptions. But we dissent from the instruction given to the jury, as contained in the fourth exception. The question involved, depended entirely on the true loca- tion of the second line of the tract of land called "Dividing." This court, as early as the case of Rowland and Cromwell, 1 H. &f J. 118, in affirming the opinion of the general court, decided, "that it is the province of the jury to determine the true location of the lands in controversy, from the evidence adduced by the parties, and that it is for the jury to decide, on the justice and propriety of allowing, or not allowing the varia- tion of the compass, and the rate or rule of such allowance, according to the evidence in the cause." And in Howard vs. Hughes, 3 H. & J. 12, the Court of Appeals say : "It is the acknowledged and exclusive province of the jury, to decide on the variation of the compass, and to make such allowance as corresponds with the proof, and will advance justice. The juries, in fixing the variation of the compass, are not confined to any certain rules, but are governed by the circumstances existing in the case. The juries, in some cases, have refused to make any allowance, in others, they have allowed at the rate of one degree for every twenty years, and in others, they have been influenced by ancient runnings and proof of pos- sessions." What then, is the character of the instruction which the court were desired to give in the fourth exception? They were asked to direct the jury, "that if they believed that the boun- dary, at the end of the first line of 'Dividing, 7 was at the place the defendant had located the same, and that the division fen- ces, between the former and present owners of the land called 'Dividing,' 1 and the land called 'Steele's, 1 and the other adja- cent lands, were on the second line of ' Dividing,' as located by OF MARYLAND. 481 Hardesty vs. Wilson. 1845. the defendants; and should further believe, that in former run- nings of said line, in the life time of Stephen Porter, it ran where the defendants now have located it; that then, such facts were better evidence for the jury, to determine what allowance should be made, to correct the variation of the needle in running said line of 'Dividing,' than the theory of allowing one degree for every twenty years." This instruction the court below gave, and in doing so, invaded, we think, the province of the jury. It is for the court to decide on the admissibility of evidence; but the comparative value, or weight of testimony, is a ques- tion for the consideration of the jury, and it was for that tribu- nal, and not the court, to determine, whether the facts relied on by the defendants, were better evidence to guide them, in cor- recting the variation of the compass, than the rule sometimes adopted, of allowing one degree for every twenty years. The doctrine announced by the Court of Appeals, in the cases refer- red to, is, that whether any allowance is to be made for the variation of the compass, and if so, the rule or law by which that allowance is to be ascertained, is a question of fact for the determination of the jury, upon all the circumstances of the case. The judgment of the county court, in the case of John H. Harlan, and Margaret Jl. Marian's lessees, against David Brown, is therefore reversed, and a procedendo awarded. JUDGMENT AFFIRMED IN ONE CASE, AND REVERSED, WITH A PROCEDENDO IN THE OTHER. JOHN HARDESTY AND MATTHEW HARDESTY vs. JOHN F. WILSON. June 1845. A judgment creditor issued afi.fa., and sold the land of his debtor. The sheriff, without his consent, gave time to the purchaser to pay for the land, and the purchase money not being all paid, the creditor ordered the sheriff to proceed to a re-sale of the property levied on. The debtor is not entitled to an injunc- tion to stay such re-sale. If the sheriff give time to a purchaser at his sale, to pay the purchase money, without the assent of the creditor, the latter is not bound by it, 61 v.2 482 CASES IN THE COURT OF APPEALS Hardesty vs. Wilson. 1845. In a proceeding in equity where the sheriff is no party, the conduct of that officer cannot be inquired into. It does not follow, that because a bidder is found upon an offer for sale of pro. perty, levied on under a.fi.fa., and he makes the highest bid,that the supposed sale to him discharges so much of tho debt. The bidder acquires no title to tho thing purchased, but by payment of tho pur- chase money, and if he fails to do this within a reasonable time, a re-sale may be lawfully made. The seizure, upon nfi.fa., is not a satisfaction of tho debt. APPEAL from the Court of Chancery. On the 7th January 1845, the appellants filed their bill alleg- ing, that a certain John F. Wilson, recovered a judgment against your orators, in, &c., at, &c., for the sum of $1500, &c.; that the said judgment was obtained upon a note, given by said John Hardesty to said /. F. W., with Matthew Hardesty as his security, for the purchase of a tract of land called "Sandy Point" and for which he, the said John, bargained with a certain ZachariahMcCeney, but understanding that the title to the property was in said Wilson, he, together with said Mc- Ceney and M. H., one of your complainants, went to the house of said Wilson, and gave his note for the purchase money, with M. H. as his surety, with a credit, as be believes, of two years. He, the said /. H., further states to your honors, that in the succeeding summer, (he thinks in August 1841,) he sold his title in said land to a certain John Hall, before he took possession, with the knowledge and consent of said J. F. W., who agreed to take said Hall, as purchaser in lieu of himself; and said Hall, some short time afterwards, when he took pos- session of the land, paid said W. part of the purchase money, in presence of said M. H., one of your complainants, and that said Hall has been since that time, and is now in possession of said land; that said J. F. W., has sued out of Jlnne Jlrun- del county court, a writ of fieri facias upon the aforesaid judg- ment, and that the sheriff of said county, to whom said exe- cution was directed, levied the same upon the said tract of land called " Sandy Point," and also upon another tract of land called "Gravelly Hill" the property of said M. H.; and that on or about the 2nd November 1844, sold the said tract of land OF MARYLAND. 483 Hardosty vs. Wilson 1845. called "Sandy Point," at public sale, to a certain Jeremiah Wells, for the sum of $1200; that said Wilson was present at said sale, and was next highest bidder to said Jeremiah Wells, his bid being only ten dollars under that of said Wells, on which said land was sold ; that said Wilson, as they have heard, and believe, gave time to said Wells for the payment of the purchase money, and as your orator Matthew Hardesty, avers, from information from said Wells, agreed to meet him at the city of Annapolis, at some future day, to pay the pur- chase money, and receive his title; that your orators have heard, and believe, that said Wells attended at Annapolis on the day appointed, prepared with the money to make his pay- ment, as agreed upon with said Wilson, but that said Wilson did not attend. Your orator, M. H., further states, that inasmuch as the amount of the sale was insufficient to pay the debt, he asked time of said Wilson to pay the balance, and was allowed by him, ten or fifteen days, within which time, he paid the balance, amounting to $485.83, to Alexander Randall, attorney at law, as will appear by his receipt for said balance; that the sheriff of Anne Arundel county, has again advertised both tracts of land, "Sandy Point" and "Gravelly Hill" for sale, at, &c., on Tuesday, 21st January, to satisfy said judgment, and being advertised that said proceedings is contrary to law, and having no remedy,, but by the aid of the Court of Chancery, they humbly pray your honor, to grant to your orators, a writ of injunction on said judgment and execution, directed to said John F. Wilson, and the clerk and sheriff of Jlnne Arundel county, commanding them to stay, and surcease all further and other proceedings in said judgment and execution, at least, against the tract of land called "Gravelly Hill" if not against both tracts, and against your said orators, until the further order of this court, as also a writ of subpoena, &c. The complainants exhibited with their bill. 1. A short copy of the judgment of the appellee against the appellants, for $1500. October term 1843. 2. The docket entries of thej^.ya. on said judgment. 484 CASES IN THE COURT OF APPEALS Hardesty vs. Wilson. 1845. 3. Memorandum of the sale of Sandy Point to J. Wells, for $1200, made by the deputy sheriff, 2nd November 1844. 4. The statement of Matthew Hardesty's debt, for taxes, interest, and balance of John F. Wilson's claim of $485.83, amounting to $516.35, with the following receipt thereon: "Received the above $485.83, for Thomas S. Alexander, the attorney, to deposit to his credit. 13th November 1844. A. RANDALL" The Chancellor, on filing bond by the complainants, ordered an injunction. The answer of the appellee, filed on the 22nd January 1845, admitted, that he did recover judgment against the complain- ants, as in his said bill is stated, and by the short copy thereof, filed by the complainants appear. He further admits, that the said judgment was recovered on a note or obligation of the said complainants, given to him to secure the purchase money of a tract of land called Sandy Point, sold by him to John Hardesty. He also admits, that afterwards, the complainants agreed to sell said land to one John Hall, and put said Hall in possession thereof; that this defendant, on -being applied to for the purpose, verbally expressed his willingness to accept said Hall as purchaser, provided he would make to the de- fendant, a certain payment which has never been made, and consequently, he has had nothing to do with said Hall ; that said arrangements, being oral, only, and not reduced into writing, is void, by the statute on which the defendant relies. He further insists, that it was entered into prior to the recovery of the judgment aforesaid, before the action was brought on said note, and if it afforded matter of defence to the complain- ants, against this defendant, such defence ought to have been taken at law, and the said judgment is relied on by the defen- dant, against any relief sought on the ground thereof. And this defendant, further answering, states, that said Hall aban- doned possession of said premises upwards of twelve months ago, and the same was resumed by the said John Hardesty, who rented the same, and is now claiming the last year's rent due from the actual * tenant thereof. And this defendant ad- OF MARYLAND. 485 Ilardesty vs. Wilson. 1845. raits, that having sued out a fieri facias on said judgment, the same was laid on the said tract called Sandy Point, and another tract called Gravelly Hill, and being exposed to sale by the sheriff of Anne Arandel county, the tract called Sandy Point was bid in by one Jeremiah Wells, as stated in said bill ; and he admits, that exhibit B was drawn up and signed by the deputy of said sheriff, as stated in said bills. He further ad- mits, that the said Wells was not prepared, at the time, to pay the purchase money, but expressing a willingness to pay as soon as the sheriff could make out his title, the actual pay- ment was postponed, and the writ was returned by the deputy to the sheriff; that it is usual to give such indulgences to pur- chasers at sheriff's sales, in order that the returns and con- veyances may be prepared and executed when the money is paid, and, consequently, in the present case, the defendant was not asked, nor did he give his assent to the arrangement. He further admits, that he heard, from time to time, that the said Wells delayed payment of the purchase money, on the pretext, that he was not satisfied with the title to said proper- ty, and that on being applied to by the counsel for said Wells, this defendant expressed his willingness to show his title to said land, and to convey the same on receiving his purchase money, as aforesaid; that all the indulgence which was en- joyed by said Wells was granted him by the sheriff, and on his, the sheriff's, responsibility; that this defendant was ad- vised he could not coerce the sheriff, until the return day of the writ, and further, that it would be better to wait a few days with the sheriff and purchaser, in order to have the diffi- culty removed, than to insist on a more rigid procedure. But finding at last, that the said Wells was trifling, he required the sheriff to proceed, by a re-sale, or otherwise, to make the amount due on the execution, and the property was advertised as in said bill is stated. He admits, that he received through his attorney, the sum of $485.83, or thereabouts, on account of said execution ; but he was informed, by his said attorney, and believes it was received on account generally, his said attorney refusing, or declining to look to said Wells as pur- 486 CASES IN THE COURT OF APPEALS Ilardcsty rs. Wilson. 1845. chaser for the amount of his bid, or to recognize his purchase until the money was ready to be paid to him. This defendant therefore insists, that said sale by the sheriff, under the cir- cumstances aforesaid, does not bind him, or in any manner impair his right to make the money yet due on his execution aforesaid ; and that as the said purchaser has failed to pay the purchase money bid by him, as aforesaid, he acquired no title to said land. Wherefore, this defendant prays the injunction granted in this case may be dissolved, and he be dismissed with costs, &c. On the 10th February 1845, the defendant moved for a dis- solution of the injunction, and in April 1845, the complainants filed exceptions to the sufficiency of the answer. At the hear- ing of the motion to dissolve the injunction, the Chancellor (BLAND,) over-ruled the exceptions, and sustained the motion. The complainants appealed to this court. The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, MAGRUDER and MARTIN, J. By MURRAY and STEELE for the appellants, and By WELLS and ALEXANDER for the appellees. MAGRUDER, J., delivered the opinion of this court. Every thing in the bill of complaint, which may be consid- ered as constituting the equity of the complainant's case, seems to have been satisfactorily answered. If it was improper for the sheriff, to give the indulgence which he gave to the pur- chaser, it was given not at the instance, or with the consent of the plaintiff at law. In this suit, to which the sheriff is no party, we cannot inquire into the conduct of that officer. The law of the case, 2 H. fy G. 262, cannot be questioned. As to the alleged payment to Mr. Randall, it can entitle the complainant only to a credit for so much as Randall, acting for the plaintiffs' attorney, received. It does not follow, that because a bidder is found, and he makes the highest bid, that the supposed sale to him, discharges so much of the debt. The highest bidder acquires no title to OF MARYLAND. 487 The State vs. Mayhew. 1845. the thing purchased, but by payment of the purchase money, and if he fail to do this within a reasonable time, a re-sale may lawfully be made. We discover nothing in this case, which entitles the complainant to relief in equity. With respect to the point, for which most of the authori- ties were cited by the solicitors of the complainants, this court decided otherwise, in the case of Sasser ag't. Walker's ex'crs, 5 G. # /. 102. But surely, it would not follow, that a sale of the property on which the first levy is made, can be hindered by the defendant at law. If, as it is supposed, the seizure is a satisfaction of the debt, the defendant would no longer have any interest in it, and could not complain that a sale of it was about to be made. The order of the Chancellor, so far as it over-rules excep- tions filed to the answer, cannot be before us at this time. So much of the order as dissolves the injunction, is affirmed, appeal from the rest is dismissed. ORDER AFFIRMED AS TO INJUNCTION. THE STATE OF MARYLAND vs. WILLIAM E. MAYHEW, PRE- SIDENT OF THE FARMERS AND PLANTERS BANK OF BAL- TIMORE. June 1845. The act of March session 1841, ch. 23, provided for a general assessment of all the real and personal property within this State, and directed, that the capital stock of the several banks, and other incorporated institutions of the State, should be assessed to its owners at its cash value, and taxed at one-fourth of one per centum. All the property of such banks, &c., the stock of which was thus assessed and taxed, being exempted from taxation, the taxation of such stock is constitutional. To relievo the proprietors of such stock, and facilitate the collection of the tax thus imposed, the act of 1843, ch. 289, made it the duty of the presi- dent, (or other proper officer) of such corporations, seini-annually, to set apart, and withhold out of the dividends, or profits, the amount of the tax levied on such stocks, and pay the same to the treasurer of the State. The act of 1843, is a legitimate exercise of power, -incident to tho sovereign right of levying taxes for the support of government. 488 CASES IN THE COURT OF APPEALS The State vs. Mayhew 1845. By the act of 1843, the placo and mode of levying and collecting such tax are changed; it was no longer collectable where the stockholders resided; it ceased to be a debt or duty chargeable on them : they were exonerated from all personal liability for its payment : the stock, itself, stood exempt from its payment, and the security of the State therefor, became con- tingent. For the recovery of such tax, the State has no lien on the stock ; can main- tain no action at law, either against the stockholder, bank, or any officer of the bank, in his official character ; nor an action for money, had and received against any such officer, in his individual capacity. But the State has a legal right to be paid out of the dividends declared, or profits made, the amount of the tax on the assessed value of such 'stock, and for the assertion of such right, having no appropriate legal remedy, is entitled to the writ of mandamus against the president or other proper officer of anj such corporation. The president of a bank, &c., is not, by the nature of the duty imposed upon him, by the act of 1843, created a State officer, a collector of the taxes due by the stockholders of the bank. The object of the act was to command such president, he being already in possession thereof, to pay to the treasurer of the State the amount of State taxes in his hands, which, under the act of 1843, he had no authority to pay to any other person. The General Assembly has the right, by legislation, to impose upon all pro- perty within the State, a just and proportionately equal public tax ; to provide all means, details necessary for its speedy collection, by summary process of execution, or other reasonable or available means. A power exercised by the General Assembly, from the adoption of our Con- stitution till the present time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of its possession by that body. A cotcmporaneous construction of the constitution of such duration, con- tinually practised under, and through which, many rights have been ac- quired, ought not to bo shaken, but upon the ground of manifest error and cogent necessity. Where the law provided for the valuation of bank stock, and it had been valued accordingly, and an act of Assembly prescribed the rate of taxa- tion, and directed who should pay it, it cannot be said that, the tax on such stock has not been levied : it is a legislative levy, wholly irrespective of the ownership of the stock. As soon as a dividend is declared, the right of the State to so much of it as is required to be paid on account of the stock taxed, is fixed and indefeasible, and over-rides all other liens, claims or rights, by whomsoever asserted, un- less, perhaps, it were in conflict with a preferred claim of the United Stales. A citizen is not necessarily discharged from the obligation to perform a duty enjoined, by law, for tho public good, because it imposes on him some ad- ditional labor, trouble und expense ; as to perform militia duty, vote at OF MARYLAND. 489 The State vs. Mayhew. 1845. the election of public officers, furnish true statements to assessors, obey the summons of executive officers, or arrest felons : in these, and other in. stances, the citizen must obey the law. APPEAL from Baltimore County Court. This was an application for a writ of Mandamus, upon the petition of the State. It alleged, that the General Assembly of Maryland, by the act of 1841, ch. 23, entitled, "An act for the general valuation and assessment of property in this State, and to provide a tax to pay the debts of the State;" among other things enacted, that all stocks or shares, in any bank or company, incorporated by the said State, together with all other property thereby subjected to assessment and taxation, should be valued agreeably to the directions of said act, and chargeable according to such valuation, with the public assess- ment; which said assessment or tax, by the State of Mary- land, was, by the said act of Assembly, fixed at twenty cents, or one-fifth of one per cent, in every hundred dollars worth of assessable property, for each and every year thereafter, to be collected as therein prescribed; and, that afterwards, by ano- ther act of the General Assembly of Maryland, made and passed at December session 1841, ch. 328, a further addi- tional annual tax, of five cents in the hundred dollars, to be levied and collected in the same manner as the first mentioned tax, was imposed upon all the property assessed by the first mentioned act of Assembly, the said taxes collectively amount- ing to twenty-five cents, or one-fourth of one per cent, annu- ally, in every hundred dollars worth of such property. Your petitioner further states, that by the second section of the said first mentioned act, the city of Baltimore, in said State, was divided into assessment districts, as therein specified; that by the ninth section thereof, it was declared to be the duty of the assessors, appointed by said act, to value all such assessa- ble property at its full, cash value, in the names of the owners thereof respectively; that by the sixteenth section thereof, it was enacted, that for the purpose of valuing the stock of bank- ing, and other private corporations, held by non-resident stock- holders, it was thereby declared and understood, that the stock 62 v.2 490 CASES IN THE COURT OP APPEALS The State vs. Mayhew. 1845. of a banking, insurance, or other corporation, usually termed a moneyed institution, should be situated at the place in which the principal office for transacting the business of such corpo- ration should be situated, and for the effectual collection of the taxes assessed on the stock of private corporations, held by non-residents, it was enacted, by the seventeenth section there- of, among other things, that the stock of corporations, liable to assessment under said act, held by persons, non-residents of said State, should be valued at its actual cash value, to, and in the name of such stockholders respectively; but, that the tax assessed on said stock should be levied and collected from said corporation, unless paid by such stockholders, and should be charged to such stockholders respectively, and be a lien on their respective stocks : that by another act of the General Assembly of Maryland , made and passed at December session 1841, ch. 281, it was made the duty of the president, or other proper officer of every bank, or other private corporation in the said State, to set apart and withhold, out of the dividend of the stock of such corporations, the amount of the tax levied by the first mentioned act semi-annually, and pay the same to the collector of the county, city, or district, in which such bank or corporation might be situated : that the General Assembly of Maryland, in substitution for the former enactments on the subject, at its December session 1843, made and passed an act, entitled, "An act entitled a supplement to the act entitled an act to facilitate the collection of a portion of the tax levied in pursuance of the act passed at March session 1841, ch. 23, " wherein it is enacted, that it should be the duty of the presi- dent, or other proper officer of the banks, and of all other of the incorporated institutions of this State, semi-annually, after the passage of the said act, (which passed on the 8th March 1844,) to set apart, and withhold, out of the dividends or pro- fits, when dividends are not declared on the stock of said banks, or other incorporated institutions, the amount of the tax levied on the stocks of said banks, and other incorporated institutions, under the act of March session 1841, ch. 23, and its supplements, without reference to the place of residence of OP MARYLAND. 491 The State vs. Maj hew. 1845. the stockholders therein, and to pay the said tax to the trea- surer of the said State, who should give proper receipts therefor: that at the time of the passage of the first men- tioned act of Assembly, there was, and from thence hitherto has been, a certain bank of the said State, duly incorporated by the laws of the said State, under the name and style of the Farmers and Planters Bank of Baltimore, and that its principal office for the transaction of its business then, was and is situated in the said city of Baltimore, in the State aforesaid, in the fourth assessment district of said city; and that by the force and exigency of said first mentioned act, the stock of said bank then was, and is situated in said city and district, and that William E. Mayhew, Esq., of the city of Baltimore, from thence hitherto has been, and yet is, the pre- sident of the said bank. Your petitioner further states, that shortly after the passage of the said first mentioned act of Assembly, the stock of the said bank was duly valued by the proper, then assessors, un- der said act, at the city, and assessment district aforesaid, and that twenty-three thousand, four hundred and twenty-five shares of the stock of said bank, being the number of asses- sable shares, were then, by them, valued at $19.50 a share, being the cash value thereof, amounting, altogether, to the sum of $456,787.50, and that the same valuation, under the said act, has ever since subsisted, and is now in force; that at the time of the passage of the last mentioned act of Assembly, of December session 1843, and ever since the said shares of stock, so valued as aforesaid, were, and are liable to pay the said taxes, under the two first above mentioned acts of Assem- bly, to the said State, amounting, annually, to $1141.96; and that since the passage of the said last mentioned act of Assem- bly, the said bank has made great profits, and has declared three several dividends, that is to say, a dividend on the 1st July 1844, and dividends on the 1st day of January and July respectively, in the year 1845, each of which said dividends, far exceeded the amount of such taxes due on the said shares'of stock at the time such dividend was declared : that by force of 492 CASES IN THE COURT OF APPEALS The State vs. Mayhcw. 1845. the last mentioned act of Assembly, it has been, and is, the duty of the said Wm. E. Mayhew, as such president of the said bank and its proper officer in that behalf, ever since the passage of such act, semi-annually to set apart and withhold, out of such dividends or profits, the sum of $570.98, being the moiety of the taxes, annually since accruing and levied on the said stock at such valuation as aforesaid, and pay the same to the trea- surer of the said State, upon his proper receipts therefor, for the benefit of your petitioner; but although the said treasurer has always been, and is, ready and willing to give such receipts therefor, the said William E. Mayhew, so being such president of the said bank, as aforesaid, has utterly refused, and still refuses, to comply with the exigencies of the said last men- tioned act, and semi-annually to set apart and withhold such last mentioned sum out of such dividends or profits for such taxes as aforesaid, and pay the same over to the said treasurer of the said State, for the benefit of your petitioner, and the sum of $1712.94, for such taxes, as aforesaid, accruing since the said passage of the said last mentioned act, remains in arrear, and wholly unpaid to the said treasurer of the said State. Prayer for a writ of Mandamus, to be directed to the said Wm. E. Mayhew of the city of Baltimore, in the State of Maryland, President of the Farmers and Planters Bank of Baltimore, commanding and enjoining him, according to the exigency of such last mentioned act of Assembly, semi-annu- ally to set apart and withhold out of the dividends, or profits, when dividends are not declared upon the said shares of stock so valued as aforesaid, the sum of $570.98, being the amount of the taxes levied on the said shares of stock of the said bank, under the act of March session 1841, ch. 23, and its supple- ments, and pay over the same to the treasurer of the State of Maryland, upon his proper receipt therefor; and, also, to pay over to the said treasurer of the State of Maryland the said sum of $1712.94, for such taxes on the said shares of stock so remaining in arrear and unpaid, as aforesaid, upon his proper receipt therefor, according to the exigency of such act of assembly. OF MARYLAND. 493 The State vs. Mayhew. 1845. And, thereupon, on motion of the State of Maryland, afore- said, the county court, (LEGRAND, A. J.,) passed the fol- lowing order, to wit: Ordered, by Baltimore county court, this 29th day of No- vember, A. D., 1845, that the President of the Farmers and Planters Bank shew cause, on or before three o'clock this day, why Mandamus should not issue, as prayed, in the aforegoing petition, provided a copy of this order, and said petition, be served on the president aforesaid, on or before two o'clock this day. The parties aforesaid, by their attorneys aforesaid, file in court here, the following agreement and admission, to wit, (annexed to the petition aforesaid:) It is admitted, that the facts set forth in the above petition, are true. It is also admit- ted, to be taken with the said facts, into the consideration of the court, that to pay over the tax, as required by the acts of Assembly, mentioned in the within petition, would be attended with additional labor, trouble and expense, to the said Mayhem, as president of the said bank. It is agreed, that all proceed- ings preliminary 1o a peremptory Mandamus, are waived on both sides, and that the above petition, with this statement, be submitted to the said court for its judgment, and that said judgment shall be rendered pro forma, against the State, with liberty of appeal. On the 29th November 1845, in compliance with the agree- ment of parties filed, it was ordered by the court, that the rule for the Mandamus, is discharged pro forma, with costs, with the right of appeal reserved to the State. The State prosecuted this appeal. The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE, MAGRUDER and MARTIN, J. By RICHARDSON, attorney general of Maryland, for the State, and By DULANY and McMAHON for the appellee. 494 CASES IN THE COURT OF APPEALS The State vs. Mayhew. 1845. DORSEY, J., delivered the opinion of this court. We deem it unnecessary to decide a number of questions, argued with great ability, by the counsel of both parties; be- cause, from the view we have taken of the record before us, they do not arise in this case. According to our interpretation of the act of Assembly in question, the legislature have not attempted to exercise some of the powers so vehemently complained of, on the part of the defendant. The act of March session 1841, c. 23, having provided for a general assessment of all the real and personal property within the State, directed, that the capital stock of the several banks, and other incorporated institutions of this State, should be as- sessed at its cash value. And all the property of such banks, and incorporated institutions, the stock of which was thus assessed and taxed, being exempted from taxation, as far as concerns the present controversy, the taxation of such stock, was decided to be a constitutional tax, both by the Supreme Court of this State, and of the United States. Difficulties having arisen from the mode provided, for the collection of the tax on said stock; and the peculiarly fluctuating ownership of such property, frequent- ly rendering it a matter of controversy, by whom the tax ought to be paid, to remedy such evil; and to relieve the owners of stock, who might sell the same, from the inconvenient neces- sity of going to the county town, to attend a meeting of the justices of the levy courts, commissioners of the tax, or county commissioners, (as the case may be,) and furnishing proof of the sale and transfer of the stock, that it might be deducted from the amount, standing against them on the books of assess- ment; and to relieve the stockholders, as well as the other tax payers of the counties, city and district, from the payment of a levy of from three to ten per cent., on the amount of tax levied on such stock; and with a view, to provide a far more just, convenient and safe mode of collecting the public reve- nue, arising from the capital stock of banks, and other incor- porated institutions in the State, the legislature, by the first section of the act of 1843, chap. 289, enacted, "that it shall OF MARYLAND. 495 Tho Stale vs. Mayhow. 1845. be the duty of the president, or other proper officer of the banks, and of all other incorporated institutions of this State, semi -annually, after the passage of this act, to set apart and withhold out of the dividends, or profits, when dividends are not declared, on the stock of said banks and other incorporated institutions, the amount of the tax levied on the stocks of said banks, or other incorporated institutions, under the act of March session 1841, chapter 23, and its supplements, without reference to the place of residence of the stockholders therein, and to pay the said tax to the treasurer of this State, who shall give proper receipts therefor." And by the third section of the said act, it is enacted, "that on the first day of June next, the several levy courts, commissioners of the tax, and the appeal tax court of Baltimore, shall deduct from the amount of the assessment of property, in the several counties, Howard District, and the city of Baltimore, so far as relates to the taxes imposed, for the use of this State, the assessed value of the aforesaid stocks, and that thereafter, the accounts for taxes due this State, shall not include the tax upon the aforesaid stocks." To the provisions of the first section of the said act of As- sembly, a great variety of objections have been taken, and elaborately and ingeniously pressed upon the court. First it is insisted, that the defendant, from the nature of the duty imposed on him, is created a state officer, a collector of the taxes, due by the stockholders of the bank. To this propo- sition, we cannot yield our assent. Neither the design, nor operation of the law, will warrant such an interpretation of it. Its object was, not to require the officer of the bank, to collect taxes due to the State; but to command him, he being already in possession thereof, to pay to the treasurer, the amount of state taxes in his hands; which, under the act of 1843, he had no authority to pay to any other person. By the act of March 1841, c. 23, the stock of the banks, owned by residents of the State, was assessed to the individual stockholders; and the tax thereon, was to be collected from them, in the counties, city or district in which they respectively resided. But, under 496 CASES IN THE COURT OF APPEALS The State vs. Mayhew. 1845. the act of 1843, the place and mode of levying and collecting this tax, are entirely changed. It was no longer collectable where the stockholders resided: it ceased to be a debt, or duty chargeable upon them: they were exonerated from all personal liability, for the payment thereof. Even the stock itself, stood exempt from the payment of the tax. The only security which the State had for its payment, was contingent; it depended entirely upon the contingency of the banks declaring dividends, or making profits, without declaring dividends. And out of those dividends or profits, by terms of the most explicit enact- ment, the tax on the stock, was directed to be paid to the treasurer of the State, by the proper officer of the bank; that is, by him, in whose hands the dividends and profits of the bank, are placed for safe keeping, and payment over to the persons entitled to receive the same. And if the objections, taken to the constitutionality of this act of Assembly, be not sustainable, he was as imperatively bound to pay the tax in question, in the manner directed, as he would have been, had the board of directors enjoined him to do so. The next objection taken to this act of Assembly is, that it is in violation of the sixth article of the Bill of Rights, which declares, "that the legislative, executive, and judicial powers of the government, ought to be forever separate and distinct from each other:" and of the twenty-first article of the same instrument, which provides, "that no free man ought to be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land." According to the argument in behalf of the defendant, if car- ried out to its legitimate extent, the legislature may cause an as- sessment to be made, and prescribe the rate of taxation, but there its powers upon the subject cease. It must be left to some judi- cial tribunal of the State, to ascertain the amount of indebtedness of the individual tax payers; and when thus ascertained, the payment of taxes, can only be enforced by a resort to the judicial tribunals of the State, in the same manner that debts are recov- OF MARYLAND. 497 Tho State vs. Mayhcw. 1845. ered by one citizen from another. If such be the constitu- tional restrictions imposed on the powers of taxation, the sovereign authority of the State is virtually disrobed of its most important and invaluable rights, of the very essence of sovereignty. The delays and expenses, incident to such a system of collecting the public taxes, would effectually para- lyze the right arm of government, and render it wholly incom- petent, to the accomplishment of the all important objects for which it was constituted. That the General Assembly of Mary- land has the right, by legislation, to impose upon all property within the State, a just, and proportionately equal public tax; and, in like manner, provide all the means, details, necessary for its speedy collection, by summary process of execution, or other reasonable or available mode is, we believe now, for the first time, made the subject of a doubt. That such pow- ers should have been exercised, without being questioned, from the time of the adoption of our Constitution, till the pre- sent time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of their being possessed by the legislature. A cotemporaneous construction of the Constitu- tion of such duration, continually practised under, and through which, innumerable rights of property have been acquired, ought not to be shaken, but upon the ground of manifest error and cogent necessity. If imperious necessity be appealed to, in relation to the existence of such a power, it sustains it with resistless force. And if a case can be conceived, in which, both as to time and circumstances, this court would shrink, with repugnance, from the innovation now urged upon it, this is that occasion. It has been contended, that the tax, for the recovery of which the present proceedings were instituted, has never been levied ; and, therefore, the officer of the bank is neither au- thorised nor bound to pay it to the treasurer. The answer to this suggestion is, that the acts of Assembly have made the levy. The assessment of the stock having been made, and the rale of taxation prescribed, and the obligation for its pay- ment being imposed on the bank officer; everything has been 63 v.2 498 CASES IN THE COURT OF APPEALS The State vs. Mayhew. 1845. done by the legislature, which is requisite for it to do, to render the tax available to the State. The tax, by the act of Assem- bly, is directed to be paid out of the dividends or profits of the stock, not by the owners thereof. It is a legislative levy, wholly irrespective of the ownership of the assessable stock. When the General Assembly confide to the levy courts, or coun- ty commissioners, the power and duty of making what is called "the levy of the taxes;" that is, of making out the "tax list," and delivering a copy thereof to the collectors; it is done, not because the legislature do not possess the power of discharg- ing the same duty itself, by express legislative enactment, but because the power can be more conveniently and advisedly exercised by the justices of the levy courts and county com- missioners, to whose custody are confided the books of assess- ment containing all transfers of assessable property; without which transfer books, no "levy list," or "tax list," (as it is in- discriminately called,) can be correctly made out. It is also contended, that a Mandamus ought not to issue in this case, because the officer of the bank, to whom it will be directed, is ignorant of, and has no means of ascertaining the amount of the tax to which the State is entitled ; the stock of the bank being assessed at different values, in the different portions of the State, where the stockholders reside. If this could, in any case, (considering the facility with which the requisite information could be obtained,) furnish a ground for refusing to comply with the requisitions of the act of 1843; it certainly has no application to the case now before us. Here all the facts stated in the petition are admitted to be true; and the petition expressly states, that all the stock of the bank was duly valued, by the proper assessors, at $19.50 per share, so that the same rate of tax is chargeable in respect to each and every share of the stock of the bank. There is, there- fore, in this case, no pretence for the alleged inability of the officer of the bank, to comply with the requirement of the act of Assembly, by reason of any diversity in the assessed value of the shares of bank stock. And there is still less reason, in the refusal of the proper bank officer to pay the State tax, on OF MARYLAND. 499 Tho State vs. Mayhew. 1845. the ground of the injustice done to the stockholders of this bank, by the tax laws of the State. By taxing the stock of the bank, instead of its bills, bonds, notes, judgments, mort- gages, and all its other property, real and personal; the bank does not pay, perhaps, one half of the tax it would pay, if its property were assessed and taxed in the same manner that similar property of all citizens of the State is now assessed and taxed. It is further said, that the act of 1843, if complied with, would render taxation unequal, by compelling the tax of the stockholders to be paid in cash, whilst other tax payers pos- sess the power of paying in coupons. Such was not the design, nor is it the practical operation of that act of Assem- bly. The legislature, by it, neither intended to increase nor diminish the amount of the tax levied upon bank stock. And the treasurer of the State receives, from the officers of the banks, coupons in payment of such taxes, in the same manner that they are received in payment of taxes due by the citizens of the State. Neither is the objection to the act of 1843 well founded, that it compels the officer of the bank to pay the tax upon the whole capital stock of the bank, although portions of it might be exempt from taxation, as being owned by other banks or incorporated institutions, (the stock of which was taxed,) or as being owned in such manner, as to be exempt from taxa- tion under the first section of the act of March 1841, chapter 23. All transfers of bank stock, and the names of its owners, appear upon the books of the bank, and should any of its stock be exempt from taxation, as above mentioned, the officer of the bank is not bound to pay the tax upon it, nor would the treasurer of the State insist upon its payment. But the conclusive answer to such an objection, in this case, is this, that the petition states, and its statements are admitted to be true, the assessment and tax of the stock in 1843, and its then and continued liability to such assessment, up to the time of the filing of the petition now before the court. 500 CASES IN THE COURT OF APPEALS The State vs. Mayhew. 1845. Another of the reasons, assigned for the non-payment of the tax to the treasurer, is, that the bank may have a lien upon the dividends for a balance due to it by the owner of the stock. The obvious answer to this is, rhat as soon as a dividend is declared, the right of the State to so much of it as is required to be paid on account of the tax, is fixed and indefeasible, and over-rides all other liens, claims, or rights by whomsoever asserted, unless, perhaps, it were in conflict with a preferred claim of the United States. It has been urged, too, as an obstacle to the issuing of a Mandamus in this case, that the board of directors may have forbidden the payment of the tax by the officer of the bank. The record presents no such fact to the court, and we would very reluctantly credit its existence. Had such a prohibition been made apparent to the court, we feel assured it would have lent a willing ear to an application of the attorney general, for the interposition of the court in removing the difficulty. The only remaining ground on which the officer of the bank places his refusal to comply with the mandates of the law, is that a compliance would subject him to "additional labor, trouble and expense." To what extent, or in what way such "additional labor, trouble and expense" would be incurred, is left wholly unexplained. A citizen is not necessarily dis- charged from the obligation to perform a duty, enjoined by law, for the public good, because it imposes on him some ad- ditional labor, trouble and expense. The law requires a cer- tain portion of its citizens to perform militia duty, by attending public musters on certain days in the year, which subjects them to much more labor, trouble and expense, than that im- posed upon the officer of the bank in the discharge of the duty, now the subject of our consideration. The law requires every voter to go to the polls and vote at the election of public offi- cers. It also enjoins upon every taxable inhabitant of the State, the duty of furnishing to assessors, a true and detailed statement of all his property liable to taxation, and of all such property in his possession, though belonging to other persons. A duty, in many instances, attended with far more labor, OF MARYLAND. 501 Tho Stato vs. Mayhew. 1845. trouble, and expense, than is required of the bank officers, (under the act of 1843,) in consequence of the particular situ- ation they occupy, in regard to important rights and interests of the State. Every citizen summoned by an executive offi- cer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the service required, although it may subject him to danger, as well as "additional labor, trouble and expense." Yet in all these, and numerous other instances of the kind, which might be enumerated, nobody ever doubted the obligation of the citizen to obey the man- dates of the law. Suppose, instead of providing for the col- lection of taxes, through the instrumentality of collectors, the legislature had dispensed with collectors, and required all those bound for the payment of taxes to pay them to the treasurer, at the treasury of the State. Could the constitutionality of such legislation be, for a moment, the subject of a doubt ? We think not. For the time, manner of payment, and collec- tion of the public taxes, it is the peculiar province of the legislature to provide. It may. in its discretion, make the tax levied, a charge or lien on the property assessed, or its profits, or a personal charge or debt to the owner thereof. In the case of bank stock, the tax upon it is made, as it were a lien upon its dividends or profits, and to be paid thereout; and such dividends, or profits, being in the hands of the proper officer of the bank, he is required, by the act of 1843, to pay the portion thereof, to which the State is entitled for taxes, to the treasurer of the State. In this enactment, we can discover nothing unjust or oppressive, or in anywise conflicting with any thing to be found in the Bill of Rights, but we regard it as the legitimate exercise of a power incident to the sovereign right of levying taxes for the support of government. The defendant having failed to inform us how, or to what extent, the duty imposed on him by the act of 1843, has subjected him to "additional labor, trouble and expense, 5> let us inquire whether this "additional labor, trouble and expense" be so unreasonable, unjust and onerous, that this court, in the 502 CASES IN THE COURT OF APPEALS The State vs. Mayhew 1845. exercise of a sound, judicial discretion, ought to deny to the State, the process that has been applied for, in its behalf. To do this, we must ascertain what are the acts to be done by the bank officer, in discharge of the duty assigned him by the act of Assembly? He must multiply the number of shares, to wit : 23,425 by $19.50, the assessed value of each share ; and of the amount thus obtained, ascertain what is the one-fourth of one per cent. Having thus discovered the amount of the State tax if paid in money, with the prices current before him, which in a newpaper or otherwise, is to be found in every banking institution, he sees the price of coupons, and calls on a broker, or drops a line to a broker to call on him, pur- chases a coupon for the amount of the State tax, encloses it in a letter to the treasurer, and the next day, or the day after, receives a letter from the treasurer, containing the appropriate receipt. The postage on this letter being five cents, is, as it ought to be, paid by the bank : so that in truth, not a farthing of expense is incurred by the officer of the bank, in the dis- charge of this, his most onerous duty. He then divides the sum paid for the coupon, by the aforementioned number of shares, and the quotient is the amount of the tax attributable to each share of stock. He then directs the clerk of the bank, by whom ihe statement is made out for the payment of the dividend, to deduct from the dividend of each stockholder the amount, arrived at by multiplying his number of shares by the sum payable as the tax on each share, and there ends all the "additional labor, trouble and expense," of which the bank officer complains. If the entire labor and trouble thrown, in this case, upon the officer of the bank, were to be wholly per- formed by a single competent clerk, he would not be thus oc- cupied for the half of a day. And if the directors of the bank would, as they ought to do, cause the coupon, for the pay- ment of the tax on its stock, to be purchased before declaring the dividend, the officer of the bank, would be saved more than half the labor and trouble cast upon him by the act of 1843. This is a computation of the duties of the bank officer as to the first dividend, which, in a great degree, supercedes the OF MARYLAND. 503 The State vs. Mayhew. 1845. necessity of similar calculations at subsequent dividends. The services thus rendered by the bank officer, though nominally for the State, are in truth performed in the way of his vocation, for the benefit and as the agent and representative of his em- ployers, of whom the State might lawfully have exacted, the services thus performed by him. Under such circumstances, can this court do otherwise, than regard this alleged "addi- tional labor, trouble and expense," to the officer of the bank, as a ground wholly insufficient, to avoid the payment of taxes most justly due to the State. The agreement of the counsel filed, in this cause, renders it unnecessary for us to say any thing, as to the propriety of applying for a Mandamus against the president, instead of some other officer of the bank. The only remaining question to be considered, (if indeed a question it can be called,) is whether, in the case before us, a Mandamus is the appropriate remedy, to restore the State to those rights, which are illegally and unjustly withheld from it. For the recovery of the tax on the stock of the bank, the State has no lien on the stock ; it can maintain no action at law against the stockholder ; nor against the bank; nor against any officer of the bank in his official character. Nor can it maintain an action for money had and received, against any officer of the bank, in his individual character. Yet, under the act of 1843, we are of opinion, that it has a clear and un- questionable right, a legal right, to be paid out of the divi- dends declared, the amount of the tax imposed on the assessed value of the stock of the bank. And for the assertion of this right, it has no appropriate legal remedy. According then to all the authorities, a Mandamus is the proper remedy; and it would be a reproach to our system of jurisprudence, if it were denied to the State on the present occasion. The pro forma judgment of the county court is reversed, with costs, and a procedendo awarded. JUDGMENT REVERSED AND PROCEDENDO AWARDED. INDEX. ACKNOWLEDGMENT. See DEED, as to assignment of Chattels, 3, 4, 5, 6, 7, 8. ACTION, RIGHT OF 1. The failure of a plaintiff to pursue one legal remedy against a sheriff in default, cannot be construed into the abandonment of another legal remedy against that officer, for the same default. State, use of Creecy vs. LaWson, 62. 2. The act of 1832, ch. 280, is not repealed by the act of 1834, ch 89. The latter gives to the creditors of foreign corporations an additional remedy. Georgia Ins. $ Trust Co. vs. Dawson, 365. See CONTRACT, 6. INSOLVENT DEBTOR 1, as to modification of remedy on bail bond of, PLEAS AND PLEADING, 6. ACTION UPON THE CASE. 1. Whore an inquisition was taken, returned, and ratified, according to law, upon proceedings by a fail road company, which found that a piece or parcel of land was wanted by the company for the con. struction of their road, and assessed the damages which the owner of the fee would sustain by the use and occupation of his land for the purpose aforesaid, at, &c., all questions having relation to the damage done by the location and construction of the road are ter- minated and concluded by such inquest. Bait. <% Sus. R. Road Co. vs. Compton et. al., 20. 2. And hence in an action brought by the owner of a fee against the company for having, after the construction of the road through his land, (the benefits of which construction to the plaintiff had been submitted to the jurors upon the inquisition aforesaid,) abandoned the same, and constructed the road anew in another location, off the plaintiff's land, the plaintiff cannot give evidence of the damage which would accrue to him from such original construction inde- pendent of the inquisition. Ib. 3. After a rail road company had constructed its road by authority of law. through the plaintiff's land, condemned for that object, they were au- thorised to alter the location of their road between two given points : 64 v.2 506 INDEX. ACTION UPON THE CASE Continued. they re-constructed the road, and abandoned that part which had been made through the plaintiff's land. HELD: that the authority de- rived from the legislature to alter the location, did not exempt the company from liability to the plaintiff for the loss sustained by him by reason of such abandonment. Ib. 4. Where a rail road company had constructed a toad, then abandoned it in part, and changed the location pro tanto, a plaintiff through whose land the road originally passed, having sustained no damage or injury in fact, by the alteration, cannot maintain an action for such change of location. Ib. 5. In an action for damages, for diverting the course of a stream from its natural channel, on the plaintiff's land, the defendant may show, that the diversion was made on his lands above those of the plain, tiff, and that it was rather a benefit, than an injury to the plaintiff; or that it was made in virtue of a verbal agreement between plain- tiff and defendant, that the latter might make the diversion, for the purpose of working a mill to be erected by the defendant on his own land, if the defendant would allow the plaintiff the use of a road through the defendant's land, and the execution of such agree- ment; or that the plaintiff entered into such a contract with the defendant, conferring the privilege, with a fraudulent design, and for the purpose, of extorting money from him. Addison vs. Hack, 221. 6. Such evidence is admissible in mitigation of damages ; and for the purpose of showing that the defendant was not a trespasser, ab initio, for continuing the diversion after a countermand of his authority by the plaintiff; or that he could not be made responsible in dam- ages for acts done upon his own land, with the verbal permission and authority of the plaintiff. Ib. 7. The maxim, "volenti non fit injuria," illustrated. Ib. 8. Where one party authorises another to divert the channel of a stream, flowing through the lands of both, by means of a license which is countermandable in its nature, and the authority is exercised as granted, the party who has the power of countermand, can only be restored to his rights, by doing justice to the other, and tendering him the expense which he has incurred under the license. Ib. 9. Where the plaintiff verbally agreed to abandon the use of a stream of water in the manner in which it had been accustomed to flow on his land, and the abandonment was consummated by the execution of his license, from that moment, his right to the use of the water, as it formerly flowed in its natural channel, became extinct; and it was no longer appurtenant to his land. Ib. 10. Such license conveys no estate, interest, or use iii the land ; is not within our registry acts ; nor calculated to mislead purchasers. Ib. See ASSUMPSIT, 11. INDEX. 507 ACTS OF ASSEMBLY. 1729, ch. 8, sec. 5 Deed of Chattels, 150. 1745, ch. 9. Improvements out of the water, 444. 1768. ch. 10. Sheriff Judgment Execution, 62. 1778, ch. 21. Reference Award, 49. 1783, ch. 24. Port Wardens' power, 444. 1794, ch. 54 Effect of on act of 1768, ch. 10, 62. 1796, ch. 96. Power of Baltimore, as to Riparian Proprietors, 444. 1811. ch. 161. Arrest on final process, 62. 1818, ch. 193, sec. 10. Dower, 359. 1820. ch. 160, sec. 3. Answers after Interlocutory Decree. Commission not affected, 83. 1822, ch. 128, sec. 3. Composition money Alleghany, 291. 1825, ch. 162. sec. 8. Primary Schools, 11. 254, 1825, ch. 117. Prayer, not too general, 204. 1825, ch. 117. Form of Prayer Exceptioas, 462. 1825, ch. 117. Bill of Exceptions, 42. 1827, ch. 162, Wharfage on public wharfs in Baltimore, 444. 1827, ch. 72. Jurors, City of Baltimore, 20. 1828, ch. 160, sec. 5 Primary Schools, 11. 254. 1828, ch. 50. Sheriff Escape Arrest, 62. 1831, ch 288. Baltimore , cannot be regu- lar continuances of writs issued by G, administrator of D ; though the authority of the latter had been revoked. Ib. 27. For repairs made to a carriage for the benefit of the defendants, and with their knowledge and approbation, they would be liable; but whether so made, is a question for the jury. Rogers $ Marfield vs. Severson, 385. 28. In what character a person who takes a carriage to a mechanic to be repaired, is in possession, whether as driver, servant, agent, or owner, is a fact for the jury. Ib. 29. The jury are exclusive judges of the weight of parol evidence offered to them, tending to prove an agency, Henderson vs. Mayhew, 393- 30. The time in which a voyage should be performed, is a question of fact, and not to be assumed, or asserted by the court. Charleston Ins.